Construction Notices

Submission of Notices - PHL Section 2802

Effective January 20, 2012, Chapter 174 of the Laws of 2011 amends Article 28 of the Public Health law to eliminate requirements for limited review and CON review for projects confined to non-clinical infrastructure, repair and maintenance, and one-for-one equipment replacement, all regardless of cost. In place of the former limited review and CON requirements for these categories of projects, the amended Section 2802 requires the submission of only a written notice, applicable architect/engineer certification, and a plan for patient safety during construction.

Attached is a link to the new statute, as well as a Powerpoint presentation providing an overview and summary of the new notice submission requirements and procedures:

Effective September 6, 2017, 10 NYCRR Section 710.1 was updated. Section 710.1(c)(4)(i)(g) was added to eliminate the requirement of CON review for health information technology (HIT) proposals, regardless of cost. HIT projects now require the submission of a Construction Notice, regardless of cost.

Section 710.1(c)(4)(ii) was added to eliminate the requirement of submission of a Construction Notice for non-clinical infrastructure projects under $6 million, other than HIT projects which now require a construction notice regardless of cost.

Notice Format and Content

Like limited review and CON applications, written notices and supporting documentation will be submitted through NYSE-CON. Generally speaking, the format for the written notice requires the following elements:

Project Description
A factual narrative describing the infrastructure, repair/maintenance or equipment replacement activity to be undertaken.
Where applicable, appropriate architecture/engineer certification (see Notices Matrix (XLS)).
If applicable, a plan to protect patient safety during construction, in compliance with NFPA 241, as referred to in 10 NYCRR Section 711.2.

Attached is a table outlining the various types of projects eligible under the new written notice requirement, which also identifies under which projects an accompanying certification is required:

The necessary documents, depending upon project type, for filing a written notice are:

Processing of Notice Submission

Submission of written notices must occur via NYSE-CON, which will then transmit to the applicant an acknowledgement that the required notice has been received. Upon receipt of this acknowledgement, the applicant may proceed with the intended project. Applicants concerned that a particular project may not qualify for notice-only submission or uncertain as to the architect/engineer certification or other documentation required for the project are encouraged to contact Department staff prior to submission of the notice.

Pre-Opening Surveys

As a general policy, the Department will not conduct pre-opening surveys of projects that are subject only to notice submission. It will remain the responsibility of the applicant to construct and operate the project in full compliance with the medical facilities construction code (Parts 711 through 715), the hospital code (Part 405) and any other applicable regulations. Any violations thereof will be fully cited in the course of routine surveys, compliant investigations or other surveillance and enforcement activities.

CON applications that involve the establishment of a new health care facility, home care agency or hospice, a change in ownership, the addition of certain specialized services, or major capital projects and/or equipment acquisitions are reviewed by the Public Health and Health Planning Council.

At the end of a project performed via written notice, depending on the project, the following documentation may be required to be maintained within the project's NYSE-CON file: