Health Facility Planning

V.S.A. tit. 18, ch. 221, subch. 5

in effect

18 V.S.A. § 9431 Policy and purpose

9431. Policy and purpose (a) It is declared to be the public policy of this State that the general welfare and protection of the lives, health, and property of the people of this State require that all new health care projects be offered or developed in a manner that avoids unnecessary duplication and contains or reduces increases in the cost of delivering services, while at the same time maintaining and improving the quality of and access to health care services, and promoting rational allocation of health care resources in the State; and that the need, cost, type, level, quality, and feasibility of providing any new health care project be subject to review and assessment prior to any offering or development. (b) [Repealed.] Added 1979, No. 65, § 1; amended 1997, No. 159 (Adj. Sess.), § 6, eff. April 29, 1998; 2003, No. 53, § 8; 2011, No. 171 (Adj. Sess.), § 14a, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.

18 V.S.A. § 9432 Definitions

9432. Definitions As used in this subchapter: (1) “Ambulatory surgical center” means a facility or portion of a facility that provides surgical care not requiring an overnight stay. The office of a dentist in which activities are limited to dentistry and oral or maxillofacial surgical procedures shall not be deemed an ambulatory surgical center for purposes of this subchapter. In order to be considered an ambulatory surgical center, a facility shall meet all the following criteria: (A) charge, or intend to charge, a facility fee in addition to professional fees for the services performed; (B) have an operating room or recovery room in the facility; (C) use an anesthesiologist or nurse anesthetist; (D) provide one or more outpatient services for which Medicare coverage is provided. (2) “Annual operating expense” means that expense that, by generally accepted accounting principles, is incurred by a new health care service during the first fiscal year in which the service is in full operation after completion of the project. (3) “Applicant” means a person who has submitted an application or proposal requesting issuance of a certificate of need. (4) “Bed capacity” means the number of licensed beds operated by the facility under its most current license under chapter 43 of this title and of facilities under 33 V.S.A. chapter 71. (5) “Capital expenditure” means an expenditure for the plant or equipment that is not properly chargeable as an expense of operation and maintenance and includes acquisition by purchase, donation, leasehold expenditure, or lease that is treated as capital expense in accordance to the accounting standards established for lease expenditures by the Financial Accounting Standards Board, calculated over the length of the lease for plant or equipment, and includes assets having an expected life of at least three years. A capital expenditure includes the cost of studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition, improvement, expansion, or replacement of the plant and equipment. (6) “Construction” means actual commencement of any construction or fabrication of any new building, or addition to any existing facility, or any expenditure relating to the alteration, remodeling, renovation, modernization, improvement, relocation, repair, or replacement of a health care facility, including expenditures necessary for compliance with life and health safety codes. (7) “To develop,” when used in connection with health services, means to undertake activities that on their completion will result in the offer of a new health care project, or the incurring of a financial obligation in relation to the offering of a service. (8) “Health care facility” means all persons or institutions, including mobile facilities, whether public or private, proprietary or not for profit, that offer diagnosis, treatment, inpatient, or ambulatory care to two or more unrelated persons, and the buildings in which those services are offered. The term shall not apply to any institution operated by religious groups relying solely on spiritual means through prayer for healing, but shall include: (A) hospitals, including general hospitals, mental hospitals, chronic disease facilities, birthing centers, maternity hospitals, and psychiatric facilities including any hospital conducted, maintained, or operated by the State of Vermont, or its subdivisions, or a duly authorized agency thereof; (B) nursing homes, health maintenance organizations, home health agencies, 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, or any inpatient or ambulatory surgical, diagnostic, or treatment center. (9) “Health care provider” means a person, partnership, corporation, facility, or institution, licensed or certified or authorized by law to provide professional health care service in this State to an individual during that individual’s medical care, treatment, or confinement. (10) “Health services” mean activities and functions of a health care facility that are directly related to care, treatment, or diagnosis of patients. (11) “Material change” means a change to a health care project for which a certificate of need has been issued that: (A) constitutes a new health care project as defined in section 9434 of this title; or (B) increases the total costs of the project by more than 10 percent of the approved amount. (12) “Nonmaterial change” means a modification that does not meet the cost threshold of a material change as defined in subdivision (11) of this section, but otherwise modifies the kind, scope, or capacity of a project for which a certificate of need has been granted under this subchapter. (13) “Obligation” means an obligation for a capital expenditure which is deemed to have been incurred by or on behalf of a health care facility or health maintenance organization. (14) “To offer,” when used in connection with health services, means that a health care provider holds itself out as capable of providing, or as having the means for the provision of, specified health services. Added 1979, No. 65, § 1; amended 1985, No. 151 (Adj. Sess.), § 16; 1985, No. 234 (Adj. Sess.), § 1; 1987, No. 96, § 8; 1989, No. 180 (Adj. Sess.), § 1; 1989, No. 225 (Adj. Sess.), § 25(b); 1991, No. 160 (Adj. Sess.), § 24, eff. May 11, 1992; 1993, No. 114 (Adj. Sess.), §§ 3, 4; 1995, No. 180 (Adj. Sess.), § 23; 1997, No. 159 (Adj. Sess.), § 7, eff. April 29, 1998; 2003, No. 53, §§ 9, 26; 2005, No. 71, § 77c; 2007, No. 139 (Adj. Sess.), § 1; 2009, No. 49, § 13.

