Vermont requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. The definitions of “services” and “equipment” are extremely broad in Vermont, where the program instead relies heavily on expenditures. For example, Vermont does not define individual services that require a CON in its statute or regulations. Instead, any activity or function related to “care, treatment or diagnosis of patients” costing more than $500,000 requires a CON. Vt. Stat. tit. 18, §§ 9432(10), 9434(a)(5). Vermont further maintains a statewide moratorium preventing any new home health agencies from opening through 2025. 2019 Vt. Act. § Resolves No. 5. Sec. 2.

COVID-19 Response

On March 13, 2020, Governor Scott declared a state of emergency in response to COVID-19. Exec. Order 01-20 (Mar. 13, 2020). The Legislature then passed a bill to grant state agencies emergency powers. See H.742 (Act 91) § 5 (signed Mar. 30, 2020). In response, the Green Mountain Care Board (Board), the agency in charge of overseeing and approving the CON program, issued a temporary waiver of CON requirements for certain COVID-19 related projects. Board, Certificate of Need Bulletin 003 (Apr. 9, 2020). The waiver requires facilities to submit a brief notice to the Board before expanding to respond to COVID-19, unless it had already applied for a Medicare or Medicaid waiver or obtained approval to expand services from the State Survey Agency. See Certificate of Need Bulletin 003 at (a), (b). Operating an expanded facility or service after the state of emergency is terminated requires applying for a regular CON.

Application Process

In Vermont, the CON application process takes up to 120 days. Vt. Stat. tit. 18, § 9440(d)(3). Applications can be submitted at any time, and the fee for a CON application is 0.125% of project costs, not to exceed $20,000 with a minimum fee of $250. Vt. Stat. tit. 18, § 9441(a), (b). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. See Board Rules § 4.406.

CON? Number of CONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 6 Suspended at least some CON laws
Beds Outside Hospitals Yes 4 Suspended at least some CON laws
Equipment Yes 2 Suspended at least some CON laws
Facilities/ Buildings Yes 16 Suspended at least some CON laws
Services Yes 1 1 Suspended at least some CON laws
Emergency Medical Transport No