CHAPTER
He-Hea 100 ORGANIZATION
PART
He-Hea 101 PURPOSE AND SCOPE
He-Hea 101.01 Purpose and Scope.
(a) These rules are hereby established to
identify the proceedings of the health services planning and review board in
its administration of the certificate of need program pursuant to RSA 151-C,
including decisions on applications that projects are not subject to review.
(b) Pursuant to RSA 151-C:4, any person offering
or developing a new institutional health service,
or arranging financing for such, shall obtain a certificate of need for the
service.
Source. #4036(E), eff 4-8-86; 4091(E), eff 7-17-86;
4135, eff 9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
PART
He-Hea 102 DEFINITIONS
He-Hea
102.01 Definitions.
(a) Application
means a proposal prepared by a person and filed with the board for a
certificate of need pursuant to He-Hea 301.
(b)
Board" means "board" as described in RSA 151-C:3.
(c)
"Certificate of Need (CON)" means "certificate of
need" as defined in RSA 151-C:2, VIII.
(d)
Commissioner means the commissioner of the department of health and
human services.
(f)
"Institutional health service" means "institutional
health service" as defined in RSA 151-C: 2, XXII.
(g)
"Office" means the office of health services planning and
review, department of health and human services.
(h)
"Person" means "person" as defined in RSA 151-C:2,
XXVIII.
(i)
"Proceeding" means a hearing held by the board.
(j) Project
means institutional health service as defined in RSA 151-C:2, XXII.
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
PART
He-Hea 103 BOARD ORGANIZATION
He-Hea 103.01 Composition
of the Board.
(a) Pursuant to RSA 151-C:3, I, the board shall
consist of the following 5 members:
(1) The commissioner of the department of health
and human services or designee;
(2) The insurance commissioner or designee; and
(3) A total of 3 independent individuals, each from
a different region of the state.
(b) The chairperson of the board shall be
appointed by the governor from its members pursuant to RSA 151-C:3, II.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7138, eff 11-23-99; amd by #7441, eff
2-2-01, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
He-Hea 103.02 Board
Staff.
The board shall be supported
by staff as provided by the commissioner in accordance with RSA 151-C:3, V.
Source. #4036(E), eff 4-8-86; ss by #4223, eff
2-5-87; ss by #4922, eff 8-23-90; ss by #5593, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
He-Hea 103.03 Subcommittees. A subcommittee shall consist of one or more board
members who have been directed by the board to investigate and make
recommendations on matters which could be handled by the full board.
Source. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
PART He-Hea 104 PUBLIC INFORMATION
He-Hea 104.01 Board
Communication, Mailing Address, and Office Hours.
(a) All board
communications shall be directed to the following address:
Office of Health Services
Planning and Review
Department of Health and
Human Services
(b) The office
shall be open to the public on weekdays, excluding holidays, from 8:00 A.M. to
4:00 P.M.
(c) The office
telephone number shall be (603) 271-4606.
(d) Information
may be obtained by using the number set forth in paragraph (c) above.
Source. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
He-Hea 104.02 Records
of Board Actions.
(a) Minutes shall be kept of board meetings,
subcommittee meetings and of official actions taken by the board.
(b) These minutes shall record those members who:
(1) Participate in each vote; and
(2) Separately record the position of members who
choose to dissent, abstain or concur.
(c) Minutes of board actions shall be public per
RSA 91-A:2, II and shall be available for inspection during the boards ordinary
office hours not more than 5 business days after the public meeting.
(d) Notwithstanding He-Hea 104.02(c), minutes of
proceedings in non public session shall be public records and made available within
72 hours of the meeting, unless per RSA 91-A:3, III, the board votes to keep
such records confidential.
(e) A recording shall be made of the boards
meetings.
Source. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
He-Hea 104.03 Inspection
and Copies of Records.
(a) The board
shall make available records subject to public inspection under RSA 91-A during
weekday business hours as specified in He-Hea 104.01 (b).
(b) Persons desiring to inspect or obtain copies of records shall
identify as specifically as possible the information being sought.
(c) Persons
desiring copies of written records shall pay costs for copying at $.50 per
page.
(d) Persons desiring transcripts of meetings
shall pay the costs of transcription, printing of the transcript and mailing.
Source. #7138, eff 11-23-99, EXPIRED: 11-23-07
New. #9074,
eff 1-24-08; ss by #10672, eff
9-20-14
PART He-Hea 105 MEETINGS AND DUTIES
He-Hea 105.01 Meetings.
(a) The board shall meet:
(1) At least every other month; and
(2) At such additional times as its business
requires.
(b) The time and place of the meetings shall be
noticed to the public in accordance with RSA 91-A:2, II.
(c) A majority of the board shall constitute a
quorum to conduct meetings and proceedings.
(d) A vote of at least a majority of the quorum
shall be required to adopt or approve any matters considered by the board.
Source. #10672, eff 9-20-14
He-Hea 105.02 Duties of the Board. The responsibilities of the board include:
(a) The adoption of rules to administer the
provisions of RSA 151-C;
(b) The issuance of certificates of need;
(c) The development and issuance of a state
health plan in accordance with RSA 151-C:4-a;
(d) The submission of annual reports pursuant to
RSA 151-C:12-a, III;
(e) Ensuring compliance with certificates of need
in accordance with RSA 151-C:12;
(f) The collection of annual administrative fees
pursuant to RSA 151-C:15; and
(g) Any related matters.
Source. #10672, eff 9-20-14
CHAPTER He-Hea 200 PRACTICE AND PROCEDURES
He-Hea
201.01 Definitions.
(a) Adjudicative proceeding means adjudicative
proceeding as defined in RSA 541-A:1, I and includes:
(1) A proceeding to determine whether to grant an
application for a certificate of need or change of scope;
(2) A proceeding to determine whether to grant an
application that a project is not subject to review, if the board grants a petition
to intervene or determines that the proceeding is a contested case or does not
meet the standards set forth in He-Hea 203.02 for being placed on the consent
agenda; and
(3)
A proceeding for a waiver.
(b) "Affected persons" means organizations
representing health care consumers and providers, including but not limited to:
(1)
(2) Business and Industry Association of N.H.;
(3) Any organization of
(4)
(5) N.H. Coalition For Handicapped Citizens;
(6)
(7) New Hampshire Home Care Association of N.H.;
(8)
(9)
(10)
(11)
(12)
(13) Members of the public who have an interest in
the proposed project; and
(14) Any citizen group that registers with the
board.
(c) Affiliate means any person or entity that
controls, is controlled by, or is under common control, with the applicant
including but not limited to:
(1)
An entitys employee that is the
president, vice president, executive director, chief executive officer,
manager, treasurer or other executive or financial officer of another entity;
(2) A majority of the board of directors or trustees
of one entity that are employed as officers, managers, trustees or directors of
another entity;
(3) A natural person or a family or an entity,
entitys officers, directors or trustees that are entitled to nominate, appoint
or elect the majority of another entitys directors or officers; and
(4) A person or entity other than a bank or
similar financial institution that guaranties the obligation of another person
or entity.
(d) "Alternate technologies" means
diagnostic or therapeutic equipment or technologies other than the equipment or
technologies that an applicant or petitioner intends to acquire in connection
with a project that is the subject of a CON application or by petition for an
order that the project is not subject to review.
(e) "Applicant" means
"applicant" as defined in RSA 151-C:2, II.
(f) "Application" means a proposal
prepared by a person and filed with the board for a certificate of need
pursuant to He-Hea 301.
(g) "Board" means "board" as
described in RSA 151-C:3.
(h) Capital expenditure means capital
expenditure as defined in RSA 151-C:2, VI.
(i) "Certificate of Need (CON)" means
"certificate of need" as defined in RSA 151-C:2, VIII.
(j) Change of scope means a proposal prepared
by a person and filed with the board to amend an approved certificate of need
pursuant to He-Hea 301.13.
(k) Commissioner means the commissioner of the
department of health and human services.
(l) "Completeness review" means a
process by which applications for CONs are examined to determine whether the
application contains information to address all of the standards in order for
the board to make a determination concerning the application.
(m) Consent agenda means the matters for board
review which are anticipated to be approved without objection, including
applications as described in He-Hea 203.02 which require a decision that each
project is not subject to certificate of need review.
(n) Construction means construction as
defined in RSA 151-C:2, XII.
(o) Consumer means consumer as defined in RSA
151-C:3, I (a) (2) (B).
(p) Contested case means contested case as
defined in RSA 541-A:1, IV.
(q) "Data" means all information other
than argument, including oral or written descriptions, reports, maps, charts,
drawings, photographs, audio or video recordings, computer programs or computer
printouts.
(r) Diagnostic equipment means equipment used
for preventive medical assessment or medical diagnosis of injured, disabled or
sick persons.
(s) "Document" means an instrument on
which is recorded writings, written descriptions, computer printouts, maps,
plans, lithographs or photographs which may be used as evidence.
(t) "Evidence" means any species of proof,
or probative matter, legally presented at a proceeding of an issue, by the act
of the parties and through the medium of witnesses, records, documents,
exhibits, or concrete objects for the purpose of inducing belief in the minds
of the board as to their contention.
(u) "Expeditious review" means an
abridged review of applications that is exempt from RSA 151-C:8 but subject to
RSA 151-C:13, III and He-Hea 302.
(v) File means to place a pleading motion, reply
objection or document meeting the standards of He-Hea 206.01 in the actual
possession of the board.
(w) Final decision means a decision of the
board, following which the board will have no further consideration of an
application, NSR application, request for declaratory judgment or other matter.
(x) "Financial hardship" means a loss
of income due to catastrophic illness, job loss or other economic situation
which results in the inability of a person to pay for goods and services
otherwise attainable.
(y) Health care facility means health care
facility as defined in RSA 151-C:2, XV-a.
(z) "Hearing" means the receipt and
consideration by the board of data or argument, or both, which is pertinent to
an issue currently being decided by the board.
(aa) "Institutional health service"
means "institutional health service" as defined in RSA 151-C: 2,
XXII.
(ab) "Integrated project" means one or
more activities taken within a period of 36 months, which together:
(1) Comprise a single project and not a series of
independent projects; and
(2) Require a CON review per standards developed
pursuant to RSA 151-C:5, II.
(ac) "Intervention" means the procedure
by which a third person, not originally a party to the proceedings on an application
or a petition, but claiming an interest in the subject matter of the
application or petition, comes into the proceedings pursuant to RSA 541-A:32,
in order to protect his/her right or interpose his/her claim.
(ad) Letter of intent means a document submitted
to the board which identifies a proposed project and that seeks an order of the
board. The term includes petition for a
project not subject to review.
(ae) "Licensed bed complement" means the
number of beds in a health care facility that are licensed by the bureau of
health facilities administration, department of health and human services.
(af) "Medically underserviced" means a
group of persons in the state or region(s) of the state that are identified as
having difficulties in accessing health care services including, but not
limited to:
(1) Indigent and low income persons;
(2) Persons who are uninsured;
(3) Persons for whom language is a barrier;
(4) Persons classified as having a disability
under the Americans with Disabilities Act, Section III;
(5) Persons residing in a state or federally
designated health shortage service area; and
(6) Other groups as identified by an applicant
within a project for CON review.
(ag) "Motion" means any request by a party
to an existing proceeding for an order or relief relating to that proceeding.
(ah) Nonadjudicative processes means
nonadjudicative processes as defined in RSA 541-A:1, X.
(ai) "Notice" means information, in
writing, intended to apprise a person of some proceeding in which his/her
interests are involved, or informing him/her of some fact which it is his/her
right to know.
(aj) Not subject to review (NSR) means a
determination by the board that a project described in an application and submitted
to the board:
(1) Does not meet the jurisdictional requirements
of RSA 151-C:5;
(2) Is exempted by RSA 151-C:13; or
(3) Is not reviewable by application of the
boards own rules.
(ak) "Office" means the office of health
services planning and review, department of health and human services. It also includes the term agency.
(al) "Order" means a document issued by
the board requiring a person to do, or to abstain from doing, some thing, or
determining a person's rights or privileges.
(am)
"Party" means party as defined in RSA 541-A:1, XII.
(an)
"Person" means "person" as defined in RSA 151-C:2,
XXVIII, but does not include the board or a member of the board.
(ao)
Petition" means a written request, application, complaint, or other
communication to the board other than a motion, seeking an order, license,
action or other relief.
(ap)
"Petitioner" means a person who presents a petition to the
board, including a person who submits a letter of intent to the board.
(aq)
"Pleading" means the formal allegations by the parties or
their respective claims and defenses.
(ar)
"Pre-application conference" means a meeting held with the
presiding officer or his/her designee and the applicant(s) to review the
requirements outlined in the application format, the applicable rules and the
statute prior to preparing an application for submission to the board for a
certificate of need review.
(as)
"Presiding officer" means
the chairperson or deputy chairperson of the board or other member of the
board elected by a quorum of board
members as having the authority to preside over a proceeding.
(at)
"Proceeding" means an adjudicative proceeding, a
non-adjudicative proceeding, a rulemaking proceeding, or an investigative
proceeding as described in these rules.
(au)
"Project" means a proposal or undertaking to alter, acquire
through purchase, lease, donation, transfer or other comparable arrangement,
construct, develop, or expand a health care facility or health care service. It
includes the term integrated project.
