Certificate of Public Need (COPN) Overview

Like many other states, Virginia has an extensive COPN process in place for healthcare services and facilities. Winning approval for a COPN application is often a time consuming and difficult undertaking. Working with RPC provides clients with a team of consultants with experience working with COPN projects.

When working on a COPN project, RPC can prepare the entire COPN application or sections of the application as the client prefers. When the client is defining the project and deciding whether to apply, RPC can help assess the market and regulatory situation to determine the relative likelihood of success for a project. RPC not only completes a thorough review of the competitive environment, market need and financial analysis, but also works seamlessly with the client’s staff, architects, engineers, and other outside consultants to create a solid COPN application.

RPC is led by Ron Luke, JD, PhD, who has prepared COPN applications and presented testimony in COPN hearings since 1981 in over 20 states.  RPC’s work on COPN projects includes the opening of new acute care hospitals, hospices, physical rehabilitation and psychiatric specialty hospitals, ambulatory surgery centers and nursing homes, the relocation and addition of beds, and acquiring major medical equipment. Working with RPC during the COPN process gives the applicant the advantage of a skilled, experienced team that can provide expert advice and produce an effective COPN application.

State Agencies

Virginia Department of Health
The Virginia Department of Health, through its Certificate of Public Need Program, administers the COPN application process and reviews all COPN applications.

Certificate of Public Need Program (COPN)
All applications start with the COPN staff which consists of a director and four analysts. Staff members make recommendations to the Commissioner for approval or denial of a project. The COPN staff schedules and conducts hearings. In areas represented by a regional health planning agency, public hearings are the responsibility of that agency.

Virginia Department of Health
Division of Certificate of Public Need
9960 Mayland Drive – Suite 401
Henrico, Virginia 23233
(804) 367-2126

State Health Commissioner
The Commissioner holds the authority to grant, revoke, and extend Certificates of Public Need and new nursing home bed reviews.

Health Systems Agency of Northern Virginia (HSANV)
As the only remaining regional health planning agency, the HSANV conducts an independent review of applications for services and facilities in Virginia Health Planning Region II and performs many of the same duties as the DCOPN.

Health Systems Agency of Northern Virginia
3040 Williams Drive, Suite 200
Fairfax, Virginia 22031
(703) 573-3100

Circuit Court
Appeals of the Commissioner’s decisions are made to the Circuit Court in accordance with the Virginia Administrative Process Act (2.2-4000 et seq. of the Code of Virginia).

Facilities and Services that Require COPN

As defined by the Code of Virginia, a Certificate of Public Need is required for the following projects:

  • Establishment of a medical care facility (any institution, place, or building in which health services are furnished or which is the recipient of reimbursement from third-party health insurance or medical service plans. A listing of such facilities is available in Chapter 4 of Title 32.1 of the Code of Virginia, §102.1.)
  • Increase in the number of beds or operating rooms in an existing facility
  • Relocation of beds from one existing facility to another; provided that “project” shall not include the relocation of up to 10 beds or 10 percent of the beds, whichever is less, (i) from one existing facility to another existing facility at the same site in any two-year period, or (ii) in any three-year period, from one existing nursing home facility to any other existing nursing home facility owned or controlled by the same person that is located either within the same planning district, or within another planning district out of which, during or prior to that three-year period, at least 10 times that number of beds have been authorized by statute to be relocated from one or more facilities located in that other planning district and at least half of those beds have not been replaced (a hospital shall not be required to obtain a certificate for the use of 10 percent of its beds as nursing home beds as provided in § 32.1-132)
  • Introduction into an existing facility of a new nursing home service
  • Introduction into an existing medical care facility of any of the services below, which the facility has never provided or has not provided in the previous 12 months:
    • Cardiac catheterization
    • Computed tomographic (CT) scanning
    • Gamma Knife radiosurgery
    • Stereotactic radiosurgery
    • Lithotripsy
    • Magnetic Resonance Imaging (MRI)
    • Magnetic Source Imaging (MSI)
    • Medical rehabilitation
    • Neonatal special care
    • Obstetrical services
    • Open heart surgery
    • Operating rooms
    • Positron emission tomographic (PET) scanning
    • Psychiatric services
    • Organ or tissue transplant
    • Radiation therapy
    • Stereotactic radiotherapy
    • Proton beam therapy
    • Nuclear medicine imaging (except for nuclear cardiac imaging)
    • Substance abuse treatment
  • Conversion of beds to medical rehabilitation beds or psychiatric beds
  • The addition (not replacement) by an existing medical care facility of any medical equipment for the provision of cardiac catheterization, computed tomographic (CT) scanning, stereotactic radiosurgery, lithotripsy, magnetic resonance imaging (MRI), magnetic source imaging (MSI), open heart surgery, positron emission tomographic (PET) scanning, radiation therapy, stereotactic radiotherapy, proton beam therapy, or other specialized service designated by the Board by regulation
  • Any capital expenditure of $17,095,823 or more, not defined as reviewable in previous subdivisions by or on behalf of a medical care facility (adjusted annually based on CPI)
  • Conversion in an existing medical care facility of psychiatric inpatient beds approved under § 32.1-102.3:2 to nonpsychiatric inpatient beds

Certificate of Public Need Milestones

Preconsultation

Prior to filing an application, a potential applicant can request advice and assistance concerning community health resources needs from a regional health planning agency and the Department.

