An Act To Amend the Maine Certificate of Need Act of 2002
Maine Legislature, Session 123, LD 1763
Committee: Health and Human Services
Sponsors: MILLER
Amends: 22 MRSA §329, 22 MRSA §332, 22 MRSA §335, 22 MRSA §348, 22 MRSA §350-A

Legislative Document 
No. 1763 
H.P. 1229 
House of Representati ves, March 27, 2007 
An Act To Amend the Maine Certificate of Need Act of 2002 
(EMERGENCY) 
Submitted by the Department of Health and Human Services pursuant to Joint Rule 204. 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
Presented by Representative MILLER of Somerville. 
Printed on recyded paper 
'IJ1~ 117· 7I!4C~ 
MILLICENT M. MacFARLAND 
Clerk 
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective unti190 days after adjournment unless enacted as emergencies; and 
Whereas, the Maine Certificate of Need Act of 2002 is an important tool in the 
planning and development of affordable health care services in the State; and 
Whereas, the changes proposed in this legislation are necessary immediately for the 
enhancement of strength and clarity of the Maine Certificate of Need Act of 2002; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRSA §329, sub-§2, as amended by PL 2003, c. 469, Pt. C, §7, is 
repealed and the following enacted in its place: 
2. 
Acquisitions of major medical equipment. Acquisitions of major medical 
equipment. 
A. Equipment being replaced by the owner of that equipment does not require a 
certificate of need if a certificate was obtained by the owner for the equipment that is 
being replaced. 
B. 
Equipment being replaced by the owner of that equipment does require a 
certificate of need if a certificate was not obtained by the owner for the equipment 
that is being replaced. 
C. When equipment or services have been provided under contract by or on behalf of 
a health care facility, that facility must obtain a certificate in order to acquire 
equipment to provide that service. 
D. The use of major medical equipment on a temporary basis in the case of a natural 
disaster, major accident or equipment failure does not require a certificate of need. 
Beginning September 30, 2004 and annually, after that date, the threshold amount for 
review must be updated by the commissioner to reflect the change in the Consumer Price 
Index medical index; 
Sec. 2. 22 MRSA §329, sub-§4-A is enacted to read: 
4-A. 
New health care facility. 
The construction, development or other 
establishment of a new health care facility; 
Sec. 3. 22 MRSA §329, sub-§5, as enacted by PL 2001, c. 664, §2, is amended to 
read: 
5. 
Changes in bed complement. 
An increase in the eXlstmg licensed bed 
complement or an increase in the licensed bed category of a health care facility, other 
than a nursing facility, of greater than 10%. If a change of 10% or less results in a capital 
expenditure or 3rd fiscal year operating costs in excess of the applicable finan~ial 
threshold that otherwise requires review or establishes a new health service that otherwise 
requires review, a certificate of need is required; 
Sec. 4. 22 MRSA §329, sub-§7, ~, as enacted by PL 2001, c. 664, §2, IS 
amended to read: 
B. 
If a person adds a health service not subject to review under subsection 4; 
paragraph A and not subject to re'Aev.' under subsection 4, paragraph B at the time it 
was established and not reviewed and approved prior to establishment at the request 
of the applicant, and its actual 3rd fiscal year operating cost exceeds the expenditure 
minimum for annual operating costs in the 3rd fiscal year of operation following 
addition of these services; and 
Sec. 5. 22 MRSA §329, sub-§8, as enacted by PL 2001, c. 664, §2, is amended to 
read: 
8. Related projects. Any projects expenditures that the department determines are 
related projects if such the projects, considered in the aggregate, would otherwise require 
a certificate of need under this section. 
Sec. 6. 22 MRSA §332, as amended by PL 2001, c. 710, §9 and affected by §1O, 
is repealed and the following enacted in its place: 
§332. Subsequent review 
1. Subsequent review following approval. When the commissioner approves an 
application unconditionally or subject to conditions pursuant to section 335, subsection 8, 
the commissioner may conduct a review to ensure compliance with any terms or 
conditions of the approval within 3 years after the approved activity is undertaken. In this 
review, the commissioner may hold a public hearing and may consider any significant 
changes in factors or circumstances relied upon by the commissioner in approving the 
application and significant and relevant information that either is new or was withheld by 
the applicant at the time of the process under section 335. 
If, upon review, the 
commissioner determines that any terms or conditions of the approval have not been met, 
the commissioner may take enforcement action consistent with this Act. 