(av)
"Project costs" means all costs related to a single project or
an integrated project, including but not limited to the following costs, as
applicable:
(1) Legal fees;
(2) Consulting fees;
(3) Financial feasibility fees;
(4) Architect and engineering fees;
(5) Other fees;
(6) Real estate acquisition;
(7) Site preparation;
(8) Utilities;
(9) Soil survey and evaluation;
(10) Temporary relocation costs;
(11) Moving costs;
(12) Construction costs, including:
a. Labor costs for new construction;
b. Labor costs for renovations/alterations;
c. Materials for new construction;
d. Materials for renovations/alterations;
e. Fixed equipment costs for new construction;
f. Fixed equipment costs for
renovations/alterations;
g. Demolition costs;
h. Insurance costs during construction;
i. Interest costs during construction; and
j. Fixed equipment;
(13) Moveable equipment;
(14) Bond discount;
(15) Debt service reserve; and
(16) The anticipated useful life of the
building(s).
(aw)
"Proponent" means a propounder of an application for a
certificate of need or other person seeking an order of the board.
(ax)
"Provider" means "provider of health care" as
defined in RSA 151-C:2, XXX.
(ay)
"Publication" means the act of publishing, offering to public
notice or rendering the subject of the publication to public scrutiny.
(az)
"Quality assurance plan" means a continuous plan of
collection, screening and evaluation of information concerning patient care,
placement and clinical performance leading to the methods of resolving and/or
eliminating problems as identified by professional and administrative staffs,
patients and their families and other professionals in the delivery of health
care services.
(ba)
Request for application (RFA) means request for application as
defined in RSA 151-C:2, XXXIV.
(bb)
R.S. Means Historical Cost Index means the January 2014 publication of
R.S. Means Company, Inc. used to estimate and compare construction costs for
different years.
(bc)
Rulemaking means the proceeding for formulating agency rules set forth
in RSA 541-A:3.
(bd)
"Service area" means a geographic area in which a majority of
a health care provider's clientele reside.
The term includes a special planning area defined by law which is not
necessarily related to market areas or other considerations.
(be)
Standard means standard as defined in RSA 151-C:2, XXXVI.
(bf)
"Substantial completion" means the construction, renovation
and/or remodeling project is completed to the point where the applicant is able
to operate the facility in accordance with the certificate of need.
(bg)
"Therapeutic equipment" means equipment used for preventive
treatment or medical treatment of injured, disabled or sick persons.
(bh)
"Total capital expenditures" means the sum total of all
capital expenditures related to a project as defined in RSA 151-C:2, VI.
(bi)
"Total project costs" means the sum total of all project
costs.
(bj)
"Uninsured" means a person who:
(1) Is not covered or eligible for health care
insurance;
(2) Is eligible but not enrolled in a health
insurance plan; or
(3)
Is otherwise covered by a health insurance plan that does not cover the
medically needed service(s).
(bk)
Waiver means a determination by the board that a change of scope need
not be filed for changes to an approved certificate of need because the changes
are determined to be technical or not significant.
Source. #4036(E), eff 4-8-86; ss by #4223, eff
2-5-87; ss by #4922, eff 8-23-90; ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99; amd by #7928, eff
8-5-03; ss by #9075-A, eff 1-24-08;
ss by #10722, eff 11-22-14
PART
He-Hea 202 PRESIDING OFFICER
He-Hea 202.01 Presiding Officer Designation.
(a)
A presiding officer shall conduct all meetings and proceedings commenced by the board.
(b)
The presiding officer shall be the chair of the board or in his/her
absence, the deputy chair. If both the
chair and deputy chair are absent or unavailable, the board members present
shall elect a presiding officer from among themselves.
(c)
Notwithstanding (b) above, in any adjudicative proceeding, the presiding
officer shall not be a representative of an industry, a member of which is a
party to the adjudicative proceeding or who has petitioned to intervene in the
matter unless all parties and petitioners are members of the same industry.
Source. #4036(E), eff 4-8-86; ss by #4223, eff
2-5-87; ss by #4922, eff 8-23-90; ss by #5593, eff 3-10-93, EXPIRED:
3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea
202.02 Duties and Authority of
Presiding Officer.
(a)
The presiding officer shall possess all authority with respect to the
procedural aspects of proceedings which could be exercised by the board itself,
including, but not limited to, the power to administer oaths and affirmations,
direct the course of the proceeding, decide scheduling, and other procedural
issues.
(b)
The presiding officer shall receive no testimony or oral argument on the
merits of a case unless a majority
of the board members is present.
(c)
The presiding officer shall make such inquiry as he/she believes
necessary to develop a sound record of decision. Other board members participating in the
proceeding shall also ask such questions and make such inquiries as each such
board member deems necessary, subject to recognition by the presiding officer.
(d)
The presiding officer shall have the authority to attempt to assist the parties in reaching settlements, but shall
not finally approve or accept final offers of settlement or impose consent decrees. When a settlement has been proposed in
writing, the presiding officer shall refer it to the board for decision, but
shall not stay the proceeding merely because the board is deliberating on a
settlement proposal.
(e)
The presiding officer shall not decide motions or enter orders which
finally resolve any specific issue or issues which the board has designated for
hearing. Potentially dispositive motions
shall be referred to the board if the presiding officer believes that they have
sufficient merit to warrant prompt consideration. Otherwise, the presiding officer shall defer
any ruling on dispositive motions until the close of the record and the
issuance of the recommended decision.
(f)
If the presiding officer believes a default or similar final order
should enter against a party, the presiding officer shall issue a written
recommendation to the board, with service on the parties, and the board shall
take appropriate action after allowing the parties 10 days to file objections
thereto.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 202.03 Withdrawal of Presiding Officer.
(a)
The presiding officer shall withdraw from a proceeding when he/she
declares ineligibility to vote pursuant to He-Hea 214.01(d) or as provided in He-Hea
202.01(b).
(b)
The presiding officer shall be subject to replacement in the event that
a majority of the board members present so vote in the interest of justice or
as provided in He-Hea 202.01.
(c)
Board members voting for replacement of the presiding officer shall do
so upon motion of a board member.
(d)
Approval to the motion shall cause the roll to be called so that each
board member casts his/her voice vote when called.
(e)
A decision for withdrawal of the presiding officer shall be made when
the majority of board members vote to approve the motion.
(f)
Upon withdrawal of the presiding officer, the board shall proceed in
accordance with He-Hea 202.01.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 203 BOARD AGENDA
He-Hea 203.01 Preparation of Board Agenda.
(a)
The commissioner or his/her designee shall set the annual agenda for the
board in connection with the development of standards pursuant to RSA 151-C:3,
IV-a.
(b)
Board staff shall prepare a meeting agenda for each board meeting, in
consultation with the presiding officer.
(c)
The order specified for those items listed on the agenda shall be
subject to change upon a motion by the chair or other presiding officer during
the meeting.
(d)
Board staff shall provide notice to all applicants, parties and affected
persons pursuant to RSA 151-C:8, VI (b) and (c). Notice to members of the public, including
members of the public to be served by the proposed project, shall be by
newspaper.
(e)
Notice of the board agenda shall take place no later than 7 days prior
to the board meeting.
Source. #4036(E), eff 4-8-86; ss by #4223, eff
2-5-87; ss by #4922, eff 8-23-90; ss by #5593, eff 3-10-93, EXPIRED:
3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 203.02 Consent Agenda.
(a)
Applications for a project not subject to review shall be placed on a
consent agenda if:
(1) The application meets the requirements of
He-Hea 301.01 and He-Hea 206.01;
(2) No petition to intervene has been granted;
(3) No petition to intervene has been filed and
is pending; and
(4) The application demonstrates that:
a. Total capital expenditures for project are projected
to be less than 25% of the applicable statutory threshold; or
b. The project does not involve the provision of
health services, as defined in RSA 151-C:2, XVIII.
(b)
Board staff shall place matters other than those described in He-Hea
203.02(a) on a consent agenda for approval by the presiding officer if staff:
(1) Determines that there are no potential bases
for objection or other issues to put before the board; and
(2) Have no information that a board member, applicant,
person, party or member of the public wishes to testify about any particular
item on the consent agenda.
(c)
Matters on the consent agenda shall be removed and placed on the regular
agenda upon the request of any board member, subject to approval by the
presiding officer.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08; ss by #10722, eff
11-22-14
He-Hea 203.03 Order of Meeting.
(a)
The board meeting shall follow the order of items as stated in the
agenda, unless the presiding officer changes the order to accommodate board
members or testimony from applicants, parties, board staff or the public.
(b)
Board meetings shall consist of any combination of:
(1) Non-adjudicative process;
(2) Public hearing;
(3) Adjudicative proceeding;
(4) Rulemaking;
(5) Enforcement proceeding; and
(6) Any other issues that may require board
action.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90; ss
by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 204 PROCEDURES FOR ALL
PROCEEDINGS
He-Hea
204.01 Appearance Before the Board.
(a)
A party may appear in a proceeding either in person or through a representative.
(b)
Any person(s) whose rights are or will be directly affected by a proceeding
may request to join existing parties to the proceedings in the form of an
intervenor.
(c)
The board shall review and act upon intervenor requests pursuant to RSA
541-A:32 and specified pursuant to He-Hea 208.07.
(d)
Applicants filing an application for a certificate of need shall be a
party to the proceedings by virtue of the filing.
(e)
A respondent to an enforcement proceeding shall be a party to the
enforcement proceeding regarding such respondent.
(f)
Any person other than a party or intervenor may present testimony in
support or opposition of an issue before the board.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 204.02 Representatives.
(a)
A representative may be any individual as the party appearing may
designate.
(b)
A party other than a natural person shall be represented by:
(1) An attorney or an agent; or
(2) An officer, director or member.
(c)
An applicant or other party shall make known in writing to the board
their representative.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 204.03 Ex-Parte Communication.
(a)
Pursuant to RSA 151-C:8, XI, the board and its staff shall not
communicate with any person or party concerning the merits of an application or
petition before the board, except upon notice and opportunity for all parties
to participate.
(b)
Prohibition against ex-parte communications shall not apply to:
(1) Communications between board staff and the
party in connection with completeness reviews.
(2) Communication between board members;
(3) Communication between the board and its staff
and/or legal counsel or any consultant engaged by the board to assist it in
evaluating an application; and
(4) Distribution to the public of information
required to be made available to the public by law.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 205 TIME PERIODS
He-Hea
205.01 Computation of Time. Any time period specified in this chapter
shall begin with the day following the act, event or default, and shall include
the last day of the period, unless it is Saturday, Sunday or state legal
holiday, in which event the period shall run until the end of the next day
which is not a Saturday, Sunday or state legal holiday. When the period prescribed or allowed is less
than 7 days, intermediate Saturdays, Sundays and state legal holidays shall be
excluded from the computation.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 205.02 Change in Allowed Times.
(a)
The board shall, upon a motion by a party or its own initiative and with
proper notice to all parties, continue, postpone or reschedule a proceeding
for:
(1) Illness of a party or witness scheduled to provide
testimony;
(2) Inclement weather which would prevent the
appearance of the party(ies);
(3) Lack of a proper quorum of the board on the
day of the proceeding; or
(4) When the proposed change of scheduling would be
likely to promote the fair, accurate and efficient resolution of issues before
the board.
(b)
Continuances shall not be granted to cause an unreasonable delay in the
proceeding, thereby allowing the moving party a material advantage as a result.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 205.03 Limitations. A motion or request to change time shall be filed at least 3 days before the scheduled
date of the event in question.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 206 FILING OF DOCUMENTS
He-Hea 206.01 Documents.
(a)
All documents including, but not limited to, applications, petitions,
motions and replies, or objections to petitions and motions filed with the
board under this chapter shall:
(1) Be printed or reproduced providing a clear,
legible copy typed no smaller than a font size of 12;
(2) Be double-spaced with the exception of
quotations, which shall be single-spaced and indented;
(3) For CON applications, NSR applications, and change
of scope and waiver applications, contain the title and docket number;
(4) For any other documents, identify the
requestor by company letterhead or company name and address;
(5) Be dated and signed, with the original signed
in ink; and
(6) Include:
a. One printed original;
b. One electronic copy; and
c. A total of 10 additional printed copies.
(b)
Any document shall be considered filed when it is actually received by the
staff of the office of health services planning and review, department of
health and human services and conforms to He-Hea 206.01(a) through (e) and (i).
(c)
All applications, petitions, motions and replies, or objections filed
with the board shall be signed and dated by the proponent of the document, or,
if the party appears by a representative, by the representative.
(d)
The signature on a document filed with the board shall constitute a
certification that:
(1) The signer has read the document;
(2) The signer is authorized to file it;
(3)
To the best of the signers knowledge, information, and belief, there are good
grounds to support it; and
(4) The document has not been filed for purposes
of delay or harassment.
(e)
Documents filed with the board that contain factual information,
including denials of facts alleged by another party, shall, if signed by a
representative, also be signed by the party, or an officer or executive manager
of the party, and contain an affirmation to the effect that the facts stated
therein are true and correct to the best knowledge and belief of the person
signing the document, under penalty of perjury.
(f)
A willful violation of the representations contained in (e) above shall:
(1) Cause the petitions, motions or replies or
objections to be denied; and
(2) In the case of CON applications, prevent the
review of applications beyond the process outlined in RSA 151-C:8, IV.
