Vermont

Vermont requires CONs within five broad categories—hospital beds, beds outside  
hospitals, equipment, facilities and services. The definitions of “services” and “equipment” are extremely broad in Vermont, where the program relies heavily on expenditures. For example, Vermont does not define individual services that require a CON in its statute or regulations. Instead, any activity or function related to “care, treatment or diagnosis of patients” costing more than $1 million (at a hospital) or $500,000 (at any other health care facility) requires a CON. Vt. Stat. tit. 18, §§ 9432(10), 9434(b)(3), (a)(5). Vermont further maintains a statewide moratorium preventing any new home health agencies from opening through 2025. 2019 Vt. Acts & Resolves No. 5. § 2. 

Vermont’s COVID-19 Response 

On March 13, 2020, Governor Scott declared a state of emergency in response to COVID-19. Exec. Order 01-20 (Mar. 13, 2020).⁷³ The Legislature then passed a bill to grant state agencies emergency powers. See H.742 (Act 91) § 5 (signed Mar. 30, 2020). In response, the Green Mountain Care Board (Board), the agency in charge of overseeing and approving the CON program, issued a temporary waiver of CON requirements for certain COVID-19 related projects. Board, Certificate of Need Bulletin 003 (Apr. 9, 2020).⁷⁴ The waiver requires facilities to submit a brief notice to the Board before expanding to respond to COVID-19, unless it had already applied for a Medicare or Medicaid waiver or obtained approval to expand services from the State Survey Agency. See Certificate of Need Bulletin 003 at (a), (b). Operating an expanded facility or service after the state of emergency is terminated requires applying for a regular CON.  

Application Process 

In Vermont, the CON review process takes up to 120 days. Vt. Stat. tit. 18, § 9440(d)(3). Applications can be submitted at any time, and the fee for a CON application is 0.125% of project costs, not to exceed $20,000 with a minimum fee of $250. Vt. Stat. tit. 18, § 9441(a), (b). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. Vt. Stat. tit. 18, § 9440(c)(7), (h); see Green Mountain Care Board R. 4.406.  

Types of CONs in Vermont  

	CON?	CON applies with expenditure of:	Temporary COVID-19 response:
Hospital Beds	Yes	Any amount	Suspended
Beds Outside Hospitals	Yes	Any amount	Suspended
Equipment	Yes	$1 – 1.5 million+	Suspended
Facilities/Buildings	Yes	$1.5 – 3 million+	Suspended
Services	Yes	$500,000 – $1 million+	Suspended
Emergency Medical Transport	No	–	–

 Vermont CONs in Detail 

Category	Moratoria/Types of CONs	Vt. Stat. tit. 18
Hospital Beds A CON is required for a “new health care project” which includes a “change from one licensing period to the next in the number of licensed beds of a healthcare facility[.]” Vt. Stat. tit. 18 § 9434(b)(4)	General hospital beds. Mental hospital beds. Chronic disease facility beds. Birthing center beds. Maternity hospital beds. Psychiatric facility beds.	§ 9432(8)(A)
Beds Outside Hospitals A CON is needed for a “new healthcare project” which includes a “change from one licensing period to the next in the number of licensed beds of a healthcare facility[.]” Vt. Stat. tit. 18 § 9434(a)(2)	Nursing homes. Health maintenance organizations. Outpatient diagnostic or therapy programs. Kidney disease treatment centers. Mental health agencies or centers. Diagnostic imaging facilities. Independent diagnostic laboratories. Cardiac catheterization laboratories. Radiation therapy facilities. Any inpatient or ambulatory surgical, diagnostic or treatment center.	§ 9432(8)(B)
Equipment	A single unit of medical equipment or a single system of components with related functions used in a patient care environment to support patient treatment and diagnosis or to provide medical and other health services.	Green Mountain Care Board R. 4.104(7)
	The purchase, lease, or other comparable arrangement of a single piece of diagnostic or therapeutic equipment that costs more than $1 million (other than hospitals) or $1.5 million (hospitals).	§ 9434(a)(4), (b)(2)
Category	Moratoria/Types of CONs	Vt. Stat. tit. 18
Facilities/Buildings  The construction, development, purchase, renovation, or other establishment of the following facilities costing more than $1.5 million (other than hospitals) or $3 million (hospitals) requires a CON.  Vt. Stat. tit. 18 § 9434(a)(1), (b)(1)	Mental hospitals.  Chronic disease facilities. Birthing centers. Maternity hospitals. Psychiatric facilities.	§ 9432(8)(A)
	Nursing homes. Health maintenance organizations.  Outpatient diagnostic or therapy programs. Kidney disease treatment centers. Mental health agencies or centers. Diagnostic imaging facilities. Independent diagnostic laboratories. Cardiac catheterization laboratories. Radiation therapy facilities.  Any inpatient or ambulatory surgical, diagnostic or treatment center.	§ 9432(8)(B)
Services	Moratorium on new home health services  through 2025.	2019 Vt. Acts & Resolves No. 5 § 2
	Home health agencies.	§ 9432(8)(B)
	Activities and functions of a health care facility that are directly related to care, treatment or diagnosis of patients and that cost more than $500,000 (outside hospitals) or $ 1 million (in hospitals).	§§ 9432(10), 9434(a)(5), (b)(3)
Emergency Medical Transport	No CONs in this category.

Vermont has a statewide moratorium preventing any new home health agencies from opening through 2025. 

Vermont CON Exceptions 

No CON Required For:	Vt. Stat. tit. 18
Offices of physicians, dentists or other practitioners of the healing arts.	§ 9435(a)
Community mental health or developmental disability center health care projects.	§ 9435(b)
Redesignations, designation revocations and collaborative agreements of home health agencies subject to the supervision of the Commissioner of Disabilities, Aging, and Independent Living.	§ 9435(d)
Routine replacements of nonmedical equipment and fixtures, including furnaces, boilers, refrigeration units, kitchen equipment, heating and cooling units, and similar items.	§ 9435(f)