By Mark Leach
With a new regulation, there is now no more waiting for nonsubstantive review CON applications … when timely filed.
Kentucky’s Certificate of Need (CON) program is going through a process of modernization. As part of this, a newregulation changes the application process for those that receive nonsubstantive review.
Before, nonsubstantive review (“nonsub”) applicants would have to wait until their proposed service’s batching cycle came up twice a year. They would then file a letter of intent and have to wait a month to file their application.
The new regulation changes all this.
At the CON office’s website, the link for batching cycles now instructs:
Effective February 5, 2015, all nonsubstantive review applications will be batched monthlyand will not require a letter of intent. This includes Ambulatory Care Clinics, Mobile Services, Ground Ambulance (Class IV only), Prescribed Pediatric Extended Care Facilities, Rehabilitation Agencies, Personal Care Beds, Birthing Centers and Limited Services Clinics.
(emphasis in original).
So, if applicants want to open an ambulatory care clinic, rehab agency, or any of the other listed services, they no longer have to wait for the batching cycle that would come up every six months. Instead, don’t even file a letter of intent and just file the application.
Now, one note for applicants: attention still needs to be paid to the batching cycles.
While the above language instructs that applications will be batched “monthly,” that does not necessarily mean that an application received on the 30th will be batched for the immediately following month. Here’s why:
The actual regulatory language states:
Section 3. Timetable for Submission of an Application for Nonsubstantive Review.
* * *
(2) An application for nonsubstantive review shall be filed with the cabinet at least fifty (50) calendar days prior to the date of the desired public notice.
Substantive review applications will still follow the batching cycle. When the CON office says nonsub applications will be batched “monthly,” it would be more accurate to say that they will be batched with the applications for the batching cycle of that month.
Look back at the link for the batching cycles. Here’s how an application filed on the 30th wouldn’t be batched in that month. From the batching cycle spreadsheet:
Note: the column shaded in blue is the date of public notice. The deadline for filing applications to be publicly noticed by that date is 50 days prior.
As a result, if an applicant filed on April 30, 2015, it would batched with the next batching cycle to be publicly noticed on July 16, 2015, not June 18, 2015 (as all other nonsub applications filed in April would be). By filing just one day late, instead of receiving a final decision on July 23, the applicant would instead receive a decision on August 20–almost a full month later.
Similarly, if an applicant were to file its nonsub application on May 28, 29, 30, or 31, it would be batched with the next cycle because the May batching cycle deadline for filing an application is May 27, 2015.
But, if an applicant waited until June 30, they would actually have filed a day before the deadline for that batching cycle, since even nonsub applications filed on July 1, 2015 would be batched with those applications filed in June.
Lesson:
The new regulation makes filing nonsub applications less of a waiting process: no more waiting for the six-month batching cycle to come around and no waiting for a month after filing a letter of intent. But, applicants still need to pay attention to the batching cycles to ensure they still file by each month’s deadline for that particular batching cycle.
Mark Leach can be reached via his website: http://www.markwleachlaw.com
