Maryland

Maryland requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. Maryland maintains two moratoria, one of which prohibits general hospice services from acquiring home-based hospice services. Two of Maryland’s CON requirements are catch-all CONs. That is, if no other specific CON requirements apply, the catch-all CONs require hospitals to obtain a CON for any expenditure over $12.4 million and non-hospitals to obtain a CON for any expenditure above $6.2 million. Md. Code Regs. § 10.24.01.02(A)(5).   

Maryland’s COVID-19 Response   

Existing state regulations provide for an emergency CON application process. Md. Code Regs. § 10.24.01.20. Under the emergency process, providers may request an emergency CON “[i]f a situation presents hazards to employees or patients of a health care facility or the closing of a facility by State licensing authorities requires changes or adjustments in other facilities to accommodate displaced patients[.]” Md. Code Regs. § 10.24.01.20(A). As of July 1, 2020, the Maryland Health Care Commission had approved 36 emergency CON applications.⁴² 

Application Process   

In Maryland, the CON application process takes up to 90 days if competitors do not request an evidentiary hearing or 150 days if competitors request a hearing. Md. Code Regs. § 10.24.01.09(E)(1). Applications can be submitted at any time, and, although the statute allows the establishment of an application fee through regulation, no such fee has been established. Md. Code Regs., Health-Gen. § 19-120(b). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. Md. Code Regs. § 10.24.01.09(E)(6)(b).  

Types of CONs in Maryland    

	CON?	CON applies with expenditure of:	Temporary   COVID-19 response:
Hospital Beds	Yes	Any amount	Preexisting regulation implemented
Beds Outside Hospitals	Yes	Any amount	Preexisting regulation implemented
Equipment	Yes	$12.4 million+	Preexisting regulation implemented
Facilities/Buildings	Yes	Any amount	Preexisting regulation implemented
Services	Yes	$0 – $12.4 million+	Preexisting regulation implemented
Emergency Medical Transport	No	-	-

Maryland CONs in Detail 

Category	Moratoria/Types of CONs	Md. Code Regs.
Hospital Beds	Hospital beds.	§§ 10.24.01.02(A)(3), 10.24.01.01(B)(12)(a)(i)
	Beds in limited service hospitals.	§§ 10.24.01.02(A)(3),   10.24.01.01(B)(12)(a)(ii)
Beds Outside Hospitals	Beds in hospital-related institutions.	§§ 10.24.01.02(A)(3), 10.24.01.01(B)(12)(a)(iii)
	Beds in ambulatory surgical facilities.	§§ 10.24.01.02(A)(3),  10.24.01.01(B)(12)(a)(iv)
	Beds in rehabilitation facilities.	§§ 10.24.01.02(A)(3), 10.24.01.01(B)(12)(a)(v)
	Beds in home health agencies.	§§ 10.24.01.02(A)(3), 10.24.01.01(B)(12)(a)(vi)
	Beds in hospice facilities.	§§ 10.24.01.02(A)(3), 10.24.01.01(B)(12)(a)(vii)
Equipment	A capital expenditure made as part of a replacement of any plant and equipment at a hospital in excess of $12.4 million, as updated annually.	Md. Code, Health-Gen. § 19-120(k)(1)(i)(2); see Md. Health Care Comm’n, Threshold for Reviewability of Health Care Facility Capital Expenditures (2019);43  Md. Code Regs. § 10.24.01.02(A)(5)
Facilities/Buildings	Moratorium on a licensed general hospital located in Kent County converting to a freestanding medical facility prior to July 1, 2020.	Md. Code, Health-Gen. § 19-120(o)(3)(iii)
	Establishment of one of the following facilities:  Hospitals.	§§ 10.24.01.02(A)(1),   10.24.01.01(B)(12)(a)(i)
	Limited service hospitals.	§§ 10.24.01.02(A)(1),   10.24.01.01(B)(12)(a)(ii)
	“Related institution” as defined in Md. Code Regs., Health-Gen. § 19-301(o).	§§ 10.24.01.02(A)(1),   10.24.01.01(B)(12)(a)(iii)
	Ambulatory surgical facilities.	§§ 10.24.01.02(A)(1),   10.24.01.01(B)(12)(a)(iv)
	Rehabilitation facilities.	§§ 10.24.01.02(A)(1),   10.24.01.01(B)(12)(a)(v)
	Hospice.	§§ 10.24.01.02(A)(1), 10.24.01.01(B)(12)(a)(vii)
	Existing health care facility moved to another site.	§ 10.24.01.02(A)(2)(a-c)
	Change of service that establishes a new freestanding surgical facility.	§ 10.24.01.02(A)(4)(c)
	Builds or expands ambulatory surgical capacity in any setting owned or controlled by a hospital, if the building or expansion would increase the surgical capacity of the State’s health care system.	§ 10.24.01.02(A)(4)(d)
Category	Moratoria/Types of CONs	Md. Code Regs.
Facilities/Buildings	Closing an existing health care facility or converting it to a non-health related use, except for closure of an acute general hospital or the temporary delicensure of a health care facility.	§ 10.24.01.02(A)(4)(g)
Services	Moratorium prohibiting the Commission from granting a CON with respect to an acquisition that authorizes a general hospice to provide home-based hospice services on a statewide basis.	Md. Code, Health-Gen. § 19-120(n)
	Changing service that establishes a new medical service.	§ 10.24.01.02(A)(4)(a)
	Changing service that establishes new open-heart surgery program.  Changing service that establishes new organ transplant surgery program.  Changing service that establishes new burn treatment program.  Changing service that establishes new neonatal intensive care program.	§ 10.24.01.02(A)(4)(b)
	Changing service that establishes new home health agency.  Changing service that establishes new hospice program.	§ 10.24.01.02(A)(4)(c)
	Establishing a new subunit by an existing home health agency.	§ 10.24.01.02(A)(4)(e)(i)
	The expansion of a home health agency into a jurisdiction not included in a previous CON.	§ 10.24.01.02(A)(4)(e)(ii)
	Transferring ownership of a subunit or a facility-based home health care service of an existing health care facility that separates the ownership of the subunit from the home health agency or home health care service that established the subunit.	§ 10.24.01.02(A)(4)(e)(iii)
	Closing an existing medical service, unless an exemption applies.	§ 10.24.01.02(A)(4)(f)
	Any capital expenditure in excess of $12.4 million for hospitals. Any capital expenditure in excess of and $6.2 million for non-hospital facilities.	§ 10.24.01.02(A)(5);  see Threshold for Reviewability of Health Care Facility Capital Expenditures
Emergency Medical Transport	No CONs in this category.

