A. Except as provided in subsections B and C of this section, no certificate of need shall be issued by the State Department of Health unless after investigation the State Commissioner of Health makes the following findings:

1. The action proposed in the application for such certificate of need is necessary and desirable in order to provide the services required in the locality to be served;

2. The proposed action can be economically accomplished and maintained;

3. The proposed action will contribute to the orderly development of long-term care services in the locality;

4. The applicant is or employs a licensed nursing home administrator; and

5. The applicant is found to be in compliance with the provisions of subsection D of this section.

B. 1. An application for a certificate of need for a capital expenditure to eliminate or prevent imminent safety hazards as defined by federal, state or local fire, building or life safety codes or regulations, or to comply with state licensure standards, or to comply with accreditation standards, compliance with which is required to receive reimbursements under Title XVIII of the Social Security Act or payments under a state plan for medical assistance approved under Title XIX of such act, shall be approved unless the Department finds:

a.that the facility or service is not needed, or

b.that the applicant is found to be out of compliance with the provisions of subsection D of this section.

2. Approval under this subsection shall cover only the capital expenditure to eliminate or prevent the hazards or to comply with standards described herein.

C. No certificate of need shall be issued for the acquisition of an existing facility unless after investigation the Commissioner finds that the applicant:

1. Has financial resources necessary to complete the transaction and to maintain services and staffing; and

2. Is found to be in compliance with the provisions of subsection D of this section.

D. 1. The Commissioner shall refuse to issue a certificate of need to any applicant who has had, in ten percent (10%) or more of the applicant's long-term care facility holdings in the preceding sixty (60) months, a facility license or certification revoked, rescinded, canceled, terminated, involuntarily suspended, or refused renewal; or if the license or certification was relinquished voluntarily in lieu of penalty.

2. The Commissioner shall refuse to issue a certificate of need to any applicant except where the applicant overcomes a presumption against approval with clear and convincing evidence that one of the following circumstances was not due to the action or inaction of the applicant or any person with a controlling interest:

a.the applicant has had, in any of the applicant's long-term care holdings in the preceding sixty (60) months, a facility's license or certificate revoked, rescinded, canceled, terminated, involuntarily suspended or refused renewal,

b.the applicant has a history of noncompliance, as defined by statute, with the standards for licensure of long-term care facilities of any state in which the applicant has or has had long-term care facilities, or with federal standards for certification of long-term care facilities,

c.the applicant, in all current and prior ownership, operation and management of long-term care facilities, has not complied with all lawful orders of suspension, receivership, temporary management, or administrative penalty issued by the Department or by other authorities with similar responsibilities in other states or by the federal Centers for Medicare and Medicaid Services, or

d.the applicant has been convicted of a felony criminal offense related to the operation or management of a long-term care facility.

3. Other than any of those reasons listed in paragraph 1 or 2 of this subsection, the Commissioner may refuse to issue a certificate of need to any applicant who has had, in the preceding thirty-six (36) months, one or more of the following:

a.findings of substandard quality of care or noncompliance with two or more conditions of participation on twenty percent (20%) or more of the surveys conducted in the applicant’s long-term care facility holdings or against any long-term care facility operated by a person with a controlling interest during the preceding thirty-six (36) months,

b.a temporary manager, monitor, or receiver appointed, or

c.had a civil money penalty imposed of Thirty-five Thousand Dollars ($35,000.00) or more.

E. Noncompliance with a final agency order or final order or judgment of a court of record which has been set aside by a court on appeal of such final order or judgment shall not be considered a final order or judgment for the purposes of this section.

F. When the Commissioner makes a determination to issue or deny a certificate of need, the Commissioner shall provide written findings to the applicant, other reviewers and to other persons upon their request. The certificate of need shall establish the maximum capital expenditure for the project. The State Board of Health shall adopt rules concerning the time in which a decision must be made on an application.

G. Any person may request a reconsideration of the Commissioner's determination for good cause shown, the grounds for which shall be established by the Board by rule. A request for reconsideration shall be filed within ten (10) days of the Department determination. The hearing thereupon shall be conducted within thirty (30) days following the receipt of request. Written findings shall be issued within forty-five (45) days of such hearing.

Added by Laws 1971, c. 64, § 3, emerg. eff. April 8, 1971. Amended by Laws 1980, c. 188, § 4, eff. July 1, 1980; Laws 1986, c. 149, § 14, emerg. eff. April 29, 1986; Laws 1989, c. 227, § 11, operative July 1, 1989; Laws 1994, c. 48, § 1, eff. Sept. 1, 1994; Laws 1996, c. 336, § 6, eff. Nov. 1, 1996; Laws 1998, c. 328, § 2, eff. Nov. 1, 1998; Laws 2000, c. 340, § 13, eff. July 1, 2000; Laws 2001, c. 285, § 3, eff. Nov. 1, 2001; Laws 2004, c. 436, § 5, emerg. eff. June 4, 2004.