Hawaii
Hawaii is one of eight states to require CONs across all six broad categories—
hospital beds, beds outside hospitals, equipment, facilities, services and emergency
medical transport. Hawaii is one of only five states to require a CON for ground ambulances. Hawaii maintains a broad CON law with a similarly broad list of exceptions. Additionally, the state’s CON application process is unique because three regulatory entities participate in the state agency’s review of CON applications: (1) the local Subarea Councils; (2) the CON Review Panel, and (3) the Statewide Health Coordinating Council. E.g., Haw. Rev. Stat. § 323D-44(a); Haw. Code R. § 11-186-3.
Hawaii’s COVID-19 Response
As of May 15, 2020, Hawaii had not suspended any CON requirements in response to COVID-19. Existing regulations, however, provide for an expedited application process which allow for expedited CON review during emergencies. See Email from Linda Chu Takayama, Chief of Staff, Office of the Governor, to John Wrench, Institute for Justice (Apr. 30, 2020).32 Specifically, the application review period is shortened to 10 days during emergencies. See Haw. Code R. § 11-186-99(d). In addition, Hawaii maintains a rule allowing existing facilities to temporarily add beds without applying for a CON as long as any addition is for 90 days or less. Haw. Code R. § 11-186-7(b).
Application Process
In Hawaii, the CON application process takes up to 90 days, although the review agency has authority to extend this period. Haw. Rev. Stat. § 323D-44(b); Haw. Code R. § 11-186-37. Applications can be submitted at any time, except for certain services that have a cyclical review cycle. Haw. Rev. Stat. § 323D-44(d); Haw. Code R. § 11-186-10, 24. The nonrefundable fee for a CON application is $200, plus 0.1% of the total cost of the project, up to $1 million, plus .05% of the total cost of the project in excess of $1 million. Haw. Code R. § 11-186-25(a).
Competitors may intervene in the application process by attending public hearings. Haw. Code R. § 11-186-47. Competitors have the right to be represented by counsel at public hearings, to present oral and written arguments and evidence, and to question persons who make factual allegations regarding the application. Haw. Rev. Stat. § 323D-45(b). Competitors also have the right to request reconsideration, which includes another hearing, after a showing of good cause. Haw. Code R. § 11-186-82(a).
Types of CONs in Hawaii
| CON? | CON applies with expenditure of: | Temporary COVID-19 response: | |
| Hospital Beds | Yes | Any amount | Preexisting regulation implemented |
| Beds Outside Hospitals | Yes | Any amount | Preexisting regulation implemented |
| Equipment | Yes | $400,000 – $1 million+ | – |
| Facilities/Buildings | Yes | Any amount | – |
| Services | Yes | Any amount | – |
| Emergency Medical Transport | Yes | Any amount | – |
Hawaii CONs in Detail
| Category | Types of CONs | Haw. Code R. |
| Hospital Beds CON required to add, delete, increase, decrease or relocate any of the following types of beds. Haw. Code R. § 11-186-7(a) | Medical/surgical beds. Obstetrics beds. Pediatrics beds. Neonatal intensive care beds. Critical care beds. Psychiatric beds. Acute/long term swing beds. | § 11-186-5(1) |
| Beds Outside Hospitals CON required to add, delete, increase, decrease or relocate any of the following types of beds. Haw. Code R. § 11-186-7(a) | Psychiatric beds. Tuberculosis beds. Hansen’s Disease beds. Children’s orthopedic beds. Rehabilitation beds. Skilled nursing facility beds. Intermediate care facility beds. Special treatment facility beds. | § 11-186-5(2) |
| Equipment | The acquisition of new or replacement equipment costing more than $1 million or used equipment costing more than $400,000. | Haw. Rev. Stat. §§ 323D-43(a)(1), 323D-2 |
| Stationary computer tomography scanner. Mobile computer tomography scanner. | § 11-186-5(3)(D) § 11-186-5(3)(E) | |
| Stationary magnetic resonance imaging scanner. | § 11-186-5(3)(J) | |
| Mobile magnetic resonance imaging scanner. | § 11-186-5(3)(K) | |
| Facilities/Buildings Constructing, expanding, altering, converting, developing, initiating or modifying the following facilities requires a CON if such action will cost more than $4 million. Haw. Rev. Stat. § 323D-43(a)(1) | Hospitals. Extended care centers. Rehabilitation centers. Nursing homes. Skilled nursing facilities. Intermediate care facilities. Hospices. Kidney disease treatment centers. | Haw. Code R. 11-186-3; Haw. Rev. Stat. § 323D-43(a)(1), see id. § 323D-2 |
