Conning the Competition

Virginia requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. Virginia maintains 57 independent CONs and a single exception for certain nursing facilities. In April 2020, Virginia enacted minor CON legislation, which took effect July 1, 2020. See 2020 Va. Legis. Serv. 1271 (S.B. No. 764, signed Apr. 22, 2020). The legislation mainly clarified the State Board of Health’s responsibilities. In addition to its many specific CON requirements, Virginia maintains a catch-all CON for any capital expenditure over $15 million. Va. Code § 32.1-102.1:3(B)(8). This means that if none of Virginia’s specific CON requirement’s apply, hospitals in Virginia must still obtain CONs for any expenditure that will exceed $15 million.

COVID-19 Response

On March 20, 2020, Governor Northam suspended CON requirements for the addition of beds in general hospitals or nursing homes. Exec. Order No. 52 (Mar. 20, 2020).

Application Process

In Virginia, the CON application process takes up to 190 days. Va. Code § 32.1-102.6(D). Applications must be submitted at least 40 days before the review cycle begins, and there are only two cycles annually. 12 Va. Admin. Code § 5-220-200. The new legislation provides that the Board may establish a schedule of fees for CON applications, but the exact costs are no longer listed. See Va. Code § 32.1-102.2(A)(5). Competitors can intervene in the application process and can directly submit written opinions, data and other information for consideration. Va. Code § 32.1-102.6(B), (E)(3).