Alabama

Alabama

Alabama 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. Alabama maintains 47 individual CON requirements, 19 of which apply to facilities and buildings. The state also maintains a catch-all CON. That is, if no specific CON applies, the catch-all CON requires healthcare facilities to obtain a CON if they intend to spend $4 million or more for any reason. Ala. Code § 22-21-263(a)(2). In Alabama, a public hearing is required for all CON applications before the CON Review Board will issue a decision. Ala. Admin. Code r. 410-1-7-.17.

COVID-19 Response

On April 2, 2020, Governor Ivey issued a proclamation requiring relevant state agencies to “promulgate emergency rules to provide for temporary waivers to the Certificate of Need process to permit new services, facilities, and other resources needed for the treatment of patients affected by the appearance of COVID-19, or to free up bed and treatment space at existing healthcare facilities to permit such needed treatment.” Proclamation at 3–4 (Apr. 2, 2020). In response, the State Health Planning and Development Agency (SHPDA) promulgated an emergency rule declaring an existing need for new or expanded services, beds, facilities and equipment and waiving ordinary CON requirements through August 5, 2020. See COVID-19 State of Emergency, Ala. Admin. Code r. 410-2-5-.09-E (Apr. 7, 2020). This assumption of need allowed facilities to expand services or increase beds without first applying for a CON. Healthcare facilities were required, however, to notify SHPDA about any changes made pursuant to the emergency rule, and changes in service were required to cease within 60 days of the end of the state of emergency. As of May 15, 2020, Alabama had received notices that 38 facilities had expanded their facilities or services in response to COVID-19. See State Health Planning & Development Agency, Temporary Waiver of Certificate of Need Requirements During State of Emergency.

Application Process

In Alabama, the CON application process typically takes 90 days. Ala. Admin. Code r. 410-1-7-.09. The Certificate of Need Review Board is required to hold a public hearing for CON applications at least 80 days, but not more than 90 days, after an application is complete. Ala. Admin. Code r. 410-1-7-.17(1)(a). Applications can be submitted at any time. The fee for a CON application ranges from $3,500 to $12,000. Ala. Admin. Code r. 410-1-7-.06(1)(b). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied at the public hearing. Ala. Admin. Code r. 410-1-7-.13, -.17.

CON? Number of CONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 6 – Suspended at least some CON laws
Beds Outside Hospitals Yes 10 – Suspended at least some CON laws
Equipment Yes 2 – Suspended at least some CON laws
Facilities/ Buildings Yes 19 – Suspended at least some CON laws
Services Yes 8 – Suspended at least some CON laws
Emergency Medical Transport Yes 2 – Suspended at least some CON laws

Note: these citations are accurate as of May 2020.

Alabama CONs in Detail

Category

Types of CONs

Ala. Admin. Code r.

Hospital Beds

1.Addition of any type of beds.

410-1-4-.01(1)(c)(1)

2.Relocation of beds between facilities.

410-1-4-.01(1)(c)(2)

Reallocation of all of the following types of beds:

410-1-4-.01(1)(c)(3)

1.General medical surgical beds.

410-1-4-.01(1)(c)(3)(i)

2.Inpatient psychiatric beds.

410-1-4-.01(1)(c)(3)(ii)

3.Inpatient/residential alcohol and drug abuse beds.

410-1-4-.01(1)(c)(3)(iii)

4.Swing beds.

410-1-4-.01(1)(c)(3)(v)

Beds Outside Hospitals

1.Addition of any type of beds.

410-1-4-.01(1)(c)(1)

2.Relocation of beds between facilities.

410-1-4-.01(1)(c)(2)

Reallocation of the following types of beds:

410-1-4-.01(1)(c)(3)

3.General medical surgical beds.

410-1-4-.01(1)(c)(3)(i)

4.Inpatient psychiatric beds.

410-1-4-.01(1)(c)(3)(ii)

5.Inpatient/residential alcohol and drug abuse beds.

410-1-4-.01(1)(c)(3)(iii)

6.Inpatient rehabilitation beds.

410-1-4-.01(1)(c)(3)(iv)

7.Skilled nursing care beds.

8.Intermediate care beds.

9.Transitional care beds.

10.Swing beds.

410-1-4-.01(1)(c)(3)(v)

Equipment

1.Capital expenditures in excess of $2 million for major medical equipment that will be used to provide health services to persons admitted to a health care facility.

Ala. Code § 22-21-263(a)(2); see also Ala. Admin. Code r.

410-1-4-.01(1)(e)(1)

2.New technology.

