DAL 16-14: Bed Capacity in New York State Neonatal Intensive Care Units (NICUs)

September 27, 2016


Dear Chief Executive Officer:

It has come to the New York State Department of Health (Department)’s attention that bed capacity in New York State neonatal intensive care units (NICUs) is being exceeded on a frequent basis. Overcrowded situations in hospitals generally, and in intensive care units specifically, threaten patient safety by creating increased opportunities for adverse event occurrence and higher risks of infectious disease outbreaks.

The Department is aware that multiple outbreaks of Methicillin-resistant Staphylococcus aureus (MRSA) in New York State NICUs are reported each year. While neonates are vulnerable to infections by definition, increasing the number of neonates in a NICU space that is specifically designed for a lower number increases the opportunity for lapses in practice and the risk of infection for these patients, raising the potential for significant complications and death.

10 NYCRR 401.3(e) and 401.2(a) requires hospitals to actively manage their patient volume to prevent exceeding the bed capacities listed on their operating certificate. The regulations acknowledge a temporary increase in capacity and may occur during an emergency, but any proposed changes in routine bed capacity must be requested in writing and approved by the Department.

Routinely exceeding one’s bed capacity is not acceptable. The Department had noted that many facilities utilize an “overflow” room or area when bed capacity is exceeded, and this is not an acceptable practice on a long-term basis. If there is a temporary need to exceed NICU capacity, such as in an emergency involving a natural disaster, hospitals must contact their regional office to discuss safety and infection prevention measures. Compliance with regulations at 10 NYCRR 721.2(f)(8), which require newborns who no longer need Level III or Regional Perinatal Center care, but who require continuing care, to be transferred to another hospital, will also help to maintain capacity at acceptable levels.

Hospitals must initiate the process of reducing the census in the NICU by transfer or discharge home as applicable. If bed capacity is routinely exceeded, consideration must be given to submitting a Certificate of Need (CON) application to formally increase bed capacity. Those facilities who are identified as routinely exceeding their NICU bed capacity will be cited for non-compliance with 10 NYCRR 721.2(f)(8).

If you have questions related to the Certificate of Need process, please contact the Center for Health Care Facilities Planning, Licensure and Finance, Project Management Unit at (518) 402-0911.

Thank you for your cooperation in maintaining a safer environment for newborns in New York State. If you have questions, you may contact the Division of Hospitals and Diagnostic & Treatment Centers at (518) 402-1004.


Ruth Leslie
Division of Hospitals and Diagnostic & Treatment Centers