(g)
A document which is facially in violation of the boards rules shall not
be accepted for filing. Such submissions
shall be returned to the sender without prejudice to subsequent acceptance if
the deficiencies are corrected and the document is refiled within any
applicable time period.
(h)
All applications, motions, petitions letters of intent, correspondence,
filings or communications intended for the board shall be addressed to the
office of health services planning and review, department of health and human
services.
(i)
Notwithstanding (a)(7), above, only a single copy shall be filed of
transmittal letters, requests for public information, or other routine
correspondence not directed at formal board action.
(j)
Failure to furnish the required number of copies shall result in a tendered
document being returned as unacceptable for filing.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08; ss by #11081-A, eff
4-23-16
He-Hea 206.02 Docket; Availability of Filings.
(a)
Board staff shall docket each application, motion, petition, letter of intent
or other correspondence filed with the board seeking board action.
(b)
No later than 7 days prior to any board meeting, staff shall send a list
of the applications, motions, petitions, letters of intent and other correspondence
with the board seeking board action, along with a brief description of the
action requested to the board members.
This listing shall be made available to the public, upon receipt of a
written request.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 207 PLEADINGS AND MOTIONS
He-Hea 207.01 Pleadings.
(a)
The only pleadings permitted shall be petitions and replies to
petitions. An application for a
certificate of need and a request for a ruling that no certificate of need is
required shall be considered to be a petition for purposes of this rule. An objection to a request for a ruling that
no certificate of need is required shall be considered a reply for purposes of
this rule.
(b)
Petitions shall:
(1) Conform to the requirements of He-Hea 206.01;
and
(2) Contain:
a. The name and address of the petitioner;
b. The name and address of the petitioner's
representative, if any;
c. A concise statement of the facts which
warrant the relief requested from the board, affirmed by the petitioner in
accordance with He-Hea 206.01(e);
d. The description of the action which the
petitioner wishes the board to take;
e. A citation to any statutes, rules, orders, or
other authority which entitles the petitioner to the relief requested; and
f. The name and address of the person(s), if
any, against whom the petitioner complains, or against whom the petitioner
wishes the board to take action.
(c)
Replies or objections to petitions shall;
(1) Conform to the requirements of He-Hea 206.01;
and
(2) Contain:
a. The name and address of the respondent;
b. The name and address of the representative of
the respondent, if any;
c. A statement admitting or denying each fact
alleged in the petition pursuant to He-Hea 207.01(b)(2)c. affirmed by the
respondent in accordance with He-Hea 206.01(e);
d. A statement admitting or denying the
authority identified by the petitioner pursuant to He-Hea 207.01(b)(2)e.;
e. A concise statement of any additional or
different facts which warrant the board to act in the manner requested by the
respondent affirmed by the petitioner in accordance with He-Hea 206.01(e);
f. A citation to any statutes, rules, orders or
other authority, not identified in the petition, having a bearing upon the
subject matter of the petition; and
g. A description of the action which the
respondent wishes the board to take.
(d)
Replies or objections shall be filed within 30 days from the date of the
filing of the petition.
(e)
The board shall consider any fact contained in the petition that is not
denied in the reply or objection to be uncontested.
Source. #4223, eff 2-5-87; ss by #4922, eff 8-23-90;
ss by #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea
207.02 Motions and Objections Thereto.
(a)
Motions and objections shall be in writing and conform to the
requirements of He-Hea 206.01 unless the nature of the relief requested
requires oral presentation upon short notice.
(b)
Motions shall state clearly and concisely:
(1) The purpose of the motion;
(2) The relief sought by the motion;
(3) The statutes, rules, orders, or other
authority authorizing the relief sought by the motion; and
(4) The facts claimed to constitute grounds for the
relief requested by the motion affirmed by the moving party in accordance with
He-Hea 206.01(e).
(c)
Objections to motions shall state clearly and concisely:
(1) The defense of the party filing the
objection;
(2) The action which the party filing the
objection wishes the board to take on the motion;
(3) The statutes, rules, orders or other
authority relied upon in defense of the motion; and
(4) Any facts which are additional to or
different from the facts stated in the motion affirmed by the objecting party
in accordance with He-Hea 206.01(e).
(d)
An objection shall specifically admit or deny each fact contained in the
motion affirmed by the moving party in accordance with He-Hea 206.01(e). The board shall consider any fact in the
motion that is not denied in the objection as being uncontested.
(e)
Motions shall be decided upon the writings submitted or, if the board
determines that a hearing will assist in the resolution of factual disputes and
will promote the purposes of these rules, after a hearing at which testimonial
evidence may be presented.
(f)
Objections to motions shall be filed with the board within 10 days of
the filing of a motion. Failure to
object to a motion within the time allowed shall constitute a waiver of objection
to the motion. The board shall not be
bound by any such waiver.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 208 ADJUDICATIVE PROCEEDINGS
He-Hea 208.01 Contested Cases. The board shall commence an adjudicative
proceeding for:
(a)
All CON applications;
(b)
Any application for a determination that a project is not subject to
review which does not meet the requirements for being placed on the consent
agenda pursuant to He-Hea 203.02(a);
(c)
All change of scope applications;
(d)
All waiver applications; and
(e)
Any other matter the board determines to be a contested case.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08; ss by #10722, eff
11-22-14
He-Hea
208.02 Applicability. This part shall govern all proceedings
conducted by the board except rulemaking and nonadjudicative investigations or other
conduct of the board as specified therein.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.03 Right to Counsel.
(a)
Parties and witnesses in adjudicative proceedings shall have the right
to be represented by legal counsel, but the party shall designate the attorney
as its representative pursuant to He-Hea 204.02(c).
(b)
Requests for appointment of counsel shall not be entertained, and the
board shall have no responsibility for the legal expenses of any CON holder,
applicant, petitioner, intervenor, witness or party to a proceeding.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.04 Commencement of Proceedings.
(a)
The board shall commence an adjudicative proceeding by issuing a notice
to the parties at least 10 days before the first scheduled hearing date or
first prehearing conference.
(b)
The notice commencing an adjudicative proceeding shall:
(1) Identify the parties to the proceeding as of
the date of the order and specify a deadline for the submission of petitions to
intervene;
(2) Briefly summarize the subject matter of the
proceeding, and identify the issues to be resolved;
(3) Specify the legal authority for the proposed
action, and identify any applicable board rules;
(4) Specify the date by which, and the address
where, appearances or motions by representatives shall be filed;
(5) Specify the date and address for the
submission of written materials;
(6) Specify the date, time and location of an
initial prehearing conference or dates for an oral hearing;
(7) Identify the presiding officer for the
proceeding;
(8) Identify any special procedures to be
followed;
(9) Identify any confidentiality requirements
applicable to the proceeding;
(10) State that each party has the right to have
an attorney present to represent the party at the partys expense; and
(11) Contain such other information or attachments
as are warranted by the circumstances of the case, including, but not limited
to, orders consolidating issues in the proceeding with other proceedings,
orders severing issues in the proceeding from other proceedings and orders
directing the production or exchange of documents.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.05 Docketing, Service of Notice, Public
Notice.
(a)
The board shall assign a docket number to each adjudicative proceeding
and to each matter on the consent agenda, if one has not been assigned pursuant
to He-Hea 206.02.
(b)
The hearing notice shall be served upon all parties to the proceeding at
least 10 days prior to the first date of oral hearing or the first date action
is required in response to the order.
The hearing notice shall be served upon the parties, if any, by means of
certified mail.
(c)
Public notice of a hearing on an application shall be served upon
affected persons and the public pursuant
to RSA 151-C:8, VI, at least 10 days prior to the hearing.
(d)
The notice shall include:
(1) The date of intention to hold a hearing
including the time and place;
(2) The applicant's or petitioners name and
address;
(3) An identification of the type of project;
(4) The total capital cost of the project, if
applicable;
(5) The legal authority under which the hearing
shall be held;
(6) The address and telephone number of the
office of health services planning and review to answer questions regarding the
proposed hearing;
(7) The due date for the submission of written
materials to the board; and
(8) The manner in which the general public may
participate in the proceedings.
(e)
Service of all subsequent orders, decisions and notices issued by the
board, including any amendments to the hearing notice, shall be served upon the
parties, including any intervenors, by regular mail.
(f)
Orders, notices and decisions of the board, pleadings, motions,
memoranda, exhibits and other documents and data submitted to the board related
to the proceeding shall be kept in a docket file and made available for public
inspection in the office of health services planning and review, department of
health and human services, except to the extent that confidentiality has been otherwise
provided for by law.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea
208.06 Service of Documents.
(a)
All petitions, motions, replies or objections, exhibits, memoranda or
other documents filed by any party to a proceeding governed by this chapter,
shall be served by the proponent upon all parties by:
(1) Depositing a copy of the document in the
United States mail, first class postage prepaid, addressed to the last address
given to the board by the party being served no later than the day the document
is filed with the board; or
(2) Delivering a copy of the document in-hand on or
before the date it is filed with the board.
(b)
Notices, orders, decisions or other documents issued by the board
pursuant to this chapter shall be served by the board upon all parties by
either one or all of the following methods:
(1) Depositing a copy of the document, first
class postage prepaid, in the United States mail, addressed to the last address
given to the board by the party being served; or
(2) Delivering a copy of the document in-hand to
the party.
(c)
When a party has appeared by a representative, service shall be upon the
representative.
(d)
Except for exhibits distributed at a prehearing conference or hearing,
every document filed with the board, and required to be served upon the parties
to a proceeding, shall be accompanied by a certificate of service, signed by
the person making the service, attesting to the method and date of service, and
the persons served.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.07 Intervention.
(a)
Petitions for intervention shall:
(1) Describe in writing the petitioner's interest
in the subject matter of the proceedings;
(2) Be submitted to the presiding officer; and
(3) Be mailed in copy form and emailed to all
parties identified in the notice commencing the hearing.
(b)
A petition for intervention shall be granted by the presiding officer if
the petitioner complied with (a) above at least 3 days before the hearing and
the presiding officer determines that:
(1) The petition states facts demonstrating that
the petitioner's rights, duties, privileges, immunities or other substantial
interests might be affected by the proceedings or the petitioner qualifies as
an intervenor under law; and
(2) The intervention sought would not impair the
interests of justice and the orderly and prompt conduct of the proceedings.
(c)
The presiding officer shall grant a petition for intervention at any
time if:
(1) The petitioner complied with (a) above; and
(2) The presiding officer determines that the
intervention sought would be in the interests of justice and would not impair
the orderly and prompt conduct of the proceedings.
(d)
An intervenor's participation in the proceedings shall be conditioned by
the presiding officer, either at the time that intervention is granted or at
any subsequent time, provided that such limitations shall not be so extensive
as to prevent the intervenor from protecting the interest which formed the
basis of the intervention.
(e) Such conditions shall include, but
not be limited to:
(1) Limitation of the intervenor's participation
to designated issues in which the intervenor has a particular interest
demonstrated by the petition;
(2) Limitation of the intervenor's use of
cross-examination and other procedures so as to promote the orderly and prompt
conduct of the proceedings; and
(3) Requiring 2 or more intervenors to combine
their presentations of evidence and argument and cross-examination if allowed
by the board, and other participation in the proceedings.
(f) No
portion of the proceeding shall be repeated because of intervention, and, once granted
leave to intervene, an intervenor shall take the proceeding as he or she finds
it.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08; ss by #10249, eff
12-25-12
He-Hea 208.08 Prehearing Conferences.
(a)
At any time prior to the commencement of an adjudicative proceeding, the
presiding officer shall direct the parties to attend one or more prehearing
conference(s) if:
(1) More than one application has been filed in
response to the board's request for CON applications;
(2) The board grants intervention to one or more
petitioners; or
(3) Upon motion, or upon the presiding officers
or the board's own initiative, when such a conference would aid in the disposition
of the proceeding.
(b)
Matters which can be addressed at a pre-hearing conference shall
include:
(1) The distribution of exhibits and written
testimony, if any, to the parties;
(2) Opportunities and procedures for
simplification of the issues;
(3) Possible amendments to the pleadings;
(4) Possible admissions of fact and
authentication of documents to avoid unnecessary proof;
(5) Possible limitations on the number of
witnesses, and possible limitations on the scheduling of witnesses;
(6) Possible combination of presentations made by
intervenors;
(7) Possible changes to the standard procedures
which would otherwise govern the proceeding;
(8) The consolidation of the examination of
witnesses by the parties;
(9) Order of presentation at the hearing;
(10) Time permitted for presentation by the
parties;
(11) The nature of rebuttal; and
(12) Other matters which might contribute to the
prompt, orderly and fair resolution of the proceeding.
(c)
All parties and persons granted intervenor status at the time of
scheduling a pre-hearing conference shall receive a written notice at least 7
days prior to the pre-hearing conference.
(d)
At least 7 days after the pre-hearing conference date, the presiding
officer shall issue and serve an order upon all parties reflecting the matters
determined at the pre-hearing conference.
(e)
The presiding officer shall cause pre-hearing conferences to be
recorded. Matters decided at a prehearing
conference shall be reflected in an appropriate order.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.09 Prehearing Exchange of Information.
(a)
All parties to an adjudicative proceeding shall follow the service of
process documents requirements set forth in He-Hea 208.06.
