New Jersey
New Jersey is one of eight states to require CONs within six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services, and emergency medical transport. New Jersey’s CON program is marked by a broad list of statutory exemptions, such that the CON law mainly targets long-term care projects and expedites review for most other nonexempt facilities and services.
New Jersey’s COVID-19 Response
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).54 On March 13, 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).55 After the state of emergency ends, facilities must return to their pre-emergency capacity.
Application Process
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).
Types of CONs in New Jersey
| CON? | CON applies with expenditure of: | Temporary COVID-19 response: | |
| Hospital Beds | Yes | Any amount | Suspended |
| Beds Outside Hospitals | Yes | Any amount | Suspended |
| Equipment | Yes | $2 million+ | – |
| Facilities / Buildings | Yes | $2 million+ | – |
| Services | Yes | Any amount | – |
| Emergency Medical Transport | Yes | Any amount | – |
New Jersey CONs in Detail
| Category | Types of CONs | Citation |
| Hospital Beds | Psychiatric beds. Rehabilitation beds. | N.J. Admin. Code §§ 8:33-1.3, -3.4, -4.1; see N.J. Stat. §§ 26:2H-7a, -7c (exemption for most hospital beds) |
| Beds Outside Hospitals | Changes in licensed beds for nonexempt facilities and services. | N.J. Admin. Code § 8:33-3.4; N.J. Stat. §§ 26:2H-2(b), -7, -7a, -7c |
| Psychiatric beds. Rehabilitation beds. | N.J. Admin. Code §§ 8:33-1.3, -3.4, -4.1; see N.J. Stat. §§ 26:2H-7a, -7c (exemption for most hospital beds) | |
| Long-term care beds. | N.J. Admin. Code § 8:33H-1.1 | |
| Equipment | Addition of cardiac catheterization equipment exceeding $2 million (other than by a general hospital licensed to provide full service invasive cardiac diagnostics). | N.J. Stat. § 26:2H-7(c); N.J. Admin. Code §§ 8:33-1.3, 8:33-3.7(a) |
| Facilities/Buildings | Construction or expansion of a health care facility, unless exempt. | N.J. Stat. §§ 26:2H-7, 26:2H-2(a); N.J. Admin. Code §§ 8:33-3.2(b), 8:33-3.3(a)(1), 8:33-3.5(a)(1) |
| New general hospital. Children’s hospital. Burn center. | N.J. Stat. § 26:2H-7; see N.J. Admin. Code §§ 8:33-4.1 | |
| Transfer ownership of a hospital. | N.J. Admin. Code § 8:33-3.3 | |
| Establishment of a maternal and child health consortium. | N.J. Admin. Code § 8:33C-1.4(a) | |
| Regional cardiac surgery centers. | N.J. Admin. Code § 8:33E-2.14 | |
| Long-term acute care hospitals. | N.J. Admin. Code § 8:33F-2.3(a) | |
| Facilities/Buildings | Relocation of an entire health facility (other than a general hospital) to a location within the same planning region, provided it does not add beds or services and services at the original location cease. | N.J. Admin. Code § 8:33-3.5(a)(4) |
| Assisted living residences. | N.J. Admin. Code § 8:33H-1.7(a) | |
| Comprehensive personal care homes. | N.J. Admin. Code § 8:33H-1.10(b) | |
| Restricted admissions facilities. | N.J. Admin. Code § 8:33H-1.11(a)–(b) | |
| Services | Initiation or relocation of a health care service, unless exempt. | N.J. Stat. § 26:2H-7, 26:2H-2(b); N.J. Admin. Code §§ 8:33-3.1, 8:33-3.4 |
| Long-term care services. | See generally N.J. Admin. Code §§ 8:33H-1.1 et seq. | |
| Transplantation services. | See generally N.J. Admin. Code § 8:33Q-1.1 et seq. | |
| Trauma services. | N.J. Admin. Code §§ 8:33-4.1 | |
| Emergency Medical Transport | Mobile intensive care. | N.J. Admin. Code § 8:41-9.2; but see N.J. Stat. §§ 26:2H-7a (exempting ambulances) |
Unlike most other states, New Jersey limits the number of applications which may be submitted by predetermining the need for projects each year.
