N.Y. Comp. Codes R. & Regs. tit. 10, § 709.17 – Long-term ventilator beds.

(a) This methodology will be utilized to evaluate certificate of need applications for the certification of long-term ventilator beds, which are operated in residential health care facilities for individuals experiencing respiratory failure who can be treated through mechanical ventilation. It is the intent of the State Hospital Review and Planning Council that this methodology, when used in conjunction with the planning standards and criteria set forth in section 709.1 of this Part, become a statement of planning principles and decision making tools for directing the distribution of long-term ventilator beds. The goals and objectives of the methodology expressed herein are expected to ensure that an adequate number of long-term ventilator beds are available to provide access to care and avoid the unnecessary duplication of resources.
(b) The factors for determining the public need for long-term ventilator beds shall include, but not be limited to, the following:
1. (1) The planning areas for determining the public need for long-term ventilator beds shall be the designated health systems regions.
2. (2) The number of long-term ventilator beds in each health systems region required to meet the public need shall be determined by dividing the projected annual patient days for the service by 365, and dividing the result by 0.95 to allow for a 95 percent occupancy rate. The projected long-term ventilator patient days used in this calculation shall be determined as follows:
  1. (i) The annual number of potential candidates for long-term ventilator beds shall be determined by calculating the total number of annual general hospital discharges in the planning area for DRG 475 (respiratory system diagnosis with ventilator support), plus an additional 10 percent, and multiplying the resulting figure by 0.32.
  2. (ii) The number of potential candidates for long-term ventilator beds shall be multiplied by a 125-day length-of-stay to project the annual number of patient days for long-term ventilator patients.
3. (3) The review of certificate of need applications will consider the documented referral patterns in the planning area, the expected length-of-stay based on the case-mix of long-term and short-term patients, the ability of the applicant to successfully wean ventilator patients, and the ability and commitment of the applicant to accept the difficult-to-place ventilator patients (e.g., ventilator patients with hemodialysis needs or patients with bacterial infections).
4. (4) The long-term ventilator bed need methodology will be reviewed within three years from the effective date of this section.
  (c)
5. (1) The bed need estimates developed pursuant to subdivision (b) of this section shall constitute the public need for ventilator beds in the planning area subject to further adjustments in accordance with subdivision (d) of this section.
6. (2) Notwithstanding that there is an indication of need in a planning area for additional long-term ventilator beds as determined in accordance with subdivision (b) of this section, there shall be a rebuttable presumption that there is no need for any additional long-term ventilator beds in such planning area if the overall occupancy rate for existing long-term ventilator beds in such planning area is less than 95 percent based on the most recently available data. It shall be the responsibility of an applicant in such instances to demonstrate that there is a need for additional long-term ventilator beds despite the less than 95 percent occupancy rate in the planning area utilizing the factors set forth in subdivision (d) of this section.
7. (3) The department shall evaluate the appropriateness of the 95 percent occupancy threshold criterion in this section, based on the most recent data available, within three years of the effective date of this section.
(d) Notwithstanding any other provision of this section, when the estimates of need for long-term ventilator beds developed in accordance with subdivision (b) of this section indicate the need for additional beds, such estimates of additional need may be modified, based on information and data gathered from relevant sources relating to significant local factors pertaining to the planning area, or on statewide factors, where relevant, which factors may include, but not necessarily be limited to, those set forth in paragraphs (1) through (3) of this subdivision. When making recommendations to the State Hospital Review and Planning Council and the Public Health Council concerning the impact of the factors set forth in this subdivision, the department shall, to the extent practicable, indicate the relative priority of such factors:
1. (1) the impact of requirements pertaining to placing persons with disabilities into the most integrated setting appropriate so as to enable persons with disabilities to interact with non-disabled persons to the fullest extent possible;
2. (2) recommendations made by the local health systems agency, if applicable;
3. (3) documented evidence of the unduplicated number of patients on waiting lists who are appropriate for admission to long-term ventilator care who experience a long stay in acute care facilities awaiting discharge to a residential health care facility for long-term ventilator care.