Tennessee

Tennessee

Tennessee requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. The state’s Health Services Department Agency manages the CON program and maintains authority to revoke CONs if recipients fail to implement their projects in a “timely manner.” Tenn. Code § 68-11-1611. The minimum CON application fee in Tennessee is $15,000. Tenn. Comp. R. & Regs. § 0720-10-02(5).

COVID-19 Response

On March 19, 2020, Governor Lee suspended certain CON requirements to allow hospitals to temporarily increase bed capacity and establish hospital and diagnostic services at any location as necessary to respond to COVID-19. See Exec. Order No. 15 (Mar. 19, 2020). The Department of Health responded by implementing temporary rules effective through October 7, 2020. See Dep’t of Health, Interpretation and Temporary Waiver of Rules Related to Treatment and Containment of COVID-19 (Apr. 1, 2020); see also sidebar on p.170.

Application Process

In Tennessee, the CON application process takes up to 60 days. Tenn. Code § 68-11-1608(c). The Agency reviews applications (called letters of intent) filed by the 10th of any month in the review cycle beginning the following month. Tenn. Code § 68-11-1607(c)(1), (5). The fee is $5.75 per $1,000 of the estimated expenditure, but not less than $15,000 or more than $95,000. Tenn. Comp. R. & Regs. § 0720-10-02(5). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. Tenn. Code § 68-11-1610.

CON? Number of CONs Moratoria Temporary COVID-19 response:
Hospital Beds Yes 2 – Suspended at least some CON laws
Beds Outside Hospitals Yes 8 – Suspended at least some CON laws
Equipment Yes 4 – No action
Facilities/ Buildings Yes 10 – Suspended at least some CON laws
Services Yes 14 – Suspended at least some CON laws
Emergency Medical Transport No – – –

Note: these citations are accurate as of May 2020.

Tennessee took a commonsense approach in recognizing that during a public health emergency, every second matters.

Governor Lee’s executive order included suspending Tennessee’s CON statutes and regulations “to the extent necessary to allow hospitals … to temporarily increase their number of licensed hospital beds at any location or temporarily establish hospital or diagnostic services at any location, if necessary for the treatment of COVID-19 patients.” See Exec. Order No. 15 (Mar. 19, 2020).

For its part, the Department of Health responded by promptly confirming the suspension of the CON program. See Dep’t of Health, Interpretation and Temporary Waiver of Rules Related to Treatment and Containment of COVID-19 (Apr. 1, 2020). This was a critical step because healthcare providers should never choose between spending resources on patients and filling out paperwork. In other states, executive orders and proclamations loosened CON requirements, but either mandated that providers spend critical time applying for emergency CONs or else were silent as to compliance. Worse, in Indiana, the governor authorized the Department of Health to waive its CON program, but the Department never acted to exercise that authority, leaving CONs in place despite the governor’s intentions. 

Tennessee’s practical response waived the most burdensome laws and regulations without forcing providers to fill out emergency CON applications just to expand bed services or otherwise respond to COVID-19. This gave healthcare facilities the freedom to prioritize patients over paperwork. 

Tennessee CONs in Detail

Category

Types of CONs

Tenn. Code

Hospital Beds

1.Hospital beds.

2.Mental health hospital beds.

§ 68-11-1602(7)(A)

Beds Outside Hospitals

1.Nursing home beds.

2.Recuperation center beds.

3.Ambulatory surgical treatment center.

4.Intellectual disability institutional habilitation facility beds.

5.Outpatient diagnostic center beds.

6.Rehabilitation facility beds.

7.Residential hospice beds.

8.Nonresidential substitution-based treatment center for opiate addiction beds.

§ 68-11-1602(7)(A)

Equipment

1.Initiation of magnetic resonance imaging in any county with a population in excess of 250,000 only for providing magnetic resonance imaging to pediatric patients.

§ 68-11-1607(a)(10)(A)

2.Initiation of magnetic resonance imaging in any county with a population in excess of 250,000 only for providing magnetic resonance imaging to any patients.

