Certificate of Need (CON) Overview

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

When working on a CON project, RPC can prepare the entire CON 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 CON application.

RPC is led by Ron Luke, JD, PhD, who has prepared CON applications and presented testimony in CON hearings since 1981 in over 20 states.  RPC’s work on CON 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 CON process gives the applicant the advantage of a skilled, experienced team that can provide expert advice and produce an effective CON application.

State Agencies

Secretary of the Washington State Department of Health
The secretary or the secretary’s designee renders the final decisions in the review process.

Certificate of Need program staff
The staff screens, reviews, and prepares written analysis on applications. The staff is also able to provide technical assistance before CON applications are submitted.

Department of Health
Certificate of Need Program
PO Box 47852
Olympia, Washington 98504-7852
(360) 236-2955

Services that Require CON

The Washington State Certificate of Need program is a regulatory process that requires certain health care providers to obtain state approval before building certain types of facilities or offering new or expanded services.  The CON process is intended to help ensure that facilities and new services proposed by health care providers are needed for quality patient care within a particular region or community.  CON review is required for:

  • Construction, development, or establishment of the following facility types:
    • Hospital
    • Nursing home
    • Kidney dialysis center
    • Medicare or Medicaid home health agency
    • Medicare or Medicaid hospice agency
    • Ambulatory surgical center
    • Hospice care center
  • Increases in the number of stations at a kidney dialysis center
  • Sale, purchase, or lease of an existing hospital
  • Increases in the number of licensed beds at a hospital, nursing home, or hospice facility
  • Offering a new tertiary health service, including:
    • Level I rehabilitation programs
    • Open heart surgery
    • Therapeutic cardiac catheterization
    • Organ transplantation
    • Specialty burn services
    • Intermediate care nursery and/or obstetric services
    • Level II neonatal intensive care nursery and/or obstetric services
    • Level III specialized inpatient pediatric services
  • Nursing home projects with a capital expenditure exceeding $2,834,164 (2020 minimum; adjusted annually for inflation)
  • Nursing home bed banking transactions
  • Nursing home replacements

Certificate of Need Exemptions

  • Inpatient tertiary health services if owned by a facility that primarily offers inpatient services and is controlled by a health maintenance organization with at least 50,000 members, and at least 75 percent of these members will have reasonable access to the service
  • Health facilities leased by a health maintenance organization with at least 50,000 members, and at least 75 percent of these members will have reasonable access to the facility, where the lease term is at least fifteen years past the date of application
  • Construction or expansion of a nursing home owned and operated by a continuing care retirement community offering services exclusively to its members
  • Rural hospitals increasing the number of licensed beds if expansion occurs within three years of a reduction in beds and the new total does not exceed the number of previously licensed beds
  • Rural health facilities converting to a hospital if they were formerly licensed as a hospital within the past three years, there is no redistribution of bed types, and the facility has remained in continuous operation
  • Rural hospitals that no longer meet critical access hospital standards may apply for a renewal of a hospital license, provided the facility was previously licensed as a hospital and there is no increase in the number of beds
  • Nursing homes that reduced licensed beds to introduce post acute services or otherwise enhance residents’ quality of life may increase the number of beds to the previously licensed capacity
  • Hospice agencies that serve unique cultural or religious needs of an underserved population or ethnic group with a patient census of less than forty patients
  • Establishing a new psychiatric hospital with no more than sixteen beds, or conversion of existing licensed acute care beds to psychiatric beds
  • Ambulatory surgery centers owned by a physician or group of physicians if the facility is for the exclusive use of these physicians and operated as a CON-exempt facility prior to January 19, 2018
  • Rural health clinics providing health services in a home health shortage area

Certificate of Need Process Milestones

There are four different types of review: regular, concurrent (competing applications), emergency, and expedited.  Concurrent applications are submitted at specific times throughout a year while the other types of applications may be submitted at any time.  According to WAC § 246-310-120-133, some projects, including those involving nursing home beds and open heart surgery, must be submitted for concurrent review. Regardless of the type of review, all applicants must submit a letter of intent, then an application with fee. Timing of the letter of intent and submission of the application may vary depending on the type of review. For a regular review, the applicant follows the process described below. The process for concurrently reviewed applications can be found at WAC § 246-310-120.