18 V.S.A. § 9433 Administration

9433. Administration (a) The Green Mountain Care Board shall exercise such duties and powers as necessary for the implementation of the certificate of need program as provided by and consistent with this subchapter. The Board shall issue or deny certificates of need and administer the program. (b) The Board shall adopt rules governing the review of certificate of need applications consistent with and necessary to the proper administration of this subchapter. All rules shall be adopted pursuant to 3 V.S.A. chapter 25. (c) The Board shall consult with hospitals and other health care facilities, professional associations and societies, the Secretary of Human Services, the Office of the Health Care Advocate, and other interested parties in matters of policy affecting the administration of this subchapter. (d) [Repealed.] Added 1979, No. 65, § 1; amended 1987, No. 96 §§ 9, 21(a); 1991, No. 160 (Adj. Sess.), § 25, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), §§ 24, 38(a); 2003, No. 53, § 26; 2011, No. 48, § 23; 2011, No. 171 (Adj. Sess.), § 15, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.

18 V.S.A. § 9434 Certificate of need; general rules

9434. Certificate of need; general rules (a) A health care facility shall not develop or have developed on its behalf a new health care project without issuance of a certificate of need by the Board. For purposes of this subsection, a “new health care project” means any of the following: (1) The construction, development, purchase, renovation, or other establishment of a health care facility, or any capital expenditure by or on behalf of a health care facility, for which the capital cost exceeds $10,000,000.00. (2) A change from one licensing period to the next in the number of licensed beds of a health care facility through addition or conversion, or through relocation from one physical facility or site to another. (3) The offering of any home health service, or the transfer or conveyance of more than a 50 percent ownership interest in a health care facility other than a hospital or nursing home. (4) The purchase, lease, or other comparable arrangement of a single piece of diagnostic and therapeutic equipment for which the cost, or in the case of a donation the value, is in excess of $5,000,000.00. For purposes of this subdivision, the purchase or lease of one or more articles of diagnostic or therapeutic equipment that are necessarily interdependent in the performance of their ordinary functions or that would constitute any health care facility included under subdivision 9432(8)(B) of this title, as determined by the Board, shall be considered together in calculating the amount of an expenditure. The Board’s determination of functional interdependence of items of equipment under this subdivision shall have the effect of a final decision and is subject to appeal under section 9381 of this title. (5) The offering of a health care service or technology having an annual operating expense that exceeds $3,000,000.00 for either of the next two budgeted fiscal years, if the service or technology was not offered or employed, either on a fixed or a mobile basis, by the health care facility within the previous three fiscal years. (6) [Repealed.] (b) [Repealed.] (c) In the case of a project that requires a certificate of need under this section, expenditures for which are anticipated to be in excess of $50,000,000.00, the applicant first shall secure a conceptual development phase certificate of need, in accordance with the standards and procedures established in this subchapter, that permits the applicant to make expenditures for architectural services, engineering design services, or any other planning services, as defined by the Board, needed in connection with the project. Upon completion of the conceptual development phase of the project, and before offering or further developing the project, the applicant shall secure a final certificate of need in accordance with the standards and procedures established in this subchapter. Applicants shall not be subject to sanctions for failure to comply with the provisions of this subsection if such failure is solely the result of good faith reliance on verified project cost estimates issued by qualified persons, which cost estimates would have led a reasonable person to conclude the project was not anticipated to be in excess of $50,000,000.00 and therefore not subject to this subsection. The provisions of this subsection notwithstanding, expenditures may be made in preparation for obtaining a conceptual development phase certificate of need, which expenditures shall not exceed $10,000,000.00. (d) If the Board determines that a person required to obtain a certificate of need under this subchapter has separated a single project into components in order to avoid cost thresholds or other requirements under this subchapter, the person shall be required to submit an application for a certificate of need for the entire project, and the Board may proceed under section 9445 of this title. The Board’s determination under this subsection shall have the effect of a final decision and is subject to appeal under section 9381 of this title. (e) The Board may periodically adjust the monetary jurisdictional thresholds contained in this section. In doing so, the Board shall reflect the same categories of health care facilities, services, and programs recognized in this section. Any adjustment by the Board shall not exceed an amount calculated using the cumulative Consumer Price Index rate of inflation. Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 2; 1987, No. 96, § 21(b); 1989, No. 180 (Adj. Sess.), § 2; 1991, No. 160 (Adj. Sess.), § 38, eff. May 11, 1992; 1993, No. 30, § 17, eff. May 21, 1993; 1995, No. 160 (Adj. Sess.), § 8; 1995, No. 178 (Adj. Sess.), §§ 132a, 306; 1995, No. 180 (Adj. Sess.), § 25; 1997, No. 159 (Adj. Sess.), § 8, eff. April 29, 1998; 2003, No. 53, §§ 10, 26; 2003, No. 105 (Adj. Sess.), § 14, eff. May 4, 2004; 2005, No. 57, § 4, eff. June 13, 2005; 2007, No. 27, § 7; 2009, No. 49, §§ 10, 10a; 2011, No. 171 (Adj. Sess.), § 16, eff. Jan. 1, 2013; 2017, No. 125 (Adj. Sess.), § 2; 2017, No. 167 (Adj. Sess.), § 6; 2019, No. 72, § E.329.1, eff. June 18, 2019; 2019, No. 72, § E.329.2, eff. July 1, 2020; 2025, No. 15, § 1, eff. May 13, 2025.

