Conning the Competition

Michigan 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. Unlike most states, Michigan does not allow a CON applicant’s competitors to participate in the application process or otherwise object to pending CON applications. In response to COVID-19, Governor Whitmer directed the Department of Health and Human Services (DHHS) to grant CON applications without strictly complying with CON requirements.

COVID-19 Response

On March 17, 2020, Governor Whitmer issued an executive order authorizing DHHS to grant CON applications without strictly complying with existing statutory requirements. Exec. Order 2020-13 (Mar. 17, 2020). In response, DHHS directed applicants to existing emergency application rules. DHHS, Application for Emergency Certificate of Need. The application is lengthy compared to emergency notice provisions or applications in other states, and Michigan provides no data online documenting how many healthcare facilities or providers used the emergency application process to expand facilities or services in response to COVID-19.

Application Process

In Michigan, CON applications may undergo comparative, substantive or nonsubstantive review. Applications undergoing nonsubstantive review should be decided within 45 days, see Mich. Admin. Code r. 325.9206(4), while the review period for comparative and substantive applications is no longer than 120 days. Mich. Admin. Code r. 325.9207(1); 325.9208(1)(b). Applications can be submitted at any time. The fee ranges from $3,000 to $18,000 depending on the proposed capital expenditure. Mich. Comp. Laws § 333.20161(3)(a), (b). Competitors cannot intervene in the application process.