New York
New York is one of eight states to require CONs within all six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transport. New York’s CON regime is easily the most complex in the country. This could be because in 1964, it was the first state to adopt a CON law. Today, New York’s CON requirements are spread throughout dozens of statutes and regulations. And some CON requirements are simply listed on the Department of Health’s (DOH) website with no specific corresponding statutory or regulatory authorization.
New York further complicated the CON process by creating three different levels of CON review for applications, depending on the type of facility, service or equipment. Some of New York’s CON requirements are as specific as requiring a clinic to obtain a CON before it may change its hours of operation. Another requires home health agencies to obtain a CON before eliminating nutrition services. New York is also the only state that applies its CON laws to dentists’ offices.
New York’s COVID-19 Response
On March 12, 2020, Governor Cuomo suspended several laws and regulations to allow for the expansion of healthcare services, including CON requirements, to allow facilities to increase bed capacity and to allow for the construction of temporary hospital locations. Exec. Order No. 202.1 (Mar. 12, 2020).56 On March 19, 2020, DOH allowed emergency approvals upon notice to a provider’s regional DOH office of need to expand capacity to respond to the pandemic. See DOH, Emergency Approvals for COVID-19 (REVISED) (Mar. 19, 2020)57 (“Upon notification to the appropriate DOH Regional Office Department, providers are authorized to immediately move forward with the project.”). Then, on March 23, 2020, Governor Cuomo suspended further laws to allow hospitals to increase capacity and allow ambulances to provide services outside their normal service areas. Exec. Order No. 202.10 (Mar. 23, 2020).58
Application Process
In New York, CON applications can be submitted at any time. The fee for a CON application ranges from $250 to $3,000, depending on whether the application is subject to full, administrative or limited review. See DOH, CON Application Fees (Sept 2010).59 Full review means an application is reviewed by both DOH staff and the Public Health and Health Planning Council (PHHPC) before the Commissioner of Health makes the final decision to approve or disapprove, while applications subject to administrative or limited review are reviewed by only Department of Health staff before they go to the Commissioner. N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)–(3), (5). The PHHPC has final decision-making authority for changes in ownership or the establishment of new healthcare facilities, home health agencies and hospice programs. N.Y. Pub. Health Law §§ 2801-a(1), 3606(1), 4004(1). Competitors may comment during the application process, and the applicant may request a public hearing if the Commissioner proposes to disapprove a project. See N.Y. Comp. Codes R. & Regs. tit. 10, § 710.2(e). DOH has also published a flowchart60 describing the process.
Types of CONs in New York
| CON? | CON applies with expenditure of: | Temporary COVID-19 response: | |
| Hospital Beds | Yes | Any amount | Suspended |
| Beds Outside Hospitals | Yes | Any amount | Suspended |
| Equipment | Yes | $0 – $1 million+ | Suspended |
| Facilities/ Buildings | Yes | $0 – $1 million+ | Suspended |
| Services | Yes | $0 – $400,000+ | Suspended |
| Emergency Medical Transport | Yes | Any amount | Suspended |
Healthcare providers and facilities need flexibility both during emergencies and outside emergencies to offer patients the most options for care.
New York’s program provides a recent example of how moratoria can create problems even after they expire.
In the two years leading up to the 2020 COVID-19 pandemic, New York maintained a statutory moratorium on opening new home service agencies except in limited circumstances. See SB 7507 § 9-e (signed Apr. 12, 2018).a By the time it was set to expire in 2020, the Department of Health was busy responding to the health crisis and was not able to administer the program. It quickly added a note to its website that “due to the Department’s focus on the COVID-19 pandemic, a revised application and guidance will be delayed until further notice.” See N.Y. Department of Health, Certificate of Need.b
In light of the pandemic, home care services were more critical than ever. Such health services would have allowed high-risk patients, such as the elderly or immunocompromised individuals, to receive care safely at home. Instead of waiving requirements or broadly welcoming applications for new home care service agencies, the Department’s failure to review new applications essentially left the moratorium in place longer than the Legislature intended. This example illustrates the potential pitfalls of moratoria or other rigid requirements. Healthcare providers and facilities need flexibility both during emergencies and outside emergencies to offer patients the most options for care.
a Available at https://ij.org/wp-content/uploads/2020/06/NY-S7507.pdf.
b Available at https://www.health.ny.gov/facilities/cons/.
