Virginia
Virginia requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. In April 2020, Virginia enacted CON legislation, which took effect July 1, 2020. See 2020 Va. Legis. Serv. 1271 (S.B. No. 764, signed Apr. 22, 2020). The legislation mainly clarified the State Board of Health’s responsibilities. In addition to its many specific CON requirements, Virginia maintains a catch-all CON for any capital expenditure over $15 million by facilities “other than a general hospital.” Va. Code § 32.1-102.1:3(B)(8).
Virginia’s COVID-19 Response
On March 20, 2020, Governor Northam suspended CON requirements for the addition of beds in general hospitals or nursing homes. Exec. Order No. 52 (Mar. 20, 2020).75
Application Process
In Virginia, the CON application process takes up to 190 days. Va. Code § 32.1-102.6(D). Applications must be submitted at least 40 days before the review cycle begins, and there are only two cycles annually. 12 Va. Admin. Code § 5-220-200. Application fees range from $1,000 to $20,000. See 12 Va. Admin. Code § 5-220-180(B). Competitors can intervene in the application process and can directly submit written opinions, data and other information for consideration. Va. Code § 32.1-102.6(B), (E)(3).
Types of CONs in Virginia
| CON? | CON required when cost exceeds: | Temporary COVID-19 response: | |
| Hospital Beds | Yes | Any amount | Suspended |
| Beds Outside Hospitals | Yes | Any amount | Suspended |
| Equipment | Yes | Any amount | – |
| Facilities/Buildings | Yes | $0 – $600,000+ | – |
| Services | Yes | $0 – $15 million+ | – |
| Emergency Medical Transport | No | – | – |
Virginia CONs in Detail
| Category | Types of CONs | Citation |
| Hospital Beds An increase in beds or relocation of beds from an existing medical care facility to another medical care facility requires a CON. Va. Code § 32.1-102.1:3(B)(2), (3) | Hospital beds. | Va. Code §§ 32.1-102.1:3(A)(1), -123 |
| Hospital beds in which hospitals are licensed as a provider by the Department of Behavioral Health and Developmental Services. | Va. Code § 32.1-102.1:3(A)(2) | |
| Children’s hospital beds. | Va. Code §§ 32.1-102.1:3(A)(1), -123 | |
| Conversion of existing beds to medical rehabilitation beds. | Va. Code § 32.1-102.1:3(B)(6) | |
| Conversion of existing beds to psychiatric beds. | Va. Code § 32.1-102.1:3(B)(6) | |
| Conversion of psychiatric beds approved pursuant to a Request for Applications to nonpsychiatric inpatient beds. | Va. Code § 32.1-102.1:3(B)(9) | |
| Beds Outside Hospitals An increase in beds or relocation of beds from an existing medical care facility to another medical care facility requires a CON. Va. Code § 32.1-102.1:3(B)(2), (3) | Nursing home beds. | §§ 32.1-102.1:3(A)(3), -123 |
| Beds in intermediate care facilities established primarily for the medical, psychiatric or psychological treatment and rehabilitation of individuals with substance abuse licensed by the Department of Behavioral Health and Developmental Services. | Va. Code § 32.1-102.1:3(A)(4) | |
| Beds in intermediate care facilities for individuals with developmental disabilities other than an immediate care facility established for individuals with intellectual disability (ICF/IID) that has no more than 12 beds and is in an area identified as in need of residential services for individuals with intellectual disabilities. | Va. Code § 32.1-102.1:3(A)(5) | |
| Beds in a specialized center or clinic or that portion of a physician’s office developed for the provision of outpatient or ambulatory surgery. Beds in a specialized center or clinic or that portion of a physician’s office developed for the provision of cardiac catheterization. | Va. Code § 32.1-102.1:3(A)(6) | |
| Category | Types of CONs | Citation |
| Beds Outside Hospitals | Intensive care beds. Minimal or self-care beds. Isolation beds. Hospice beds. Observation beds equipped and staffed for overnight use. Obstetric beds. Medical beds. Surgical beds. Psychiatric beds. Substance abuse beds. Medical rehabilitation beds. Pediatric beds (including pediatric basinets and incubators not located in a maternity department, labor or birthing room, recovery room, emergency room, anesthesia inductor room, diagnostic or treatment procedure rooms or on call staff rooms). | 12 Va. Admin. Code § 5-220-10 |
| Conversion of existing beds to medical rehabilitation beds. Conversion of existing beds to psychiatric beds. | Va. Code § 32.1-102.1:3(B)(6) | |
| Conversion of psychiatric beds approved pursuant to a Request for Applications to nonpsychiatric inpatient beds. | Va. Code § 32.1-102.1:3(A)(9) | |
| Equipment | Cardiac catheterization. Computed tomographic scanning. Magnetic resonance imaging. Open heart surgery equipment. Positron emission tomographic scanning. | Va. Code § 32.1-102.1:3(B)(5), (7) |
