Proposed Revisions to 10 NYCRR Part 711

10 NYCRR Section 711.1 would be revised to more clearly identify the facilities and the standards that are subject to regulation. In addition, language would be added to clearly identify construction related information that must be filed with construction applications. The proposal would clarify the process for submitting a construction application.

10 NYCRR Section 711.2 would be revised to require health care facilities to comply with more current National Fire Protection Association ("NFPA") standards, including NFPA 101, Life Safety Code, 2000 edition, which is the life safety code currently mandated by the federal government for Medicare and Medicaid certification. In addition, 10 NYCRR Section 711.2 would be revised to require that health care facilities comply with more current national codes addressing radiation protection, facility heating, cooling and ventilation (HVAC) and gas and vacuum systems. 10 NYCRR section 711.2 would be revised to require that future health care facility construction conform to the 2010 edition of Guidelines for Design and Construction of Health Care Facilities.

10 NYCRR Section 711.3, which establishes general site requirements for health care facilities, would be revised to clarify language, add requirements for facility occupants other than patients and eliminate outdated site requirements. 10 NYCRR Sections 711.4, 711.5, 711.7, 711.8, 711.9 and 711.10 would be repealed. New 10 NYCRR Section 711.9 would set forth specific requirements for obtaining waivers of construction standards.

Proposed Revisions to 10 NYCRR Part 712

The regulatory proposal would repeal existing 10 NYCRR Part 712, which includes standards of construction for some hospitals, and replace it with a new Part 712 (Standards of Construction for General Hospital Facilities). The proposal would consolidate all requirements specific to general hospital construction into 10 NYCRR Part 712. New Part 712 would be divided into two Subparts based on the date when general hospital construction was or is to be undertaken.

New Subpart 712-1 would set forth minimum construction and physical environment standards applicable to general hospitals built and to portions of general hospitals altered or renovated pursuant to Department or commissioner approval granted prior to October 14, 1998 and to general hospital construction projects not requiring such approvals that were completed prior to October 14, 1998. New Subpart 712-1 would include requirements in existing 10 NYCRR Section711.4 and existing 10 NYCRR Part 712.

New Subpart 712-2 would set forth minimum construction and physical environment standards applicable to general hospitals built and to portions of general hospitals altered or renovated pursuant to Department or commissioner approval granted on or after October 14, 1998 and to general hospital construction projects not requiring such approvals that were or will be completed after October 14, 1998. New Subpart 712-2 would require that construction projects comply with Guidelines for Design and Construction of Health Care Facilities and would include some additional regulatory requirements.

Proposed Revisions to 10 NYCRR Part 713

The regulatory proposal would repeal existing Part 713, which sets forth construction standards for some nursing homes, and replace it with a new Part 713 (Standards of Construction for Nursing Home Facilities). The proposal would consolidate all requirements specific to nursing home construction into 10 NYCRR Part 713. Part 713 would be divided into four subparts based on the date when nursing home construction was or is to be undertaken.

Subpart 713-1 would set forth minimum construction and physical environment standards applicable to nursing home facilities built, to portions of nursing homes facilities renovated or altered prior to August 25, 1975 and to nursing home construction projects approved by the commissioner or Department prior to August 25, 1975. New Subpart 713-1 would include requirements that are in existing 10 NYCRR Section 711.4.

Subpart 713-2 would set forth minimum construction and physical environment standards applicable to nursing home facilities built, to portions of nursing homes facilities renovated or altered between August 25, 1975 and July 1, 1990 and to nursing home construction projects approved by the commissioner or Department between August 25, 1975 and July 1, 1990. Subpart 713-2 would include requirements that are in existing 10 NYCRR Section 711.5.

Subpart 713-3 would set forth minimum construction and physical environment standards applicable to nursing home facilities built, to portions of nursing homes facilities renovated or altered between July 1, 1990 and December 31, 2010 and to nursing home construction projects approved by the commissioner or Department between July 1, 1990 and December 31, 2010. Subpart 713-3 would incorporate by reference Guidelines for Design and Construction of Health Care Facilities. Additional requirements not addressed in this document would be included in the proposed Subpart.

