Alabama Administrative Code Chapter 410-1-10 — Special Reviews

410 State Health Planning and Development Agency

Ala. Admin. Code r. 410-1-10-.01 Emergency Review

(1) Any person may apply independently and without notice for an emergency Certificate of Need for the authorization of capital expenditures made necessary by unforeseen events which endanger the health and safety of the patients. Emergency capital expenditures include, but are not necessarily limited to, emergency expenditures to maintain quality care, overcome failure of fixed equipment, including heating and air conditioning equipment, elevators, electrical transformers, and switch gear, sterilization equipment, emergency generators, water supply and other utility connections and damage caused by natural or manmade disaster.

(a) The applicant must notify the State Agency in writing, describing the nature of the emergency, the probable amount of the emergency expenditure and the anticipated date that the emergency expenditure would be obligated. The applicant must clearly demonstrate that an emergency exists. A copy of the application shall be served on any party that has a pending application seeking a Certificate of Need for similar authority in the same health service area. Each application for an emergency Certificate of Need shall be accompanied by a nonrefundable filing fee as provided for in Rule 410-1-7-.06(1)(b).

(b) The executive director shall publish notice of the application on the agency’s website and provide general notice to the general distribution list maintained by the agency and notify the Chairman and the Vice Chairman of the Certificate of Need Review Board of the stated emergency, who may, upon a determination that an emergency actually exists, order that a Certificate of Need be issued. The Chairman and Vice-Chairman may approve an application for an emergency Certificate of Need prior to the fifteen (15) comment period referenced in paragraph (c) below upon a finding that a fifteen day (15) delay in issuance of the emergency Certificate of Need would result in direct and immediate danger to the health and safety of patients. Should the Chairman or Vice-Chairman recuse himself or herself from consideration of the application, it may be approved with the signature of the remaining officer.

(c) Within fifteen (15) days of publication pursuant to (b) above, any affected person may file with the agency comments regarding the application, regardless of whether it has been approved by the Chairman and Vice-Chairman.

(d) The Executive Director, prior to the meeting of the Certificate of Need Review Board (“Board”) where ratification is to be considered, shall provide copies of any comments to the Certificate of Need Review Board members for their consideration.

(e) An emergency Certificate of Need which has been issued by the Chairman and Vice-Chairman shall be voted upon and ratified or disapproved by the Board at the next regularly scheduled meeting in which a quorum exists to consider the matter. Failure to ratify the emergency Certificate of Need at such meeting shall render the Certificate of Need null and void.

(f) The applicant or intervenor may appeal the Board’s grant or denial of an Emergency Certificate of Need to a Fair Hearing. Such appeal shall be conducted in accordance with the provisions of ALA. ADMIN. CODE r. 410-1-8-.16 applicable to regular Certificate of Need applications; provided, however, that the Fair Hearing Officer shall conduct a hearing on an expedited basis and shall issue an order within two (2) weeks of the filing of the appeal, unless this period is extended by consent of all parties. There is no right to a Fair Hearing appeal for an emergency Certificate of Need request not signed by the Chairman and Vice-Chairman pursuant to paragraph (b) above.

(g) A firm commitment or obligation shall be incurred pursuant to the emergency Certificate of Need within ninety (90) days from the date of issuance thereof. No extensions of Emergency Certificates of Need will be authorized.

(2) All written documents submitted pursuant to this rule must be filed in accordance with the provisions of Rule 410-1-3-.09. All required filing fees must be submitted to the State Agency via overnight mail and marked in such a way as to clearly identify the fee with the electronic submission; or the fee may be submitted electronically via the payment portal available through the State Agency’s website.

History

• Authority: Code of Ala. 1975, §22-21-268.
• Amended: Filed May 27, 2015; effective July 1, 2015. Amended: Filed August 23, 2016; effective October 7, 2016.

Ala. Admin. Code r. 410-1-10-.02 Non-Substantive Review

(1) A person may apply for a non-substantive review which is applicable to proposals for capital expenditures up to five hundred thousand dollars ($500,000.00) and which:

(a) does not result in a substantial change in service; or

(b) proposes equipment to upgrade or expand an existing service; or

(c) increases the bed capacity by not more than ten percent (10%) of the existing bed capacity; provided that such increase in bed capacity is consistent with the State Health Plan.

(2) A non-substantive review shall consist of Parts I and IV of the regular application and such other information deemed necessary by the executive director. All other requirements for regular review shall apply; provided, however, that the executive director may shorten the review period for non-substantive review in his discretion.

History

• Authority: Code of Ala. 1975, §22-21-275(4).

Ala. Admin. Code r. 410-1-10-.03 Project Modifications After Issuance Of Certificate Of Need

(1) A proposed change in a project for which the state agency has previously issued a certificate of need will require approval by the Certificate of Need Review Board or the executive director of the State Agency, as specified below. Approval is required whether or not a capital expenditure is associated with the proposed change.

(a) A "change in project" shall include, but not be limited to any change in the bed capacity or bed use (i.e., conversion of beds) of a facility, the addition of a health service or services, an increase in the cost of the project in excess of ten percent (10%) of the total project cost, including, without limitation, a change in financing methods which results in an increase in the cost of the project.

