Conning the Competition

The District of Columbia maintains CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. The District maintains 71 specific CON requirements, more than half of which apply to services. D.C. and New Jersey are the only jurisdictions to require CONs for emergency medical services. D.C. Mun. Regs. tit. 22-B, § 4100.2(n). During the COVID-19 pandemic, the Department of Health (DOH) says it granted temporary CON applications. DOH, however, never publicly announced that healthcare providers or facilities could apply for temporary CONs to respond to the pandemic.

COVID-19 Response

On March 11, 2020, Mayor Bowser declared a public emergency and a public health emergency. See Mayor’s Orders 2020-045, -046 (Mar. 11, 2020). DOH claims that after Mayor Bowser issued these orders it began granting temporary CONs to allow healthcare facilities to increase capacity during the pandemic. See Letter from LaQuandra S. Nesbitt, Director, D.C. Dep’t of Health, to Darpana Sheth, Senior Attorney & Brooke Fallon, Associate Director, Institute for Justice (May 1, 2020). DOH never made its temporary policy public and it is unclear how many CONs DOH granted or how long those CONs stayed in effect.

Application Process

In the District of Columbia, the CON application process typically takes about six months. D.C. Health, How to Obtain a Certificate of Need. Applications that are completed by the 10th day of any month are reviewed on or after the 20th day of the same month, and the application type determines in which month the application must be submitted. See D.C. Mun. Regs. tit. 22-B, §4300. The fee for a CON application is 3% of the proposed capital expenditure or $5,000, whichever is greater, with a maximum fee of $300,000. D.C. Code § 44-420(a); see also D.C. Mun. Regs. tit. 22-B, § 4013.3. Public hearings are not required, but competitors may intervene during the application process by requesting a hearing, at which competitors can offer evidence or argument as to why an application should be denied. D.C. Mun. Regs. tit. 22-B, § 4302.