DOH Streamlines Regulations for CON Construction Applications

(Aug. 11, 2025) The Department of Health (DOH) adopted regulations last week to streamline the application process for construction projects in
"medical facilities," which include nursing homes, diagnostic and treatment centers, and hospitals.  The new regulations, which took effect on August 6, raise the cost thresholds that trigger more extensive review, and in certain cases Public Health and Health Planning Council (PHHPC) approval, of construction projects.  The regulations reduce the extent of the review required for lower cost projects and expand the types projects that require only a limited review.  The regulations also eliminate DOH review of certain types of projects and require only a notice.  

Full Review

Under the new regulations, a full review (which includes PHHPC approval) is required for projects with a total project cost of:

• For General Hospitals: More than the greater of $60 million (currently $30 million) or 10% of a facility’s operating costs, not to exceed $150 million;
• For All Other Facilities: More than the greater of $20 million (currently $15 million) or 10% of a facility’s operating costs, not to exceed $30 million.

For projects seeking to add beds, convert beds to a higher level of care, or otherwise change the number of beds, only those that add or change more than 10 percent of existing beds are subject to full review regardless of cost.  Conversion of beds to a lower level of care, if less than 10 percent of existing beds, are subject to administrative or limited review.

Administrative Review

The project cost thresholds for construction projects subject to administrative review (which contains all of the elements of a full review except PHHPC approval) are:

• For General Hospitals: from over $30 million (previously over $15 million) and up to the full review threshold; 
• For All Other Facilities: from over $8 million (previously over $6 million) and up to the full review threshold.

In addition, all projects funded primarily by state grants are now eligible for administrative review to avoid duplicative review of projects that would modernize health care infrastructure. 

Applications for the relocation of long-term ventilator beds from one nursing home to another with common ownership is also subject to administrative review. Common ownership exists when the ownership of the operator of each facility is the same, provided the percentage of ownership interest of each owner may vary between the two facilities.

The additions of adult day health care services and AIDS nursing home beds have been removed from administrative review requirements.   

Limited Review

The regulations raise the total project cost threshold for projects eligible for Limited Review as follows:

• For General Hospitals: Up to $30 million (previously $15 million); 
• For All Other Facilities: Up to $8 million (previously $6 million).

Under the regulations, mobile van extension clinics are now eligible for limited review, rather than administrative review.  

Limited review does not generally require consideration of public need for the project nor financial feasibility.  However, public need is considered in the case of proposals to decertify beds or services, add services, add a mobile medical van, or make certain other service or bed changes.  

As under the prior regulations, proposals to renovate clinical space (except examination rooms) or resident rooms, install medical equipment, install or modify HVAC, water, or fire protection systems that involve clinical or resident space (except for routine repairs or maintenance) will continue to be subject to limited review.  

Notice to DOH

The regulations expand the types of projects that are exempt from review and require only a notice to DOH.  These include:

• The addition or renovation of exam rooms in facilities where such space already exists, regardless of project cost.
• Non-clinical projects with a project cost greater than $12 million (previously $6 million).
• Any project that is otherwise eligible for limited review, but is architecturally self-certified, provided it does not involve a change in the beds or services which would require an  update to the applicant’s operating certificate.

The regulations maintain the provisions of the prior regulations exempting other projects from all but the notice requirements, including health information technology projects and routine repairs and maintenance.  

Architectural Self-Certification

The total project cost threshold under which architectural self-certification is allowed has been raised from $15 million to $30 million. 

LeadingAge NY generally supported these changes, but pointed out that they do not address the real barriers to capital improvements in nursing homes -- Medicaid capital reimbursement cuts, imputed occupancy provisions built into the capital reimbursement, equity contribution requirements, and outdated capital construction caps.  The association's letter to PHHPC is here. 

Contact: Karen Lipson, klipson@leadingageny.org.