18 V.S.A. § 9435 Exclusions

9435. Exclusions (a) Excluded from this subchapter are offices of physicians, dentists, or other practitioners of the healing arts, meaning the physical places that are occupied by such providers on a regular basis in which such providers perform the range of diagnostic and treatment services usually performed by such providers on an outpatient basis unless they are subject to review under subdivision 9434(a)(4) of this title. (b) Excluded from this subchapter are community mental health or developmental disability center health care projects proposed by a designated agency and supervised by the Commissioner of Mental Health or the Commissioner of Disabilities, Aging, and Independent Living, or both, depending on the circumstances and subject matter of the project, provided the appropriate Commissioner or Commissioners make a written approval of the proposed health care project. The designated agency shall submit a copy of the approval with a letter of intent to the Board. (c) The provisions of subsection (a) of this section shall not apply to offices owned, operated, or leased by a hospital or its subsidiary, parent, or holding company, outpatient diagnostic or therapy programs, kidney disease treatment centers, independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities, ambulatory surgical centers, and diagnostic imaging facilities and similar facilities owned or operated by a physician, dentist, or other practitioner of the healing arts. (d) Excluded from this subchapter are redesignations, designation revocations, and collaborative agreements of home health agencies subject to the supervision of the Commissioner of Disabilities, Aging, and Independent Living under 33 V.S.A. chapter 5. (e) Upon request under 8 V.S.A. § 5102(f) by a Program for All-Inclusive Care for the Elderly (PACE) authorized under federal Medicare law, or by a Prepaid Inpatient Health Plan (PIHP) or Prepaid Ambulatory Health Plan (PAHP) established in accordance with federal Medicare or Medicaid laws and regulations, the Board may approve the exemption of the PACE program, PIHP, or PAHP from the provisions of this subchapter and from any other provisions of this chapter if the Board determines that the purposes of this subchapter and the purposes of any other provision of this chapter will not be materially and adversely affected by the exemption. In approving an exemption, the Board may prescribe such terms and conditions as the Board deems necessary to carry out the purposes of this subchapter and this chapter. (f)(1) Excluded from this subchapter are routine replacements of: (A) medical equipment that is fully depreciated; and (B) nonmedical equipment and fixtures, including furnaces, boilers, refrigeration units, kitchen equipment, heating and cooling units, and similar items, regardless of their remaining useful life. (2) The replacements described in subdivision (1) of this subsection and purchased by a hospital shall be included in the hospital’s budget and may be reviewed in the budget process set forth in subchapter 7 of this chapter. (g) With the approval of the Commissioner of Health, excluded from this subchapter is a facility in which the prescription, distribution, or administration of medication for opioid use disorder is a principal activity. (h) Excluded from this subchapter are overdose prevention centers established and operated in accordance with section 4256 of this title. (i) Excluded from this subchapter are emergency and nonemergency ground ambulance services, affiliated agencies, and equipment and supplies used by emergency medical personnel, as those terms are defined in 24 V.S.A. § 2651. (j) Excluded from this subchapter are the offering of a health care service, or the construction, development, purchase, renovation, or other establishment of a health care facility, that is owned or operated by the State of Vermont or is funded in whole or in substantial part by a contract or grant awarded by the State of Vermont; provided, however, that the State agency sponsoring the project or awarding the contract or grant shall inform the Green Mountain Care Board prior to commencing the project or within 30 days following the execution of the contract or grant. (k) Excluded from this subchapter are expenditures by a hospital that are necessary to implement the security plan required pursuant to section 1911b of this title. (l) Excluded from this subchapter are birth centers that are licensed pursuant to chapter 53 of this title or are proposed to be established and licensed pursuant to chapter 53 of this title. Added 1979, No. 65, § 1; amended 1981, No. 233 (Adj. Sess.), § 14a, eff. May 4, 1982; 1985, No. 234 (Adj. Sess.), § 3; 1989, No. 180 (Adj. Sess.), § 3; 2003, No. 53, § 11; 2005, No. 57, § 5, eff. June 13, 2005; 2005, No. 71, § 77d; 2005, No. 88 (Adj. Sess.), § 3, eff. Feb. 15, 2006; 2005, No. 174 (Adj. Sess.), § 50; 2007, No. 15, § 18; 2007, No. 178 (Adj. Sess.), § 8; 2011, No. 171 (Adj. Sess.), § 16a, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6; 2023, No. 87 (Adj. Sess.), § 81, eff. Mar. 13, 2024; 2023, No. 178 (Adj. Sess.), § 1a, eff. June 17, 2024; 2025, No. 9, § 2, eff. July 1, 2025; 2025, No. 15, § 2, eff. May 13, 2025; 2025, No. 19, § 3, eff. July 1, 2025.