This subsection applies to applications filed or approved on or after January 1, 1999. 
2. Subsequent review following determination of nonapplicability. When the 
department determines that a certificate of need is not required for an expenditure or 
action, the department may conduct a review of its determination within 3 years after the 
~enditure or action is undertaken. The proponent of the expenditure or action shall 
provide records and other information determined necessary by the department to 
yomplete this review. If, upon review, the department determines that a certificate of 
need was required for the expenditure or action, it may take action consistent with this 
Act. 
Sec. 7. 22 MRS A §335, sub-§2, as enacted by PL 2001, c. 664, §2, is amended to 
read: 
2. Communications. Except as otherwise provided in this Act, only a person who is 
a full-time employee of the department with responsibilities for the certificate of need 
program, a consultant to the project or a policy expert pursuant to section ~ 
may 
communicate with the commissioner regarding any application for a certificate of need or 
any letter of intent. Nothing in this section limits the authority or obligation of the staff 
of the department with responsibility for the certificate of need program to meet with, or 
otherwise communicate with, any person who is not a department employee and who 
wants to provide information to be considered in connection with an application for a 
certificate of need. 
Sec. 8. 22 MRS A §335, sub-§3, as enacted by PL 2001, c. 664, §2, is amended to 
read: 
3. Limited communications. A Except as otherwise provided in this chapter, a 
person who is not a department employee may not communicate with any department 
staff regarding the merits of a certificate of need application except for the purpose of 
placing that person's views in the application record. 
All communications with 
department staff responsible for the certificate of need program from any person who is 
not a department employee that the department staff reasonably believes is intended to 
influence the analyses relating to or the decision regarding aay an application for 
certificate of need must be noted by that department staff and that notation must be made 
part of the application record. 
Sec. 9. 22 MRSA §335, sub-§5, as amended by PL 2003, c. 469, Pt. C, §10, is 
further amended to read: 
5. Record. The record created by the department in the course of its review of an 
application must contain the following: 
A. 
The application and all other materials submitted by the applicant for the 
purpose of making those documents part of the record; 
B. 
All information generated by or for the department in the course of gathering 
material to assist the commissioner in determining whether the conditions for 
granting an application for a certificate of need have or have not been met. This 
information may include, without limitation, the report of consultants, including 
reports by panels of experts assembled by the department to advise it on the 
application, memoranda of meetings or conversations with any person interested in 
commenting on the application, letters, memoranda and documents from other 
interested agencies of State Government and memoranda describing officially noticed 
facts; 
C. 
Stenographic or electronic recordings of any public hearing held by the 
commissioner or the staff of the department at the direction of the commissioner 
regarding the application; 
D. 
Stenographic or electronic recording of any public informational meeting held 
by the department pursuant to section 337, subsection 5; 
E. 
Any documents submitted by any person for the purpose of making those 
documents part of the record regarding any application for a certificate of need or for 
the purpose of influencing the outcome of any analyses or decisions regarding an 
application for certificate of need, except documents that have been submitted 
anonymously. Such source-identified documents automatically become part of the 
record upon receipt by the department; 
F. 
Preliminary and final analyses of the record prepared by the staff; aOO 
G. 
Written assessments A written assessment by the Director of the Bureau of 
Health and the Superintendent of Insurance assessing Maine Center for Disease 
Control and Prevention of the impact of the application on the health care system or 
cost of health insurance in the State of Maine citizens. 
This assessment is not 
required for projects related to nursing facility services; and 
H. A written assessment by the Superintendent of Insurance of the impact of the 
project on the cost of health insurance in the region and the State. 
The Superintendent of Insurance may request additional information from the applicant 
for the purpose of reviewing an application; any such request must be transmitted through 
the department and becomes part of the official record. The applicant shall respond to the 
request within 30 days; any such response must be transmitted through the department 
and becomes part of the official record. The inability of the superintendent to complete 
the superintendent's review of the application due to the failure of the applicant to 
respond timely must be noted in the superintendent's assessment filed with the department 
and may be cause for the commissioner to delay consideration of the application until the 
next review cycle or to deny approval of the project. 
Paragraph H does not apply to nursing facility projects. 
Sec. 10. 22 MRSA §335, sub-§6, as enacted by PL 2001, c. 664, §2, is amended 
to read: 
6. Maintenance of the record. The record created pursuant to subsection 5 first 
opens on the day the department publishes its notice that an application for a certificate of 
need has been filed. 
