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). 

Tennessee’s 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).71   

Application Process 

In Tennessee, the CON application process takes up to 60 days. Tenn. Code § 68-11-1608(c). 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. 

Types of CONs in Tennessee 

  CON? CON applies with expenditure of: Temporary COVID-19 response: 
Hospital Beds Yes Any amount  Suspended 
Beds Outside Hospitals Yes Any amount  – 
Equipment Yes Any amount  – 
Facilities/Buildings Yes Any amount  – 
Services Yes Any amount  Suspended  
Emergency Medical Transport No – – 

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).a  

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).b  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 Hospital beds. Mental health hospital beds. § 68-11-1602(7)(A) 
Beds Outside Hospitals Nursing home beds. Recuperation center beds. Ambulatory surgical treatment center. Intellectual disability institutional habilitation facility beds.  Outpatient diagnostic center beds. Rehabilitation facility beds. Residential hospice beds. Nonresidential substitution-based treatment center for opiate addiction beds. § 68-11-1602(7)(A) 
Equipment 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) 
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 Increasing the number of magnetic resonance imaging machines in any county with a population of 250,000 or less by one or more, except for replacing or decommissioning an existing machine.  § 68-11-1607(a)(11) 
Positron emission tomography. § 68-11-1607(a)(4) 
Facilities/Buildings Nursing home. Recuperation center. Hospital. Ambulatory surgical treatment center. Mental health hospital. Intellectual disability institutional habilitation facility. Outpatient diagnostic center. Rehabilitation facility. Residential hospice. Nonresidential substitution-based treatment center for opiate addiction. § 68-11-1602(7)(A) 
Services Diagnostic services. Treatment services. Rehabilitative services. § 68-11-1602(8) 
Home care organization (or any category of service provided by a home care organization for which authorization is required). § 68-11-1602(7)(A) 
Home health services. Burn care. Cardiac catherterization. Neonatal intensive care. Open heart surgery. Organ transplant. Linear accelerator. Psychiatry services. Opiate addiction treatment provided through a nonresidential substitution-based treatment center for opiate addiction. Hospice services. § 68-11-1607(a)(4) 
Megavoltage radiation therapy services. State Health Plan72 
Emergency Medical Transport No CONs in this category.  

Tennessee CON Exceptions 

No CON Required For: Tenn. Code 
An entity that was formerly licensed as a hospital, and that has received from the Commissioner of Health a written determination that it will be eligible for designation as a critical access hospital under the Medicare rural hospital flexibility program. § 68-11-1607(j) 
A hospital, rehabilitation facility, or mental health hospital to increase its total number of licensed beds in any bed category by 10% or less of its licensed capacity once every three years. § 68-11-1607(g) 
A nursing home to increase its total number of licensed beds by the lesser of ten beds or ten percent (10%) of its licensed capacity over any period of one (1) year.  § 68-11-1607(k)(1) 
A home care organization that is authorized to provide only professional support services which are defined in Tenn. Code Ann. § 68-11-201. § 68-11-1607(l) 
An existing hospital licensed by the Department of Mental Health and Substance Abuse Services to become licensed by the Department of Health as a satellite of an affiliated general acute care hospital.  § 68-11-1607(a)(8)