§ 68-11-1607(a)(10)(B)

Category

Types of CONs

Tenn. Code

Equipment

3.Increasing the number of magnetic resonance imaging machines in any county with a population of over 250,000 by one or more, except for replacing or decommissioning an existing machine.

§ 68-11-1607(a)(11)

4.Positron emission tomography.

§ 68-11-1607(a)(4)

Facilities/Buildings

1.Nursing home.

2.Recuperation center.

3.Hospital.

4.Ambulatory surgical treatment center.

5.Mental health hospital.

6.Intellectual disability institutional habilitation facility.

7.Outpatient diagnostic center.

8.Rehabilitation facility.

9.Residential hospice.

10.Nonresidential substitution-based treatment center for opiate addiction.

§ 68-11-1602(7)(A)

Services

1.Diagnostic services.

2.Treatment services.

3.Rehabilitative services.

§ 68-11-1602(8)

4.Home care organization (or any category of service provided by a home care organization for which authorization is required).

§ 68-11-1602(7)(A)

5.Home health services.

6.Burn care.

7.Cardiac catherterization.

8.Neonatal intensive care.

9.Open heart surgery.

10.Organ transplant.

11.Linear accelerator.

12.Psychiatry services.

13.Opiate addiction treatment provided through a nonresidential substitution-based treatment center for opiate addiction.

§ 68-11-1607(a)(4)

14.Megavoltage radiation therapy services.

State Health Plan75

Emergency Medical Transport

No CONs in this category.

Tennessee CON Exceptions

Category

Types of CONs

Tenn. Code

Hospital Beds

1.Hospital beds.

2.Mental health hospital beds.

§ 68-11-1602(7)(A)

Beds Outside Hospitals

1.Nursing home beds.

2.Recuperation center beds.

3.Ambulatory surgical treatment center.

4.Intellectual disability institutional habilitation facility beds.

5.Outpatient diagnostic center beds.

6.Rehabilitation facility beds.

7.Residential hospice beds.

8.Nonresidential substitution-based treatment center for opiate addiction beds.

§ 68-11-1602(7)(A)

Equipment

1.Initiation of magnetic resonance imaging in any county with a population in excess of 250,000 only for providing magnetic resonance imaging to pediatric patients.

§ 68-11-1607(a)(10)(A)

2.Initiation of magnetic resonance imaging in any county with a population in excess of 250,000 only for providing magnetic resonance imaging to any patients.

§ 68-11-1607(a)(10)(B)

Category

Types of CONs

Tenn. Code

Equipment

3.Increasing the number of magnetic resonance imaging machines in any county with a population of over 250,000 by one or more, except for replacing or decommissioning an existing machine.

§ 68-11-1607(a)(11)

4.Positron emission tomography.

§ 68-11-1607(a)(4)

Facilities/Buildings

1.Nursing home.

2.Recuperation center.

3.Hospital.

4.Ambulatory surgical treatment center.

5.Mental health hospital.

6.Intellectual disability institutional habilitation facility.

7.Outpatient diagnostic center.

8.Rehabilitation facility.

9.Residential hospice.

10.Nonresidential substitution-based treatment center for opiate addiction.

§ 68-11-1602(7)(A)

Services

1.Diagnostic services.

2.Treatment services.

3.Rehabilitative services.

§ 68-11-1602(8)

4.Home care organization (or any category of service provided by a home care organization for which authorization is required).

§ 68-11-1602(7)(A)

5.Home health services.

6.Burn care.

7.Cardiac catherterization.

8.Neonatal intensive care.

9.Open heart surgery.

10.Organ transplant.

11.Linear accelerator.

12.Psychiatry services.

13.Opiate addiction treatment provided through a nonresidential substitution-based treatment center for opiate addiction.

§ 68-11-1607(a)(4)

14.Megavoltage radiation therapy services.

State Health Plan75

Emergency Medical Transport

No CONs in this category.

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