(b)
In the case of 2 or more CON applications that have been filed with the
board, an exchange of the application and related materials shall be made among
the parties pursuant to He-Hea 301.07.
(c)
Any pre-hearing conference order containing requirements for the
submission of information relevant to the hearing, such as witness lists,
exhibits and written testimony shall be served to all parties listed in the
order pursuant to He-Hea 208.08(d).
(d)
Any other information not received by the parties prior to an
adjudicative proceeding may be obtained from the office of health services
planning and review, department of health and human services, by contacting the
office pursuant to He-Hea 103.04.
Copying charges for the information shall be applied pursuant to He-Hea
104.02(b).
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea
208.10 Evidence.
(a)
The board's proceedings shall not be conducted under the rules of
evidence. All data which will reasonably
assist the board to arrive at the truth, shall be admissible. Evidentiary privileges
recognized by law in
(b)
All testimony of parties and witnesses shall be made under oath or
affirmation administered by the presiding officer that the testimony the
witness is about to provide is true and correct to witness best knowledge and
belief under penalty of perjury.
(c)
Data which will reasonably assist the board in arriving at the truth
shall be admissible, but data which is irrelevant, immaterial or unduly repetitious
shall be excluded. The factual
information contained in all documents submitted to the board, affirmed in
accordance with He-Hea 206.01 shall be evidence considered by the board.
(d)
Oral testimony shall be presented unless the board, upon a finding that
written evidence would be more efficient and would not result in material
prejudice, orders that some or all of the evidence be submitted in written
form.
(e)
If the board officially notices a fact, it shall so state, and permit
any party, upon timely request, the opportunity to show the contrary.
(f)
Official notice shall be taken of any one or more of the following:
(1) Any fact which could be judicially noticed in
the courts of this state;
(2) The record of other proceedings before the
board;
(3) Generally recognized technical or scientific
facts within the board's specialized knowledge; and/or
(4) Codes or standards that have been adopted by
the board, an agency of the
(g)
The board's experience, technical competence and specialized knowledge
shall be utilized in the evaluation of the evidence. Members of the board may ask questions of any
witness and request that any party or other person submit documents relevant to
the boards decision with regard to any petition, motion, application or other
adjudicative proceeding.
(h)
The board may engage consultants to review any matter pending before the
board and provide information to the board. Any information provided to the
board by such consultants shall be entered as evidence into the record of the
proceedings and all parties shall have the opportunity to rebut such evidence.
(i)
The board shall cause an electronic or stenographic record to be made of
hearings and pre-hearing conferences.
This record shall be transcribed upon the request of a party who pays
the estimated cost of transcription in advance.
However, if the board elects to transcribe some or all of the record for
its own use, the transcribed portions shall be included in the public docket
file and be available to the public for the costs for copying.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.11 Burden and Standard of Proof.
(a)
The party asserting the affirmative of a proposition shall have the
burden of proving the truth of that proposition by a preponderance of the evidence.
(b)
Without limiting the generality of (a), above, all moving parties and
petitioners, including applicants, shall have the burden of persuading the
board that their motion or petition should be granted.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.12 Methods of Proceeding.
(a)
At least 7 days before the proceeding, all parties shall serve, upon all
other parties, a list giving the name and address of all witnesses intended to
be called during the proceeding, and a list briefly identifying all exhibits
intended to be offered during the proceeding.
(b)
Testimonial, documentary and physical evidence shall be presented to the
board for incorporation into the docketed file clearly marked as numbered
exhibits.
(c)
At the time an exhibit is presented, the party offering the exhibit
shall provide an original for the record and copies for all parties and members
of the board.
(d)
No reference shall be made to an exhibit, other than to mark it for
identification, before the presiding officer has accepted it into evidence.
(e)
Documentary evidence shall be received in the form of photographic
copies. The board shall accept excerpts
of documents as evidence, if the party submitting such evidence provides
written notice to the board stating the reasons why the entire document is not
or should not be made available. Upon
request, the board and parties shall be given an opportunity to compare the
copies or excerpts with the original documentary evidence.
(f)
The presiding officer shall cause all direct testimony of all witnesses
to be prepared in writing if it is determined upon a motion or upon the
presiding officer's own initiative that:
(1) The subject matter of the proceeding is
complex; and
(2) No party shall be prejudiced thereby.
(g)
Written testimony shall be accepted by the board at least 7 days before
the proceeding providing it is served upon all parties.
(h)
No new witness shall testify and no new exhibits shall be offered, at
any session of a proceeding unless the witness or exhibit has been accepted by
the presiding officer.
(i)
Upon the conclusion of the proceeding and subject to times specified by
RSA 151-C:8, VIII the board shall close the record and proceed to a decision on
the subject matter of the proceeding.
(j)
The parties may submit to the board a memorandum containing:
(1) Argument on the evidence;
(2) The facts to be found from that evidence;
(3) The application of those facts to the legal
issues; and
(4) The conclusions of law which the party wishes
the board to reach.
(k)
The entirety of all oral proceedings shall be recorded verbatim by tape
recording or transcription. If a tape
recording is employed, a copy of the tape shall be made and kept on file in the
office of health services planning and review, department of health and human
services, for public inspection.
(l)
Public inspection and/or requests for copies of the record shall be
processed according to RSA 91-A:4, IV.
(m)
Upon request of any person the tape recording of the proceedings shall
be copied by way of re-recording or transcribed by a reporter if the person(s)
requesting a recorded copy of the tape recording or a transcript shall first
pay the cost of an original.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.13 Reopening of the Record.
(a)
The board shall, for good cause, reopen the record at any time prior to
the decision, upon appropriate notice to all parties.
(b)
Good cause shall include, but not be limited to:
(1) New evidence that the board determines to be
material to its decision;
(2) The availability of a previously scheduled
witness who was unavailable at the time of the proceeding who offers new
evidence that the board determines to be material to its decision; or
(3) Any other evidence the board deems necessary
to make a fair decision.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea
208.14 Failure to Comply with
Procedural Rules or Orders. When a
noncompliant pleading, motion, reply, objection or other tendered information
is not accepted or admitted by the board, or when conditions for the acceptance
or admission of noncompliant information are not met, the board shall make a
decision on the pending matter without consideration of the noncompliant
information, unless the board notified the parties that it has waived the rule
in accordance with He-Hea 208.15.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 208.15 Waiver or Suspension of Procedural Rules
or Orders. The board, upon its own
initiative or upon the motion of any party, shall suspend or waive any
procedural requirement or limitation imposed by this chapter upon reasonable
notice to affected persons when the proposed waiver or suspension
appears to be lawful, and would be more likely to promote the fair, accurate
and efficient resolution of issues properly pending before the board than would
adherence to a particular procedural rule or requirement. A motion for waiver or suspension of a
procedural requirement or limitation shall fully set forth the reasons for the
requested relief.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 209 CONSOLIDATION AND SEVERANCE
He-Hea
209.01 Consolidation. Adjudicative proceedings which involve the
same, or substantially related issues, shall be consolidated for hearing or
decision, or both, when fairness, accuracy and efficiency would be served by
such an action. Consolidation shall be
ordered in response to a motion from a party or on the boards own initiative.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
He-Hea 209.02 Severance. The board shall sever one or more issues from
a proceeding and dispose of those issues in another proceeding when doing so
would materially promote the fairness, accuracy and efficiency of the proceeding. Severance shall be ordered in response to a
motion from a party or on the boards own initiative.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 210 RECONSIDERATION OR REHEARING
He-Hea 210.01 Motions for Reconsideration or Rehearing.
(a)
Final adjudicative orders of the board, orders determining that a
project is subject to CON review,
and orders denying petitions for declaratory rulings or rulemaking shall take
effect on the date they are served upon the parties pursuant to He-Hea
208.06(b).
(b)
Motions for reconsideration or rehearing of any decision of the board
shall be filed in accordance with RSA 151-C:9, III and/or IV.
(c)
The board shall make no distinction between the terms
"reconsideration" and "rehearing".
(d)
A motion for reconsideration shall:
(1) Include any memorandum of law the moving
party wishes to submit;
(2) Identify each error of fact, error of reasoning,
or erroneous conclusion contained in the final order which the moving party
wishes reconsidered;
(3) Concisely state the correct factual finding,
correct reasoning, and correct conclusion urged by the moving party; and
(4) Conform to the He-Hea 206 and He-Hea 207 of
these rules.
(e)
Other parties to the adjudicative proceeding may file a reply or
objection to a motion for reconsideration pursuant to He-Hea 207.02.
(f)
The board shall make a decision regarding a motion for rehearing with or
without an oral hearing of the motion.
The board shall grant a motion for rehearing in whole or in part, deny a
motion for rehearing in whole or in part, or order an evidentiary hearing with
respect to the motion or any portion thereof.
(g)
The board shall grant or deny the motion, or any part thereof, on its
merits to the extent the motion has revealed errors of law or fact in the
boards prior decision. The board shall
also treat the motion as one for reopening and order the receipt of such
additional data or additional argument as it considers necessary to evaluate
any newly discovered evidence or to cure any alleged errors.
(h)
If the board grants a rehearing, then all parties to the original
proceeding shall be parties to the rehearing.
The rehearing shall be conducted in accordance with He-Hea 204 through
He-Hea 208.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 211 APPEAL OF DECISIONS
He-Hea
211.01 Process. Any party aggrieved or dissatisfied with the
final decision of the board may appeal such decision to the New Hampshire
supreme court to the extent provided by RSA 151-C:10,I or RSA 541.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-A,
eff 1-24-08
PART
He-Hea 212 NONADJUDICATIVE PROCEEDINGS
He-Hea 212.01 Informal Investigations.
(a)
Notwithstanding any other provision of this title, the board, within the
limits of its authority, and acting through its members, shall make inquiry of
any person and otherwise gather data, and prepare reports describing the data
obtained whenever:
(1) It receives data which leads it to believe
that a violation of any statute administered by the board, or of any rule of
the board, or any order of the board, has occurred or is likely to occur or:
(2) It desires to obtain data for any other
lawful purpose.
(b)
Informal investigations shall include all techniques and methods for
gathering information which are appropriate to the circumstances of the case,
including:
(1) Requests for additional information from the
complainant;
(2) Requests for a release of relevant records
belonging to or under the control of the complainant; and
(3) Face to face meetings with potential
witnesses and interested persons.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff
1-24-08; ss by 11081-A, eff 4-23-16
He-Hea 212.02 Formal Investigations.
(a)
Notwithstanding any other provision of this chapter, the board, within the
limits of its authority, and acting through its members, shall commence a
formal investigation whenever it receives data which leads it to believe that a
violation of any statute administered by the board, or of any rule of the
board, or any order of the board, has occurred.
(b)
Formal investigations shall be commenced for the purpose of obtaining
documents, recording testimony, and otherwise gathering information relevant to
matters within the boards jurisdiction when the board believes this technique
would be more effective than an informal investigation.
(c)
Formal investigations shall be commenced by the issuance of an order of
investigation containing:
(1) The statutory or regulatory authority for the
investigation;
(2) Any statute, rules or orders believed to have
been, or about to be, violated or the possible regulatory action being
contemplated by the board;
(3) The identity of the persons, or class of
persons, which are the subject of the investigation;
(4) The general nature of the conduct being
investigated;
(5) The identity of the investigating officer or
committee;
(6) The date upon which the investigating officer
shall report his or her findings and recommendations to the board; and
(7) Other provisions relevant to the issues under
investigation and the time, place, and manner in which the investigation is to
be conducted.
(d)
The issuance of an order of investigation shall not commence a hearing
for the purposes of imposing sanctions against any applicant or CON holder.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff
1-24-08; ss by 11081-A, eff 4-23-16
He-Hea 212.03 Investigators.
(a)
The presiding officer shall appoint as an investigating officer a
member(s) of its board to conduct a formal or informal investigation.
(b)
At the request of the investigating officer, board staff or other
consultants shall provide technical assistance and information as necessary to
perform the investigation.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff
1-24-08; ss by 11081-A, eff 4-23-16
He-Hea
212.04 Informational Hearings.
(a)
The board shall conduct informational hearings to assist it in gathering
information concerning policy matters such as the proposing of board rules or
determining whether a request requires a CON review pursuant to He-Hea 301.01.
(b)
The board chair, deputy chair or other board member designated by the
chair shall serve as the presiding officer at informational hearings and shall
conduct all facets of the proceeding.
(c)
Sworn testimony shall not be received at informational hearings unless an
order of investigation has been issued by the board.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
PART
He-Hea 213 ENFORCEMENT PROCEEDINGS
He-Hea 213.01 Enforcement Proceedings.
(a)
Upon the conclusion of formal investigation pursuant to He-Hea 212.02,
the result of which proposes sanctions against a person or CON holder, the
board shall commence an adjudicative hearing pursuant to He-Hea 208.04.
(b) If the board determines pursuant to the
hearing described in He-Hea 213.01(a), that a person or CON holder has violated
RSA 151-C, this chapter, or any order of the board, the board shall impose the
sanctions outlined in He-Hea 215, subject to a request for a reconsideration by
the party against whom the sanction shall be imposed.
(c)
A final decision made by the board to impose sanctions against any
person or CON holder shall be subject to appeal pursuant to He-Hea 211.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
PART
He-Hea 214 DECISIONS AND ORDERS
He-Hea 214.01 Decisions and Orders of the Board.