18 V.S.A. § 9437 Criteria

9437. Criteria A certificate of need shall be granted if the applicant demonstrates that the project serves the public good and the Board finds: (1) The proposed project aligns with statewide health care reform goals and principles because the project: (A) takes into consideration health care payment and delivery system reform initiatives; (B) addresses current and future community needs in a manner that balances statewide needs, if applicable; and (C) is consistent with appropriate allocation of health care resources, including appropriate utilization of services, as identified in the Health Resource Allocation Plan developed pursuant to section 9405 of this title. (2) The cost of the project is reasonable, because each of the following conditions is met: (A) The applicant’s financial condition will sustain any financial burden likely to result from completion of the project. (B) The project will not result in an undue increase in the costs of medical care or an undue impact on the affordability of medical care for consumers. In making a finding under this subdivision, the Board shall consider and weigh relevant factors, including: (i) the financial implications of the project on hospitals and other clinical settings, including the impact on their services, expenditures, and charges; and (ii) whether the impact on services, expenditures, and charges is outweighed by the benefit of the project to the public. (C) Less expensive alternatives do not exist, would be unsatisfactory, or are not feasible or appropriate. (D) If applicable, the applicant has incorporated appropriate energy efficiency measures. (3) There is an identifiable, existing, or reasonably anticipated need for the proposed project that is appropriate for the applicant to provide. (4) The project will improve the quality of health care in the State or provide greater access to health care for Vermont’s residents, or both. (5) The project will not have an undue adverse impact on any other existing services provided by the applicant. (6) [Repealed.] (7) The applicant has adequately considered the availability of affordable, accessible transportation services to the facility, if applicable. (8) If the application is for the purchase or lease of new Health Care Information Technology, it conforms with the Health Information Technology Plan established under section 9351 of this title. (9) The project will support equal access to appropriate mental health care that meets standards of quality, access, and affordability equivalent to other components of health care as part of an integrated, holistic system of care, as appropriate. Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 5; 1987, No. 96, § 12; 1991, No. 160 (Adj. Sess.), § 27, eff. May 11, 1992; 1993, No. 50, § 4; 1995, No. 180 (Adj. Sess.), §§ 27, 38(a); 1997, No. 159 (Adj. Sess.), § 10, eff. March 15, 1999; 2003, No. 53, § 13, eff. July 1, 2005; 2003, No. 53, § 26; 2005, No. 71, § 277a; 2007, No. 70, § 34; 2007, No. 139 (Adj. Sess.), § 8; 2009, No. 61, § 5; 2009, No. 83 (Adj. Sess.), § 3, eff. April 21, 2010; 2011, No. 171 (Adj. Sess.), § 17, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6; 2017, No. 200 (Adj. Sess.), § 18; 2019, No. 14, § 57, eff. April 30, 2019.

18 V.S.A. § 9439 Competing applications

9439. Competing applications (a) The Board shall provide by rule a process by which any person wishing to offer or develop a new health care project may submit a competing application when a substantially similar application is pending. The competing application must be filed and completed in a timely manner, and the original application and all competing applications shall be reviewed concurrently. A competing applicant shall have the same standing for administrative and judicial review under this subchapter as the original applicant. (b) When a letter of intent to compete has been filed, the review process is suspended and the time within which a decision must be made as provided in subdivision 9440(d)(4) of this title is stayed until the competing application has been ruled complete or for a period of 55 days from the date of notification under subdivision 9440(c)(8) of this title as to the original application, whichever is shorter. (c) Nothing in this subchapter shall be construed to restrict the Board to granting a certificate of need to only one applicant for a new health care project. (d) [Repealed.] (e) [Repealed.] (f) Unless an application meets the requirements of subsection 9440(e) of this title, the Board shall consider disapproving a certificate of need application for a hospital if a project was not identified prospectively as needed at least two years prior to the time of filing in the hospital’s four-year capital plan required under subdivision 9454(a)(6) of this title. The Board shall review all hospital four-year capital plans as part of the review under subdivision 9437(2)(B) of this title. Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 6; 1987, No. 96, §§ 13, 21(b); 1991, No. 160 (Adj. Sess.), § 28, eff. May 11, 1992; 1993, No. 50, § 1; 1995, No. 180 (Adj. Sess.), §§ 28, 38(a); 2003, No. 53, §§ 14, 26; 2007, No. 139 (Adj. Sess.), § 2; 2009, No. 128 (Adj. Sess.), § 25, eff. May 27, 2010; 2011, No. 171 (Adj. Sess.), § 18, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.