  1. File Letter of Intent
    A letter of intent (LOI), requesting application forms, must be filed with the Commissioner by the later of (i) 30 days prior to the submission of an application included in a regular batch group, or (ii) ten days after the first LOI for a project within the same batch group is filed. The letter must identify the owner, type of project, propose scope and location of the project.
  2. Requests for Application (RFA)
    The Commissioner may solicit applications to address specific public needs (nursing home).  The Commissioner calls for applications at least 120 days prior to the beginning of the appropriate batch cycle.
  3. COPN Application Filing
    The application must be filed at least 40 days prior to the beginning of a batching review cycle to be considered in that cycle.  There are seven batching groups (determined by type of service), each of which has two filing opportunities per year.  The exception is Group G: Nursing home beds and bed relocations, which has six opportunities.
  4. Review for Completeness
    Within fifteen days after filing, the applicant will receive notice if additional information is required to complete the application. All information required to complete an application must be submitted at least five days prior to the start of a review cycle to be considered in the cycle.  Application fees must be paid before the review cycle starts.
  5. One Hundred Ninety-Day Review Cycle
    Applications are reviewed in batch groups. At the close of the workday on the 10th day of the month, the Department of Health provides written notifications to applicants specifying the acceptance date and review schedule, including the date for any informal fact-finding conference that might be held between the 80th and 90th day of the cycle. By the 70th day of the cycle, the department shall complete its review and transmit its recommendation.
  6. Informal Fact-Finding Conference (IFFC)
    By the 75th day of the review cycle, the Department of Health will transmit a notice to the applicant and other relevant parties whether or not informal fact-finding conference is necessary. The IFFC may be held between the 80th and 90th day of the review cycle when:

    • deemed necessary by the state health department
    • requested by a party with “good cause,” meaning there is new and relevant information, significant changes in circumstances, or a material mistake of fact or law
  7. Commissioner’s Decision
    After the Record closes, the Commissioner has 45 days to reach a decision, but may take an additional 25 if necessary and the affected parties are notified in writing that the additional time will be taken.  Timelines at all points can be extended by the applicant.
  8. Judicial Review
    Appeals are filed in a Circuit Court and are governed by rules described in the Virginia Administrative Process Act (VAC §2.2-4000 et seq.)
  9. Progress Reports
    A COPN holder must submit COPN progress reports at 12 months and 24 months after issuance, as well as a final report upon project completion.  The progress reports demonstrate construction, planning, and financing in accordance with the COPN that was issued.

What Criteria are Used to Review a COPN?

The Virginia State Health Commissioner considers many factors in the determination of public need. Pursuant to Title 32.1 § 102.3 of the Code of Virginia, the Commissioner‘s decision will consider:

  1. Level of access to residents and effect on access to other local services
  2. Meeting the needs of the residents, demonstrated by:
    • level of community support
    • evaluation of alternatives
    • any recommendation or report from the regional health planning agency
    • costs and benefits of the project
    • financial accessibility
  3. Consistency with the State Medical Facilities Plan
  4. Increased institutional competition, benefiting residents and improving access to essential services
  5. Relationship to the existing health care delivery system
  6. Project feasibility: financial and staffing resources
  7. Improvements in financing and delivering health care:
    • new technology that improves quality or cost-effectiveness
    • outpatient service provision
    • cooperative efforts to meet regional health needs
  8. For projects affecting teaching hospitals:
    • the unique research, training and teaching of the hospital and affiliated medical school
    • contribution by the hospital and medical school to improving the delivery, innovation and quality of health care services

Certificate of Need Application Filing Fee

The fee submitted with a Certificate of Public Need application is equal to 1.0% of the proposed capital expenditure for the project, with a minimum amount of $1,000 and no more than $20,000. The fee must be received at least five days prior to the first day of a review cycle to be considered for review in the same review cycle.

Additional Sources

(links good as of January 2022)

COPN Program
https://www.vdh.virginia.gov/licensure-and-certification/the-certificate-of-public-need-program/

COPN Statute
https://law.lis.virginia.gov/vacode/32.1-102.2/

COPN Rules
https://www.vdh.virginia.gov/content/uploads/sites/96/2016/07/COPN-regs-2011.pdf

State Medical Facilities Plan
https://law.lis.virginia.gov/admincode/title12/agency5/chapter230/

Applications and Forms

https://www.vdh.virginia.gov/licensure-and-certification/applications-and-forms/

Batching Cycle Calendar
http://www.vdh.virginia.gov/content/uploads/sites/96/2016/07/Cycle-schedule.doc

Contact RPC Consulting
Should you or your client need an expert team to help you with the Virginia Certificate of Public Need (COPN) please contact Dr. Ron Luke at 512-371-8166.

Disclaimer: The information on this page has been compiled by RPC in June 2010 based on sources believed to be reliable. It was updated in January 2022. Where possible we have had the material reviewed by state CON officials or others knowledgeable of the state’s CON program. The information is not offered as legal advice. A state may change its rules, forms and procedures at any time and RPC offers no assurance that the information will be correct on the date it is viewed. Therefore the reader is urged to use this information only as a starting point for any CON application and to speak with state officials or seek legal or consulting advice early in the process.