Conning the Competition

Arkansas maintains a CON program, which it calls a “permit-of-approval” (POA) program, within four broad categories—hospital beds, beds outside hospitals, facilities and services. POAs function the same as CONs. Arkansas also maintains four moratoria on: (1) adding beds at residential care facilities; (2) adding beds at psychiatric residential treatment facilities; (3) opening new residential care facilities with more than 16 beds; and (4) opening intermediate care facilities for the mentally disabled. The state’s POA program sometimes treats similar facilities very differently. For example, opening a new assisted living or hospice facility requires a POA, but opening a new nursing home does not. A POA is required, however, to renovate a nursing home, but only when the renovations will cost more than $1 million. Assisted living and hospice facilities have no similar POA requirement for renovations.

COVID-19 Response

As of May 15, 2020, Arkansas had not suspended any POA requirements in response to COVID-19. The Department of Health, however, clarified that existing regulations allow hospitals to increase bed capacity in response to an emergency. Arkansas also maintains a rule allowing hospice facilities to temporarily expand during an emergency. See Ark. Health Servs. Permit Agency,
Permit of Approval Rulebook, 31 (Dec. 2012).

Application Process

In Arkansas, the POA application process takes approximately 90 days. Ark. Code R. § 20-8-104(c). Applications can be submitted at any time but are reviewed in four cycles per year. The fee for a POA application is $3,000. Permit of Approval Rulebook at 13–14. Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. Ark. Code R. § 20-8-106(d), (e).