32.1-102.6 - Administrative procedures.
§ 32.1-102.6. Administrative procedures.
A. To obtain a certificate for a project, the applicant shall file acompleted application for a certificate with the Department and theappropriate regional health planning agency if a regional health planningagency has been designated for that region. In order to verify the date ofthe Department's and the appropriate regional health planning agency'sreceipt of the application, the applicant shall transmit the documentelectronically, by certified mail or a delivery service, return receiptrequested, or shall deliver the document by hand, with signed receipt to beprovided.
Within 10 calendar days of the date on which the document is received, theDepartment and the appropriate regional health planning agency, if a regionalhealth planning agency has been designated, shall determine whether theapplication is complete or not and the Department shall notify the applicant,if the application is not complete, of the information needed to complete theapplication. If no regional health planning agency is designated for thehealth planning region in which the project will be located, no filing with aregional health planning agency is required and the Department shalldetermine if the application is complete and notify the applicant, if theapplication is not complete, of the information needed to complete theapplication.
At least 30 calendar days before any person is contractually obligated toacquire an existing medical care facility, the cost of which is $600,000 ormore, that person shall notify the Commissioner and the appropriate regionalhealth planning agency, if a regional health planning agency has beendesignated, of the intent, the services to be offered in the facility, thebed capacity in the facility and the projected impact that the cost of theacquisition will have upon the charges for services to be provided. Ifclinical services or beds are proposed to be added as a result of theacquisition, the Commissioner may require the proposed new owner to obtain acertificate prior to the acquisition. If no regional health planning agencyis designated for the health planning region in which the acquisition willtake place, no notification to a regional health planning agency shall berequired.
B. For projects proposed in health planning regions with regional planningagencies, the appropriate regional health planning agency shall (i) revieweach completed application for a certificate within 60 calendar days of theday which begins the appropriate batch review cycle as established by theBoard by regulation pursuant to subdivision A 1 of § 32.1-102.2, such cyclenot to exceed 190 days in duration, and (ii) hold one public hearing on eachapplication in a location in the county or city in which the project isproposed or a contiguous county or city. Prior to the public hearing, theregional health planning agency shall notify the local governing bodies inthe planning district. At least nine days prior to the public hearing, theregional health planning agency shall cause notice of the public hearing tobe published in a newspaper of general circulation in the county or citywhere the project is proposed to be located. The regional health planningagency shall consider the comments of the local governing bodies in theplanning district and all other public comments in making its decision. Suchcomments shall be part of the record. In no case shall a regional healthplanning agency hold more than two meetings on any application, one of whichshall be the public hearing conducted by the board of the regional healthplanning agency or a subcommittee of the board. The applicant shall be giventhe opportunity, prior to the vote by the board of the regional healthplanning agency or a committee of the agency, if acting for the board, on itsrecommendation, to respond to any comments made about the project by theregional health planning agency staff, any information in a regional healthplanning agency staff report, or comments by those voting members of theregional health planning agency board; however, such opportunity shall notincrease the 60-calendar-day period designated herein for the regional healthplanning agency's review unless the applicant or applicants request aspecific extension of the regional health planning agency's review period.
The regional health planning agency shall submit its recommendations on eachapplication and its reasons therefor to the Department within 10 calendardays after the completion of its 60-calendar-day review or such other periodin accordance with the applicant's request for extension.
If the regional health planning agency has not completed its review withinthe specified 60 calendar days or such other period in accordance with theapplicant's request for extension and submitted its recommendations on theapplication and the reasons therefor within 10 calendar days after thecompletion of its review, the Department shall, on the eleventh calendar dayafter the expiration of the regional health planning agency's review period,proceed as though the regional health planning agency has recommended projectapproval without conditions or revision.
If no regional health planning agency has been designated for a region, theDepartment shall hold one hearing on each application in a location in thecounty or city in which the project is proposed or a contiguous county orcity. Prior to the hearing, the Department shall notify the local governingbodies in the planning district in which the project is proposed. At leastnine days prior to the public hearing, the Department shall cause notice ofthe public hearing to be published in a newspaper of general circulation inthe county or city where the project is proposed to be located. TheDepartment shall consider the comments of the local governing bodies in theplanning district and all other public comments in making its decision. Suchcomments shall be part of the record.
C. After commencement of any public hearing and before a decision is madethere shall be no ex parte contacts concerning the subject certificate or itsapplication between (i) any person acting on behalf of the applicant orholder of a certificate or any person opposed to the issuance or in favor ofrevocation of a certificate of public need and (ii) any person in theDepartment who has authority to make a determination respecting the issuanceor revocation of a certificate of public need, unless the Department hasprovided advance notice to all parties referred to in (i) of the time andplace of such proposed contact.
D. The Department shall commence the review of each completed applicationupon the day which begins the appropriate batch review cycle andsimultaneously with the review conducted by the regional health planningagency, if a regional health planning agency has been designated.
A determination whether a public need exists for a project shall be made bythe Commissioner within 190 calendar days of the day which begins theappropriate batch cycle.
The 190-calendar-day review period shall begin on the date upon which theapplication is determined to be complete within the batching processspecified in subdivision A 1 of § 32.1-102.2.
