Alabama is one of eight states to require CONs across all six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transport. Alabama maintains 47 individual CON requirements, 19 of which apply to facilities and buildings. The state also maintains a catch-all CON. That is, if no specific CON applies, the catch-all CON requires healthcare facilities to obtain a CON if they intend to spend $4 million or more for any reason. Ala. Code § 22-21-263(a)(2). In Alabama, a public hearing is required for all CON applications before the CON Review Board will issue a decision. Ala. Admin. Code r. 410-1-7-.17.

COVID-19 Response

On April 2, 2020, Governor Ivey issued a proclamation requiring relevant state agencies to “promulgate emergency rules to provide for temporary waivers to the Certificate of Need process to permit new services, facilities, and other resources needed for the treatment of patients affected by the appearance of COVID-19, or to free up bed and treatment space at existing healthcare facilities to permit such needed treatment.” Proclamation at 3–4 (Apr. 2, 2020). In response, the State Health Planning and Development Agency (SHPDA) promulgated an emergency rule declaring an existing need for new or expanded services, beds, facilities and equipment and waiving ordinary CON requirements through August 5, 2020. See COVID-19 State of Emergency, Ala. Admin. Code r. 410-2-5-.09-E (Apr. 7, 2020). This assumption of need allowed facilities to expand services or increase beds without first applying for a CON. Healthcare facilities were required, however, to notify SHPDA about any changes made pursuant to the emergency rule, and changes in service were required to cease within 60 days of the end of the state of emergency. As of May 15, 2020, Alabama had received notices that 38 facilities had expanded their facilities or services in response to COVID-19. See State Health Planning & Development Agency, Temporary Waiver of Certificate of Need Requirements During State of Emergency.

Application Process

In Alabama, the CON application process typically takes 90 days. Ala. Admin. Code r. 410-1-7-.09. The Certificate of Need Review Board is required to hold a public hearing for CON applications at least 80 days, but not more than 90 days, after an application is complete. Ala. Admin. Code r. 410-1-7-.17(1)(a). Applications can be submitted at any time. The fee for a CON application ranges from $3,500 to $12,000. Ala. Admin. Code r. 410-1-7-.06(1)(b). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied at the public hearing. Ala. Admin. Code r. 410-1-7-.13, -.17.

CON? Number of CONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 6 Suspended at least some CON laws
Beds Outside Hospitals Yes 10 Suspended at least some CON laws
Equipment Yes 2 Suspended at least some CON laws
Facilities/ Buildings Yes 19 Suspended at least some CON laws
Services Yes 8 Suspended at least some CON laws
Emergency Medical Transport Yes 2 Suspended at least some CON laws