(a) The factors for determining public need for the establishment of medical facilities shall include, but not be limited to:

1. (1) the current and projected population characteristics of the service area, including relevant health status indicators and socioeconomic conditions of the population;
2. (2) normative criteria for age and sex specific utilization rates to correct for unnecessary utilization of medical facilities and health services;
3. (3) standards for facility and service utilization, comparing actual utilization to capacity, taking into consideration fluctuation of daily census for certain services, the geography of the service area, size of units, and specialized service networks;
4. (4) the patterns of in and out migration for specific services and patient preference or origin;
5. (5) the need that the population served or to be served has for the services proposed to be offered or expanded, and the extent to which all residents in the area, and in particular low income persons, racial or ethnic minorities, women, handicapped persons, and other underserved groups and the elderly, will have access to those services;
6. (6) in cases involving the reduction or elimination of a service, including those involving the relocation of a facility or service, the extent to which need will be met adequately and the effect of the reduction, elimination, or relocation of the service or facility on the ability of low income persons, racial and ethnic minorities, women, handicapped persons, and other underserved groups, and the elderly, to obtain needed health care;

7. (7) the contribution of the proposed service or facility in meeting the health needs of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services (for example, low income persons, racial and ethnic minorities, women, and handicapped persons), particularly for those whose needs are identified in the medical facilities plan. For the purpose of determining the extent to which the proposed service or facility will be accessible to such persons, the following shall be considered:

   1. (i) the extent to which medically underserved populations currently use the applicant's services in comparison to the percentage of the population in the applicant's service area which is medically underserved, and the extent to which medically underserved populations are expected to use the proposed services if approved;
   2. (ii) the performance of the applicant in meeting its obligations under applicable civil rights statutes prohibiting discrimination on the basis of race, color, national origin, handicap, sex, and age;
   3. (iii) the extent to which Medicare, Medicaid and medically indigent patients are or will be served by the applicant; and
   4. (iv) the extent to which the applicant offers a range of means by which a person will have access to its services.

(b) The evaluative procedure for review of public need pursuant to section 2801-a(3) of the Public Health Law shall include, but not be limited to:

1. (1) description of proposal as submitted by applicant for establishment;
2. (2) identification of use rates in the service area for the type(s) of facility(s) and service(s) involved;
3. (3) identification of current and projected user population of the service area;
4. (4) identification of resulting estimate of future quantitative need as projected for a period of five years from last complete calendar year reported;
5. (5) identification of existing facility(s) and service(s), which are the same as those proposed by the applicant available in the service area;
6. (6) identification of existing facility(s) and service(s), which are the same as those proposed by the applicant, which will be available to meet future need in the service area;
7. (7) identification of facility(s) and service(s), which are the same as those proposed by the applicant and which have been approved for establishment and/or construction but are not in operation in the service area;
8. (8) identification of resulting resource(s) available in service area five years in future to meet need;
9. (9) identification of percent of need met for proposed facility(s) and service(s);
10. (10) description of the current utilization for all facility(s) and service(s) which are the same as those proposed by applicant in the service area;
11. (11) description of the current utilization for allied or alternate facilities and services in the service area;
12. (12) description of any migration patterns for health care in the service area;
13. (13) description of any evidence of inappropriateness of placement in the service area for the subject facility(s), service(s) and related service(s); and
14. (14) description of the distribution of facility(s) and service(s) in relation to the population's distribution.

(d) Any application for establishment wherein a determination of public need is made pursuant to this section shall be subject to the following:

1. (1) The Public Health Council may, during the processing of an application, propose to disapprove the application solely on the basis of a determination of public need in advance of its consideration of the other review criteria required by Public Health Law, section 2801-a(3) without, however, waiving its right to consider such other criteria at a later date.
2. (2) In the event the Public Health Council proposes to disapprove an application on the basis of a lack of public need and the applicant requests a hearing, the Public Health Council may direct the completion of the other reviews required by Public Health Law, section 2801-a(3). The application shall then be returned to the Public Health Council to consider such reviews, the results of which may then be included as grounds for the proposed disapproval to be considered at the hearing. If the Public Health Council directs the completion of such reviews, a copy of the report containing the results of the reviews shall be mailed to the applicant at least 60 days prior to the date set for hearing.
3. (3) In the processing of an application, the commissioner may recommend disapproval based on a review limited to a determination of public need. In the event the Public Health Council does not concur with the commissioner's recommendation of disapproval, it shall return the application to the department at which time all other reviews required by Public Health Law, section 2801-a(3) shall be completed. At such time as all reviews are completed, the application shall be returned to the Public Health Council for action.