If the application is not determined to be complete within 40 calendar daysfrom submission, the application shall be refiled in the next batch for likeprojects.
The Commissioner shall make determinations in accordance with the provisionsof the Administrative Process Act (§ 2.2-4000 et seq.) except for those partsof the determination process for which timelines and specifications aredelineated in subsection E of this section. Further, if an informalfact-finding conference is determined to be necessary by the Department or isrequested by a person seeking good cause standing, the parties to the caseshall include only the applicant, any person showing good cause, anythird-party payor providing health care insurance or prepaid coverage to fivepercent or more of the patients in the applicant's service area, and therelevant health planning agency.
E. Upon entry of each completed application or applications into theappropriate batch review cycle:
1. The Department shall establish, for every application, a date between theeightieth and ninetieth calendar days within the 190-calendar-day reviewperiod for holding an informal fact-finding conference, if such conference isnecessary.
2. The Department shall review every application at or before theseventy-fifth calendar day within the 190-calendar-day review period todetermine whether an informal fact-finding conference is necessary.
3. Any person seeking to be made a party to the case for good cause shallnotify the Department of his request and the basis therefor on or before theeightieth calendar day following the day which begins the appropriate batchreview cycle.
4. In any case in which an informal fact-finding conference is held, a dateshall be established for the closing of the record which shall not be morethan 30 calendar days after the date for holding the informal fact-findingconference.
5. In any case in which an informal fact-finding conference is not held, therecord shall be closed on the earlier of (i) the date established for holdingthe informal fact-finding conference or (ii) the date that the Departmentdetermines an informal fact-finding conference is not necessary.
6. The provisions of subsection D of § 2.2-4019 notwithstanding, if adetermination whether a public need exists for a project is not made by theCommissioner within 45 calendar days of the closing of the record, theCommissioner shall notify the applicant or applicants and any persons seekingto show good cause, in writing, that the application or the application ofeach shall be deemed approved 25 calendar days after expiration of such45-calendar-day period, unless the receipt of recommendations from the personperforming the hearing officer functions permits the Commissioner to issuehis case decision within that 25-calendar-day period. The validity ortimeliness of the aforementioned notice shall not, in any event, prevent,delay or otherwise impact the effectiveness of this section.
7. In any case when a determination whether a public need exists for aproject is not made by the Commissioner within 70 calendar days after theclosing of the record, the application shall be deemed to be approved and thecertificate shall be granted.
8. If a determination whether a public need exists for a project is not madeby the Commissioner within 45 calendar days of the closing of the record, anyapplicant who is competing in the relevant batch or who has filed anapplication in response to the relevant Request For Applications issuedpursuant to § 32.1-102.3:2 may, prior to the application being deemedapproved, petition for immediate injunctive relief pursuant to § 2.2-4030,naming as respondents the Commissioner and all parties to the case. Duringthe pendency of the proceeding, no applications shall be deemed to beapproved. In such a proceeding, the provisions of § 2.2-4030 shall apply.
F. Deemed approvals shall be construed as the Commissioner's case decision onthe application pursuant to the Administrative Process Act (§ 2.2-4000 etseq.) and shall be subject to judicial review on appeal as the Commissioner'scase decision in accordance with such act.
Any person who has sought to participate in the Department's review of suchdeemed-to-be-approved application as a person showing good cause who has notreceived a final determination from the Commissioner concerning such attemptto show good cause shall be deemed to be a person showing good cause forpurposes of appeal of the deemed approval of the certificate.
In any appeal of the Commissioner's case decision granting a certificate ofpublic need pursuant to a Request for Applications issued pursuant to §32.1-102.3:2, the court may require the appellant to file a bond pursuant to§ 8.01-676.1, in such sum as shall be fixed by the court for protection ofall parties interested in the case decision, conditioned on the payment ofall damages and costs incurred in consequence of such appeal.
G. For purposes of this section, "good cause" shall mean that (i) there issignificant relevant information not previously presented at and notavailable at the time of the public hearing, (ii) there have been significantchanges in factors or circumstances relating to the application subsequent tothe public hearing, or (iii) there is a substantial material mistake of factor law in the Department staff's report on the application or in the reportsubmitted by the health planning agency.
H. The project review procedures shall provide for separation of the projectreview manager functions from the hearing officer functions. No personserving in the role of project review manager shall serve as a hearingofficer.
I. The applicants, and only the applicants, shall have the authority toextend any of the time periods specified in this section. If all applicantsconsent to extending any time period in this section, the Commissioner, withthe concurrence of the applicants, shall establish a new schedule for theremaining time periods.
J. This section shall not apply to applications for certificates for projectsdefined in subdivision 8 of the definition of "project" in § 32.1-102.1.Such projects shall be subject to an expedited application and review processdeveloped by the Board in regulation pursuant to subdivision A 2 of §32.1-102.2.
(1982, c. 388; 1984, c. 740; 1991, c. 561; 1999, cc. 899, 922; 2000, c. 931;2004, cc. 71, 95; 2005, c. 404; 2009, c. 175; 2010, c. 646.)