New York CONs in Detail
| Category | Types of CONs | Citation |
| Full Review | ||
| Hospital Beds | Converting beds or changing bed capacity in: General Hospitals. Rural Emergency Hospitals. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)(i)(a) |
| Administrative Review | ||
| Hospital Beds | Conversion of hospital beds which would not establish a different level of care. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(3) |
| Temporary addition of hospital beds to a facility’s certified capacity, for up to a year, to address high priority health care needs or an acute shortage. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(19) | |
| Category | Types of CONs | Citation |
| Limited Review | ||
| Hospital Beds | Decertification of hospital beds which would not otherwise require full or administrative review. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(5)(iv)(a) |
| Converting any of the following beds in a certified acute care inpatient facility: Medical/surgical. Intensive care. Coronary care. Pediatric. Pediatric intensive care. Neonatal intensive care. Neonatal intermediate care. Neonatal continuing care. Maternity. Chemical dependence detoxification. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(5)(iv)(d) | |
| Reallocation, relocation, or redistribution of acute care beds from one general hospital to another general hospital within the same network. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(5)(iv)(f) | |
| Full Review | ||
| Beds Outside Hospitals | Converting beds or changing bed capacity in: Public Health Centers. Diagnostic Centers. Treatment Centers. Dental Clinics. Rehabilitation Centers (other than facilities used solely for vocational rehabilitation). Nursing Homes. Midwifery Birth Centers. Lying-in Asylums. Out-patient Departments. Out-patient lodges. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)(i)(a) |
| Change in long term home health care program patient capacity (other than for an AIDS home care program). | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(5) | |
| Adding certified hospice inpatient or residence beds. | N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(2) | |
| Approval of any dually certified hospice residence beds. | N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(7) | |
| Administrative Review | ||
| Beds Outside Hospitals | Conversion of Article 28 facility beds which would not establish a different level of care. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(3) |
| Temporary addition of beds to an Article 28 facility’s certified capacity, for up to a year, to address high priority health care needs or an acute shortage. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(19) | |
| Addition of skilled nursing facility beds designated for AIDS patients by a residential health care facility. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(14) | |
| Change in bed capacity of AIDS center which does not result in net increase in certified bed capacity. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(11) | |
| Category | Types of CONs | Citation |
| Beds Outside Hospitals | Conversion of residential health care facility beds to ventilator dependent beds. | DOH, CON Review Types as Determined By Facility Type61 |
| Limited Review | ||
| Beds Outside Hospitals | Decertification of certain facility beds which would not otherwise require full or administrative review. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(5)(iv)(a) |
| Full CON Review | ||
| Equipment | Equipment, regardless of cost, used in: Therapeutic radiology. Adult or pediatric cardiac surgery. Cardiac catheterization. Kidney, heart, liver, and bone marrow transplantation. Burns care. AIDS centers. Epilepsy service. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)(i)(b) |
| Home health care equipment, exceeding $400,000. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(4) | |
| Hospice equipment, exceeding $1 million. | N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(3) | |
| Administrative Review | ||
| Equipment | Addition, updating, or modification of equipment that requires full review in the following facilities, if that facility is already approved to provide the service: General hospitals. Public health centers. Diagnostic centers. Treatment centers. Rural emergency hospitals. Dental clinics. Dental dispensaries. Rehabilitation centers (other than facilities used solely for vocational rehabilitation). Nursing Homes. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. Midwifery Birth Centers. Lying-in-Asylums. Out-Patient Departments. Out-Patient Lodges. Dispensaries. Laboratories or Central Service Facilities that serve one or more of the above facilities. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(6) |
| Category | Types of CONs | Citation |
| Administrative Review | ||
| Equipment | Acquisition of MRIs in the following facilities: Public health centers. Diagnostic centers. Treatment centers. Rural emergency hospitals. Dental clinics. Dental dispensaries. Rehabilitation centers (other than facilities used solely for vocational rehabilitation). Nursing Homes. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. Midwifery Birth Centers. Lying-in-Asylums. Out-Patient Departments. Out-Patient Lodges. Dispensaries. Laboratories or Central Service Facilities that serve one or more of the above facilities. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(12) |
| Acquisition of CT scanners in the following facilities: Public health centers. Diagnostic centers. Treatment centers. Rural emergency hospitals. Dental clinics. Dental dispensaries. Rehabilitation centers (other than facilities used solely for vocational rehabilitation). Nursing Homes. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. Midwifery Birth Centers. Lying-in-Asylums. Out-Patient Departments. Out-Patient Lodges. Dispensaries. Laboratories or Central Service Facilities that serve one or more of the above facilities. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(16) | |