18 V.S.A. § 9440 Procedures

9440. Procedures (a) Notwithstanding 3 V.S.A. chapter 25, a certificate of need application shall be in accordance with the procedures of this section. (b)(1) The application shall be in such form and contain such information as the Board establishes. In addition, the Board may require of an applicant any or all of the following information that the Board deems necessary: (A) Institutional utilization data, including an explanation of the unique character of services and a description of case mix. (B) A population based description of the institution’s service area. (C) The applicant’s financial statements. (D) Third party reimbursement data. (E) Copies of feasibility studies, surveys, designs, plans, working drawings, or specifications developed in relation to the proposed project. (F) Annual reports and four-year long range plans. (G) Leases, contracts, or agreements of any kind that might affect quality of care or the nature of services provided. (H) The status of all certificates issued to the applicant under this subchapter during the three years preceding the date of the application. As a condition to deeming an application complete under this section, the Board may require that an applicant meet with the Board to discuss the resolution of the applicant’s compliance with those prior certificates. (I) Additional information as needed by the Board, including information from affiliated corporations or other persons in the control of or controlled by the applicant. (2) In addition to the information required for submission, an applicant may submit, and the Board shall consider, any other information relevant to the application or the review criteria. (c) The application process shall be as follows: (1) [Repealed.] (2)(A) Prior to filing an application for a certificate of need, an applicant shall file an adequate letter of intent with the Board not less than 30 days prior to the date on which the application is to be filed. The letter of intent shall form the basis for determining the applicability of this subchapter to the proposed expenditure or action. A letter of intent shall become invalid if an application is not filed within six months after the date that the letter of intent is received. The Board shall post public notice of such letters of intent on its website electronically within five business days after receipt. The public notice shall identify the applicant, the proposed new health care project, and the date by which a competing application or petition to intervene must be filed. (B) Applicants who agree that their proposals are subject to jurisdiction pursuant to section 9434 of this title shall not be required to file a letter of intent pursuant to subdivision (A) of this subdivision (2) and may file an application without further process. Public notice of the application shall be posted electronically on the Board’s website as provided for in subdivision (A) of this subdivision (2) for letters of intent. (3) The Board shall review each letter of intent and, if the letter contains the information required for letters of intent as established by the Board by rule, within 30 days, determine whether the project described in the letter will require a certificate of need. If the Board determines that a certificate of need is required for a proposed expenditure or action, an application for a certificate of need shall be filed before development of the project begins. (4) Within 90 days after receipt of an application, the Board shall notify the applicant that the application contains all necessary information required and is complete, or that the application review period is complete notwithstanding the absence of necessary information. The Board may extend the 90-day application review period for an additional 60 days, or for a period of time in excess of 150 days with the consent of the applicant. The time during which the applicant is responding to the Board’s notice that additional information is required shall not be included within the maximum review period permitted under this subsection. The Board may determine that the certificate of need application shall be denied if the applicant has failed to provide all necessary information required to review the application. (5)(A) An applicant seeking expedited review of a certificate of need application may simultaneously file with the Board a request for expedited review and an application. After receiving the request and an application, the Board shall issue public notice of the request and application in the manner set forth in subdivision (2) of this subsection (c). (B)(i) At least 20 days after the public notice was issued, if no competing application has been filed and no party has sought and been granted, nor is likely to be granted, interested party status, the Board may issue a certificate of need in accordance with such expedited process as the Board deems appropriate, if the Board determines that: (I) the proposed project appears likely not to be contested and does not substantially alter services; or (II) the application relates to a health care facility affected by bankruptcy proceedings. (ii) Any order granting expedited review shall include the procedures and timelines that the Board shall follow for the expedited review process. If practicable, the expedited review process shall include acceptance of public comment until at least 10 days after the expedited application is complete. (C) If a competing application is filed or a person is granted interested party status, the applicant shall follow the certificate of need standards and procedures in this section, except that: (i) a competing applicant or interested party may waive, in writing, the requirement for a public hearing; and (ii) in the case of a health care facility affected by bankruptcy proceedings, the Board may, after notice and an opportunity to be heard, issue a certificate of need with such abbreviated process as the Board deems appropriate, notwithstanding the contested nature of the application. (D) The Board shall review applications for the following projects on an expedited basis, unless a request for intervention as a competing applicant or interested party is granted: (i) the repair, renovation, or replacement of facility infrastructure, or a combination thereof that does not involve new construction; and (ii) the routine replacement of medical equipment if the technology and capability of the new equipment is comparable to that of the replaced equipment. (6) If an applicant fails to respond to an information request under subdivision (4) of this subsection within 90 days, the application shall be deemed inactive unless the applicant, within six months after the expiration of the 90-day period, requests in writing and shows good cause that the application should be reactivated, and the Board grants the request. If an applicant fails to respond to an information request within six months, the application shall become invalid unless the applicant requests, and the Board grants, an extension. (7) For purposes of this section, “interested party” status shall be granted to persons or organizations representing the interests of persons who demonstrate that they will be substantially and directly affected by the new health care project under review. Persons able to render material assistance to the