New York’s CON Law Amended to Require Health Equity Impact Assessment

An amendment to New York’s Certificate of Need (CON) law, set to go into effect on June 22, 2023, will require every CON application to include a “health equity impact assessment.”  The new law, N.Y. Public Health Law § 2802-b, requires an assessment be prepared by an independent entity that addresses whether, and if so how, “a project will improve access to hospital services and health care, health equity and reduction of health disparities.” The assessment must also make “particular reference to members of medically underserved groups, in the applicant’s service area.” Importantly, this new requirement does not apply to CON applications filed before June 22, 2023. To date, the Department of Health (DOH) has not yet issued implementing regulations.

New York is among the many states that require a CON for the establishment, construction, or renovation of certain health care facilities or programs, acquisition of major medical equipment, addition, elimination, or modification of services and service areas, and changes in ownership. Under this new law, hospitals, nursing homes, and other providers licensed under Article 28 of the Public Health Law will have to show the impact of a proposed project on low-income individuals, racial and ethnic minorities, and other representatives of medically underserved groups as part of the approval process by the New York State DOH Commissioner and/or the Public Health and Health Planning Council.

According to the statute, the health equity impact assessment must include the following:

• A demonstration of whether and how the project will improve health equity and reduce health disparities, particularly for people in medically underserved groups in the applicant’s area.
• The extent to which medically underserved groups in the applicant’s service area use, or are expected to use the applicant’s hospital or health-related services.
• The performance of the applicant in meeting its obligations, if any, under section 2807-k and federal regulations requiring providing uncompensated care, community services, and access by minorities and people with disabilities to programs receiving federal financial assistance, and how the proposed project will affect the applicant’s meeting of these obligations.
• How, and to what extent, the applicant will provide hospital and health-related services to the medically indigent, Medicare and Medicaid recipients, and members of medically underserved groups if the project is implemented.
• The amount of indigent care, both free and below cost, that will be provided by the applicant if the project is implemented.
• Access by public or private transportation, including applicant-sponsored transportation services, to the applicant’s hospital or health-related services if the project is implemented.
• The means of assuring effective communication between the applicant’s hospital and health-related service staff and people of limited English-speaking ability and those with speech, hearing or visual impairments if the project is implemented.
• The extent to which implementation of the project will reduce architectural barriers for people with mobility impairments.
• A review of how the applicant will maintain or improve their quality of hospital and health-related services including a review of (i) demographics of the applicant’s service area; (ii) economic status of the population of the applicant’s service area; (iii) physician and professional staffing issues related to the project; (iv) availability of similar services at other institutions in or near the applicant’s service area; and (v) historical and projected market shares of hospital and health care service providers in the applicant’s service area.

Ramifications of a neutral or negative health equity impact assessment are not immediately clear, as the law merely notes that the DOH Commissioner and the Public Health and Health Planning Council will “consider” the health equity impact statement in each application review and approval. We anticipate the DOH will provide further clarity through regulations.

Many laud the new law as an important step towards continuing to address inequities in access to health care that were further accelerated by the COVID-19 pandemic.  New York follows an increasing number of federal and state programs that are focusing on addressing unmet social needs - a trend that we expect to continue into 2023 and beyond as demand for increased transparency and community engagement in local CON processes grow.