N.Y. Comp. Codes R. & Regs. tit. 10 § 710.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 710.5 - Amendments

(a) Subsequent to an approval or contingent approval of an application under this Part, any change, as set forth in paragraphs (b)(1) through (3) of this section, shall constitute an amendment to the application, and the applicant shall submit appropriate documentation as may be required by the commissioner pursuant to this Part in support of such amendment. The amended application shall be referred to the health systems agency having jurisdiction and the Public Health and Health Planning Council for their reevaluation and recommendations. The approval of the commissioner shall be obtained for any such amended application.

(b) Any of the following shall constitute an amendment:

(1) a change in the number and/or types 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 planning area as identified in Part 709. If the change in site, within the facility's planning area, impacts geographic accessibility in such planning area, the commissioner may before making any finding that such change is in the best interest of the planning area seek the recommendation of the Public Health and Health Planning Council and the health systems agency having geographical jurisdiction. In addition, for applications to establish diagnostic and treatment centers which were not reviewed competitively within a batch, a change of site within a planning area shall not constitute an amendment pursuant to the provisions of this section and shall require only the prior approval of the commissioner; or

(3) any change in the applicant.

(c)

(1) If the commissioner 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 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 council pursuant to this Part. However, failure of the applicant to obtain financing or appropriate environmental and zoning permits or approvals shall not be deemed to be beyond the control of the applicant.

(2) If the applicant can document by evidence acceptable to the commissioner that increases in total project costs or total basic costs 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 council pursuant to this part. The evidence should clearly demonstrate that the applicant had timely pursued the zoning or planning permits and in addition that the applicant 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, 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.

(d) The applicant must obtain the prior approval of the commissioner for any change relating to the program scope or functional space concept of the project, total project costs or increase in total basic costs of construction, a change in the ownership interest in the land, building or equipment relating to the proposal, a change in the location of the site of the construction, or interest rates relating to the financing of any aspect of the project, regardless of whether such change constitutes an amendment under this section.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 710.5

Amended New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff.3/25/2015