Board by providing nonduplicative evidence relevant to the determination may be admitted in an amicus curiae capacity but shall not be considered parties. A petition seeking party or amicus curiae status shall be filed not later than five business days after the application is complete. The Board shall grant or deny a petition to intervene under this subdivision within 15 days after the petition is filed. The Board shall grant or deny the petition within an additional 30 days upon finding that good cause exists for the extension. Once interested party status is granted, the Board shall provide the information necessary to enable the party to participate in the review process, including information about procedures, copies of all written correspondence, and copies of all entries in the application record. (8) Once an application has been deemed to be complete, public notice of the application shall be provided electronically on the Board’s website. The notice shall identify the applicant, the proposed new health care project, and the date, time, and location of any public hearing. (9)(A) The Office of the Health Care Advocate established under chapter 229 of this title or, in the case of nursing homes, the Long-Term Care Ombudsman’s Office established under 33 V.S.A. § 7502, is authorized but not required to participate in any administrative or judicial review of an application under this subchapter and shall be considered an interested party in such proceedings upon filing a notice of intervention with the Board. (B) Once either office files a notice of intervention pursuant to this subchapter, that office shall have the right to receive copies of all materials related to the certificate of need application review and may: (i) submit written questions to the Board that the Board will ask of the applicant in advance of any hearing held in conjunction with the Board’s review of the certificate of need application; (ii) submit written comments for the Board’s consideration; and (iii) ask questions and provide testimony in any hearing held in conjunction with the Board’s review of the certificate of need application. (C) The Office of the Health Care Advocate and the Long-Term Care Ombudsman’s Office shall not further disclose any confidential or proprietary information provided to their respective offices pursuant to this subdivision (9). (d) The review process shall be as follows: (1) The Board shall review: (A) the application materials provided by the applicant; and (B) any information, evidence, or arguments raised by interested parties or amicus curiae, and any other public input. (2) Except as otherwise provided in subdivision (c)(5) and subsection (e) of this section, the Board shall hold a public hearing during the course of a review. (3) The Board shall make a final decision within 120 days after the date of notification under subdivision (c)(4) of this section. Whenever it is not practicable to complete a review within 120 days, the Board may extend the review period up to an additional 30 days. (4) After reviewing each application, the Board shall make a decision either to issue or to deny the application for a certificate of need. The decision shall be in the form of an approval in whole or in part, or an approval subject to such conditions as the Board may impose in furtherance of the purposes of this subchapter, or a denial. In granting a partial approval or a conditional approval, the Board shall not mandate a new health care project not proposed by the applicant or mandate the deletion of any existing service. Any partial approval or conditional approval must be directly within the scope of the project proposed by the applicant and the criteria used in reviewing the application. (5) If the Board proposes to render a final decision denying an application in whole or in part, or approving a contested application, the Board shall serve the parties with notice of a proposed decision containing proposed findings of fact and conclusions of law and shall provide the parties an opportunity to file exceptions and present briefs and oral argument to the Board. The Board may also permit the parties to present additional evidence. (6) Notice of the final decision shall be sent to the applicant, competing applicants, and interested parties. The final decision shall include written findings and conclusions stating the basis of the decision. (7) The Board shall establish rules governing the compilation of the record used by the Board in connection with decisions made on applications filed and certificates issued under this subchapter. (e) The Board shall adopt rules governing procedures for the expeditious processing of applications for replacement, repair, rebuilding, or reequipping of any part of a health care facility or health maintenance organization destroyed or damaged as the result of fire, storm, flood, act of God, or civil disturbance, or any other circumstances beyond the control of the applicant where the Board finds that the circumstances require action in less time than normally required for review. If the nature of the emergency requires it, an application under this subsection may be reviewed by the Board only, without notice and opportunity for public hearing or intervention by any party. (f) Any applicant, competing applicant, or interested party aggrieved by a final decision of the Board under this section may appeal pursuant to the provisions of section 9381 of this title. (g) If the Board has reason to believe that the applicant has violated a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a prior certificate of need, the Board may take into consideration such violation in determining whether to approve, deny, or approve the application subject to conditions. The applicant shall be provided an opportunity to contest whether such violation occurred, unless such an opportunity has already been provided. The Board may impose as a condition of approval of the application that a violation be corrected or remediated before the certificate may take effect. (h) As used in this section, an application or proposed project is “contested” if one or more interested parties have intervened in the proceeding. If an interested party withdraws from the application or signifies its support of the application in writing before the Board renders a final decision, the application shall not be considered contested and the Board shall not be required to hold a public hearing on the application pursuant to subdivision (d)(2) of this section or issue a proposed decision pursuant to subdivision (d)(5) of this section. Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 7; 1987, No. 96, § 14; 1991, No. 160 (Adj. Sess.), §§ 29-32, 38, eff. May 11, 1992; 1993, No. 50, §§ 2, 3; 1995, No. 180 (Adj. Sess.), § 29; 1997, No. 159 (Adj. Sess.), § 11, eff. April 29, 1998; 2003, No. 53, §§ 15, 26; 2005, No. 71, § 77e; 2007, No. 27, § 8; 2007, No. 139 (Adj. Sess.), §§ 3-5, 5d; 2007, No. 139 (Adj. Sess.), § 5a, eff. May 9, 2008; 2007, No. 139 (Adj. Sess.), § 5e, eff. July 1, 2009; 2009, No. 49, § 11; 2009, No. 128 (Adj. Sess.), § 21, eff. May 27, 2010; 2011, No. 48, § 24; 2011, No. 171 (Adj. Sess.), § 19, eff. Jan. 1, 2013; 2013, No. 79, § 35e, eff. Jan. 1, 2014; 2015, No. 54, § 40; 2017, No. 167 (Adj. Sess.), § 6; 2023, No. 6, § 238, eff. July 1, 2023; 2025, No. 6, § 2, eff. July 1, 2025.

