May 11, 2012

NYS Department of Health to Streamline CON Approval Process

The Public Health and Health Planning Council (PHHPC) announced on Thursday, May 10, that the New York State Department of Health (DOH) will begin to streamline its process for approving Certificates of Need (CON).  The Committee was careful to note that this plan is still evolving—it is not yet clear how the cost and financial feasibility of new projects will be reviewed.  Moreover, some of the Committee’s recommendations require statutory or regulatory change, which is never guaranteed.

Specifically, over the next six to nine months, the PHHPC plans to examine the CON structure in the context of health care reform.  The Committee suggests that the costly and time-consuming CON process is not the most effective way to create an integrated and coordinated community health care system.  Other regulatory measures, including licensure and payment, may be more appropriate in the evolving health care landscape.

Although the Committee mentioned several proposals, many of the most significant involved eliminating CON licensure, limiting the requirements for new CON applications for existing license holders, and simplifying the CON application process.

Eliminating CON Licensure

Perhaps the most stunning announcement is that the PHHPC proposes eliminating two thirds of the services eligible for outpatient certification.  The Committee cited the serious commitment of time and money, from both the applicants and the Department, in its recommendation to eliminate the need for CON licensure for several services.  The following services would still be subject to licensure:

  • Medical services (a new category that replaces “primary medical care”)
  • Abortion
  • AIDS adult day health care
  • Ambulatory surgery – multi-specialty
  • Ambulatory surgery – gastroenterology
  • Ambulatory surgery – ophthalmology
  • Ambulatory surgery – orthopedics
  • Ambulatory surgery – pain management
  • Birthing center
  • Part-time clinic services
  • School-based services
  • School-based dental services
  • Dental
  • Home hemodialysis training and support
  • Home peritoneal dialysis training and support
  • Lithotripsy
  • Therapeutic radiology
  • MRI and CT scanner – D&TC only
  • Podiatry
  • Renal dialysis
  • Upgraded D&TC services
  • TBI program
  • Methadone maintenance

The following services would no longer be listed on a facility’s operating certificate, but would be tracked through an online registration process.  Providers of these services would simply update their registration if they offered or discontinued any of the following services:

  • Audiology
  • Certified mental health services
  • Chemical dependence
  • Clinical laboratory (licensure by the Wadsworth Laboratory would continue to be required)
  • Family planning
  • Hyperbaric chamber
  • Nuclear medicine
  • County public health nursing
  • Ophthalmology
  • Optometry
  • Pediatrics
  • Pharmacy
  • Prenatal care
  • Primary care
  • Psychology
  • Diagnostic radiology
  • Physical therapy
  • Occupational therapy
  • Respiratory therapy
  • Speech therapy
  • Vocational rehabilitation
  • Transfusion services – full and limited

For those services that are still subject to CON, additional CON review would no longer be required when:

  • Beds are added or decertified
  • New extension sites are planned
  • Emergency Departments are expanded
  • Major new medical equipment is purchased
  • Major new service is offered
  • A facility is replaced or relocated
  • Certified Home Health Agency (“CHHA”) service areas are added or reduced
  • A facility or service is eliminated

Instead of a CON review, these projects would simply be subject to licensure review.  Such projects would still be evaluated under physical plant standards, including the Life Safety Code and Facility Guidelines Institute (“FGI”) Guidelines. This change would bring New York practice more in line with states that do not have CON processes.

Limiting CON Re-Application Requirements

CON review would no longer be required for some amendments to already-approved projects, or when some changes are made in facilities that already have a CON.  The Committee recommends that DOH handle these matters administratively, and without PHHPC involvement.

The Committee also recommends that DOH cooperate with the Office of Mental Health and Office of Alcoholism and Substance Abuse Services in licensing facilities that one of the agencies and DOH both currently review. Effectively, providers that must seek new licensure from OMH or OASAS anyway will see that DOH accepts the decision of either of those two agencies.

Simplifying the CON Application Process

Facilities that must still apply for a CON would see their applications grow simpler, as the CON would no longer require an architectural and engineering review. PHHPC reflects that there are fewer architects and engineers at DOH than in years past; in fact, there are no engineers on staff at the moment.  This has created a backlog of projects requiring architectural approval.  To address this issue, the Committee recommends that architectural review now be excluded from the PHHPC exhibit, and that DOH do only a cursory review before CON approval.  The only inquiry during this review will be whether the building can be made compliant with Article 28 standards.  After CON licensure, DOH will shift its focus physical plant safety.

Additionally, the Committee would like to enhance both DOH’s and applicants’ use of the New York State Electronic Certificate of Need (NYSE-CON) program, from application submission through CON issuance and data storage.