(a)
All adjudicative proceedings of the board shall proceed if a quorum of
the board members are present and eligible to sit at such proceeding.
(b)
Upon closing the record, the board shall proceed to a decision on the
subject matter of the adjudicative proceeding, by majority vote of eligible
board members.
(c)
For this section, eligible means a board member proceeds to a decision
on the subject matter of the proceeding without prejudice or conflict.
(d)
A board member shall be ineligible when:
(1) Such member has declared a personal and/or
business conflict with an application under review or other such issue before
the board; or
(2) Such member has declared that he/she is
unable to sit in judgment of an application or other such issue before the
board due to insufficient knowledge of the subject matter in an application,
the materials on file or the proceedings under consideration.
(e)
A decision shall be made by the majority of eligible board members
qualified to vote at the time the board takes action on an application,
petition or motion.
(f)
A decision has been rendered when the majority of the eligible board
members vote to approve the pending application, petition or motion, with any
limitations, amendments or conditions as the board may determine appropriate
consistent with RSA 151-C and these rules.
(g)
A tie vote shall constitute failure of the motion to pass.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
He-Hea
214.02 Processing of Decisions. The board shall process its decisions in the
following manner:
(a)
Upon rendering a decision, the presiding officer shall name one or more
board members to assist its staff in developing a draft of the findings of fact
and conclusions of law supporting the board's decision;
(b)
The findings of fact and conclusions of law shall be completed and acted
upon within 45 days of the board's decision;
(c)
The board's findings of fact and conclusions of law shall be separately
stated and ruled upon;
(d)
The findings shall be accompanied by a concise and explicit statement of
underlying facts supporting the findings included in:
(1) The criteria in RSA 151-C:7; and
(2) Any evidence introduced into the record
including facts that have been officially noticed by the board as outlined in
He-Hea 208.10(f);
(e)
In the case of a decision for a CON, the findings shall also include a
statement of facts supporting:
(1) The standards and criteria in He-Hea 303.02
through He-Hea 303.08; and
(2) The applicable criteria listed in He-Hea
304.04 governing the project under review;
(f)
Decisions or orders shall be delivered or mailed promptly to each party
and/or its recognized representative;
(g)
Parties shall be notified personally or by mail of any decision or
order;
(h)
If a party accepts a decision issued with a condition, it shall accept
all conditions attached thereto, otherwise the decision shall result in a denial;
(i)
A CON with condition shall be considered as a requirement made of the
applicant that would otherwise be expected at the time of filing the
application or upon decision by the board but can be accomplished upon commencement
of construction or expiration per He-Hea 301.12; and
(j)
In the case of a CON with conditions, approvals with condition shall
include, but not be limited to:
(1) The total project amount;
(2) Bed complement;
(3) Patient charges;
(4) Patient mix; or
(5) Other conditions imposed providing that the
conditions are consistent with the criteria and standards in RSA 151-C and the
boards rules governing the service to be regulated.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A,
eff 1-24-08
He-Hea 214.03 Documents.
(a)
For adjudicative hearings, the boards decisions shall be made in
writing by one of the following documents:
(1) If a denial, an order attesting the denial
and the findings of fact and conclusions of law supporting the denial;
(2) If an approval, the findings of fact and
conclusions of law supporting the approval; or
(3) If an approval for a CON, the issuance of a
certificate of need and the findings of fact and conclusions of law supporting
the approval or approval with conditions.
(b)
For nonadjudicative hearings the board shall:
(1) Issue an order provided that any such order
shall include the reasons for the boards decision and the citations of law
supporting such decision; or
(2) Not issue an order if the hearing is held for
the purpose of gathering information or otherwise where no decision is
required.
(c)
The certificate of need document issued pursuant to He-Hea 214.03(a)(3)
shall include the following data elements:
(1) The issue date;
(2) The applicant's legal name and address;
(3) A concise description of the project;
(4) The date of the board's decision;
(5) A concise statement of conditions, if any;
(6) The total dollar amount of the project;
(7) The certificate of need document number;
(8) The signature of the person empowered by the
board to sign the document; and
(9) The date the document was officially signed.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
He-Hea 214.04 Retention Schedule for Written Orders and
Decisions.
(a)
The board shall maintain written orders and decisions within its office
for a period of 10 years.
(b)
Written decisions and orders older than 10 years shall be filed and
stored with the director of the division of records management subject to
retention schedules established by that division.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
PART
He-Hea 215 SANCTIONS
He-Hea 215.01 Sanctions Imposed.
(a)
Pursuant to RSA 151-C:14I,the board shall impose sanctions against any
person who has been found to violate RSA 151-C, these rules, or any order of
the board upon conclusion of the following:
(1) A formal investigation pursuant to He-Hea
212.02; and
(2) The completion of an enforcement proceeding
pursuant to He-Hea 213.
(b)
After a finding that a violation has occurred the board shall order that
the applicable sanctions authorized by RSA 151-C:12,VI and RSA 151-C:14 be
imposed upon the violator as follows:
(1) Not more than 1/2 of one percent of the
previous years revenue minus contractual allowances if an applicant is found
not to be in reasonable compliance with any statement in the application or
with conditions on their CON;
(2) For new facilities, not more than 1/2 of one
percent of the projected first year revenue minus contractual allowances if an
applicant is found not to be in reasonable compliance with any statement in the
application or with conditions on their CON;
(3) Not more than 1/2 of one percent of the total
operating budget for the previous year for other violations of RSA 151-C and
these regulations or any order of the board; or
(4) For new facilities, not more than 1/2 of one
percent of the projected annual operating budget for other violations of RSA
151-C and these regulations or any order of the board.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
PART
He-Hea 216 FEES
He-Hea 216.01 Administrative Fee Assessment.
(a)
The board shall annually assess administrative fees in accordance with
RSA 151-C:15.
(b)
Assessment shall be made when the board, through the office of health
services planning and review, department of health and human services, mails an
administrative fee to each hospital, specialty hospital and nursing home
licensed under RSA 151, except those operated by county and municipal
governments.
(c)
Administrative fees shall be calculated in the following manner:
(1) A total of 3 separate lists shall be
generated to record the names and total licensed bed complement of each acute
care hospital, specialty hospital, and nursing home licensed in the state under
RSA 151, except those operated by county and municipal governments;
(2) Gross revenues and contractual allowances
shall be obtained for each acute care hospital, specialty hospital, and nursing
home from financial data submitted to the office of health services planning and
review, department of health and human services pursuant to RSA 126:25;
(3) Assessment shall be made on the basis of net
revenues calculated for each facility by subtracting the contractual allowances
from the gross revenues to arrive at the net revenues for each facility. If a facility does not have contractual
allowances, gross revenues shall be used in the calculations;
(4) The calculated figures shall then be included
in the listings outlined in (1) above;
(5) The assessment amount shall be calculated by
multiplying each facility's total bed complement by the statewide bed
assessment for each category listed in (1) above;
(6) The revenues of each facility grouped in each
one of the 3 listed categories shall be summarized to arrive at a statewide
total for each of the 3 listings outlined in (1) above;
(7) The statewide total for each of the 3
listings shall be summarized to arrive at an overall statewide total for all 3
categories outlined in (1) above;
(8) A percentage figure shall be calculated for
each of the 3 listings outlined in (1) above by dividing the statewide total of
each category by the total calculated in (7) above;
(9) The total bed complement of each facility
shall be added in each category to arrive at the sum total for each listing
outlined in (1) above;
(10) The total amount to be collected from each of
the 3 categories outlined in (1) above shall be calculated by multiplying the
amount listed in (11) below by the total percentage calculated in (8) above for
each of the 3 listed categories;
(11) The total amount to be collected shall be the
amount actually expended for the health services planning and review component
of the department of health and human services for the fiscal year ending on
June 30 of each year preceding date of assessment listed in He-Hea 216.02(a),
or $500,000.00, whichever is less;
(12) The amount to be prorated to each facility
shall be computed on a per bed basis by dividing the sum total in (10) above by
the total number of beds in such category in (9) above; and
(13) The calculated per bed figure shall then be
applied to each facility by multiplying the number of beds in an individual
facility by the per bed figure derived in (12) above.
(d)
The sum total of all calculations in each of the 3 listings shall not
exceed $500,000 per year. Each listing
shall be adjusted in proportion to the overall contribution for any amount
calculated in excess of the $500,000.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 216.02 Date of Assessment.
(a)
The board shall assess fees no later than January 2 of each year.
(b)
The board shall use financial data for the computations of fees as
derived from each facility's data as of June 30th preceding the January 2nd
billing.
(c)
All fees shall be due and payable no later than March 31 of each year.
(d)
Any facility that does not make full payment by March 31 shall be
subject to sanctions as outlined in He-Hea 215.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 216.03 Applicability. In addition to the administrative fee, the
board shall levy other fees pursuant to RSA 151-C:15, II-III, if:
(a)
No administrative fee was assessed to a health care provider due to the
non-existence of the facility at the time the fees were assessed to all other
health care facilities; or
(b)
An existing acute care hospital, specialty hospital or nursing home
files an application for a project that is not directly related to the existing
facility in terms of remodeling, renovation or addition.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 216.04 Application Fee.
(a) Applicants shall file an application fee if
they are subject to He-Hea 216.03.
(b)
Such fee shall be calculated by multiplying the total estimated capital
cost of the project by 0.0025, pursuant to RSA 151-C:15, II.
(c)
Based on the calculation in (b) above, the application fee amount to be
paid by applicants at the time an application is filed for review shall not be
less than $500 and not more than $12,000.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 216.05 Fees For The Development of Standards. The board shall assess a fee of $1,000 to any
person petitioning the board to develop a standard, if the board grants the
petition pursuant to RSA 151-C:15, III.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
PART
He-Hea 217 RULEMAKING
He-Hea 217.01 How Adopted. A board rule or any amendment or repeal
thereof shall be adopted by order after notice and opportunity for a
legislative-type informational hearing pursuant to He-Hea 212:04 as provided by
RSA 541-A:11. Rules shall be proposed by
petition or on the boards own initiative.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
He-Hea 217.02 Development of Standards.
(a)
The board, on its own initiative, shall develop standards in such manner
and within such time periods as it deems appropriate, provided that the
rulemaking process complies with RSA 541-A:3.
(b)
Upon the granting of a petition and the payment of the fee in accordance
with He-Hea 216.05, the board shall develop standards in accordance with RSA
151-C:6.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
He-Hea
217.03 Petition for Rulemaking. A request for the commencement of a
proceeding to adopt, amend or repeal a rule shall be submitted in the form of a
petition which contains the following information:
(a)
A statement of the reason for the petitioners interest in the subject
matter of the proposed rule;
(b)
The text of the proposed rule or a statement of the particular results
intended by the petitioner to flow from the implementation of the proposed
rule;
(c)
If the petitioner proposes to amend or repeal an existing rule, an
identification of the particular rule sought to be amended or repealed; and
(d)
Any data or argument the petitioner believes would be useful to the
board in deciding whether to commence a rulemaking proceeding.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
He-Hea 217.04 Disposition of Petition.
(a)
In the event that a petition is filed which complies with the provisions
of He-Hea 217.03, the presiding officer shall serve a copy of the petition upon
other persons with a clear interest in the subject matter of the proposed
rulemaking action prior to the issuance of a board decision on the petition.
(b)
In the event that it grants petition for rulemaking, the board shall
undertake to commence a rulemaking proceeding in accordance with RSA 151-C:6,
RSA 151-C:11 and RSA 541-A:3.
(c)
A petition for rulemaking shall be denied if the service for which
rulemaking is requested is not in accordance with RSA 151-C:5, I and II.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
PART
He-Hea 218 RULINGS
He-Hea 218.01 Petitions for Declaratory Rulings.
(a)
Petitions for a declaratory ruling on matters within the jurisdiction of
the board shall:
(1) Be filed as a petition which meets the
requirements of He-Hea 206.01 and He-Hea 207.01; and
(2) Contain the following information:
a. The exact ruling being requested;
b. The statutory and factual basis for the
ruling, including any supporting affidavits or memoranda of law; and
c. A statement as to how and why the issuance of
a ruling on this subject would benefit the petitioner.
(b)
A petition for a declaratory ruling shall be determined in a
non-adjudicative hearing.
(c)
The petitioner shall provide such further information as the board shall
direct after reviewing the petition.
(d)
The board shall not be required to rule on declaratory ruling petitions.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-99
New. #9075-A, eff 1-24-08
CHAPTER He-Hea 300 APPLICATION PROCEDURES FOR A CERTIFICATE OF
NEED
PART
He-Hea 301 APPLICATION PROCESS
He-Hea
301.01 Application that a Project is
Not Subject to Certificate of Need Review.
(a)
To determine whether a project or service is subject to CON review,
applicants shall complete and submit form 301A, Not Subject to
Review/Exemption Application, effective May
2014.
(b)
Such applications shall meet the requirements of He-Hea 206.01 (a) and
(e).
(c)
For projects involving lease of land, building or equipment, applicants also
shall complete and submit form 301W Worksheet for Determining Leases,
effective May 2014.
(d)
Staff shall provide applicants with assistance in providing the
information on forms 301A and 301W.
