Kentucky is one of eight states to require CONs across all six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transportation. Kentucky maintains 45 independent CON requirements, although it also has 40 exceptions that apply to things like primary care centers, rural health clinics and most mobile clinics. See Ky. Rev. Stat. § 216B.020. The state failed to issue any formal guidance or otherwise suspend any CON requirements in response to COVID-19, but it maintains a general emergency CON regulation that allows for temporary expansions without CONs in limited circumstances.
On March 6, 2020, Governor Beshear declared a state of emergency in Kentucky. Exec. Order 2020-215 (Mar. 6, 2020). In response, the Kentucky Cabinet for Health and Human Services (Cabinet) provided a brief update on its website regarding emergency CONs. See Cabinet, Certificate of Need. Notably, the Cabinet directed potential applications to “follow emergency regulation 900 [Ky. Admin. Regs.] 6:080.” This regulation allows healthcare providers to respond to the emergency without first seeking a CON, so long as they notify the Cabinet about what action was taken after the fact. The emergency service may continue without a CON until “the emergency ceases to exist” or “the [C]abinet issues a final decision to approve or disapprove the application for CON.” 900 Ky. Admin. Regs. 6:080 § 2(5). According to the Cabinet’s website, it received 25 emergency CON applications between March 18, 2020, and June 1, 2020. See Cabinet, CON Search Emergency Approval.
In Kentucky, formal review of a CON application takes up to 90 days. Ky. Rev. Stat. §216B.015; 900 Ky. Admin. Regs. 6:065. If an application qualifies for nonsubstantive review and no direct competitors request a hearing, the application process takes 35 days once an application is deemed complete. See Ky. Rev. Stat. § 216B.095. Applications can be submitted at any time. The fee for a CON application ranges from $1,000 (for proposals less than $200,000 in capital expenditures) to $25,000 (for proposals greater than $5 million). 900 Ky. Admin. Regs. 6:020 §§ 1(2)-(4). An application fee is nonrefundable unless the applicant withdraws the application within five days after its submission. 900 Ky. Admin. Regs. 6:020 § 2(3). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. 900 Ky. Admin. Regs. 6:090.