(b) An application for a change in a project must be made pursuant to Rule 410-1-3-.09 and shall include information and any supporting data deemed necessary by the Executive Director relevant to the merits of the application. Such application shall be accompanied by a fee of thirty-five percent (35%) of the original Certificate of Need application fee for the project. The required filing fee must be submitted to the State Agency via overnight mail and marked in such a way as to clearly identify the fee with the electronic submission; or the fee maybe submitted electronically via the payment portal available through the State Agency’s website. The party seeking approval for such change must certify that a copy of such request has been served on all parties of record in the underlying administrative proceeding or who have filed letters in opposition thereto.

(2) Any change in project involving the addition of beds, change in bed classification (conversion of beds) or the provision of new health services not specified in the original CON application shall require the filing of a new CON application. Any other proposed change in a project which falls below the financial thresholds for review provided in Rule 410-1-4-.01 and does not involve a physical relocation of the facility to a location other than that designated in the application or CON shall be reviewable by the executive director of the agency. Otherwise, a project modification that meets the requirements of this rule shall be reviewable by the full Certificate of Need Review Board. No project modification will be granted prior to ten (10) business days after publication of the project modification request through notice provided on SHPDA’s web site. No more than two project modifications per project may be approved pursuant to this rule.

(3) No project modification shall be granted during the pendancy of an appeal of the Agency order granting the underlying CON.

(4) The agency shall be notified pursuant to the provisions of Rule 410-1-3-.09 of the termination of a health service or of one or more beds; provided, however, that such termination shall not require agency review or approval.

(5) Any adverse decision on a project modification heard by the Certificate of Need Review Board is subject to the Fair Hearing provisions of these rules, 410-1-8-.16, et seq.

History

• Author: Alva M. Lambert
• Authority: Code of Ala. 1975, §§22-21-267, 22-21-271.
• Amended: Filed May 3, 2005; effective June 7, 2005. Amended: Filed July 24, 2012; effective August 28, 2012. Amended: Filed June 25, 2014; effective July 30, 2014. Amended: Filed August 24, 2016; effective October 8, 2016.

Ala. Admin. Code r. 410-1-10-.04 Home Health Contiguous County Exemption Referrals

A home health agency shall notify SHPDA that it has begun accepting referrals from a county contiguous to its service area within fourteen (14) days of the receipt of the first referral from the contiguous county. The notice shall be submitted electronically in PDF format pursuant to Rule 410-1-3-.09, accompanied by a fee of $500.00 to partially cover the additional cost of gathering and processing such information. The processing fee must be submitted to the State Agency via overnight mail and marked in such a way as to clearly identify the fee with the electronic submission; or the fee may be submitted electronically via the payment portal available through the State Agency’s website.

History

• Author: Alva M. Lambert
• Authority: Code of Ala. 1975, §22-21-271(c).
• New Rule: Filed July 24, 2012; effective August 28, 2012. Amended: Filed August 23, 2016; effective October 7, 2016.

Ala. Admin. Code r. 410-1-10-.05 State Of Emergency Provisions

(1) The Statewide Health Coordinating Council (“SHCC”) has found that that additional health care resources may be required, on an urgent and temporary basis, to address public health needs of the citizens of Alabama during a State of Emergency declared by the Governor (a “Declaration”). While emergency rules have been adopted addressing the COVID-19 pandemic, the SHCC has published a permanent rule, Ala. Admin. Code §410-2-5-.09, to provide a framework to address waivers in the event of a future Declaration.

(2) Upon the issuance of a Declaration authorizing temporary waivers to Certificate of Need (“CON”) requirements, any provider submitting an application for a waiver of CON requirements that meets the requirements of Ala. Admin. Code §410-2-5-.09 shall comply with the filing requirements of subsection 2 of such rule, utilizing an abbreviated form prepared by the Agency. A provider shall agree to the requirements and limitations of this rule and Section 410-2-5-.09 of the SHP as a condition for a waiver.

(3) Any waiver issued pursuant to this rule shall automatically terminate on the earlier of: (i) as applicable, the discontinuation of services subject to the waiver; or (ii) sixty (60) days following the termination of the State of Emergency identified in the Declaration. Any continued operation of institutional health services authorized under a waiver granted pursuant to this section shall require a CON, subject to regular CON criteria and procedures, including compliance with the SHP, without regard to this rule. It is the intent of this subsection that services, facilities or other new institutional health services established as a result a waiver be considered “new” for purposes of an application for CON authority to extend such new institutional health services beyond the deadlines in this subsection.

(4) The grant of a waiver under this rule for the temporary relocation of beds, equipment or other resources shall automatically authorize the return of such beds, equipment or other resources to their original location after the emergency, without the need for further authorization. Providers shall notify SHPDA of the effective date of such relocation in such manner as prescribed by the Executive Director.

(5) The provisions of this rule shall be subject to additional restrictions or conditions as may be imposed in a Declaration. In the event of a conflict between any provision of this rule and a Declaration, the Declaration shall prevail. Waivers previously issued under Ala. Admin. Code §§410-2-5-.09-E and 410-1-10-.05-E shall remain in force in accordance with their terms. The provisions of Ala. Admin. Code §410-1-10-.01, Emergency Review, are unaffected by this rule.

(6) Notwithstanding the provisions of Ala. Admin. Code r. 410-1-7-.06, any application filed pursuant to this rule shall be subject to a special filing fee of $50.00.

History

• Author: Statewide Health Coordinating Council
• Authority: Code of Ala. 1975, §§41-22-5, 22-21-260(6), -264 and -275.
• New Rule: Published September 30, 2020; effective November 14, 2020.