(e)
Within 30 days of receipt of the application, board staff shall:
(1) Review the material;
(2) Seek additional clarification;
(3) Arrange a preliminary meeting with the
requestor if necessary; and
(4) Issue a preliminary recommendation whether
the project or service requires a CON review.
(f)
If the application meets the standards for placement on the consent
agenda in accordance with He-Hea 203.02, the application shall be placed on the
board agenda for discussion at the next board meeting where the agenda permits
scheduling of discussion relating to the application.
(g)
If application does not meet the standards for placement on the consent
agenda in accordance with He-Hea 203.02, because a petition for intervention
has been filed and is pending, the board shall consider and rule on the
petition for intervention prior to ruling on the application. If a timely petition to intervene is filed
with respect to the application, after the application has been placed on the
consent agenda, the matter shall be removed from the consent agenda pending
disposition of the petition to intervene.
(h)
An adjudicative proceeding shall be commenced in accordance with He-Hea
208.04 if:
(1) A petition to intervene is granted; or
(2) If the application does not meet the requirements
for placement on the consent agenda because:
a. Total project costs for the project or
service, as reflected in the application are more than 25% of the applicable
statutory threshold; or
b. The application does not clearly demonstrate
that the project or service does not involve the provision of health services
as defined in RSA 151-C:2, XVIII.
(i)
The board shall consider any requests for determining whether a
project requires a CON by applying the
standards developed per RSA 151-C:5. The
board shall only issue an order that a
project does not require a CON review upon finding the project or service will
not meet any of the standards developed per RSA 151-C:5. Any such order shall include conditions that
the board determines to be required in order to assure that no CON review
should be required for the project, including but not limited to requiring the
applicant to submit implementation reports consistent with He-Hea 305.03.
(j)
In evaluating any application, the board shall consider whether the
proponent has received any not subject to review determination for the same
facility within the previous 36 months.
(k)
For purposes of ascertaining whether the statutory thresholds for
capital expenditures are met, the board shall aggregate:
(1) All capital expenditures for the project or
service made by or on behalf of the applicant, including capital expenditures
made by affiliates of the applicant and capital expenditures for the project
made pursuant to agreements or understandings between the applicant or its
affiliates and third parties; and
(2) All capital expenditures for an integrated
project.
(l)
If the board determines upon review that a project or service is not
subject to review, the board shall include the following conditions on the
order, as applicable:
(1) If NSR is granted because the project is not
a health service, the order granting the NSR shall include a condition that no
institutional health services are provided;
(2) If NSR is granted because the project is not
being developed by an institutional health facility, the order granting the NSR
shall include such conditions relating to the participation or benefit of the
project or service by any affiliate of the applicant that is an institutional
health facility; and
(3) If NSR is granted because the project does
not meet the threshold dollar amount, the order shall contain a condition that
total capital expenditures for the project shall not exceed the applicable
threshold dollar amount.
(m)
If the board determines upon review that a project is not subject to
review, the board shall include such other conditions on the order to ensure
that threshold levels as determined by He-Hea 301.15 will not be exceeded,
including but not limited to:
(1) Requiring approval of some or all payments
for capital expenditures not provided for by the contracts submitted to the
board in support of the application;
(2) Requiring approval of some or all amendments
of contracts for capital expenditures that adjust payment requirements thereof;
and
(3) Imposing limitations on additional capital
expenditures by the applicant or its affiliates with regard to integrated
projects.
(n) The effective date of a not subject to review
determination shall be the date the board renders its final decision regarding
the project under consideration.
(o) Any NSR shall expire and have no further effect
if the applicant has not supplied documentation that it has met the following
applicable deadline requirements on commencement and completion of the project:
(1) Projects which solely involve the acquisition
and installation of equipment shall be completed within 2 years of the not
subject to review determination;
(2) Projects involving the construction or
renovation of real estate that will be owned or leased by the applicant shall
be commenced within one year of, and completed within 3 years of, the not
subject to review determination;
(3) A project shall be considered as commenced
when:
a. A written agreement is executed between the
applicant and a general contractor to construct and complete the project within
a designated time schedule in accordance with final architectural plans and
specifications; or
b. A written lease agreement is executed between
the applicant and the owner of the real estate or equipment; and
(4) A project shall be considered complete when
it becomes operational for the purpose as stated in the application.
(p)
The not subject to review determination for projects involving the lease
of real estate or equipment shall expire at the end of the period of time stated in form
301W in valuing the lease.
(q) The applicant shall ensure compliance
with the requirements of the not subject to review determination through the
submission of:
(1) A statement that the project has commenced
accompanied by a copy of the executed construction contract or lease agreement;
and
(2) A statement that the project has been
completed accompanied by an itemization of the total project cost.
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10518, INTERIM,
eff 2-11-14, EXPIRED: 8-11-14
New. #10723, eff 11-22-14
He-Hea 301.02 Standards for the Determination of CON
Review.
(a) Pursuant to RSA 151-C:8, the board shall
issue a request for applications if a need is indicated by any standard
developed per RSA 151-C:5, II.
(b)
Notwithstanding He-Hea 301.02(a) above, the board shall approve an
application request pursuant to RSA 151-C:4,III (a) for:
(1) Any nursing home, skilled nursing facility,
intermediate care facility or
rehabilitation facility for replacement or renovation of existing beds to
meet life safety code requirements or remedy deficiencies noted in a state of
federal survey or inspection; or
(2)
Any construction or renovation as necessary to:
a. Repair
or refurbish an existing facility; or
b. Accommodate
additional beds obtained by transfer to an existing facility.
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
301.03 Pre-Application Process.
(a)
Each interested person shall attend an informal, non-adjudicated,
pre-application conference prior to submitting an application for a certificate
of need.
(b)
The presiding officer or designee shall preside over the informal
pre-application conference.
(c)
The meeting shall be tape recorded or transcribed, and such recording or
transcription shall be part of the record.
(d)
The presiding officer shall discuss the following at a pre-application
conference:
(1) A discussion of the review schedule for a CON
pursuant to He-Hea 301.10;
(2) A review of the CON application pursuant to
He-Hea 304; and
(3) Any other matters which might contribute to
the prompt and orderly conduct of the application process.
(e)
The board shall schedule the pre-application conference within 15
business days of the published date of the board's request for applications, or
from an order of the board.
(f)
The board shall hold a pre-application conference for any and all other
interested parties no later than 45 days prior to filing an application.
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 301.04 Application
Process.
(a) The board shall
accept applications for a certificate of need if:
(1) A standard of need has been developed; and
(2) A request for applications has been issued or
otherwise permitted by the standards in the statutes and this chapter.
(b)
Applicants shall complete and submit form CON 303, Application for a
Certificate of Need, effective September 2015.
(c) The board shall
process applications for a CON within a range of 210 and 240 days from the date
the board issues a request for applications pursuant to RSA 151-C:8 and as
outlined below:
(1) Applications shall be filed no sooner than 60
days after the issuance of request for applications;
(2) Filed applications shall be subject to a
maximum of 3 preliminary completeness reviews by the staff of the board, as
follows:
a. First completeness review, which includes a 15
business day review by the boards staff and an additional 15 day response
period allotted to the applicant to develop responses to the staff's questions;
b. Second completeness review, which shall be
the same as a. above except that the time period shall be limited to 10
business days allotted to each party; and
c. Third completeness review shall be the same
as a. above except that the time period shall be limited to 5 business days
allotted to each party.
(3) Upon completing the preliminary review
period, the board shall deem the application shall complete and enter it into
a 90 day formal review period provided,
however, that nothing herein precludes the board from determining that an
application lacks information which it believes is required to make a
determination;
(4) Within the 90 day formal review period, the
board shall hold a public hearing to receive testimony by the applicants and
any parties or the general public and to render a decision regarding the
application(s) under its review; and
(5) Pursuant to RSA 151-C:8, VIII, and He-Hea
301.10(a) the board may extend the 90 day formal review period by 30 days to a
maximum of 120 days.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 301.05 Filing Applications with the Board.
(a)
The board shall consider an application as filed when it is actually received by the
board's staff in the office of health services planning and review, department
of health and human services.
(b)
Upon receipt of an application, the board's staff shall docket the
application for review and establish the review cycle in accordance with He-Hea
301.04(d).
(c)
Applications shall be filed pursuant to He-Hea 206.01 and the following:
(1) Pages shall be numbered sequentially
throughout the entire document;
(2) Any supporting information, documents and
exhibits shall be:
a. Placed in an appendix to the application; and
b. Labeled by letter or number designation; and
(3) The printed copies of the application shall
be bound in a manner that will allow the addition of pages.
(d)
When applicable, applicants shall pay the administrative fee required by
RSA 151-C:15 at the time the application is filed with the board.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 301.06 Public Access. Pursuant to RSA 91-A:5, IV, the board shall
deny public access to all application materials filed until the board serves
notice that review has begun according to RSA
151-C:8, VI. This shall include
the entire completeness process time outlined in He-Hea 301.04(d)(2). Nothing herein is intended to preclude access
by the board to application materials.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
301.07 Exchange of Applications.
(a)
When 2 or more CON applications have been received for the development of
the same institutional health service, all applicants shall participate in an
exchange of applications meeting.
(b)
Upon formal notice that formal review of CON applications has begun,
board staff shall arrange a meeting between all applicants to exchange
application documents.
(c)
All applicants shall provide at the meeting one copy of its application,
completeness materials submitted pursuant to He-Hea 301.04(d)(2) and amendment,
if any, to the other applicant(s) in the process.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 301.08 Amendments to the Application.
(a)
Pursuant to RSA 151-C:8, XII, any applicant for a CON may file a request
to amend its application during the 45 days after notification of formal review
pursuant to He-Hea 301.04(d)(4).
(b)
Applicants shall file a request to amend a CON application in accordance
with He-Hea 206.01.
(c)
Applicants shall file amended application within 30 days after the
boards approval pursuant to He-Hea 206.01.
(d)
The board shall subject any amended application to one completeness review
period of 10 business days, pursuant to He-Hea 301.04(d)(2)b. The board shall then deem the amended
application complete and process it pursuant to He-Hea 301.04(d)(4) and (5).
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
301.09 Relationship of Multiple
Applications. Pursuant to RSA
151-C:8, III, the board shall review simultaneously all applications submitted
for the development of the same institutional health services. The board shall consider the relationship of
all applications filed in this manner.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
301.10 Review Schedule.
(a)
In accordance with the requirements of RSA 151-C:8, VIII, the board
shall review all applications within 90
days.
(b) The board shall extend the schedule
by 30 calendar days for the following reasons:
(1) A quorum of the board is lacking on the date
the proceeding is scheduled to be heard regarding an application for a CON or
other subject of the proceeding;
(2) The staff's workload precludes the
preparation of staff memoranda or data in time to allow the board and the
parties an opportunity to review or contest such memoranda or data prior to the
scheduled proceeding;
(3) The number or magnitude of projects to be
heard exceeds the capacity that could otherwise be included in a single
proceeding without compromising or depriving a party's rights to a full and
fair hearing; or
(4) New or additional information is introduced
by the parties since the scheduling of the proceeding that could affect the
outcome of the proceeding;
(c)
At the conclusion of its review of each application for a CON, the board
shall proceed to a decision in the form of an approval, denial or approval with
conditions pursuant to RSA 151-C:9 and
He-Hea 214 based upon the standards found in He-Hea 303, and the criteria
supplied in the application.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 301.11 Effective Date of a Certificate of Need.
(a)
The effective date of a certificate of need shall be the date the board
renders its decision to approve, or approve with condition, the project under
consideration.
(b)
In cases where the board rehears an application upon request pursuant to
RSA 151-C:9, IV, the effective date of the certificate of need shall be the
date the board renders its decision upon reconsideration of its original
decision.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
301.12 Project Commencement and
Completion Dates.
(a)
Pursuant to RSA 151-C:12, I, the following project commencement and
completion dates shall apply to a CON that has been granted pursuant to He-Hea
214:
(1) Projects involving the acquisition and
installation of equipment shall be completed within 2 years of the issuance of
the CON, or the NSR response pursuant to He-Hea 301.02;
(2) Construction projects costing less than
$1,000,000 shall be commenced within one year and completed within 3 years of
the issuance of the CON; and
(3) Construction projects costing more than
$1,000,000 shall be commenced within 18 months and completed within 5 years of
the issuance of the CON.
(b)
Projects shall be deemed as commenced when the CON holder has satisfied
the conditions of either RSA 151-C:12, III(a) or (b).
(c)
CON holders shall ensure compliance of commencement and completion dates
through the submission of compliance reports pursuant to He-Hea 305.
(d)
CON holders found not in compliance with the requirements of the CON and
He-Hea 305 shall be subject to sanctions imposed per He-Hea 215.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 301.13 Change of Scope.
(a)
Pursuant to RSA 151-C:12, IV-a, the board shall require an applicant for
a CON to file for a change of project scope if:
(1) The total project cost will exceed the CON
approved amount by more than 15% plus inflation;
(2) The financing method of the application will
differ due to cost overruns that exceed 15% plus inflation;
(3) The identity of the applicant has changed;
(4) The services, programs, or equipment
identified in the CON application will be located in a service area or site
different from that named in the application; or
(5) Services, programs or equipment are being
proposed to be added or omitted from those previously identified in the CON
application.
(b)
Applicants shall file a change of scope using the form as described in
He-Hea 301.14.