No CON Required For:	Md. Code Regs.
The acquisition of an existing health care facility, where the Commission receives notice and determines that the health care services and bed capacity will not change.	§ 10.24.01.03(A)(3)
Closure of an acute general hospital, as long as notice is provided and other requirements are met.	§ 10.24.01.03(B)
Temporary delicensure of bed capacity of health care facility.	§ 10.24.01.03(C)
Relocating an existing health care facility owned or controlled by a merged asset system, if notice is provided and the change does not change the health care services offered or require capital expenditure exceeding the threshold.	§ 10.24.01.03(D)
A change in bed capacity that does not exceed ten beds or 10% in certain facilities.	§ 10.24.01.03(E)
A project of a health maintenance organization where the project will be used only by the subscribers of that organization.	§ 10.24.01.03(F)
A home health agency opening a branch office.	§ 10.24.01.03(G)
Religious orders.	§ 10.24.01.03(H)
Capital expenditures for site acquisitions, acquisition of a health care facility where §A is satisfied; for business or office equipment unrelated to patient care; acquisition and installation of major medical equipment.	§ 10.24.01.03(I)(2)
Capital expenditure by a hospital or nursing home, for equipment, construction or renovation that is not directly related to patient care or a change in patient charges.	§ 10.24.01.03(I)(3)
A CON is not required by a hospital before it obligates an amount exceeding the review threshold for capital expenditure for physical plant construction or renovation, or before it receives a donated physical plant whose appraised value exceeds the review threshold under § 10.24.01.03(J)(a)-(c), with notice, if the expenditure will not require a total cumulative increase in patient charges more than $1.5 million.	§ 10.24.01.03(J)
Merger or consolidation of two or more hospitals.	§ 10.24.01.04(A)(1)
Relocation of an existing health care facility owned or controlled by a merged asset system.	§ 10.24.01.04(A)(2)
Change in bed capacity of an existing facility pursuant to the consolidation or merger of two or more facilities.	§ 10.24.01.04(A)(3)
Change in type or scope of services offered by a facility if the Commission finds that the proposed change is pursuant to a consolidation or merger of two facilities, conversion to a non-health related use or conversion to a limited service hospital.	§ 10.24.01.04(A)(4)
Capital expenditure exceeding the threshold due to a merger or consolidation of health care facilities, or conversion of a facility to a non-health-related use.	§ 10.24.01.04(A)(5)
The closure of an acute general hospital or part of a hospital, in a jurisdiction with fewer than three acute general hospitals.	§ 10.24.01.04(A)(6)
Freestanding medical facility pilot project or is established as the result of the conversation of a licensed general hospital.	Md. Code, Health-Gen.  § 19-120(o)(2)