Subpart 713-4 would set forth minimum construction and physical environment standards applicable to nursing home facilities built, to portions of nursing homes facilities renovated or altered after December 31, 2010 and to nursing home construction projects approved by the commissioner or Department after December 31, 2010. Subpart 713-4 would require that construction projects comply with the 2010 edition of the Guidelines for Design and Construction of Health Care Facilities as well as additional regulatory requirements.

Proposed Revisions to 10 NYCRR Part 714

The regulatory proposal would consolidate all requirements specific to adult day health care program facility construction into 10 NYCRR Part 714, including requirements in existing 10 NYCRR Part 713. It would require future adult day health care program facility construction to comply with the 2010 edition of the Guidelines for Design and Construction of Health Care Facilities as well as additional regulatory requirements.

Proposed Revisions to 10 NYCRR Part 715

The regulatory proposal would repeal existing 10 NYCRR Part 715 and replace it with a new Part 715 (Standards of Construction for Freestanding Ambulatory Care Facilities). The regulatory proposal would consolidate all requirements specific to freestanding ambulatory care facilities into 10 NYCRR Part 715. New Part 715 would be divided into two Subparts based on the date when ambulatory care facility construction was or is to be undertaken.

New Subpart 715-1 would set forth minimum construction and physical environment standards applicable to: (1) diagnostic center and treatment center facilities built and to portions of such facilities renovated or altered prior to January 1, 2011; (2) general hospital offsite outpatient facilities built and to portions of such facilities renovated or altered prior to January 1, 2011; and, (3) general hospital offsite outpatient facility construction projects and diagnostic center and treatment center facility construction projects approved by the commissioner or Department prior to January 1, 2011. New Subpart 715-1 would include requirements that are in existing 10 NYCRR Section 711.7 and existing 10 NYCRR Part 715.

New Subpart 715-2 would set forth minimum construction and physical environment standards applicable to:(1) diagnostic center and treatment center facilities built and to portions of such facilities renovated or altered after January 1, 2011; (2) general hospital offsite outpatient facilities built and to portions of such facilities renovated or altered after January 1, 2011; and, (3) general hospital offsite outpatient facility construction projects and diagnostic center and treatment center facility construction projects approved by the commissioner or department after January 1, 2011. New Subpart 715-2 would require future ambulatory care construction to comply with the 2010 edition of the Guidelines for Design and Construction of Health Care Facilities as well as additional regulatory requirements.

Proposed Revisions to 10 NYCRR Part 716

The regulatory proposal would repeal existing 10 NYCRR Part 716 and replace it with a new Part 716 (Standards of Construction for Rehabilitation Facilities). The regulatory proposal would consolidate into New Part 716 all standards of construction specifically applicable to rehabilitation facilities. New Part 716 would include requirements that are in existing 10 NYCRR Section 711.8 and existing 10 NYCRR Part 712. New Part 716 would also require that future rehabilitation facility construction comply with the 2010 edition of the Guidelines for Design and Construction of Health Care Facilities as well as additional regulatory requirements.

Changes made to the last published rule do not necessitate revision to the previously published RIS, RFA, RAFA and JIS.

A Notice of Proposed Rulemaking for an amendment to 10 NYCRR Parts 711, 712, 713, 714, 715 and 716 was published in the State Register on for a 45 day comment period on September 29, 2010. During that time, the Department of Health posted on its website the proposed amendment and made available to the public, upon request, copies of all documents to be incorporated by reference into the proposed amendment. Prior to its publication, copies of the proposed amendment were distributed to industry groups that represent hospitals, nursing homes and clinics, as well as to industry groups with an interest in architectural and engineering standards for health care facilities. No substantive revisions need to be made to the published regulations as a result of the comments. As noted in this assessment, a few editorial changes will be made.

The Department of Health received comments from twenty-six commentors. Of those, twenty-three explicitly expressed support for the proposed amendment. The following is a summary of additional comments provided to the Department.

Some commentors urged the Department to require that health care facilities comply with the New York State Building Code, New York State Plumbing Code, or other code rather than the standards required by NFPA 101: Life Safety Code, 2000 Edition. The Department has determined that health care facilities should comply with NFPA 101: Life Safety Code, 2000 Edition, because the federal Centers for Medicaid and Medicare Services requires health care facilities to comply with it. The Department's reference to NFPA 101: Life Safety Code, 2000 Edition is for the specific purpose of licensure for Article 28, Medicaid and Medicare certification. The building codes referenced above are enforced by local municipalities having jurisdiction over building code enforcement, for which the Department is not responsible.