18 V.S.A. § 9440a Applications, information, and testimony; oath required

9440a. Applications, information, and testimony; oath required (a) Each application filed under this subchapter, any written information required or permitted to be submitted in connection with an application or with the monitoring of an order, decision, or certificate issued by the Board, and any testimony taken before the Board or a hearing officer appointed by the Board shall be submitted or taken under oath. The form and manner of the submission shall be prescribed by the Board. The authority granted to the Board under this section is in addition to any other authority granted to the Board under law. (b) Each application shall be filed by the applicant’s chief executive officer under oath, as provided by subsection (a) of this section. The Board may direct that information submitted with the application be submitted under oath by persons with personal knowledge of such information. (c) A person who knowingly makes a false statement under oath or who knowingly submits false information under oath to the Board or a hearing officer appointed by the Board or who knowingly testifies falsely in any proceeding before the Board or a hearing officer appointed by the Board shall be guilty of perjury and punished as provided in 13 V.S.A. § 2901. Added 2003, No. 53, § 16; amended 2011, No. 48, § 25; 2011, No. 171 (Adj. Sess.), § 20, eff. Jan. 1, 2013.

18 V.S.A. § 9440b Information technology; review procedures

9440b. Information technology; review procedures Notwithstanding the procedures in section 9440 of this title, the Board shall establish by rule standards and expedited procedures for reviewing applications for the purchase or lease of health care information technology that otherwise would be subject to review under this subchapter. Such applications shall not be granted or approved unless they are consistent with the Health Information Technology Plan developed under section 9351 of this title and the Health Resource Allocation Plan. Added 2005, No. 71, § 277b; amended 2007, No. 70, § 35; 2009, No. 61, § 6; 2011, No. 171 (Adj. Sess.), § 20a, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.

18 V.S.A. § 9441 Fees

9441. Fees (a) The Board shall charge a fee for the filing of certificate of need applications. The fee shall be calculated at the rate of 0.125 percent of project costs. (b) The maximum fee shall not exceed $20,000.00 and the minimum filing fee is $250.00 regardless of project cost. No fee shall be charged on projects amended as part of the review process. (c) The Board may retain such additional professional or other staff as needed to assist in particular proceedings under this subchapter and may assess and collect the reasonable expenses for such additional staff from the applicant. The Board, on petition by the applicant and opportunity for hearing, may reduce such assessment upon a proper showing by the applicant that such expenses were excessive or unnecessary. The authority granted to the Board under this section is in addition to any other authority granted to the Board under law. (d) All fees collected pursuant to this section shall be deposited into the Green Mountain Care Board Regulatory and Administrative Fund established by subsection 9404(d) of this title and may be used by the Board to administer its obligations, responsibilities, and duties as required by law. Added 1985, No. 234 (Adj. Sess.), § 7a, eff. Oct. 1, 1986; amended 1991, No. 160 (Adj. Sess.), § 33, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), §§ 30, 38(a); 1995, No. 186 (Adj. Sess.), § 16; 1999, No. 49, § 223; 2003, No. 53, § 17, eff. June 4, 2003; 2011, No. 171 (Adj. Sess.), § 20b, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.

18 V.S.A. § 9442 Bonds

9442. Bonds In any circumstance in which bonds are to be or may be issued in connection with a new health care project subject to the provisions of this subchapter, the certificate of need shall include the requirement that all information required to be provided to the bonding agency shall be provided also to the Board within a reasonable period of time. The Board shall be authorized to obtain any information from the bonding agency deemed necessary to carry out the duties of monitoring and oversight of a certificate of need. The bonding agency shall consider the recommendations of the Board in connection with any such proposed authorization. Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 8; 1987, No. 96, §§ 15, 21(a), 22; 1991, No. 160 (Adj. Sess.), § 34, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38(a); 2003, No. 53, §§ 18, 26; 2011, No. 171 (Adj. Sess.), § 20c, eff. Jan. 1, 2013.

18 V.S.A. § 9443 Expiration of certificates of need

9443. Expiration of certificates of need (a) Unless otherwise specified in the certificate of need, a project shall be implemented within five years or the certificate shall be invalid. (b) Not later than 180 days before the expiration date of a certificate of need, an applicant that has not yet implemented the project approved in the certificate of need may petition the Board for an extension of the implementation period. The Board may grant an extension in its discretion. (c) Certificates of need shall expire on the date the Board accepts the final implementation report filed in connection with the project implemented pursuant to the certificate. (d) An action or expenditure that is related to a service or expenditure that was the subject of a certificate of need shall not be considered a material or nonmaterial change to that project if the original certificate of need expired, as provided in this section, at least two years before the action is proposed. The proposed action shall require a certificate of need only if the change itself would be considered a new health care project under section 9434 of this title. Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 9; 1987, No. 96, § 1; 1991, No. 160 (Adj. Sess.), § 35, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 31; 2009, No. 49, § 12; 2011, No. 171 (Adj. Sess.), § 20d, eff. Jan. 1, 2013; 2013, No. 192 (Adj. Sess.), § 25; 2023, No. 6, § 239, eff. July 1, 2023.

