Massachusetts is one of eight states to require CONs within all six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transport. Massachusetts, however, calls its program a determination of need (DON) program. DONs function the same as CONs. Massachusetts maintains regulations that allow applicants to apply for an emergency DON if they are able to “convincingly demonstrate that the Proposed Project will address the Emergency Situation, and without issuance of a Notice of Determination of Need, that the public health will be measurably harmed.” 105 Mass. Code Regs. § 100.740(A).

COVID-19 Response

On March 24, 2020, Monica Bharel, Commissioner of the Massachusetts Department of Public Health, acting pursuant to the Governor’s public health emergency declaration, ordered the Department to reduce the burdens associated with the DON program. Order of the Comm’r of Pub. Health Regarding Determination of Need Approvals Related to COVID-19 (Mar. 24, 2020).45 The Department issued a memorandum describing an expedited DON application process in response to COVID-19. Memorandum from Margo Michaels, Massachusetts Pub. Health Director (Mar. 24, 2020). The Department then reviewed applications to determine whether the proposed project actually related to COVID-19 and whether the project was truly temporary in nature.

Application Process

In Massachusetts, the DON application process takes four months. 105 Mass. Code Regs. § 100.405(D). Applications can be submitted at any time and the application fee is $500 or 0.2% of the total value of the proposed project, whichever is greater. 105 Mass. Code Regs. § 100.405(B). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. 105 Mass. Code Regs. § 100.440(A).

CON? Number of DONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 1 Expedited at least some CON reviews
Beds Outside Hospitals Yes 6 Expedited at least some CON reviews
Equipment Yes 3 Expedited at least some CON reviews
Facilities/ Buildings Yes 9 Expedited at least some CON reviews
Services Yes 2 Expedited at least some CON reviews
Emergency Medical Transport Yes 1 Expedited at least some CON reviews