§ 9440. Procedures

(a) Notwithstanding 3 V.S.A. chapter 25, a certificate of need application shall be in accordance with the procedures of this section.

(b)(1) The application shall be in such form and contain such information as the Board establishes. In addition, the Board may require of an applicant any or all of the following information that the Board deems necessary:

(A) Institutional utilization data, including an explanation of the unique character of services and a description of case mix.

(B) A population based description of the institution's service area.

(C) The applicant's financial statements.

(D) Third party reimbursement data.

(E) Copies of feasibility studies, surveys, designs, plans, working drawings, or specifications developed in relation to the proposed project.

(F) Annual reports and four-year long range plans.

(G) Leases, contracts, or agreements of any kind that might affect quality of care or the nature of services provided.

(H) The status of all certificates issued to the applicant under this subchapter during the three years preceding the date of the application. As a condition to deeming an application complete under this section, the Board may require that an applicant meet with the Board to discuss the resolution of the applicant's compliance with those prior certificates.

(I) Additional information as needed by the Board, including information from affiliated corporations or other persons in the control of or controlled by the applicant.

(2) In addition to the information required for submission, an applicant may submit, and the Board shall consider, any other information relevant to the application or the review criteria.

(c) The application process shall be as follows:

(1) [Repealed.]

(2)(A) Prior to filing an application for a certificate of need, an applicant shall file an adequate letter of intent with the Board not less than 30 days prior to the date on which the application is to be filed. The letter of intent shall form the basis for determining the applicability of this subchapter to the proposed expenditure or action. A letter of intent shall become invalid if an application is not filed within six months after the date that the letter of intent is received. The Board shall post public notice of such letters of intent on its website electronically within five business days after receipt. The public notice shall identify the applicant, the proposed new health care project, and the date by which a competing application or petition to intervene must be filed.

(B) Applicants who agree that their proposals are subject to jurisdiction pursuant to section 9434 of this title shall not be required to file a letter of intent pursuant to subdivision (A) of this subdivision (2) and may file an application without further process. Public notice of the application shall be posted electronically on the Board's website as provided for in subdivision (A) of this subdivision (2) for letters of intent.

(3) The Board shall review each letter of intent and, if the letter contains the information required for letters of intent as established by the Board by rule, within 30 days, determine whether the project described in the letter will require a certificate of need. If the Board determines that a certificate of need is required for a proposed expenditure or action, an application for a certificate of need shall be filed before development of the project begins.

(4) Within 90 days of receipt of an application, the Board shall notify the applicant that the application contains all necessary information required and is complete, or that the application review period is complete notwithstanding the absence of necessary information. The Board may extend the 90-day application review period for an additional 60 days, or for a period of time in excess of 150 days with the consent of the applicant. The time during which the applicant is responding to the Board's notice that additional information is required shall not be included within the maximum review period permitted under this subsection. The Board may determine that the certificate of need application shall be denied if the applicant has failed to provide all necessary information required to review the application.

(5)(A) An applicant seeking expedited review of a certificate of need application may simultaneously file with the Board a request for expedited review and an application. After receiving the request and an application, the Board shall issue public notice of the request and application in the manner set forth in subdivision (2) of this subsection.

(B)(i) At least 20 days after the public notice was issued, if no competing application has been filed and no party has sought and been granted, nor is likely to be granted, interested party status, the Board may issue a certificate of need in accordance with such expedited process as the Board deems appropriate, if the Board determines that:

(I) the proposed project appears likely not to be contested and does not substantially alter services; or

(II) the application relates to a health care facility affected by bankruptcy proceedings.

(ii) Any order granting expedited review shall include the procedures and timelines that the Board shall follow for the expedited review process. If practicable, the expedited review process shall include acceptance of public comment until at least 10 days after the expedited application is complete.

(C) If a competing application is filed or a person is granted interested party status, the applicant shall follow the certificate of need standards and procedures in this section, except that:

(i) a competing applicant or interested party may waive, in writing, the requirement for a public hearing; and

(ii) in the case of a health care facility affected by bankruptcy proceedings, the Board may, after notice and an opportunity to be heard, issue a certificate of need with such abbreviated process as the Board deems appropriate, notwithstanding the contested nature of the application.

(D) The Board shall review applications for the following projects on an expedited basis, unless a request for intervention as a competing applicant or interested party is granted:

(i) the repair, renovation, or replacement of facility infrastructure, or a combination thereof that does not involve new construction; and

(ii) the routine replacement of medical equipment if the technology and capability of the new equipment is comparable to that of the replaced equipment.

(6) If an applicant fails to respond to an information request under subdivision (4) of this subsection within 90 days, the application shall be deemed inactive unless the applicant, within six months after the expiration of the 90-day period, requests in writing and shows good cause that the application should be reactivated, and the Board grants the request. If an applicant fails to respond to an information request within six months, the application shall become invalid unless the applicant requests, and the Board grants, an extension.

