Delaware
Delaware maintains a CON program, which it calls a certificate of public review (CPR) program, within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. CPRs function the same as CONs. One of Delaware’s 24 CPR requirements is a catch-all CPR. That is, if no specific CPR applies, healthcare facilities must obtain a CPR if they intend to make an expenditure above $5.8 million for any reason. 16 Del. C. § 9304(a)(2). Delaware maintains its CPR program through guiding principles and mathematical need calculations as found in its statutorily mandated Health Resources Management Plan. See Del. Health Resources Bd., Certificate of Public Review Health Resources Mgmt. Plan (Sept. 11, 2017).27
Delaware’s COVID-19 Response
As of May 15, 2020, Delaware had not suspended any CPR requirements in response to COVID-19.
Application Process
In Delaware, the CPR application process takes a minimum of four months, but it often takes much longer. 16 Del. C. § 9305. Applications can be submitted at any time and review is based on mathematical need calculations as described in the Health Resources Management Plan. See CPR Health Resources Mgmt. Plan at 15. The fee for a CPR application ranges from $100 to $10,000. 16 Del. C. § 9305(10). Competitors can intervene in the application process by requesting a public hearing where they can offer evidence or argument as to why an application should be denied. 16 Del. C. § 9305 (6)-(8).
Types of CPRs in Delaware
| CPR? | CPR applies with expenditure of: | Temporary COVID-19 response: | |
| Hospital Beds | Yes | Any amount | – |
| Beds Outside Hospitals | Yes | Any amount | – |
| Equipment | Yes | Any amount | – |
| Facilities/Buildings | Yes | Any amount | – |
| Services | Yes | $5.8 million+ | – |
| Emergency Medical Transport | No | – | – |
Delaware CPRs in Detail
| Category | Types of CPRs | 16 Del. C. |
| Hospital Beds CPR required to increase bed capacity by more than 10 beds or more than 10% of total licensed bed capacity, whichever is less, over a two-year period. 16 Del. C § 9304(a)(3) | Hospitals. Freestanding acute inpatient rehabilitation hospital. | § 9302(4) |
| Beds Outside Hospitals CPR required to increase bed capacity by more than 10 beds or more than 10% of total licensed bed capacity, whichever is less, over a two-year period. 16 Del. C § 9304(a)(3) | Nursing home beds. Freestanding birthing center beds. Freestanding surgical centers. Freestanding emergency centers. Continual care community beds. Nontraditional, long-term care facility beds. | § 9302(4) |
| Equipment | Computed tomography. Magnetic resonance imaging. Positron emission tomography. | CPR Health Resources Mgmt. Plan at 4-42 |
| The acquisition of any other major medical equipment. | §§ 9304(a)(4), 9302(6) | |
| Facilities/Buildings | Hospital. Nursing home. Freestanding birthing center. Freestanding surgical center. Freestanding acute inpatient rehabilitation hospital. Freestanding emergency center. Continual care community. Nontraditional, long-term care facility. | §§ 9304(a)(1), 9302(4) |
| Services | Cardiac catheterization. Megavoltage radiation therapy. Lithotripsy. | CPR Health Resources Mgmt. Plan at 41 |
| Any expenditure by or on behalf of a health-care facility in excess of $5.8 million. | § 9304(a)(2) | |
| Emergency Medical Transport | No CPRs in this category. |
Delaware CPR Exceptions
| No CPR Required For: | CPR Del. C. |
| Establishment or amendments to health care facilities owned and operated by the federal government. | § 9302(4); see CPR Health Resources Mgmt. Plan at 7 |
| Establishment of offices by a licensed private practitioner. | |
| Establishment of or amendments to dispensary or first aid stations located within a business or industrial establishment maintained solely for the use of employees, provided that the facility does not contain inpatient beds. | |
| The establishment of or amendments to any first aid station or dispensary or infirmary offering non-acute services exclusively for use by students and employees of a school or university or by inmates and employees of a prison, provided that services delivered therein are not the substantial equivalent of hospital services in the same area or community. | |
| A capital expenditure for purposes of constructing, developing or otherwise establishing a medical office building. |