One commentor sought confirmation that the proposed amendment would apply only to construction projects approved after the effective date of the proposed regulations. The Department notes that the proposed amendment would apply to all health care facilities licensed pursuant to Article 28 of Public Health Law. In particular, all such health care facilities must comply with NFPA 101: Life Safety Code, 2000 Edition. However, the proposed amendment makes few changes to existing regulations that govern architectural standards for health care facilities that have already been built, or for projects which have received Certificate of Need approval prior to the effective date. The commentor also sought confirmation that the Department would apply the new regulatory standards in a flexible manner. The proposed amendment includes provisions to enable health care facilities to obtain waivers from compliance with certain construction standards. The Department intends to be flexible in its implementation of the proposed regulations, when warranted.

One commentor claimed that the proposed amendment would adversely affect the safety of nursing home residents and recommended that the Department delay implementation of proposed 10 NYCRR Parts 711 and 713. The commentor further claimed that the proposed amendment fails to require newly built nursing homes to have back up generators and suggested changes to proposed 10 NYCRR Sections 713-4.3 and Section 711.9. The Department of Health believes that the proposed amendment requires that health care facility construction to be functional and safe for occupancy. The proposed amendment explicitly requires that all newly built nursing homes have emergency electrical service when normal electrical services are interrupted. Since the only reasonable means by which a nursing home could have emergency electrical service in the case of a regional black out is to have an emergency generator, the Department interprets its regulations to require that newly constructed nursing homes have back up generators that comply with NFPA 110: Standard for Emergency and Standby Power Systems, 1999 edition. The Department believes that proposed 10 NYCRR Sections 713-4.3 and 711.9 are clearly written and do not require revision.

One commentor expressed concern that proposed 10 NYCRR Subpart 713-4 lacked specific minimum space requirements for communal areas and also lacked specific requirements relating to: furnishings and space requirements in resident rooms; grooming areas and centralized bathing facilities. The Department notes that proposed 10 NYCRR Subpart 713.4, (which incorporates by reference the 2010 edition of the Guidelines for the Design and Construction of Health Care Facilities), includes specific criteria for centralized bathing facilities and grooming areas as well as reasonable, flexible and cost effective criteria relating to the use and size of resident and communal areas. The proposed amendment requires that many of the specific space requirements be addressed in a functional program, which the Department has authority to review and approve.

One commentor made several editing suggestions to improve the clarity of the regulations. As a result, the Department is making the following nonsubstantive revisions to the proposed amendment that was filed in the State Register. In 10 NYCRR Section 712-1.8(a), the phrase "fifteen square feet by eighteen square feet" shall be substituted with the phrase "fifteen feet by eighteen feet". In 10 NYCRR Section 712-1.11(b), the phrase "ten square feet" shall be substituted with the phrase "ten linear feet". In 10 NYCRR Sections 712-2.5(c)(2) and 713-1.3(j) and 713-2.5(b)(3), the term "floor" shall be substituted with the phrase "finished floor". In 10 NYCRR Section 713-2.5(d)(1), the phrase "three square feet by six square feet" will be substituted with the phrase "three feet by six feet". In 10 NYCRR Section 713-4.7(a)(5) and (6), the term "net" shall be added immediately before the phrase "square feet". In 10 NYCRR Section 715-1.3(d)(8)(i), the phrase "twelve square feet by fifteen square feet" shall be substituted with the phrase "twelve feet by fifteen feet". In 10 NYCRR Section 715-1.3(g)(6), term "process" shall be substituted with the term "processed".

The commentor also suggested several changes to 10 NYCRR Subpart 712-1 (which applies to general hospitals built before 1998). Most of the proposed changes would, if implemented, require hospital facilities built before 1998 to comply with more modern architectural and equipment standards. The Department decided not to require such changes, since it would be too costly and burdensome for hospital facilities to involuntarily undertake such measures.

Two commentors sought clarification regarding whether the 2010 edition of the Guidelines for the Design and Construction of Health Care Facilities would apply to construction projects currently under consideration by the Department or contingently approved by the Commissioner. The Department intends to be flexible in its implementation of the proposed regulations and intends to clarify this issues relating to the applicability of the Guidelines in a guidance document. The Department also notes that health care facilities can seek from the Department waivers from compliance with certain construction standards.