(7) For purposes of this section, "interested party" status shall be granted to persons or organizations representing the interests of persons who demonstrate that they will be substantially and directly affected by the new health care project under review. Persons able to render material assistance to the Board by providing nonduplicative evidence relevant to the determination may be admitted in an amicus curiae capacity but shall not be considered parties. A petition seeking party or amicus curiae status shall be filed not later than five business days after the application is complete. The Board shall grant or deny a petition to intervene under this subdivision within 15 days after the petition is filed. The Board shall grant or deny the petition within an additional 30 days upon finding that good cause exists for the extension. Once interested party status is granted, the Board shall provide the information necessary to enable the party to participate in the review process, including information about procedures, copies of all written correspondence, and copies of all entries in the application record.

(8) Once an application has been deemed to be complete, public notice of the application shall be provided electronically on the Board's website. The notice shall identify the applicant, the proposed new health care project, and the date, time, and location of any public hearing.

(9) The Office of the Health Care Advocate established under chapter 229 of this title or, in the case of nursing homes, the Long-Term Care Ombudsman's Office established under 33 V.S.A. § 7502, is authorized but not required to participate in any administrative or judicial review of an application under this subchapter and shall be considered an interested party in such proceedings upon filing a notice of intervention with the Board. Once either office files a notice of intervention pursuant to this subchapter, the Board shall provide that office with the information necessary to participate in the review process, including information about procedures, copies of all written correspondence, and copies of all entries in the application record for all certificate of need proceedings, regardless of whether expedited status has been granted.

(d) The review process shall be as follows:

(1) The Board shall review:

(A) the application materials provided by the applicant; and

(B) any information, evidence, or arguments raised by interested parties or amicus curiae, and any other public input.

(2) Except as otherwise provided in subdivision (c)(5) and subsection (e) of this section, the Board shall hold a public hearing during the course of a review.

(3) The Board shall make a final decision within 120 days after the date of notification under subdivision (c)(4) of this section. Whenever it is not practicable to complete a review within 120 days, the Board may extend the review period up to an additional 30 days.

(4) After reviewing each application, the Board shall make a decision either to issue or to deny the application for a certificate of need. The decision shall be in the form of an approval in whole or in part, or an approval subject to such conditions as the Board may impose in furtherance of the purposes of this subchapter, or a denial. In granting a partial approval or a conditional approval, the Board shall not mandate a new health care project not proposed by the applicant or mandate the deletion of any existing service. Any partial approval or conditional approval must be directly within the scope of the project proposed by the applicant and the criteria used in reviewing the application.

(5) If the Board proposes to render a final decision denying an application in whole or in part, or approving a contested application, the Board shall serve the parties with notice of a proposed decision containing proposed findings of fact and conclusions of law, and shall provide the parties an opportunity to file exceptions and present briefs and oral argument to the Board. The Board may also permit the parties to present additional evidence.

(6) Notice of the final decision shall be sent to the applicant, competing applicants, and interested parties. The final decision shall include written findings and conclusions stating the basis of the decision.

(7) The Board shall establish rules governing the compilation of the record used by the Board in connection with decisions made on applications filed and certificates issued under this subchapter.

(e) The Board shall adopt rules governing procedures for the expeditious processing of applications for replacement, repair, rebuilding, or reequipping of any part of a health care facility or health maintenance organization destroyed or damaged as the result of fire, storm, flood, act of God, or civil disturbance, or any other circumstances beyond the control of the applicant where the Board finds that the circumstances require action in less time than normally required for review. If the nature of the emergency requires it, an application under this subsection may be reviewed by the Board only, without notice and opportunity for public hearing or intervention by any party.

(f) Any applicant, competing applicant, or interested party aggrieved by a final decision of the Board under this section may appeal pursuant to the provisions of section 9381 of this title.

(g) If the Board has reason to believe that the applicant has violated a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a prior certificate of need, the Board may take into consideration such violation in determining whether to approve, deny, or approve the application subject to conditions. The applicant shall be provided an opportunity to contest whether such violation occurred, unless such an opportunity has already been provided. The Board may impose as a condition of approval of the application that a violation be corrected or remediated before the certificate may take effect.

(h) As used in this section, an application or proposed project is "contested" if one or more interested parties have intervened in the proceeding. If an interested party withdraws from the application or signifies its support of the application in writing before the Board renders a final decision, the application shall not be considered contested and the Board shall not be required to hold a public hearing on the application pursuant to subdivision (d)(2) of this section or issue a proposed decision pursuant to subdivision (d)(5) of this section. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 7; 1987, No. 96, § 14; 1991, No. 160 (Adj. Sess.), §§ 29-32, 38, eff. May 11, 1992; 1993, No. 50, §§ 2, 3; 1995, No. 180 (Adj. Sess.), § 29; 1997, No. 159 (Adj. Sess.), § 11, eff. April 29, 1998; 2003, No. 53, §§ 15, 26; 2005, No. 71, § 77e; 2007, No. 27, § 8; 2007, No. 139 (Adj. Sess.), §§ 3-5, 5d; 2007, No. 139 (Adj. Sess.), § 5a, eff. May 9, 2008; 2007, No. 139 (Adj. Sess.), § 5e, eff. July 1, 2009; 2009, No. 49, § 11; 2009, No. 128 (Adj. Sess.), § 21, eff. May 27, 2010; 2011, No. 48, § 24; 2011, No. 171 (Adj. Sess.), § 19, eff. Jan. 1, 2013; 2013, No. 79, § 35e, eff. Jan. 1, 2014; 2015, No. 54, § 40; 2017, No. 167 (Adj. Sess.), § 6.)