New Jersey CON Exceptions
| No CON Required For: | Citation |
| Community-based primary care centers. Outpatient drug and alcohol services. Hospital-based medical detoxification for drugs and alcohol. Ambulance and invalid coach services. Mental health services which are non-bed related outpatient services. Residential health care facility services. Dementia care homes. Capital improvements and renovations to health care facilities. Additions of medical/surgical, adult intensive care and adult critical care beds in hospitals. Inpatient special psychiatric beds used solely for patients with co-occurring mental health and substance abuse disorders. | N.J. Stat. § 26:2H-7a |
| Replacement of existing “major moveable equipment” (defined as cardiac catheterization equipment). | N.J. Admin. Code § 8:33-3.7(b)–(c); N.J. Stat. § 26:2H-7(c) |
| Minor medical equipment (defined as anything other than cardiac catheterization equipment). | N.J. Admin. Code §§ 8:33-1.3, 8:33-3.8; N.J. Stat. § 26:2H-7(a) |
| Inpatient operating rooms. Alternate family care programs. Hospital-based subacute care. Ambulatory care facilities. Comprehensive outpatient rehabilitation services. Special child health clinics. Health care equipment that involves new technology not identified in the regulations. Transfer of ownership interest (except in the case of an acute care hospital). Change of site for approved CON within same county. Additions to vehicles or hours of operation of a mobile intensive care unit. Replacement or relocation of a health care facility within the same county (other than an acute care hospital). Continuing care retirement communities. Magnetic resonance imaging. Adult day health care facilities. Pediatric day health care facilities. Chronic or acute renal dialysis facilities. Transfer of ownership of a hospital to an authority. Extracorporeal shock wave lithotripter. | N.J. Stat. § 26:2H-7a |
| No CON Required For: | Citation |
| Hyperbaric chamber. Positron emission tomography. Residential drug and alcohol services. Ambulatory surgical services. Basic obstetric and pediatric services and birth centers, including additions of basic obstetric and pediatric beds in hospitals. Linear accelerator. | N.J. Stat. § 26:2H-7c |
| New technology, not covered by regulation, which meets certain standards. | N.J. Stat. § 26:2H-7d |
| Increasing the total number of licensed beds at a nursing home by 10 or fewer beds or 10% or less of the bed capacity, whichever is less, within a period of five years. | N.J. Stat. § 26:2H-7.2 |
| Nursing homes affiliated with a “well established religious body or denomination” that reserve at least 65% of its licensed bed capacity for patients who are members of that religious body or denomination. | N.J. Stat. § 26:2H-7.3 |
| Services provided by a physician in a private practice. | N.J. Stat. § 26:2H-2(b) |
| Practitioners of “healing solely by prayer.” | N.J. Stat. § 26:2H-2(a)–(b) |
| Bioanalytical laboratories not owned by a health care facility. | N.J. Stat. § 26:2H-2(a) |
| Services provided by first aid, rescue, and ambulance squads regulated by the New Jersey Highway Traffic Safety Act of 1987. | N.J. Stat. § 26:2H-2(b) |
| Discontinuance of a component service of a health care facility or satellite emergency department, that is not required for an inpatient health care facility, as long as it does not decrease access to the population it serves. | N.J. Admin. Code § 8:33-3.2(c) |
| Transfer of ownership of operating health care facilities, beds, services, or equipment (unless a general hospital or a transfer that will result in a new Medicare provider number). | N.J. Admin. Code § 8:33-3.3(a)-(b) |
| Any decrease in the number of licensed beds by licensure and/or health planning category. | N.J. Admin. Code § 8:33-3.4(a)(2) |
| Replacement at the same site of an existing health care facility (other than a general hospital) that already has a CON, provided the replacement does not add beds or services not previously offered and the existing facility ceases operations. | N.J. Admin. Code § 8:33-3.5(a)(2) |
| A new CON is not needed when the total cost of a project exceeds initial estimates (but fees and penalties may be imposed). | N.J. Admin. Code § 8:33-3.9(a) |
| Research projects for the duration of the investigational study or scientific research. | N.J. Admin. Code § 8:33-3.11(a)–(b) |