West Virginia

West Virginia

West Virginia requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. Overall, West Virginia maintains 44 CON requirements and an additional five moratoria. West Virginia’s moratoria prohibit: (1) opioid treatment programs; (2) adding beds in intermediate care facilities; (3) adding beds in intermediate care facilities for individuals with intellectual disabilities; (4) adding beds in skilled nursing homes; and (5) building or replacing skilled nursing facilities. West Virginia is the only state that maintains a moratorium on opioid treatment programs. W.Va. Code § 16-2D-9(4). West Virginia further maintains a catch-all CON. If no other CON applies to a specific project, this catch-all CON applies to expenditures of $5,508,217, as updated annually, for nearly any purpose. W.Va. §§ 16-2D-2(24), 16-2D-8(a)(3)(A).

COVID-19 Response

As of May 15, 2020, West Virginia had not suspended any CON requirements in response to COVID-19.

Application Process

In West Virginia, the CON application process takes 60 days after the date that the application is batched, and if a hearing is conducted, the state renders a decision within 45 days of the closing of the file in the administrative proceedings. See W. Va. Code § 16-2D-14; W. Va. Code R. § 65-32-8.32. Applications must be submitted based on a review cycle, W. Va. Code R. § 65-32-21, e.g., 2020 Review Cycles. Fees for the CON application range from $1,500–$35,000, W. Va. Code § 16-2D-13(b)(2). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. See W. Va. Code R. § 65-32-8.25; § 65-32-8.26.

CON? Number of CONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 1 No action
Beds Outside Hospitals Yes 6 3 No action
Equipment Yes 5 No action
Facilities/ Buildings Yes 10 1 No action
Services Yes 22 1 No action
Emergency Medical Transport No

Note: these citations are accurate as of May 2020.

West Virginia CONs in Detail


Types of CONs

W. Va. Code 

Hospital Beds 

1.Hospital beds 

§§ 16-2D-2(21),


Beds Outside Hospitals

1.Moratorium on adding intermediate care beds to any health care facility except for non-health related projects.  

2.Moratorium on adding skilled nursing beds to any health care facility except for non-health related projects.  

§ 16-2D-9(1) 

3.Moratorium on adding beds in an intermediate care facility for individuals with an intellectual disability except as approved under court order in E.H. v. Matin, 284 S.E.2d 232 (W. Va. 1981).  

§ 16-2D-9(3) 

1.Acute care beds. 

§ 16-2D-8(b)(16) 

2.Ambulatory health care facility beds. 

§ 16-2D-2(2) 

3.Ambulatory surgical facility beds. 

§ 16-2D-2(3) 

4.Rehabilitation facility beds.  

§ 16-2D-2(37) 

5.Skilled nursing facility beds.  

§ 16-2D-2(40) 

6.Intermediate care beds. 

§ 16-2D-2(22) 


1.A single unit of medical equipment or a single system of components with related functions which is used for the provision of medical and other health services and costs in excess of $5,508,217, as updated annually.

§§ 16-2D-2(24),


2.Medical equipment, at any cost, in which functional and technological capabilities are similar to the equipment being replaced; and the replacement equipment is to be used for the same or similar diagnostic, therapeutic, or treatment purposes as currently in use.

§ 16-2D-2(23) 

3.Radiation therapy equipment.

4.Magnetic resonance imaging equipment.

5.PET scanners.

W. Va. Code R. § 65-32-2.1.j.9 


Types of CONs

W. Va. Code 


 A CON is required for the construction, development, acquisition, or other establishment of the following facilities.

W.V. Code § 16-2D-8(a)(1)

1.Moratorium on developing, constructing, or replacing a skilled nursing facility except in the case of facilities replacing existing beds in existing facilities that may soon be deemed unsafe.  

§ 16-2D-9(2) 

1.Ambulatory health care facility. 

§ 16-2D-2(2) 

2.Ambulatory surgical facility. 

§ 16-2D-2(3) 

3.A publicly or privately owned facility, agency or entity that offers or provides health services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part.  

§ 16-2D-2(16) 


§ 16-2D-2(21) 

5.Rehabilitation facility. 

§ 16-2D-2(37) 

6.Skilled nursing facility. 

§ 16-2D-2(40) 

7.Intermediate care facilities. 

§ 16-2D-2(22) 

8.Kidney disease treatment centers. 

§ 16-2D-8(b)(12) 

9.Establishing no more than six four-bed transitional intermediate care facilities. 

§ 16-2D-8(b)(24)(A) 

10.The closure of a health care facility with which a capital expenditure is associated.

§ 16-2D-8(a)(2)


1.Moratorium on opioid treatment programs. 

  § 16-2D-9(4)

1.Radiation therapy services.

§ 16-2D-8(b)(2) 

2.Computed tomography services.

§ 16-2D-8(b)(3) 

3.Positron emission tomography services.

§ 16-2D-8(b)(4) 

4.Cardiac surgery services.

§ 16-2D-8(b)(5) 

5.Fixed magnetic resonance imaging services. 

§ 16-2D-8(b)(6) 

6.Comprehensive medical rehabilitation services.

§ 16-2D-8(b)(7) 

7.Ambulatory care center services.

§ 16-2D-8(b)(8) 

8.Ambulatory surgical center services.

§ 16-2D-8(b)(9) 

9.Diagnostic imaging services.

§ 16-2D-8(b)(10) 

10.Cardiac catheterization services.

§ 16-2D-8(b)(11) 

11.Megavoltage radiation therapy services.

