NYS Department of Health Clarifies Notice Requirements for Nursing Home Establishment Applications

On March 25, 2022, the New York State Department of Health (DOH) issued a “Dear Nursing Home Administrator and Operators” letter clarifying the new notice requirements for nursing home establishment applications. The new notice requirements are set out in Subdivision 2-b of Article 2801-a of the Public Health Law and apply to any certificate of need (CON) applications made to the DOH for changes in nursing home operators or ownership interests for existing facilities that require consideration by the Public Health and Health Planning Council (PHHPC).

According to the Public Health Law, the established operator and applicant must provide notice of the establishment application to nursing home residents, their representatives, and staff (including union representatives, if applicable) within 30 days of the DOH acknowledging the application.ⁱ  Additionally, the established operator and applicant must provide immediate notification to the same parties when the operator and applicant receive notification that the application is scheduled for consideration by the PHHPC.ⁱⁱ  The DOH’s Dear Nursing Home Administrator and Operators letter clarifies these notification requirements, including specific timeframes and methods for sending the notifications as well as the content of the notifications.

First Notification Requirement

According to the DOH, the nursing home facility operator and the CON applicant must provide notification of the application to residents, their designated representatives, and staff (including union representatives, if applicable) within 30 days of the DOH’s acknowledgement of the CON application. Key takeaways regarding the first notification requirement include the following:

• The notification must be made by mail, email, or another delivery method designated by the resident, their designated representative, or the staff (including union representatives, if applicable).
• The nursing home must work collaboratively with the applicant to obtain confirmation of the DOH’s acknowledgement and to ensure that the required parties receive notice within the required 30 days.
• Although joint or separate notification can be provided by the applicant and the nursing home, both parties are responsible for ensuring that notice is provided to the required persons.
• The required notice must contain the details of the pending change of ownership, including the legal entity and individual name(s) of the proposed new operator, the CON application number, instructions to submit comments about the application, and a link for the general public to view the application using the New York State electronic certificate-of-need (NYSE-CON) system where the applications are submitted.
• Regardless of whether the nursing home or applicant sends the notification, the nursing home is responsible for maintaining written records of the notification’s content and method of delivery to required persons.
• A  copy of the notice and an affidavit must be submitted by the applicant as part of the CON application prior to the application being scheduled for consideration by the PHHPC.

Second Notification Requirement

According to the DOH, the nursing home and applicant must provide notice to residents, their designated representatives, and staff (including union representatives, if applicable) within 24 hours of a CON application being scheduled for consideration by one of the PHHPC’s committees. Key takeaways for the second notification requirement include the following:

• The notification must be made by mail, email, or another delivery method designated by the resident, their designated representative, or the staff (including union representatives, if applicable).
• The notice must contain the date, location(s), and time of the PHHPC committee meeting; instructions for filing written public comment or for making comment in person; and a specific statement set out by the DOH regarding public comment requirements.
• Although joint or separate notification can be provided by the applicant and the nursing home, both parties are responsible for ensuring that notice is provided to the required persons.
• Regardless of whether the nursing home or applicant sends the notification, the nursing home must maintain written records of the notification’s content and method of delivery to required persons.
• A copy of the notice and an affidavit must be submitted by the applicant as part of the CON application prior to the application being formally presented to the PHHPC’s committee for consideration.

In addition to setting out the notification requirements, the Dear Nursing Home Administrator and Operators letter also provides form affidavits for both notifications. These form affidavits as well as the letter are available here.

There has been a longstanding pause on consideration of CON applications for changes in nursing home operator and ownership by the DOH and the PHHPC. We are hopeful that the establishment and clarification of these new notice requirements will begin to move previously filed and new applications forward. As always, Barclay Damon’s Health Care & Human Services Providers Team remains up to date on these requirements and willing to assist clients in submitting and receiving approval on change in operator and ownership applications.

If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team.