Current through Register Vol. 46, No. 39, September 25, 2024
(a) A
change to an application before the Public Health and Health Planning Council
has approved or contingently approved the application is hereafter referred to
as a revision; a change to an application which has been approved or
contingently approved by the council but for which an operating certificate has
not yet been issued shall be referred to as an amendment if it meets the
criteria contained in subdivision (c) of this section, and shall be referred to
as a modification approvable pursuant to subdivision (f) if it does not meet
the criteria contained in subdivision (c) or does not meet the criteria in
subdivision (e).
(b) An application
made to the Public Health and Health Planning Council, pursuant to this Part,
may be modified before the council has approved or contingently approved the
application. Such modifications shall be made on appropriate forms supplied by
the department and submitted to the council through the central office of the
department in Albany and shall be governed by the following:
(1) any modification in the information
contained in the original application must be accompanied by a satisfactory
written explanation as to the reason such information was not contained in the
original application;
(2) the
department, when reviewing a competitive batch of applications, may establish
deadlines pursuant to written notification for the submission of any
modification to an application; and
(3) if a modification is submitted after any
such deadline(s), the application shall be removed from consideration within
the competitive batch being reviewed.
(c) After the Public Health and Health
Planning Council has approved or contingently approved an application but prior
to the issuance of an operating certificate, any change as set forth in
paragraphs (1) through (3) of this subdivision shall constitute an amendment to
the application, and the applicant shall submit the proposed amendment to the
department's central office together with appropriate documentation explaining
the reason(s) for the amendment and such additional documentation as may be
required in support of such amendment. The amended application shall be
referred to the health systems agency having geographic jurisdiction and the
Public Health and Health Planning Council for their reevaluation and
recommendations. The approval of the Public Health and Health Planning Council
must be obtained for any such amendment. Each of the following shall constitute
an amendment:
(1) a change in the number
and/or type of beds and/or services, other than a reduction of service which
would be subject to administrative review;
(2) a change in the location of the site of
the construction if outside the facility's service area or adjacent service
area; and
(3) any change in the
applicant.
(d) For
purposes of this section, the following terms shall have the following
meanings:
(1) Total project cost means total
costs for construction, including but not limited to costs for demolition work,
site preparation, design and construction contingencies, total costs for real
property, for fixed and movable equipment, architectural and/or engineering
fees, legal fees, construction manager and/or cost consultant fees,
construction loan interest costs, and other financing, professional and
ancillary fees and charges. If any asset is to be acquired through a leasing
arrangement, the relevant cost shall be the cost of the asset as if purchased
for cash, not the lease amount.
(2)
Total basic cost of construction means total project costs less the capitalized
amount of construction loan interest and financing fees.
(e)
(1) If
the commissioner, acting on behalf of the Public Health and Health Planning
Council, determines that increases in total project costs or total basic costs
of construction are due to factors of an emergency nature such as labor
strikes, fires, floods or other natural disasters or factors beyond the control
of the applicant, or modifications to the architectural aspects of the
application which are made on the recommendation of the department, the
applicant may proceed without the need for the application to be referred back
to the health systems agency and the Public Health and Health Planning
Council.
(2) If the applicant can
document by evidence acceptable to the commissioner, acting on behalf of the
Public Health and Health Planning Council, that increases in total project cost
or total basic cost of construction were caused by delays in obtaining zoning
or planning approvals which were beyond its control, the commissioner may
permit review of the application to proceed without the need for the
application to be referred back to the health systems agency and the Public
Health and Health Planning Council pursuant to this Part. The evidence shall
demonstrate clearly that the applicant had timely pursued the zoning or
planning permits, has now obtained all such required permits and approvals, and
is prepared to proceed with the project.
(3) If the applicant can document by evidence
acceptable to the commissioner, acting on behalf of the Public Health and
Health Planning Council, that increases in the total basic cost of construction
were caused by inflation in excess of that estimated and approved in the
application and that such inflation has affected the total basic cost of
construction as a result of delays which were beyond the applicant's control,
the commissioner may permit review of the application to proceed without the
need for the application to be referred back to the health systems agency and
the Public Health and Health Planning Council pursuant to this Part. The
evidence shall demonstrate clearly that the increase in inflation exceeds that
estimated and approved in the application, and that any delays resulting in
such inflationary cost increases were beyond the applicant's control.
(f) Any modification submitted
subsequent to the issuance of any approval by the Council which does not
constitute an amendment pursuant to the provisions of this section shall
require only the prior approval of the commissioner.
(g) Failure to disclose an amendment prior to
the issuance of an operating certificate shall constitute sufficient grounds
for the revocation, limitation or annulment of the approval of
establishment.