18 V.S.A. § 9444 Revocation of certificates; material change

9444. Revocation of certificates; material change (a) The Board may revoke a certificate of need for substantial noncompliance with the scope of the project as designated in the application, or for failure to comply with the conditions set forth in the certificate of need granted by the Board. (b)(1) In the event that after a project has been approved, its proponent wishes to materially change the approved project, all such changes are subject to review under this subchapter. (2) Applicants shall notify the Board of a nonmaterial change to the approved project. If the Board decides to review a nonmaterial change, the Board may provide for any necessary process, including a public hearing, before approval. Where the Board decides not to review a change, such change will be deemed to have been granted a certificate of need. Added 1979, No. 65, § 1; amended 1987, No. 96, § 17; 1991, No. 160 (Adj. Sess.), § 38(a), eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38(a); 2003, No. 53, § 26; 2007, No. 139 (Adj. Sess.), § 6; 2009, No. 49, § 14; 2011, No. 171 (Adj. Sess.), § 21, eff. Jan. 1, 2013.

18 V.S.A. § 9445 Enforcement

9445. Enforcement (a) Any person who offers or develops any new health care project within the meaning of this subchapter without first obtaining a certificate of need as required by this subchapter, or who otherwise violates any of the provisions of this subchapter or any rule adopted or order issued pursuant to this subchapter, may be subject to one or both of the following administrative sanctions by the Board, after notice and an opportunity to be heard: (1) The Board may order that no license or certificate permitted to be issued by any State agency may be issued to any health care facility to operate, offer, or develop any new health care project for a specified period of time, or that remedial conditions be attached to the issuance of such licenses or certificates. (2) The Board may order that payments or reimbursements to the entity for claims made under any health insurance policy, subscriber contract, or health benefit plan offered or administered by any public or private health insurer, including the Medicaid program and any other health benefit program administered by the State be denied, reduced, or limited, and in the case of a hospital that the hospital’s annual budget approved under subchapter 7 of this chapter be adjusted, modified, or reduced. (b) In addition to all other sanctions, if any person offers or develops any new health care project without first having been issued a certificate of need or certificate of exemption for the project, or violates any other provision of this subchapter or any rule adopted or order issued pursuant to this subchapter, the Board, the Office of the Health Care Advocate, the State Long-Term Care Ombudsman, and health care providers and consumers located in the State shall have standing to maintain a civil action in the Superior Court of the county in which such alleged violation has occurred, or in which such person may be found, to enjoin, restrain, or prevent such violation. Upon written request by the Board, it shall be the duty of the Vermont Attorney General to furnish appropriate legal services and to prosecute an action for injunctive relief to an appropriate conclusion, which shall not be reimbursed under subdivision (a)(2) of this section. (c)(1) After notice and an opportunity for hearing, the Board may impose on a person who violates a provision of this subchapter or a rule adopted or order issued pursuant to this subchapter, one or more of the following: (A) a civil administrative penalty of not more than $75,000.00, or in the case of a continuing violation, a civil administrative penalty of not more than $200,000.00 or one-tenth of one percent of the gross annual revenues of the health care facility, whichever is greater, which shall not be reimbursed under subdivision (a)(2) of this section; (B) an order that the person cease and desist from further violations; and (C) any such other actions necessary to remediate a violation. (2) A person aggrieved by a decision of the Board under this subchapter may appeal under section 9381 of this title. (d) The Board shall adopt by rule criteria for assessing the circumstances in which a violation of a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a certificate of need require that a penalty under this section shall be imposed, and criteria for assessing the circumstances in which a penalty under this section may be imposed. Added 1979, No. 65, § 1; amended 1991, No. 160 (Adj. Sess.), § 36, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38(a); 2003, No. 53, § 19; 2007, No. 139 (Adj. Sess.), §§ 5c, 7; 2011, No. 171 (Adj. Sess.), § 21a, eff. Jan. 1, 2013; 2013, No. 79, § 35f, eff. Jan. 1, 2014; 2015, No. 54, § 41; 2017, No. 167 (Adj. Sess.), § 6.

18 V.S.A. § 9446 Home health agencies; geographic service areas

9446. Home health agencies; geographic service areas The terms of a certificate of need relating to the boundaries of the geographic service area of a home health agency may be modified by the Board, in consultation with the Commissioner of Disabilities, Aging, and Independent Living, after notice and opportunity for hearing, or upon written application to the Board by the affected home health agencies or consumers, demonstrating a substantial need for the modification. Service area boundaries may be modified by the Board to take account of natural or physical barriers that may make the provision of existing services uneconomical or impractical, to prevent or minimize unnecessary duplication of services or facilities, or otherwise to promote the public interest. The Board shall issue an order granting such application only upon a finding that the granting of such application is consistent with the purposes of 33 V.S.A. chapter 63, subchapter 1A and the Health Resource Allocation Plan established under section 9405 of this title and after notice and an opportunity to participate on the record by all interested persons, including affected local governments. Added 2005, No. 57, § 6, eff. June 13, 2005; amended 2011, No. 171 (Adj. Sess.), § 22, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.

Source: Vermont General Assembly (legislature.vermont.gov)URL: https://legislature.vermont.gov/statutes/chapter/18/221Fetched: 10/21/2026