410-2-3-.08

Facilities/Buildings

1.Generalized hospitals.

2.Tuberculosis hospitals.

3.Psychiatric hospitals.

4.Long-term care hospitals.

5.Laboratories.

6.Outpatient clinics.

7.Skilled nursing facilities.

8.Intermediate care facilities.

9.Skilled care units in veterans’ nursing homes and veterans’ homes, operated by the Department of Veterans Affairs.

10.Intermediate care units in veterans’ nursing homes and veterans’ homes, operated by the Department of Veterans Affairs.

11.Rehabilitation centers.

12.Public health centers.

13.Surgical centers not requiring hospitalization.

14.Kidney disease treatment centers.

15.Community mental health centers.

16.Alcohol and drug abuse facilities.

17.Facilities for the developmentally disabled.

18.Hospice providers.

19.Health maintenance organizations.

410-1-2-.05(1)

Services

1.Home health agencies.

410-1-2-.05(1)

2.Any health services proposed to be offered through a health care facility not offered on a regular basis within the previous 12-month period.

Ala. Code § 22-21-263(a)(4); Ala. Admin. Code r. 410-1-4-.01(1)(d)

3.Any capital expenditure in excess of $4 million on behalf of a health care facility.

Ala. Code § 22-21-263(a)(2); see also Ala. Admin. Code r. 410-1-4-.01(1)(b)(3)

4.Cardiac catheterization.

410-2-3-.03(1)

5.Open heart surgery.

410-2-3-.03(2)

6.Megavoltage radiation therapy.

410-2-3-.04(5)

7.End stage renal disease services.

410-2-3-.05

8.Organ transplants.

410-2-3-.09

Emergency Medical Transport

1.Fixed wing air ambulance.

410-2-3-.11(1)(a)

2.Rotary wing air ambulance.

410-2-3-.11(1)(b)

Alabama CON Exceptions

No CON Required For:Ala. Admin. Code r.
1.Private office of any duly licensed physician, dentist, chiropractor or podiatrist, whether for individual or group practice and regardless of ownership.410-1-2-.05(2)(a)
2.Christian Science sanatoriums.410-1-2-.05(2)(b)
3.Veterans nursing homes or veterans’ homes operated by the Dep’t of Veteran Affairs, not in excess of 150 beds, to be built in Bay Minette, Alabama.4.Veterans’ nursing homes or veterans’ homes operated by the Dep’t of Veteran Affairs, not in excess of 150 beds, to be built in Huntsville, Alabama, for which federal funds under federal law are being considered by the U.S. Department of Veterans’ Affairs prior to March 18, 1993.410-1-2-.05(2)(c)
5.Increase in bed capacity at licensed skilled or intermediate care nursing facility if: (a) the increase does not exceed ten percent (10%) of the total nursing home beds of the applying facility, rounded to the nearest whole number, or ten beds, whichever is greater; and (b) the average rate of occupancy of the applying facility is ninety-five percent (95%) or greater during the 24-month period ending on June 30th of the year immediately preceding the application for exemption; and (c) the aggregate average rate of occupancy for all other skilled and intermediate care nursing home facilities situated in the same county as the applicant is ninety-five percent (95%) or greater during the 24-month period ending on June 30th of the year immediately preceding the application for exemption; and (d) the increase does not require capital expenditures exceeding the capital spending thresholds prescribed in 22-21-263(a)(2), or result in the addition of a new health service or result in the conversion of beds; and (e) the facility has not been granted an increase in beds under this exemption within the 24-month period immediately preceding the application; and (f) the applying facility is not an intermediate care facility designated ICF-MR by the State Board of Health and operated by the Department of Mental Health; and (g) the Executive Director of the State Agency approves the exemption after receipt of the proper application.410-1-5A-.01(1)(a)-(g)
6.The replacement of equipment if: (a) such replacement does not change the purpose, use or application of the equipment; (b) the existing equipment is taken out of service; (c) the replacement equipment does not enable the health care facility to expand its health services; (d) the replacement equipment does not enable the health care facility to provide any health services not previously provided on a regular basis; and (e) the Executive Director approves the exemption after receipt of the proper application as indicated in 410-1-5-.02.410-1-5-.01(1)(a)-(e)
7.Any newly-offered health service—other than those for long-term care—provided by acute care hospitals classified as “rural” by the U.S. Bureau of Census.Ala. Code § 22-21-263(a)(4)
8.Acute care hospitals with less than 105 beds located over 20 miles from the nearest acute health care facility located within Alabama.Ala. Code § 22-21-263(a)(4)

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