June 22, 2023
By: Stephanie Sprague Sobkowiak, Arielle M. Smitt, and Julia P. Boisvert
Earlier this month, the Connecticut legislature passed Public Act 23-171, “An Act Protecting Patients and Prohibiting Unnecessary Health Care Costs” (the Act). It is expected that Governor Lamont will sign the Act. The Act makes meaningful changes to Connecticut’s Certificate of Need (CON) process and provides new CON-related deadlines impacting the Office of Health Strategy (OHS) which are to take effect October 1, 2023.
New Public Notice Requirements:
- In addition to the current requirement to publish notice of a to-be-filed application in a local newspaper, on and after October 1, 2023, CON applicants will be required to do the following:
- Publish the notice on the applicant’s website in a clear and conspicuous location that is easily accessible by members of the public at least 20 days prior to filing the application (which notice must remain on the website for the duration of the application);
- Request publication of the notice (i) in two locations within the affected community, such as a town hall or library; and (ii) on the website of the municipal or local health department, which postings must remain until a decision on the CON application is rendered (OHS may not invalidate an applicant’s notice it if is changed or removed outside of applicant’s control); and
- Provide the notice to OHS for posting on its website.
- Notice requirements for CON public hearings will be similar and will require applicants to (i) post OHS hearing notices on the applicant’s website in a clear, conspicuous, and easily accessible location no later than two weeks before the public hearing, and (ii) request publication of the hearing notice in two locations within the community and on the website of the municipal or local health department.
New Deadlines:
- OHS must respond to each CON determination request within 30 days of receipt.
- OHS must make reasonable efforts to limit requests for additional information (i.e. completeness questions) to two requests and must cease making such requests six months after receiving a CON application.
- OHS must notify CON applicants within five days of deeming an application complete and must post the completeness letter on the CON portal.
- OHS must provide three (rather than two) weeks’ notice of a public hearing.
Use of Consultants:
- For applications submitted on and after October 1, 2023, OHS is permitted to retain an independent consultant with subject matter expertise to review CON applications that cannot reasonably be conducted by OHS without expert consultation. Applicants will be responsible for the costs to retain such consultants. Such costs must be “reasonable” per application, and the applicant must pay within 30 days.
Violations:
- The Act lowers the threshold at which OHS may impose civil monetary penalties under the CON laws, providing that a person or facility that negligently (previously, willfully) fails to seek CON approval when required shall be subject to civil penalties of up to $1,000 per day. OHS may also now impose civil penalties on any person or facility that negligently fails to comply with an agreed settlement.
- OHS may issue a notice to an applicant when OHS has a reasonable belief of a CON law violation. The notice must include a reference to the basis of the alleged violations, a short and plain statement of the claims and description of the alleged violation(s), along with a statement allowing the recipient to request a hearing within 10 business days. If a hearing is requested, it will be conducted consistent with other CON public hearings.
Note on Linear Accelerators:
- While a CON is not required when replacing CT and MRI scanners that were previously acquired through a CON, hospitals currently must obtain CON approval to replace non-hospital based linear accelerators, even if such equipment was originally acquired through the CON process. As of October 1, 2023, this will no longer be the case – hospitals will be allowed to replace non-hospital based linear accelerators, originally acquired through the CON process, without the need for a new CON.
If you have any questions regarding any of the above CON-related changes, or any other CON-related questions, please contact:
Stephanie Sprague Sobkowiak at 203.772.7782 or ssobkowiak@murthalaw.com
Julia P. Boisvert at 860.240.6018 or jboisvert@murthalaw.com
Arielle M. Smitt at 203.772.7738 or asmitt@murthalaw.com
Related Information