| Category | Types of CONs | Citation |
| Equipment | Radiation therapy equipment. Stereotactic radiotherapy equipment other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-ray to perform external beam radiation therapy. Proton beam therapy equipment. | Va. Code § 32.1-102.1:3(B)(5), (7) |
| Facilities/Buildings | Hospitals. | Va. Code § 32.1-102.1:3(A)(1) |
| Hospitals licensed as a provider by the Department of Behavioral Health and Developmental Services. | Va. Code § 32.1-102.1:3(A)(2) | |
| Nursing homes. | Va. Code § 32.1-102.1:3(A)(3) | |
| Intermediate care facilities established primarily for the medical, psychiatric or psychological treatment and rehabilitation of individuals with substance abuse licensed by the Department of Behavioral Health and Developmental Services. | Va. Code § 32.1-102.1:3(A)(4) | |
| Intermediate care facilities for individuals with developmental disabilities other than an immediate care facility established for individuals with intellectual disability (ICF/IID) that does not have more than 12 beds and is in an area identified as in need of residential services for individuals with intellectual disabilities. | Va. Code § 32.1-102.1:3(A)(5) | |
| Any specialized center or clinic or that portion of a physician’s office developed for the provision of outpatient or ambulatory surgery. Any specialized center or clinic or that portion of a physician’s office developed for the provision of cardiac catheterization. Any specialized center or clinic or that portion of a physician’s office developed for the provision of computed tomographic scanning. | Va. Code § 32.1-102.1:3(A)(6) | |
| Category | Types of CONs | Citation |
| Facilities/Buildings | Any specialized center or clinic or that portion of a physician’s office developed for the provision of magnetic resonance imaging. Any specialized center or clinic or that portion of a physician’s office developed for the provision of positron emission tomographic scanning. Any specialized center or clinic or that portion of a physician’s office developed for the provision of radiation therapy. Any specialized center or clinic or that portion of a physician’s office developed for the provision of stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy. | Va. Code § 32.1-102.1:3(A)(6) |
| Any specialized center or clinic or that portion of a physician’s office developed for the provision of proton beam therapy. | Va. Code § 32.1-102.1:3(A)(6) | |
| The acquisition of an existing medical care facility costing $600,000 or more may require a CON. | Va. Code § 32.1-102.6(A) | |
| Services | Cardiac catheterization. Computed tomographic scanning. Magnetic resonance imaging. Medical rehabilitation. Neonatal special care. Open heart surgery. PET scanning. Psychiatric services. Organ or tissue transplant services. Radiation therapy. Stereotactic radiotherapy other than radiotherapy performed using a linear accelerator. Proton beam therapy. Substance abuse treatment. | Va. Code § 32.1-102.1:3(B)(5) |
| A new neonatal special care a facility has not provided in the previous 12 months. | See 12 Va. Admin. Code § 5-220-200 Batch Group A(4) | |
| A new obstetrical service that a facility has not provided in the previous 12 months. | See 12 Va. Admin. Code § 5-220-200 Batch Group A(4) | |
| Addition of new nursing home service at an existing facility. | Va. Code § 32.1-102.1:3(B)(4) | |
| Any capital expenditure, other than for a general hospital, that exceeds $15 million, as updated annually. | Va. Code § 32.1-102.1:3(B)(8) | |
| Emergency Medical Transport | No CONs in this category. |
Virginia CON Exceptions
| No CON Required For: | Citation |
| A CON is not required for nursing facilities or nursing homes which, since 1982, has continuously met all of the following criteria: A facility which is operated as a nonprofit; A facility which is licensed jointly by the Department as a nursing facility or nursing home and by the Department of Social Services as an assisted living facility; and A facility which observes the following admissions restrictions: Admissions are only allowed pursuant to the terms of a “life care contract.” Admissions are restricted to individuals defined as ambulatory. Admissions are restricted to those individuals who are residents of the assisted living facility unit. | Va. Code § 32.1-102.1:3(C) |
| Relocation of “up to 10 beds or 10 percent of the beds, whichever is less,” between certain medical care facilities sharing a common site or owner and within specified time periods, do not require a CON. | Va. Code § 32.1-102.1:3(D)(1) |
| A hospital may use up to 10 percent of its beds as nursing home beds without obtaining a CON. | Va. Code § 32.1-102.1:3(D)(2) |