§ 16-2D-8(b)(13) 


Types of CONs

W. Va. Code 


12.Surgical services.

§ 16-2D-8(b)(14) 

13.Operating room services.

§ 16-2D-8(b)(15) 

14.Intellectual developmental disability services.

§ 16-2D-8(b)(17) 

15.Organ and tissue transplant services.

§ 16-2D-8(b)(18) 

16.Services for individuals with intellectual disabilities at intermediate care facilities.

§ 16-2D-8(b)(19) 

17.Inpatient services.

§ 16-2D-8(b)(20) 

18.Hospice services.

§ 16-2D-8(b)(21) 

19.Home health agency services.

§ 16-2D-8(b)(22) 

20.Personal care services.

§ 16-2D-8(b)(23) 

21.Ventilator services by a hospital.

§ 16-2D-8(a)(6) 

22.Any capital expenditure above $5,508,217, as updated annually. 

§ 16-2D-8(a)(3)(A);

see generally, W.V. Health Care Authority, Certificate of Need81

Emergency Medical Transport 

No CONs in this category.

West Virginia CON Exceptions

No CON Required For: 

W. Va. Code 

1.The acquisition and utilization of one computed tomography scanner with a purchase price up to $750,000 that is installed in a private office practice where at minimum seventy-five percent of the scans are performed on the patients of the practice.

§ 16-2D-11(b)(1) 

2.A birthing center established by a nonprofit primary care center that has a community board and provides primary care services to people in their community without regard to ability to pay. 

§ 16-2D-11(b)(2) 

3.A health care facility acquiring major medical equipment, adding health services or obligating a capital expenditure to be used solely for research. 

§ 16-2D-11(b)(3) 

4.The obligation of a capital expenditure to acquire, either by purchase, lease or comparable arrangement, the real property, equipment or operations of a skilled nursing facility.

§ 16-2D-11(b)(4) 

5.Shared health services between two or more hospitals licensed in West Virginia providing health services made available through existing technology that can reasonably be mobile. 

§ 16-2D-11(b)(5) 

6.The acquisition, development or establishment of a certified interoperable electronic health record or electronic medical record system. 

§ 16-2D-11(b)(6) 

7.The addition of forensic beds in a health care facility. 

§ 16-2D-11(b)(7) 

8.A behavioral health service selected by the Department of Health and Human Resources in response to its request for application for services intended to return children currently placed in out-of-state facilities to the state or to prevent placement of children in out-of-state facilities.

§ 16-2D-11(b)(8) 

9.The replacement of major medical equipment with like equipment, only if the replacement major medical equipment cost is more than the expenditure minimum. 

§ 16-2D-11(b)(9) 

10.Renovations within a hospital, only if the renovation cost is more than the expenditure minimum. 

§ 16-2D-11(b)(10) 

11.Renovations to a skilled nursing facility. 

§ 16-2D-11(b)(11) 

12.The donation of major medical equipment to replace like equipment for which a certificate of need has been issued and the replacement does not result in a substantial change to health services. This exemption does not include the donation of major medical equipment made to a health care facility by a related organization.

§ 16-2D-11(b)(12) 

13.A person providing specialized foster care personal care services to one individual and those services are delivered in the provider’s home. 

§ 16-2D-11(b)(13) 

14.A hospital converting the use of beds except a hospital may not convert a bed to a skilled nursing home bed and conversion of beds may not result in a substantial change to health services provided by the hospital.

§ 16-2D-11(b)(14) 

No CON Required For: 

W. Va. Code 

15.The construction, renovation, maintenance or operation of a state owned veterans skilled nursing facilities established pursuant to the provisions of article (1)(b) of this chapter.

§ 16-2D-11(b)(15) 

16.Developing and operating a skilled nursing facility with no more than thirty-six beds in a county that currently is without a skilled nursing facility. 

§ 16-2D-11(b)(16) 

17.A critical access hospital, designated by the state as a critical access hospital, after meeting all federal eligibility criteria, previously licensed as a hospital and subsequently closed, if it reopens within ten years of its closure. 

§ 16-2D-11(b)(17) 

18.The establishing of a health care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome. 

§ 16-2D-11(b)(18) 

19.The construction, development, acquisition or other establishment of community mental health and intellectual disability facility. 

§ 16-2D-11(b)(19) 

20.Providing behavioral health facilities and services. 

§ 16-2D-11(b)(20) 

21.The construction, development, acquisition or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population. 

§ 16-2D-11(b)(21) 

22.The transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital to a skilled nursing facility providing intermediate care and skilled nursing services. 

§ 16-2D-11(b)(22) 

23.The construction, development, acquisition, or other establishment by a health care facility of a non-health related project, only if the non-health related project cost is more than the expenditure minimum. 

§ 16-2D-11(b)(23) 

24.The construction, development, acquisition or other establishment of an alcohol or drug treatment facility and drug and alcohol treatment services unless the construction, development, acquisition or other establishment is an opioid treatment facility or programs as set forth in subdivision (4) of section nine of this article. 

§ 16-2D-11(b)(24) 

25.Assisted living facilities and services.

§ 16-2D-11(b)(25) 

26.The creation, construction, acquisition or expansion of a community-based nonprofit organization with a community board that provides or will provide primary care services to people without regard to ability to pay and receives approval from the Health Resources and Services Administration. 

§ 16-2D-11(b)(26) 

27.The acquisition and utilization of one computed tomography scanner and/or one magnetic resonance imaging scanner with a purchase price of up to $750,000 by a hospital. 

§ 16-2D-11(b)(27)