New Jersey 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. New Jersey’s CON program includes 100 distinct CON requirements, including one for paramedic services. N.J. Stat. §§ 26:2H-7, 26:2H-2(b); N.J. Admin. Code § 8:33-3.1. New Jersey and the District of Columbia are the only jurisdictions to require such a CON. Unlike most other states, New Jersey limits the number of applications which may be submitted by pre-determining the need for projects each year. N.J. Admin. Code § 8:33-4.1. Despite New Jersey’s robust CON program, it maintains only one equipment CON for cardiac catheterization equipment costing more than $ 2 million. See N.J. Stat. § 26:2H-7(c); N.J. Admin. Code §§ 8:33-1.3.
On March 9, 2020, Governor Murphy issued an Executive Order declaring a state of emergency, which empowered the Department of Health to take any steps necessary to eliminate barriers to medical care. Exec. Order No. 103 (Mar. 9, 2020). On March 14, 2020, the Department responded by issuing a guidance regarding temporary operational waivers to allow hospitals to add additional beds without first obtaining a CON. Dep’t of Health, Temporary Operational Waivers during a State of Emergency (Mar. 13, 2020). After the state of emergency ends, facilities must return to their pre-emergency capacity.
In New Jersey, the CON application process takes between three and nine months, depending on whether the project must go through “full review” or “expedited review.” N.J. Admin. Code § 8:33-4.1(a)–(b). The Commissioner of Health, who makes the final decision to approve or disapprove applications, receives recommendations from both Department of Health staff and the State Health Planning Board for applications under full review and from just the Department of Health for applications under expedited review. N.J. Stat. § 26:2H-5.8(b); N.J. Admin. Code § 8:33-4.1(b). Applications may only be submitted according to the schedule, published yearly by the Commissioner, which identifies the services and geographic areas projected to need additional providers over the next two years. N.J. Admin. Code § 8:33-4.1(a). The fee for a CON application is $7,500, plus 0.25% of the total cost for projects costing more than $1 million. N.J. Admin. Code § 8:33-4.3(b). Competitors generally cannot intervene in the application process. Except in limited circumstances, there are no public hearings prior to the Commissioner’s decision. N.J. Stat. § 26:2H-5.8(c).