| Replacement of a cobalt unit with a linear facility by a facility providing therapeutic radiology and radiation oncology. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(18) | |
| Addition of chronic renal dialysis stations by a facility operating dialysis stations. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(22) | |
| Home health care equipment if the cost does not exceed $400,000. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(4); see CON Review Types as Determined By Facility Type | |
| Hospice equipment, between $500,000 and $1 million. | N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(c)(2) | |
| Category | Types of CONs | Citation |
| Limited Review | ||
| Equipment | Adding or modifying equipment by a facility already approved to provide Diagnostic Cardiac Catheterization Services. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710 (c)(6)(i)(b) |
| Acquisition of MRI and CT scanners by general hospitals. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(12), (16), (c)(5)(ii)(a) | |
| Full Review | ||
| Facilities/Buildings | General Hospitals. Public Health Centers. Diagnostic Centers. Treatment Centers. Rural Emergency Hospitals. Dental Clinics. Dental Dispensaries. Rehabilitation centers (other than facilities used solely for vocational rehabilitation). | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c) |
| Nursing Homes. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. Midwifery Birth Centers. Lying-in-Asylums. Out-Patient Departments. Out-Patient Lodges. Dispensaries. Laboratories or Central Service Facilities that serve one or more of the above facilities. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c) | |
| Long-Term Home Care Services Agencies (including transfer of ownership). | N.Y. Pub. Health Law § 3608; N.Y. Comp. Codes R. & Regs. tit. 10, § 760.2 | |
| Building, acquisition, or alteration of home health care facility if the cost exceeds $400,000. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(4) | |
| Relocation, repair, or alteration of a hospice if the cost exceeds $1 million. | N.Y. Pub. Health Law § 4008; N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(5) | |
| Acquisition or construction of a new hospice if the cost exceeds $250,000. | N.Y. Pub. Health Law § 4008; N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(6) | |
| Relocation, repair, alteration, or building of hospice administrative office site, if the cost exceeds $1 million. | N.Y. Pub. Health Law § 4008; N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(4) | |
| Adult Care Facilities. | N.Y. Soc. Serv. Law § 460-b(1) | |
| Category | Types of CONs | Citation |
| Full Review | ||
| Facilities/Buildings | Adult Day Health Care Programs. | CON Review Types as Determined By Facility Type; How to Determine if CON Submission is Required |
| Certain health programs associated with the Office of Mental Health, Office of Mental Retardation & Developmental Disabilities, and the Office of Alcoholism and Substance Abuse Services. | CON Review Types as Determined By Facility Type; How to Determine if CON Submission is Required | |
| Administrative Review | ||
| Facilities/Buildings | Correction of patient deficiencies, ordinary repairs and maintenance, energy conservation measures, or modernization (if it does not substantively change the capacity or type of service) in Article 28 facilities. | CON Review Types as Determined By Facility Type; see N.Y. Comp. Codes R. & Regs. tit. 10, §§ 710.1(c)(3)(i)(b)(5), (8) (9), (23), 762.2(c), 791.2(c) |
| Operation or relocation of an extension clinic. | ||
| Expansion or modernization of an emergency room. | ||
| Addition of primary care sites, if: Total project costs do not exceed $15 million. The Department of Health finds there is a need and it would not adversely affect other PPCPs. | ||
| Building, acquisition, or alteration of home health care facility if the cost does not exceed $400,000. | ||
| Relocation, repair, maintenance, acquisition, or building of hospice administrative office sites, between $500,000 and $1 million. | ||
| Repair or maintenance of hospice facilities or units, between $250,000 and $1 million. | ||
| Acquisition or building of hospice facility or unit when total cost does not exceed $250,000. | ||
| Addition of hospital operating rooms (unless total project cost requires a full review application). | ||
| Full Review | ||
| Services | Therapeutic Radiology. Adult or Pediatric Cardiac Surgery. Cardiac Catheterization (including relocation of Cardiac Catheterization Lab Center Services, and the addition of PCI services). Kidney, Heart, Liver, and Bone Marrow Transplantation. Burns Care. AIDS centers. Epilepsy Service. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)(i)(b) |
| Category | Types of CONs | Citation |
| Services | Addition or deletion of certified home health agency services, including: Physical therapy. Occupational therapy. Speech pathology. Social work services. Respiratory therapy. Nutrition. Personal care services. Physician services. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(1) |
| Certified Home Health Agencies (including transfer of ownership). | N.Y. Pub. Health Law § 3608(6); N.Y. Comp. Codes R. & Regs. tit. 10, § 760.2 | |
| Change in a home health agency’s or long-term home health care program’s geographic service area. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(2) | |
| Change in the method of providing home health services, if the change in cost exceeds $400,000. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(c)(3) | |
| Increase in long-term home health care program’s capacity requiring a competitive review. | CON Review Types as Determined By Facility Type | |
| Change in hospice’s geographic service area. | N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(b)(3), (c)(1) | |
