Conning the Competition

Hawaii 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. Hawaii is one of only five states to require a CON for ground ambulances. Overall, Hawaii maintains 59 independent CON requirements and 16 exceptions. Additionally, the state’s CON application process is unique because three agencies have authority to review CON applications: (1) the local Subarea Councils; (2) the CON Review Panel, and (3) the Statewide Health Coordinating Council. E.g, Haw. Rev. Stat. § 323D-44(a); Haw. Code R. § 11-186-3.

COVID-19 Response

As of May 15, 2020, Hawaii had not suspended any CON requirements in response to COVID-19. Existing regulations, however, provide for an expedited application process which allow for expedited CON review during emergencies. See Email from Linda Chu Takayama, Chief of Staff, Office of the Governor, to John Wrench, Institute for Justice (Apr. 30, 2020). Specifically, the application review period is shortened to 10 days during emergencies. See Haw. Code R. § 11-186-99(d). In addition, Hawaii maintains a rule allowing existing facilities to temporarily add beds without applying for a CON as long as any addition is for 90 days or less. Haw. Code R. § 11-186-7(b).

Application Process

In Hawaii, the CON application process takes up to 90 days, although the review agency has authority to extend this period. Haw. Code R. § 11-186-37. Applications can be submitted at any time. Haw. Code R. § 11-186-24. The nonrefundable fee for a CON application is $200, plus .001% of the total cost of the project, up to $1 million, plus .0005% of the total cost of the project in excess of $1 million. Haw. Code R. § 11-186-25(a).

Competitors may intervene in the application process by attending public hearings. Haw. Code R. § 11-186-47. Competitors have the right to be represented by counsel at public hearings, to present oral and written arguments and evidence, and to question persons who make factual allegations regarding the application. Haw. Rev. Stat. § 323D-45(b). Competitors also have the right to request reconsideration, which includes another hearing, after a showing of good cause. Haw. Code R. § 11-186-82(a).