Vermont § 9440 - Procedures

§ 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 (c) The application process shall be as follows: (1) [Repealed.]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 after 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)(A) 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. (B) Once either office files a notice of intervention pursuant to this subchapter, that
  office shall have the right to receive copies of all materials related to the certificate
  of need application review and may: (i) submit written questions to the Board that the Board will ask of the applicant in
  advance of any hearing held in conjunction with the Board’s review of the certificate
  of need application; (ii) submit written comments for the Board’s consideration; and (iii) ask questions and provide testimony in any hearing held in conjunction with the Board’s
  review of the certificate of need application. (C) The Office of the Health Care Advocate and the Long-Term Care Ombudsman’s Office shall
  not further disclose any confidential or proprietary information provided to their
  respective offices pursuant to this subdivision (9). (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; 2023, No. 6, § 238, eff. July 1, 2023; 2025, No. 6, § 2, eff. July 1, 2025.)