| Change in method of hospice inpatient or hospice residence care and services. | N.Y. Comp. Codes R. & Regs. tit. 10, § 791.2(d)(1) | |
| Advanced life support first response services. | N.Y. Pub. Health Law § 3005(1) | |
| Any proposal undertaken by a general hospital that costs in excess of $30 million. Any proposal undertaken by a facility other than a general hospital that will cost more than $15 million. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)(i)(c) | |
| Category | Types of CONs | Citation |
| Administrative Review | ||
| Services | Addition or modification of services in the following facilities, other than the ones that require full review: General hospitals. Public health centers. Diagnostic centers. Treatment centers. Rural emergency hospitals. Dental clinics. Dental dispensaries. Rehabilitation centers (other than facilities used solely for vocational rehabilitation). Nursing Homes. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. Midwifery Birth Centers. Lying-in-Asylums. Out-Patient Departments. Out-Patient Lodges. Dispensaries. Laboratories or Central Service Facilities that serve one or more of the above facilities. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(1) |
| Conversion of cardiac catheterization service to PCI capable cardiac catheterization laboratory center, and addition of cardiac EP laboratory program services in Article 28 facilities not yet approved to provide those services. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(2)(i)(b)(3), (c)(3)(i)(b)(2) | |
| Additions to existing services not involving additional site or beds in the following facilities: General hospitals. Public health centers. Diagnostic centers. Treatment centers. Rural emergency hospitals. Dental clinics. Dental dispensaries. Rehabilitation centers (other than facilities used solely for vocational rehabilitation). Nursing Homes. Tuberculosis Hospitals. Chronic Disease Hospitals. Maternity Hospitals. Midwifery Birth Centers. Lying-in-Asylums. Out-Patient Departments. Out-Patient Lodges. Dispensaries. Laboratories or Central Service Facilities that serve one or more of the above facilities. | N.Y. Pub. Health Law § 2801(1); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(4) | |
| Category | Types of CONs | Citation |
| Services | Addition or deletion of approval to operate part-time clinic services. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(7) |
| Addition of offsite or expanded adult day health care services provided by a residential health care facility approved to provide the service. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(13) | |
| Addition of a methadone maintenance treatment program. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(15) | |
| Addition of a ventilator dependent service. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(20) | |
| Swing Bed Demonstration Program. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i)(b)(21) | |
| Addition of an AIDS home care program. | N.Y. Comp. Codes R. & Regs. tit. 10, § 762.2(d) | |
| Increase in long-term home health care program capacity not requiring a competitive review. | CON Review Types as Determined By Facility Type | |
| Certain proposals, as defined by regulation, proposed by general hospitals that will cost less than $30 million. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i) | |
| Certain proposals, as defined by regulation, proposed by other facilities that will cost less than $30 million. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3)(i) | |
| Limited Review | ||
| Services | Decertification of any services excluding: Therapeutic radiology. Adult or pediatric cardiac surgery. Cardiac catheterization. Kidney, heart, liver, and bone marrow transplantation. Burns care. AIDS centers. Epilepsy service. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(5)(iv)(b) |
| Addition of any services, other than those that require full or administrative review. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(5)(iv)(c) | |
| Adding or modifying cardiac catheterization labs, or adding cardiac EP laboratory program services in Article 28 facilities that are approved to provide those services. Other proposals by a general hospital that will cost less than $15 million. Other proposals by a facility that will cost less than $6 million. | N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(6)(i)(a), (c) | |
| Emergency Medical Transport | Ambulances. | N.Y. Pub. Health Law §§ 3005(6), 3008 |
New York CON Exceptions
| No CON Required For: | Citation |
| Mental Health Facilities (except for distinct parts of the facility which provide hospital service). | N.Y. Pub. Health Law § 2801(1) |
| Religious facilities or institutions that rely on healing “through prayer alone.” | N.Y. Pub. Health Law § 2801(1) |
| Correction of cited deficiencies, authorized by the Department of Health. | N.Y. Pub. Health Law § 2802(1-a)(a); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(4)(i)(a) |
| Repair or maintenance, regardless of cost (includes routine purchases and the acquisition of minor equipment). | N.Y. Pub. Health Law § 2802(1-a)(b); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(4)(i)(b) |
| Non-clinical infrastructure projects, regardless of cost (includes HVAC systems, fire alarms, parking lots, etc.). | N.Y. Pub. Health Law § 2802(1-a)(c); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(4)(i)(e) |
| One for one equipment replacements, regardless of cost (including replacement of equipment with updated equipment used for similar purposes). | N.Y. Pub. Health Law § 2802(1-a)(d); N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(4)(i)(d) |
| Any proposal that related to health information technology, regardless of cost. | N.Y. Public Health Law § 2802(1-a)(e) N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(4)(g) |