| Category | Types of CONs | Haw. Code R. |
| Facilities/Buildings New health care facilities, and capital expenditures on health care facilities over $4 million, require a CON. Haw. Rev. Stat. § 323D-43(a)(1) | Outpatient clinics. Ambulatory care centers. Emergency care facilities. Health maintenance organizations. | Haw. Code R. 11-186-3; Haw. Rev. Stat. § 323D-43(a)(1), see id. § 323D-2 |
| Special treatment facilities. | § 11-186-5(2)(J) | |
| Comprehensive outpatient rehabilitation centers. | § 11-186-5(3)(M) | |
| Burn centers. | § 11-186-5(4)(C) | |
| Any change of location of a health service. | § 11-186-6(b) | |
| The addition or deletion of a mobile service. | § 11-186-6(c) | |
| Services A CON is required to substantially modify or increase the scope or type of any of the following types of health services. Haw. Rev. Stat. § 323D-43(a)(2) | Medical/surgical. | § 11-186-5(1)(A) |
| Obstetrics. | § 11-186-5(1)(B) | |
| Pediatrics. | § 11-186-5(1)(C) | |
| Neonatal intensive care. | § 11-186-5(1)(D) | |
| Critical care. | § 11-186-5(1)(E) | |
| Psychiatric. | § 11-186-5(1)(F) | |
| Long term psychiatric. | § 11-186-5(2)(A) | |
| Tuberculosis. | § 11-186-5(2)(B) | |
| Hansen’s Disease. | § 11-186-5(2)(C) | |
| Children’s orthopedics. | § 11-186-5(2)(D) | |
| Rehabilitation. | § 11-186-5(2)(E) | |
| Skilled nursing care. | § 11-186-5(2)(F), (I) | |
| Intermediate care. | § 11-186-5(2)(G), (I) | |
| Special treatment. | § 11-186-5(2)(J) | |
| Emergency room. | § 11-186-5(3)(A) | |
| Outpatient surgery. | § 11-186-5(3)(B) | |
| Category | Types of CONs | Haw. Code R. |
| Services | Diagnostic radiology. | § 11-186-5(3)(C) |
| Nuclear medicine. | § 11-186-5(3)(F) | |
| Home health agency. | § 11-186-5(3)(G) | |
| Extracorporeal shock wave lithotripsy. | § 11-186-5(3)(I) | |
| Chronic renal dialysis. | § 11-186-5(4)(A) | |
| Cardiac catheterization. | § 11-186-5(4)(B) | |
| Neurosurgery. | § 11-186-5(4)(D) | |
| Heart surgery. | § 11-186-5(4)(E) | |
| Transplant surgery. | § 11-186-5(4)(F) | |
| Radiation therapy. | § 11-186-5(4)(G) | |
| Hospice. | § 11-186-5(4)(H) | |
| Emergency Medical Transport | Surface ambulances. | § 11-186-5(3)(H) |
Hawaii CON Exceptions
| No CON Required For: | Haw. Rev. Stat. |
| Offices of physicians, dentists or similar practitioners in private practice except in any cases involving purchases of equipment exceeding the expenditure minimum. | § 323D-54(1) |
| Laboratories, except in cases involving purchases of equipment exceeding the expenditure minimum. | § 323D-54(2) |
| Dispensaries and first aid stations located within business or industrial establishments maintained solely for the use of employees. | § 323D-54(3) |
| Dispensaries or infirmaries in correctional or educational facilities. | § 323D-54(4) |
| Hotels, motels and rooming or boarding houses that do not regularly provide health care facilities or health care services. | § 323D-54(5) |
| Any home or institution conducted only for faith-based groups who rely on healing by prayer or other spiritual means. | § 323D-54(6) |
| Dental clinics. | § 323D-54(7) |
| Nonpatient areas of care facilities such as parking garages and administrative offices. | § 323D-54(8) |
| Bed changes that involve 10% or ten beds of existing licensed bed types, whichever is less, of a facility’s total existing licensed beds within a two-year period. | § 323D-54(9) |
| Projects wholly dedicated to meeting the state’s obligations under court orders, including consent decrees, that have already determined that need for the project exists. | § 323D-54(10) |
| Replacement of existing equipment with its modern-day equivalent. | § 323D-54(11) |
| Primary care clinics under the relevant expenditure thresholds. | § 323D-54(12) |
| Equipment and services related to equipment primarily invented and used for research purposes as opposed to diagnostic and therapeutic care. | § 323D-54(13) |
| Capital expenditures required to eliminate safety hazards, comply with state licensure standards or comply with accreditation standards. | § 323D-54(14) |
| Extended care adult residential care homes and assisted living facilities. | § 323D-54(15) |
| Other facilities or services that the agency, through the statewide council, chooses to exempt. | § 323D-54(16) |