From that day, all of the record is a public record After an 
application is certified as complete, all of the record is a public record under Title 1, 
chapter 13, and any ~ person may examine that record and purchase copies of any or all 
of that record during the normal business hours of the department. 
The record is closed 10 days after a public notice of the closing of the record has been 
published in a newspaper of general circulation in Kennebec County, in a newspaper 
published within the service area of the project and on the department's publicly 
accessible site on the Internet, as long as the notice is not published until after the 
preliminary staff analysis of the application is made part of the record. 
Sec. 11. 22 MRS A §339, sub-§6, as enacted by PL 2001, c. 664, §2, is amended 
to read: 
6. Public necessity. +he Notwithstanding the provisions set forth in subsection 5, 
the department may delay action on an otherwise complete application for t!p-te an 
additional 180 days from the time the application has been certified as complete by the 
applicant if the department finds that a public necessity exists. The department shall 
provide written notice of the delay to the applicant and any other person who has 
requested in writing information regarding the application. 
For purposes of this 
subsection, the department shall find that a public necessity exists if: 
A. 
The application represents a new service or technology not previously provided 
within the State; 
B. 
The application represents a potential significant impact on health care system 
costs; 
C. 
The application represents a new service or technology for which a health care 
system need has not been previously established; or 
D. 
There are several applications for the same or similar projects before the 
department. 
Sec. 12. 22 MRSA §348, as enacted by PL 2001, c. 664, §2 and corrected by RR 
2001, c. 2, Pt. A, §29, is amended to read: 
§348. Withholding of funds 
A health care facility or other provider may be eligible to apply for or receive tm;' 
reimbursement, payment or other financial assistance from tm;' ~ state agency or other 
3rd-party payor, either directly or indirectly, for tm;' ~ capital expenditure or operating 
costs attributable to any project for which a certificate of need is required by this chapter 
only if the certificate of need has been obtained. Reimbursement, payment or other 
financial assistance, either directly or indirectly, from a state agency or other 3rd-party 
payor may not be made for a project granted a certificate of need when the commissioner 
determines that the applicant fails to meet any of the conditions set forth in the certificate 
of need approval, in accordance with the procedures set forth in section 332. For the 
purposes of this section, the department shall determine the eligibility of a facility to 
receive reimbursement for all projects subject to the provisions of this chapter. 
Sec. 13. 22 MRSA §350-A, as reallocated by RR 2001, c. 2, Pt. A, §30, IS 
1 
amended to read: 
§350-A. Cost-of-Iiving adjustment 
Every 2 years, beginning January 1, 2005, the department shall review the monetary 
figures contained in this chapter. The department shall reyise those publish revised 
figures to correspond to changes in the Consumer Price Index medical index by adopting 
rules setting the neVi figHres. 
Emergency clause. 
In view of the emergency cited 10 the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill makes the following changes to the Maine Certificate of Need Act of 2002. 
1. Current law exempts from review replacement of major medical equipment. This 
bill requires review when a certificate of need had not been obtained for the equipment 
that is being replaced. 
2. It requires review of an increase in bed complement or bed category of less than 
10% if it results in 3rd fiscal year operating costs or capital expenditures in excess of 
applicable thresholds or results in the addition of a new health service. 
3. It allows the aggregation of capital expenditures in determining whether projects 
are related. 
4. 
It improves the ability of the Department of Health and Human Services to 
monitor the implementation of projects that were determined not subject to review. 
l3 
5. It requires that communication between applicants and the Bureau of Insurance 
goes through the Department of Health and Human Services and becomes part of the 
official record. 
6. It exempts both the Bureau of Insurance assessment of impact and the health 
assessment impact from the Maine Center for Disease Control and Prevention for nursing 
facility proj ects. 
7. It clarifies that prior to an application's being certified as complete, the record is 
not a pubic document. After it is certified as complete, it is governed by the freedom of 
access laws. 
8. It clarifies when additional time may be taken to complete a review. 
9. It prohibits any state agency or other 3rd-party payor from reimbursing a provider 
or making payments or providing other financial assistance to a provider who fails to 
meet the conditions established by the Commissioner of Health and Human Services. 
10. 
It allows the Department of Health and Human Services to publish revised 
thresholds using a specified index without having to adopt new rules.