(c)
A change of scope application may be filed at anytime after the CON has
been approved.
(d)
A waiver of any change of scope requirements shall be approved if the
services, programs or equipment to be added or omitted are not significant
because they will not result in:
(1) A change to the approved CON amount;
(2) The introduction of a new services, program
or equipment to the service area; or
(3) A reduction in accessibility from that
anticipated in the original CON application.
(e)
The board shall make its determination for either a change of scope or a
waiver of such under (d) above during an adjudicative proceeding pursuant to
He-Hea 208.01 and issue an order supporting that determination pursuant to
He-Hea 214.03(b).
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10723, eff
11-22-14
He-Hea 301.14 Form
301-C Application for a Change of Scope.
An applicant for a change of scope to the originally issued CON
including a waiver of change of scope under RSA 151-C:12, IV-a shall complete
and submit form 301-C Change of Scope and Waiver, effective May 2014.
Source. #10723, eff
11-22-14
He-Hea 301.15 Threshold Adjustments.
(a)
To comply with statutory requirements, the board shall annually adjust
the capital expenditure threshold figures in RSA 151-C:5, II(a) and (f).
(b)
The threshold figures in RSA 151-C:5, II(a) and (f), shall be adjusted
starting March 1, 2014 and annually thereafter, based on the R.S. Means
historical cost index January 2014 identified for the town of Manchester, New
Hampshire, as referenced in Appendix II of these rules.
(c)
The threshold amount shall be adjusted as outlined in (b) above for:
(1) The adjusted acute care hospital $2,974,891
threshold pursuant to RSA 151-C:5, II(a);
(2) The adjusted $1,983,260 threshold listed for
nursing homes, ambulatory surgical facilities, physical rehabilitation
hospitals, psychiatric hospitals, substance abuse hospitals and other health
care facilities pursuant to RSA 151-C:5, II (f)(1); and
(3) The adjusted $845,374 threshold for
ambulatory surgical facilities within the service area of a hospital with fewer
than 70 general hospital beds pursuant to RSA 151-C:5, II (f)(2).
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10723, eff
11-22-14 (from He-Hea 301.14)
PART
He-Hea 302 EXPEDITIOUS PROCESSING OF
APPLICATIONS
He-Hea 302.01 Grounds for an Expeditious Review. The board shall consider a request for an expeditious
processing of an application for a CON as permitted by RSA 151-C:13, III if:
(a)
The request is for emergency needs, documented in writing, by the state
fire
(b)
The request is for the purpose of eliminating or preventing fire and/or
safety hazards which might be adversely affecting the lives, health and welfare
of patients, staff or general public.
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 302.02 Process. Any petitions for an expeditious review of
applications shall:
(a)
Be submitted, in writing, to the board;
(b)
Contain the name and address of the petitioner's representative, if any;
(c)
Contain a concise statement of facts which caused the petitioner to
request the board to act; and
(d)
Contain an identification of any statutes, rules, orders or other authority
which entitles the petitioner to have the board act as requested.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 302.03 Board Action.
(a)
The board shall grant any petition conforming to He-Hea 302.01 and
He-Hea 302.02 within 30 business days of receipt of such petition.
(b)
If granted, the application shall be exempted from the processing
requirements outlined in RSA 151-C:8.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 302.04 Filing of Applications. Under an expeditious review, an applicant
shall file applications any time after the board grants authorization pursuant
to He-Hea 302.03(b).
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 302.05 Processing of Applications.
(a)
Once an applicant files an application for an expeditious review, the
board's staff shall examine the application for form and completeness.
(b)
Whenever errors or omissions are detected, staff shall request
additional information relating to the application within 15 business days of
receipt of the application.
(c)
The applicant shall have 15 business days to respond to the staff's
request for additional information from the date of receipt of the staff's
questions.
(d)
Upon receipt of the applicant's response to the request outlined in (a)
above, the board shall begin the review process and serve notice to all parties
to this effect pursuant to RSA 151-C:8,VI.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
302.06 Review Schedule.
(a)
The board shall review applications for expeditious review within 45
days, but extend the schedule by 15 calendar days for the following reasons:
(1) A quorum of the board is lacking on the date
the proceeding is scheduled to be heard regarding an application for a CON or
other subject of the proceeding;
(2) The staff's workload precludes the
preparation of staff memoranda or data in time to allow the board and the parties
an opportunity to review or contest such memoranda or data prior to the
scheduled proceeding;
(3) The number or magnitude of projects to be
heard exceeds the capacity that could otherwise be included in a single
proceeding without compromising or depriving a party's rights to a full and
fair hearing; or
(4) New or additional information is introduced
by the parties since the scheduling of the proceeding that could affect the
outcome of the proceeding;
(b)
The board shall hold a public hearing during the review period.
(c)
The board shall waive the need for a public hearing if:
(1) The rights of any party are not violated by
such waiver; or
(2) The delay caused by such hearing would create
a financial burden for the parties and the general public.
(d)
For this section, financial burden shall include:
(1) The possible loss of financing source;
(2) Increases in financing costs exceeding 5% of
the current rate; or
(3) Any other conditions that would cause the sum
of the total capital cost of the project to be exceeded by 10%.
Source. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
New. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea 302.07 Processing of Decisions.
(a)
The board shall process its decision for an expeditious review of an
application pursuant to He-Hea 214.02.
(b)
The board shall produce documents supporting its decision pursuant to
He-Hea 214.03.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
PART
He-Hea 303 STANDARDS FOR THE REVIEW OF
APPLICATIONS
He-Hea 303.01 Standards. When developing its findings of facts and
conclusions of law, the board shall review all applications to determine their
applicability and consistency with the criteria outlined in RSA 151-C:7, the
specific standards for which a certificate of need is sought and the standards
in He-Hea 303.02 through He-Hea 303.09.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff
4-23-16
He-Hea
303.02 Standard Applicable to Public
Need. Applicants shall demonstrate
that public need exists for the project by supplying a report in the
application that contains:
(a)
Where the new institutional health service or equipment shall be
located, the proposed hours of operation of the new service, and the rationale
for that location and accessibility;
(b)
A description of the service under consideration for a CON;
(c)
The current size of the health care system in which the new
institutional health service shall be located, including but not limited to:
(1) Geographic area;
(2) Target audience by age and sex;
(3) The 3 year historical and 3 year projected
utilization rates of the proposed service per population of the service area,
including average per unit costs, expressed as:
a. Patient days and patient days per thousand
residents;
b. Hours;
c. Procedures and procedures per thousand
residents;
d. Scans and scans per thousand residents;
e. Encounters and encounters per thousand
residents; or
f. Other such terms as relates to the proposed
project;
(4) Travel considerations of the region; and
(5) The relationship to the service/market area,
region, and the state as a whole;
(d)
The health needs of the current populations, and the planning horizons
for the future in terms of improving health outcomes for differing target
populations for the proposed service(s);
(e)
The portion of need professed, by the applicant, that is not currently
being met;
(f)
The evaluation of alternative proposals considered by the proponent in
order to satisfy the unmet need by examining current inventories of beds,
services, equipment or trends in the region and the state, including an
evaluation of alternate technologies that addresses:
(1) The capability of such technology to provide
diagnostic information or therapeutic treatment similar to the equipment that
the applicant or petitioner proposes to acquire;
(2) The capability of such technology to provide
diagnostic information or therapeutic treatment that the equipment the
applicant or petitioner proposes to acquire does not have;
(3) The capability of such technology to be used
with respect to a class of patients that the equipment the applicant or
petitioner proposes to acquire does not have; and
(4) Whether the technology is existing in the
market or publicly known to be under development at the time the application or
petition is filed;
(g)
If applicable, the project's uniqueness in terms of services, service
delivery or specific population groups identified in the region and/or the
state;
(h)
Accessibility of the proposed service to the population in the service area,
including accessibility to managed care and Medicaid patients;
(i)
An evaluation of the projects ability to maintain or improve:
(1) Quality of care;
(2) Access and availability to health services;
and
(3) Cost effectiveness of health services
provided;
(j)
To the extent data is available, a statistical report which shows how
the proposed project is projected to affect the proposed service area in terms
of:
(1) Utilization;
(2) Patient charges;
(3) Market share;
(4) Physician referral patterns; and
(5) Personnel services;
(k)
The impact of the proposed projects as it relates to the continued
ability of existing or similar programs to:
(1) Maintain quality services;
(2) Provide essential community services;
(3) Provide emergency services; and
(4) Provide charity care; and
(l)
The statistical model used by the applicant to determine need.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10519, INTERIM,
eff 2-11-14, EXPIRED: 8-11-14
New. #11081-B, eff 4-23-16
He-Hea 303.03 Standard Relating to the Health Care
System. Applicants
shall demonstrate the relationship of the project to the region shall be
demonstrated by providing a report in the application that contains:
(a)
A description of the proposed programs for service linkages with other
health care facilities and programs to maintain continuity and enhancement of
patient care including the nature of the new institutional health care services
to be provided;
(b)
A description of the plan, if any, for making the proposed service
available on a 24 hour a day, 7 day a week basis if applicable;
(c)
Upon the proponent's own initiative or by state rules or federal
regulations, the anticipated outcome of integrating the proposed project into
the existing facility particularly as it affects the inter - and intrafacility
programs, and
(d) The anticipated health outcomes for the
service area as they relate to the targeted population.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10519, INTERIM, eff
2-11-14, EXPIRED: 8-11-14
New. #11081-B, eff 4-23-16
He-Hea 303.04 Standard Relating to the Medically
Underserviced.
(a)
Applicants shall provide health care services to 100% of its medically
underserviced population:
(1) As a direct service offered by the applicant;
(2) Via a service contract between the supplier
and the applicant; or
(3) Pursuant to both (1) and (2) above.
(b)
Applicants shall demonstrate how they provide health care services to 100%
of their medically underserviced population(s) by submitting a report with the
application identifying:
(1) The accommodations made for persons with a
recognized disability under the
a. Ramps;
b. Signage;
c. Parking;
or
d. Other arrangements;
(2) The assistance provided to persons for whom
language is a barrier, including but not limited to:
a. Human interpreters;
b. Interpretive telephone service;
c. Personal translation service; and
d. Any American Sign Language interpretation
service; and
(3) The application of a written financial
assistance plan offered to persons who are uninsured or who do not have the
financial resources to pay for services offered by the proposed project due to
financial hardship.
(c)
The applicant's written financial assistance plan shall require that
100% of uninsured individuals with household income of up to or less than 150%
of the federal poverty level receive free care, subject to a reasonable and
nominal payment by the patient not to exceed a total sum of $100.00, which
shall be waived by a showing of financial hardship.
(d)
The applicant shall provide in the application a copy of its written
financial assistance plan which includes:
(1) The application forms and written
instructions provided to any person who expresses an inability to pay for
services at the facility;
(2) The written determination procedures for
eligibility for the program, including a statement of services and charges that
have been provided at the facility;
(3) The written procedures for appeal of the
determination for any person denied eligibility; and
(4) A description of the communication procedures
used to inform the public of such policy, including:
a. Posting of the policy;
b. Referencing such policy in all public notices
of service availability; and
c. The availability of staff to assist patients
in all aspects of eligibility.
(e)
In addition to the above, applicants with existing facilities shall
supply a report in the application stating the total amount of uncompensated
care provided to persons for the preceding 12 months, including:
(1) Total number of persons served;
(2) Total dollar amount of uncompensated care
expended; and
(3) Total dollar amount expressed as a percentage
of gross revenue.
Source. #7139, eff 11-23-99; ss by #7928, eff 8-5-03;
ss by #9075-B, eff 1-24-08; ss by
#11081-B, eff 4-23-16
He-Hea 303.05 Standard Relating to Quality of Care
Issues.
(a)
Applicants shall demonstrate that services will be provided safely and
efficiently by providing with the application:
(1) Compliance with mandates from state, federal
and accrediting agencies in terms of physical plant and service delivery in the
form of copies of inspection surveys and reports;
(2) If applicable, a copy of the plan of action
to correct the deficiencies cited by governmental and/or accrediting agencies;
(3) A copy of an existing or proposed quality
assurance plan to enhance the delivery of services;
(4) Evidence of the effectiveness of any existing
quality assurance program of the applicant or any affiliate;
(5) An evaluation of the quality of any equipment
or technology to be used or purchased in connection with the project, as
compared to other available technologies or equipment described in He-Hea
303.02(f); and
(6) A report in the application which details how
services are or will be located in an environment that is free of excessive
noise, dust, hazards or other problems which may be detrimental to patients in
terms of safety and comfort.
(b)
Applicants shall provide a signed statement by the applicant within the
application that:
(1) No current officer manager, director or
trustee, of the applicant or its parent and no facility owned or operated by
the applicant, its parent or any officer, manager, director or trustee of the
applicant or affiliate has had its operating license revoked, Medicare or
Medicaid certification or participation involuntarily terminated and such
license or participation has not been reinstated; nor has the applicant, parent
organization, affiliated organization or current officer, manager, director or
trustee been found liable of civil or criminal Medicare or Medicaid fraud;
(2) Neither the applicant nor any affiliate has
been convicted or found liable for a pattern of patient abuse; and
(3) Agreements between the applicant and any
other person relating to the proposed service are not inconsistent with a
reasonable interpretation of any federal or state anti-referral or fraud and
abuse prohibitions.
