Massachusetts

Massachusetts

Massachusetts is one of eight states to require CONs within all six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transport. Massachusetts, however, calls its program a determination of need (DON) program. DONs function the same as CONs. Massachusetts maintains regulations that allow applicants to apply for an emergency DON if they are able to “convincingly demonstrate that the Proposed Project will address the Emergency Situation, and without issuance of a Notice of Determination of Need, that the public health will be measurably harmed.” 105 Mass. Code Regs. § 100.740(A).

COVID-19 Response

On March 24, 2020, Monica Bharel, Commissioner of the Massachusetts Department of Public Health, acting pursuant to the Governor’s public health emergency declaration, ordered the Department to reduce the burdens associated with the DON program. Order of the Comm’r of Pub. Health Regarding Determination of Need Approvals Related to COVID-19 (Mar. 24, 2020).45 The Department issued a memorandum describing an expedited DON application process in response to COVID-19. Memorandum from Margo Michaels, Massachusetts Pub. Health Director (Mar. 24, 2020). The Department then reviewed applications to determine whether the proposed project actually related to COVID-19 and whether the project was truly temporary in nature.

Application Process

In Massachusetts, the DON application process takes four months. 105 Mass. Code Regs. § 100.405(D). Applications can be submitted at any time and the application fee is $500 or 0.2% of the total value of the proposed project, whichever is greater. 105 Mass. Code Regs. § 100.405(B). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. 105 Mass. Code Regs. § 100.440(A).

CON? Number of CONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 1 – Expedited at least some CON reviews
Beds Outside Hospitals Yes 6 – Expedited at least some CON reviews
Equipment Yes 3 – Expedited at least some CON reviews
Facilities/ Buildings Yes 9 – Expedited at least some CON reviews
Services Yes 2 – Expedited at least some CON reviews
Emergency Medical Transport Yes 1 – Expedited at least some CON reviews

Note: these citations are accurate as of May 2020.

Massachusetts DONs in Detail

Category

Types of DONs

Citation

Hospital Beds

1.Hospital beds.

Mass. Gen. Laws ch. 111 §§ 25C(a),

25B; 105 Mass. Code Regs.

§ 100.100 

Beds Outside Hospital

1.Clinic beds.

2.Long-term care facility beds.

3.Convalescent or nursing home beds.

4.Rest home or a charitable home for the aged beds.

5.Public medical institution beds.

6.Beds in any institution for the developmentally disabled or mentally ill which is administered under Titles 18 and 19 of the Federal Social Security Act.

Mass. Gen. Laws ch. 111 §§ 25C(a),

25B; 105 Mass. Code Regs.

§ 100.100

Equipment

1.Computerized tomographer.

2.Magnetic resonance image scanner.

3.Positron emission tomographer.

Mass. Gen. Laws ch. 111 § 25C(d); 105 Mass. Code. Regs. § 100.100; see Determination of Need-Required Equipment and Services Guideline 4, (Mass. Dep’t of Pub. Health Jan. 2017)47

Facilities/Buildings

1.Hospital.

2.Clinic.

3.Long-term care facility.

4.Convalescent or nursing home.

5.Rest home or a charitable home for the aged.

6.Clinical laboratory.

7.A public medical institution.

8.Any institution for the developmentally disabled or mentally ill which is administered under Titles 18 and 19 of the Federal Social Security Act.

Mass. Gen. Laws ch. 111 §§ 25C(a),

25B; 105 Mass. Code Regs.

§ 100.100

9.Ambulatory surgical center.

105 Mass. Code Regs. § 100.730(A)(1)

Services

1.Air ambulance.

2.Megavoltage radiation therapy.

Mass. Gen. Laws ch. 111 § 25C(a), (d); 105 Mass. Code Regs. § 100.100;

see Guidelines at 4

Emergency Medical Transport

1.Air ambulance.

105 Mass. Code Regs. § 100.100;

see Guideline at 4

Massachusetts DON Exceptions

No DON Required For:

Citation

No DON is needed for any substantial capital expenditure for construction related to the provision of inpatient services or for any substantial change in inpatient services if a substantial capital expenditure or such substantial change in services will be made by or on behalf of one of the following:

1.An HMO or combination of HMOs providing inpatient services if:

»The HMO or combination of HMOs in the service area have a combined enrollment of at least 50,000 individuals;

»The facility to which the service is provided will be reasonably accessible to enrolled individuals; and

»At least 75% of the patients served will be enrolled in the HMOs.

Mass. Gen. Laws ch.111 § 25C ½(1)

2.A healthcare facility if:

»It provides or will provide inpatient services;

»It will be controlled or leased (with 15 years remaining on the lease) by an HMO or a combination of HMOs which has in the service area of the HMOs a combined enrollment of at least 50,000 individuals;

»It will be geographically located so that services are reasonably accessible; and

»At least 75% of the patients who can be expected to receive such inpatient served will be enrolled in the HMOs.

Mass. Gen. Laws ch.111 § 25C ½(2), (3)

3.A health care facility if:

»It will be a long-term care facility, an infirmary maintained in a town, a convalescent or nursing home, or a charitable home for the aged;

»It will be located in an underbedded urban area;

»It provides a service to at least 70% of its patients as enrollees in Title XIV of the federal Social Security Act;

»It presents an adequate quality assurance program plan; and

»The need for such facility has been established.

Mass. Gen. Laws ch. 111 § 25C ½(4)

4.Basic biomedical research or applied medical research.

105 Mass. Code Regs § 100.726(A)

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