Subdivision (d) is added to section 600.1 to articulate notice requirements for nursing home establishment applications, as required by new Subdivision 2-b of Article 2801-a of the Public Health Law. The State Long-Term Care Ombudsman and residents, staff, and other parties affiliated with an existing nursing home, will be notified once a nursing home establishment application has been acknowledged by the Department and also, when a nursing home establishment application is placed on the Establishment and Project Review Committee agenda of the Public Health and Health Planning Council, for consideration.

Paragraph (2) of subdivision (b) of section 600.2 is amended to make the “character, competence, and standing in the community” review standard comparable for all applicants; and to include a limited liability company as an acceptable legal entity applicant, whose members are subject to the “character, competence, and standing in the community” review.

Paragraph (4) of subdivision (b) of section 600.2 is amended to include additional titles of applicant individuals, it removes a reference to outdated reporting requirements that no longer appear in statute, it clarifies establishment application review criteria, and defines the terms ‘recurrent’ and ‘prompt correction’ related to violations at article 28 facilities.

Paragraph (5) is added to subdivision (b) of section 600.2 to incorporate additional information the Public Health and Health Planning Council is required to consider when making a determination about a “consistently high level of care” rendered at a nursing home. This required information is found in the new Subdivision 3-b of Article 2801-a of the Public Health Law. In addition, the proposed regulation clearly sets forth five (5) occurrences that automatically render a determination that a consistently high level of care is not found, including determining the percentage of nursing homes in an applicant individual’s portfolio with a CMS star rating of two stars or less. And finally, it also includes the amendments made to paragraph (4) of subdivision (b) of section 600.2, which applies to all article 28 facilities, generally.

Altogether, the proposed regulation in paragraph (5) of subdivision (b) of section 600.2 responds to legislative actions and recommendations and sets forth uniform, transparent, and outcome-based standards to determine when a “consistently high level of care” has been delivered by applicant operators in the nursing homes that they own or have owned over the last seven years.

Together the proposed regulations in Sections 600.1 and 600.2 of Title 10 NYCRR, strengthen the establishment application review process for all article 28 facilities, generally and nursing homes, specifically. They also provide the transparency and clarity necessary to determine when a nursing home establishment application (includes changes of ownership and transfers of ownership applications) will be considered by the Establishment and Project Review Committee of the Public Health and Health Planning Council.

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2025, which is no later than the 3rd year after the year in which this rule is being adopted.

Proposed amendments to 10 NYCRR § 600.1 articulate notice requirements for nursing home establishment applications, as required by new Subdivision 2-b of Article 2801-a of the Public Health Law. Proposed amendments to 10 NYCRR § 600.2 make the “character, competence, and standing in the community” review standard comparable for all applicants; and include a limited liability company as an acceptable legal entity applicant, whose members are subject to the “character, competence, and standing in the community” review.

Following the assessment of public comment, the Department has determined that no substantive changes to the regulations were necessary, and no additional requirements were added as a result of the comments received. The New York State Department of Health (“Department” or “DOH”) received comments from LeadingAge New York and Center for Elder Law and Justice regarding proposed amendments. The general theme of the comments were seeking clarification on implementation and suggested recommendations for additional requirements that furthered the intent of the proposed regulations under 10 NYCRR §§ 600.1 and 600.2. The Department responded to the comments made, and the issues stated will be addressed when the amended regulations are presented publicly to the Public Health and Health Planning Council (“PHHPC”) and in public discussions of the PHHPC going forward as the new requirements under the amended regulations are implemented. There was a comment that identified a typo in the proposed regulations, which will be addressed in the version to be presented for adoption.