(c)
Applicants who are unable to provide the signed statement described in
He-Hea 303.05(c) or a similar signed statement described in any standard
applicable to any specific institutional health service shall provide:
(1) A signed statement setting forth the facts
and circumstances which are inconsistent with the content of the statement
described in He-Hea 303.05(c) or other standard;
(2) Evidence which demonstrates that the
inconsistent facts and circumstances shall not affect the integrity of the
applicants services provided by this project; and
(3) A signed statement containing as much of the
content of the statement described in He-Hea 303.05(c) or other standard as is
true.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff 4-23-16
He-Hea 303.06 Standard Relating to the Issue of
Affordability.
(a)
Applicants shall demonstrate that the proposed project will be
affordable and financially feasible by supplying with the application:
(1) A statement of sources of funds indicating
that funds are/shall be available to support the project including how the
project will be funded through the applicant's own sources in the form of
equity and/or borrowings from lending institutions;
(2) A financial plan which examines:
a. The current financial climate of the region
and the state; and
b. The effect the project will have on operating
and capital expenses and income for the period immediately prior to, during,
and for 3 years after project completion;
(3) A report indicating:
a. That revenues shall be available in
sufficient quantity to support the present operating levels, the added
operating costs, and, if applicable, the added debt service;
b. The financial impact of increased utilization
resulting from the project, including the effect on the average cost of a
procedure;
c. The impact of the project on total health
care costs of the state, including a discussion as to whether total health care
costs will be increased, not just whether unit costs will be decreased; and
d.
The anticipated impact the proposed
project will have on costs and charges on the applicant's own facility
including but not limited to:
1. Applicants proposed charges for the services
represented by the project for the 3 years following project completion; and
2. Applicants anticipated adjustments to
charges for applicants other heath care services, as a direct result of this
project, through the end of the third year following project completion;
(4) An overall analysis of the methods of construction
in terms of:
a. Types of construction according to the
categories outlined in Section 1, pages 4 through 11, of the Marshall
Valuation Service, 2015 edition, as
specified in Appendix II;
b. Floor plans which depict the facility prior
to and after project completion;
c. Structural design as it relates to the
possibility of vertical and/or horizontal expansion of the building(s); and
d. Site plan;
(5) An outline of the total capital expenditure
for the project, including such project costs as are capital expenditures with
respect to the project; and
(6) A statement as to whether the applicant or
petitioner considers any of the foregoing costs not to be capital expenditures pursuant
to RSA 151-C:2, VI, along with appropriate citation of generally accepted
accounting principles, and demonstration of consistent application thereof in
applicants financial accounting practices.
(b)
Applicants shall describe in the application the effect the proposed
project will have on:
(1) Insurance providers including Medicare,
Medicaid, insurance companies;
(2) Alternative delivery systems such as health
maintenance organizations, preferred provider organizations and independent
practice organizations;
(3) Other payers for health care services,
including employers and individuals;
(4) The availability and affordability of the
services represented by the project to persons who are uninsured or otherwise
do not have the financial resources to pay for the service; and
(5) The contribution to the overall healthcare
costs of the state in terms of increased patient utilization.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10519, INTERIM, eff 2-11-14, EXPIRED: 8-11-14
New. #11081-B, eff 4-23-16
He-Hea 303.07 Standard Relating to Professional Training
Programs.
(a)
Whenever possible, applicants shall make services and/or space available
for training purposes for health care professionals in the region or the state.
(b)
Applicants shall demonstrate access to its existing and/or proposed
services in the form of a report in the application indicating:
(1) The effect the proposed project will have, if
any, on the clinical needs of health professional training programs in the
geographical area; and
(2) The extent to which health professional
schools will have access to the services for training purposes.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff 4-23-16
He-Hea 303.08 Standard Relating to the Degree of Support.
(a)
Applicants shall demonstrate that support exists for the proposed
project in the region or the state.
(b)
Demonstration that support exists for the project shall be made in the
form of a report in the application indicating:
(1) The degree of support expressed by other
health care providers in the region and the state;
(2) Support from the businesses, industry and
third party payors in the region and the state indicating the anticipated
financial impact, if any, the proposed project will have on insurance premiums;
and
(3) Support from any and all other interested
persons.
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #11081-B, eff 4-23-16
He-Hea 303.09 Relative Standards. In accordance with RSA 151-C:9, II, when 2 or
more applications have been submitted for development of the same institutional
health service, applicants shall provide a report with the application which
discusses how:
(a)
The proposal will be the most cost effective means of providing the
service and other related services available through alternate products or
technologies;
(b)
The proposal will provide the highest quality and scope of services;
(c)
The services provided by the applicant will be the most affordable to
the public;
(d)
The proposal maximizes the availability of services to the medically
underserviced population, including persons who are uninsured or otherwise do
not have financial resources to pay for the services;
(e)
The proposal minimizes the potential that other services, including
service capabilities that the applicants project will not provide, will be or
will become unavailable in the service area or that the unavailability of such
service capabilities will not have a materially detrimental effect on the
delivery of health care in the service area;
(f)
The implementation of the proposal shall result in a cost effective
benefit to the service area;
(g)
The proposal shall exhibit the greatest degree of service sharing or
linkages with other health care providers; and
(h)
The proposal shall have the least effect on the facility's and other
providers' operating costs.
Source. #7139, eff 11-23-99; amd by #7928, eff
8-5-03; ss by #9075-B, eff 1-24-08; ss by
#10519, INTERIM, eff 2-11-14, EXPIRES: 8-11-14; ss by #11081-B, eff 4-23-16
PART
He-Hea 304 APPLICATION FORM FOR A CON -
RESERVED
He-Hea 304.01 -
Reserved
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; rpld by #11081-B, eff 4-23-16
He-Hea 304.02 - Reserved
Source. #7139, eff 11-23-99, EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; rpld by #11081-B, eff 4-23-16
He-Hea 304.03 - Reserved
Source. #7139, eff 11-23-99; amd by #7928, eff
8-5-03; ss by #9075-B, eff 1-24-08; rpld by #11081-B, eff 4-23-16
He-Hea 304.04 -
Reserved
Source. #7139, eff 11-23-99; EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; rpld by #11081-B, eff
4-23-16
He-Hea 304.05 -
Reserved
Source. #7139, eff 11-23-99; EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; ss by #10519, INTERIM,
eff 2-11-14, EXPIRES: 8-11-14; rpld by #11081-B, eff 4-23-16
He-Hea
304.06 - Reserved
Source. #7139, eff 11-23-99; EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; rpld by #11081-B, eff
4-23-16
PART
He-Hea 305 IMPLEMENTATION REPORTS
He-Hea 305.01 Filing Requirements.
(a)
Each applicant granted a certificate of need shall file an
implementation report as required in RSA 151-C:12, V.
(b)
Applicants shall complete and submit Form 305, Implementation Report
Subsequent to Certificate of Need Approval, effective September 2015.
(c)
Implementation reports shall be filed according to the schedule below:
(1) Reports shall be filed semi-annually during
the development stage of the project until commencement pursuant to He-Hea
301.12;
(2) Once a project has commenced, an initial
report shall be filed within 30 days of such commencement; and
(3) Implementation reports shall be filed
annually until the project is completed pursuant to RSA 151-C:12, IV.
(d)
Applicants shall provide a response to all items in the report. Actual costs, not projections, shall be
reported. Any item not applicable shall
be so noted as not applicable.
(e)
An implementation report shall be considered to be filed if it is sent
to the office of health services planning and review, department of health and
human services and has been signed and dated by the chief executive officer of
the facility in accordance with the requirements of He-Hea 206.01(b).
Source. #7139, eff 11-23-99; EXPIRED: 11-23-07
New. #9075-B, eff 1-24-08; rpld by #11081-B, eff
4-23-16
CHAPTER He-Hea 400 -
RESERVED
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93, EXPIRED: 3-10-99
New. #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
CHAPTER
He-Hea 500 - RESERVED
Source. #4091(E), eff 7-18-86; ss by #4135, eff
9-29-86, EXPIRED: 9-29-92
New. #5593, eff 3-10-93; amd by #6122, eff
11-23-95; ss by #6976, INTERIM, eff 4-15-99, EXPIRED: 8-13-99
APPENDIX I
RULE |
STATUTE |
|
|
He-Hea 101 |
RSA 151-C:1 |
He-Hea 102 |
RSA 151-C:2 |
He-Hea 103 |
RSA 151-C:3 |
He-Hea 104.01 |
RSA 151-C:3 |
He-Hea 104.02 He-Hea 104.03 |
RSA 91-A:2, II and RSA 91-A:3, III |
He-Hea 105 |
RSA 151-C:3 |
|
|
He-Hea 201.01 |
RSA 151-C:2, RSA 151-C:3, RSA 151-C:5,
II, RSA 151-C:8, RSA 151-C:13, III |
He-Hea
201.01(w), (ae), (bh) |
RSA
151-C:2 |
He-Hea 202.01 He-Hea 202.03 |
RSA 151-C:3, IV |
He-Hea 203.01 He-Hea 203.03 |
RSA 151-C:3, IV-a, RSA 151-C:8, VI (b)
and (c) |
He-Hea 204.01 He-Hea 204.03 |
RSA 541-A:32 RSA 541-A:36, RSA
151-C:8, X and XI |
He-Hea 205.01 He-Hea 205.03 |
RSA 151-C:8 |
He-Hea 206.01 He-Hea 206.02 |
RSA 541-A:33 RSA 541-A:34 |
He-Hea 207.01 He-Hea 207.02 |
RSA 541-A:33 RSA 541-A:34 |
He-Hea 208.01 He-Hea 208.06 |
RSA 541-A:30-a RSA 541-A:36, RSA
151-C:8, X and XI |
He-Hea 208.07 |
RSA 541-A:16, I(b)(2), RSA 151-C:11, I, RSA
151-C:8, X |
He-Hea 208.08 He-Hea 208.15 |
RSA 541-A:30-a RSA 541-A:36, RSA
151-C:8, X and XI |
He-Hea 209.01 He-Hea 209.02 |
RSA 541-A:30-a RSA 541-A:36, RSA
151-C:8, X and XI |
He-Hea 210.01 |
RSA 151-C:9, III and IV |
He-Hea 211.01 |
RSA 151-C:10, RSA 541 |
He-Hea 212.01 He-Hea 212.03 |
RSA 151-C:12, VI, RSA 151-C:14, RSA
541-A:33 RSA 541-A:34 |
He-Hea 212.04 |
RSA 151-C:12, VI, RSA 151-C:14, RSA
541-A:33 RSA 541-A:34 |
He-Hea 213.01 |
RSA 541-A:30-a RSA 541-A:36, RSA
151-C:14 |
He-Hea 214.01 He-Hea 214.04 |
RSA 151-C:9, RSA 541-A:35 |
He-Hea 215.01 |
RSA 151-C:12,
VI, RSA 151-C:14, I |
He-Hea 216.01 He-Hea 216.05 |
RSA 151-C:15 |
He-Hea 217.01 He-Hea 217.04 |
RSA 151-C:5, RSA 151-C:6, RSA 151-C:11,
RSA 541-A:3 |
He-Hea 218.01 |
RSA 541-A:33 RSA 541-A:34 |
|
|
He-Hea 301.01 |
RSA 151-C:5, II (a), (d), (f); RSA
151-C:13, I |
He-Hea 301.02 He-Hea 301.11 |
RSA 151-C:4, III,
RSA 151-C:5, RSA 151-C:8 |
He-Hea 301.12 |
RSA 151-C:12, I, RSA 151-C:12, III |
He-Hea 301.13 He-Hea 301.14 |
RSA 151-C:12, IV-a |
He-Hea 301.14 |
RSA 151-C:5, II (a) and (f) |
He-Hea 301.15 |
RSA 151-C:5, II (a) and (f) |
He-Hea 302.01 He-Hea 302.07 |
RSA 151-C:13,
III, RSA 151-C:9, I |
He-Hea 303.01 |
RSA 151-C:7 |
He-Hea 303.02 |
RSA 151-C:5;
RSA 151-C:7, I-V |
He-Hea 303.03 |
RSA 151-C:7, I-V |
He-Hea
303.04 |
RSA
151-C:7, III |
He-Hea 303.05 |
RSA 151-C:7, IV |
He-Hea 303.06 |
RSA 151-C:7, I , II, V |
He-Hea 303.07 He-Hea 303.08 |
RSA 151-C:7 |
He-Hea 303.09 |
RSA 151-C:7,
I-V; RSA 151-C:9, II |
He-Hea
303.09 intro., (d) |
RSA
151-C:9, II |
He-Hea 305.01 |
RSA 151-C:12, V |
APPENDIX II: Incorporation by Reference Information
Rule |
Title |
Obtain at: |
He-Hea 301.15(b) |
Means Construction
Cost Indexes, 2014 edition |
R. S. Means Company,
Inc. (781) 422-5000 or
(800) 334-3509 Cost for the 2014
edition of the manual is $93.50. |
He-Hea 303.06(a)(4)a.
MVS, 2015, section 1, pages 4 through 11. |
Marshall Valuation
Service, 2015 edition |
Marshall &
Swift/Boeckh, LLC 34th Floor Telephone (800)
544-2678. Cost for the 2015
edition of the manual is $599.95. |