Health Equity CON Requirements Take Effect June 22nd
Beginning on June 22nd, certain certificate of need (CON) applications submitted by nursing homes and other Article 28 facilities must include a health equity impact assessment (HEIA) prepared by an independent consultant and informed by meaningful stakeholder input. The new requirement will apply to CON construction applications involving projects that exceed certain cost thresholds or that involve changes in services or bed count. It will also apply to establishment applications (i.e., new operators or changes in ownership), if the application also involves a change in services or bed count exceeding 10 percent of the current capacity.
The HEIA requirement is derived from a statute enacted in 2021 and is described in greater detail in proposed regulations that are currently undergoing public comment. CON construction applications with a total project cost of in excess of $6 million for nursing homes and diagnostic and treatment centers (D&TCs) or in excess of $15 million for general hospitals, and establishment applications that involve a reduction of beds or services in excess of 10 percent of existing capacity, will be subject to the HEIA requirement. The following projects will be exempt from the HEIA requirement:
- Projects that do not require approval of the Department of Health (DOH) or the Public Health and Health Planning Council (PHHPC) and are subject only to a notice requirement;
- Minor construction or equipment projects subject only to limited review, unless the project would result in the elimination, reduction, expansion, or addition of beds or services;
- Establishment (new or change in ownership) of an operator, including mergers and acquisitions, unless the establishment would result in: (i) the elimination of a hospital service or health-related service; (ii) a 10 percent or greater reduction in the number of certified beds, certified services, or operating hours; or (iii) a change of location of a hospital service or health-related service; and
- Applications by a D&TC in which over 50 percent of the patient population is enrolled in Medicaid or uninsured, unless the application includes a change in controlling person, principal stockholder, or principal member of the facility.
The purpose of the HEIA is to demonstrate how the project affects the accessibility and delivery of health care services to enhance health equity and contribute to mitigating health disparities in the facility’s service area, specifically for medically underserved groups. Medically underserved groups are defined to include the following:
- People with disabilities;
- Older adults;
- Low-income people;
- Racial and ethnic minorities;
- Immigrants;
- Women;
- Lesbian, gay, bisexual, transgender, or other-than-cisgender people;
- Persons living with a prevalent infectious disease or condition;
- Persons living in rural areas;
- People who are eligible for or receive public health benefits;
- People who do not have third-party health coverage or have inadequate third-party health coverage; and
- Other people who are unable to obtain health care.
The assessment must be conducted by an independent entity with expertise in community engagement and health equity. Meaningful engagement of stakeholders includes advance notice and an opportunity to provide feedback, which should be commensurate with the scope of the project proposed. The HEIA must be submitted with the CON application, along with a narrative explaining how the facility will mitigate potential negative impacts to medically underserved groups identified in the HEIA. A redacted version of the CON application and the HEIA must be posted by DOH and the applicant. Under the statute, the Commissioner and/or the PHHPC must consider the HEIA in determining whether to approve the CON application. However, neither the law nor the regulations describe the factors that will determine approval, nor how they will be weighed.
LeadingAge NY has met with DOH about the regulations and implementation, expressing concerns about the applicability of certain criteria to nursing home projects and continuing care retirement community (CCRC) nursing homes and the negative impacts of denials and delays on the quality of life and safety of residents. DOH staff have indicated that the Department is hiring additional staff to evaluate HEIAs and avoid delays in CON applications and have committed to appropriately weighing the interests of residents and the viability of the long term care continuum. DOH will be releasing a template and checklist of requirements to help guide applicants and health equity assessors.
LeadingAge NY has commented on the draft regulations in two letters to the PHHPC (available here and here) and will be submitting comments on the proposed regulations. Comments are due on June 12th and can be submitted here.
Contact: Karen Lipson, klipson@leadingageny.org