  1. Letter of Intent
    The applicant files a letter of intent (LOI) with the department a minimum of 30 days prior to filing an application.  To be valid, the LOI must include a project description, cost estimation, and identification of the service area.  It is valid for six months.
  2. Submission and Screening
    The application may be submitted from the 31st day up to six months after the LOI is submitted.  Once submitted, staff begins screening the application.  Staff determines if the application is complete within fifteen working days.  If it is deemed incomplete, staff will solicit the applicant for additional information.
  3. Applicant Response
    The applicant can respond to the request for additional information within 45 days, not respond, or submit the requested information and ask for another screening. If the applicant has not submitted all materials required to make their application complete by the 120th day after the first screening period, the application will be returned to the applicant.
  4. Formal Review (90 days)
    The formal review period begins on the fifth working day after the department declares the application complete.  The first 45 days are dedicated to public comment.  The last 45 days are reserved for analysis and decision-making.
  5. Public Hearing and Public Comment Period
    The public comment period is limited to 45 days. The first 35 days of the public comment period are reserved for receiving public comments and conducting a public hearing, if requested. The remaining 10 days of the public comment period are reserved for the applicant’s rebuttal statements to comments received. A hearing request must be submitted in writing within 15 days of the beginning of review notification, and written notice to the general public must be published in a newspaper of general circulation in the applicant’s proposed service area. Written notice of the hearing is sent to the applicant, affected persons, the interested person, and posted on the CON program’s website.
  6. Decision
    The department will complete its final review and the secretary’s designee will make a decision on the CON application within 45 days of the end of the public comment period.
  7. Reconsideration
    The applicant and any interested or affected person may request a public hearing for the reconsideration of the decision of the secretary’s designee. The department shall conduct a reconsideration hearing if it finds the request is written, is received within 28 days of department’s decision, states grounds for good cause (new relevant information, significant changes in circumstances, evidence of material failure on part of the department to follow procedures), and has the signature of person making request. The hearing is scheduled within 30 days of approval for reconsideration. Notice is sent to the person requesting the hearing, the applicant, interested and affected persons, published in the local newspaper, and posted on the Program’s website. The department will release written findings stating the basis of their reconsideration decision within 45 days after the conclusion of the reconsideration hearing.
  8. Appeal Process
    Within 28 days of the department’s decision or reconsideration decision, the applicant or any affected person may file for an adjudicative proceeding with the Adjudicative Clerk Office in Olympia. Notice is sent to the applicant, interested, and affected persons who participated in the review process. These institutions are invited to present oral and written testimony.

What Criteria are Used to Review a CON?

Detailed criteria are published in the Washington Administrative Code, and some numeric need methodologies are published on the CON website. As presented in WAC § 246-310-200, the bases for findings and action on applications that the department reviews are based on:

  • Whether the proposed project is needed
  • Whether the project will foster cost containment
  • The project’s financial feasibility
  • Structure and process (quality) of care is reviewed for consistency with service and facility standards, any applicable long range plans, national standards from professional organizations, standards developed by professional organizations in the state, federal standards, licensing requirements, staffing requirements and other applicable standards

Certificate of Need Application Filing Fee

The applicant pays a fee based on the facility type.  If an applicant proposes two separate projects, then two separate applications must be submitted, each with the appropriate review fee.  Fees range from $770 for extension requests to $46,253 for new nursing homes.  The full schedule can be found in WAC 246-310-990.

Additional Sources

(links good as of January 2022)

Washington State Department of Health, Certificate of Need
https://www.doh.wa.gov/LicensesPermitsandCertificates/FacilitiesNewReneworUpdate/CertificateofNeed

CON Statute
https://app.leg.wa.gov/rcw/default.aspx?cite=70.38

CON Rules
https://app.leg.wa.gov/wac/default.aspx?cite=246-310

CON Application Forms
https://www.doh.wa.gov/LicensesPermitsandCertificates/FacilitiesNewReneworUpdate/CertificateofNeed/ApplicationForms

General Timelines for CON Applications
https://www.doh.wa.gov/LicensesPermitsandCertificates/FacilitiesNewReneworUpdate/CertificateofNeed/ReviewProcess

Numeric Need Methodologies
https://www.doh.wa.gov/LicensesPermitsandCertificates/FacilitiesNewReneworUpdate/CertificateofNeed/NeedMethodologies

 

Contact RPC Consulting
Should you or your client need an expert team to help you with the Washington Certificate of Need Process (CON) 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.