An Act To Amend the Maine Certificate of Need Act of2002
Maine Legislature, Session 124, LD 1395
Sponsors: MILLER, PERRY, MARRACHE
Amends: 22 MRSA §328, 22 MRSA §329, 22 MRSA §333, 22 MRSA §334-A, 22 MRSA §335, 22 MRSA §337, 22 MRSA §350, 22 MRSA §350-A

MAINE STATE LEGISLATURE 
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124th MAl E LEGISLATURE 
Legislative Document 
No. 1395 
H.P.974 
of Representatives, April 2, 2009 
An Act To Amend the Maine Certificate of Need Act of2002 
(EMERGENCY) 
Submitted by the Department of Health and Human Services pursuant to Joint Rule 204. 
Reference to the Corllmittee on Health and Human Services suggested and ordered printed. 
Presented by Representative MILLER of Somerville. 
nl~d: 
/h.17l!l£~b~ui 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representative: PERRY of Calais, Senator: MARRACHE ofIZennebec. 
Printt!d tln I t:(~ deli pap~r 
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Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective uiltil 90 days after adjournment unless enacted as emergencies; and 
Whereas, the Maine Cel1ificate of Need Act of 2002 is an impol1ant tool in the 
planning and development of affordable health care services in the State; and 
Whereas, this legislation is necessary to ensure the availability of an orderly and 
efficient cel1ificate of need procedure that supp0\1s effective health planning; and 
Whereas, this legislation is necessary immediately to advance the development of 
health care services in the State; 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 §328, sub-§8, !ljfC, as enacted by PL 2003, c. 469, Pt. C, §3, is 
amended to read: 
C. 
Waiting areas for ambulatory surgical facility patients; afI-fI. 
Sec. 2. 22 MRSA §328, sub-§8, ~C-l is enacted to read: 
. C-l. Any space with major medical equipment; and 
Sec. 3. 22 MRSA §328, sub-§14, as enacted by PL 2001, c. 664, §2, is amended 
to read: 
14. Hospital. "Hospital" means an institution that primarily provides to inpatients, 
by or under the supervision of physicians, diagnostic services and therapeutic services for 
medical diagnosis, treatment'and care of injured, disabled or sick persons or rehabilitation 
services for the rehabilitation of injured, disabled or sick persons. 
"Hospital" also 
includes psychiatric and tuberculosis hospitals and medical office buildings owned or 
subsidized by a hospital or a hospital's parent company. 
Sec. 4. 22MRSA §328, sub-§16, as amended by PL 2007, c. 681, § 1, is further 
amended to read: 
16. Major medical equipment. "Major medical equipment" means a single unit of 
. medical equipment or a single system of components with related functions used to 
provide medical and other health services that costs $1 ,200,000 or more. "Major medical 
equipment" does not include medical equipment acquired by or on behalf of a clinical 
laboratory to provide clinical laboratory services if the clinical laboratory is independent 
of a physician's office and a hospital and has been determined to meet the requirements of 
the United States Social Security Act, Title XVIII, Section 1861(s), paragraphs 10 and 
11. In determining whether medical equipment costs more than the threshold provided in 
this subsection, the cost of studies, surveys, designs, plans, working drawings, 
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specifications and other activities essential to acquiring the equipment must be included. 
If the equipment is acquired for less than fair market value, the term "cost" includes the 
fair market value. Beginning September 30, 2004 and annually thereafter through 2007, 
the threshold amount for revie',',' must be updated by the commissioner to reflect the 
change in the Consumer Price Index medical index. Beginning January 1,2009 and 
annually thereafter, the threshold amount for revie',',' must be. updated by the 
commissioner to reflect the change in the Consumer Price Index medical index, '>'Iith an 
effective date of Januarv 1 st each veal'. 
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Sec. 5. 22 MRSA §328, sub-§17-A, cue, as amended by PL 2007, c. 681, §2, is 
further amended to read: 
C . .The addition in the private office of a health care practitioner, as defined 'in Title 
24, section 2502, subsection I-A, of new technology that costs $1,200,000 or more. 
The department shall consult with the Maine Quality, Forum Advisory Council 
established pursuant to Title 24-A, section 6952, prior to determining whether a 
project qualifies as a new technology in the office of a private practitioner. 
Beginning September 30, 2004 and annually thereafter through 2007, the threshold 
amount for revie\;,' must be updated by the commissioner to reflect the change in the 
Consumer Price Index medical index. 
Beginning January 1, 2009 and annually 
thereafter, the threshold amount for revie'"" mu?t be updated by the commissioner to 
reflect the change in the Consumer Price Index medical inde", with an effective date 
of January 1 st each year. 
With regard to the private office of a health care 
practitioner, "new health service" does not include the location of a new practitioner 
in a geographic area. 
Sec. 6. 22 MRSA §328, sub-:§26, as enacted by PL 2001, c. 664, §2, is repealed. 
Sec. 7. 22 MRS A §329, sub-§2-A, CUB, ,as enacted by PL 2007, c. 440, §3, is 
repealed and the following enacted in its place: 
B. The use of major medical equipment on a temporary basis in the case of a natural 
disaster, major accident or major medical equipment failure does not require a 
certificate of need. 
Sec. 8. 22 MRSA §329, sub-§3, as amended by PL 2007, c. 681, §3, is further 
amended to read: 
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3. Capital expenditures. Except as provided in subsection 6, the obligation by or 
,on behalf of a health care facility.of any capital expenditure of $2,400,000 $2,000,000 or 
more. Capital expenditures in the case of a natural disaster, major accident or equipment 
failure for replacement equipment or for parking lots and garages, information and 
communications systems ana or physician office space owned and operated by a 
physician or physician'S group do not require a certificate ofneed. Beginning September 
30, 2004 and annually thereafter through 2007, the threshold amount for revie'"" must be 
updated by the commissioner to reflect the change in the Consumer Price Index medical 
index. 
Beginning January I, 2009 and annually thereafter, the threshold amollnt fur 
. review mllst be updated by the commissioner to reflect the change in the Consumer Price 
Index medical indeJL 'Nith an effective date ofJanuarv I st each veal'; 
Pag\! 2 - 124LR0545(OI)-I. 
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Sec. 9. 22 MRSA §333, sub-§4, as enacted by PL 2001, c. 664, §2, is amended to 
read: 
4. Rulemaking. Rules adopted pursuant to this section are major substantive routine 
technical rules as defined by Title 5, chapter 375, subchapter lI-A 2-A. 
Sec. 10. 22 MRS A §334-A, sub-§3, ~A, as enacted by PL 2007, c. 440,§ 13, is 
amended to read: 
A. Allow gross square footage per licensed bed of not less than 500 squa\:e feet 
unless the applicant specifies a smaller allowance for the project; anti 
Sec. 11. 22 MRSA §334-A, sub-§3, GffB, as enacted by PL 2007, c. 440, § 13, is 
amended to read: 
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B. 
Exclude the projected incremental cost associated with replacement of 
equipmenh; and 
Sec. 12. 22 ~SA §334-A, sub-§3, ~C is enacted to read: 
C. Exclude the .incremental cost of energy-efficient improvements as defined in the 
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rules governing MaineCare reimbursement for nursing facilities. 
Sec. 13. 22 MRSA §334-A, sub-§4 is enacted to read: 
4. Cost associated with energy-efficient improvements. The cost associated with 
energy-efficient improvements in nursing facilities, as set forth in rules governing special 
reimbursement provisions for energy-efficient improvements adopted by the department, 
must be included in the cost of a project in determining whether the project is subject to 
review. 
Sec. 14. 22 MRSA §335, sub-§6, as amended by PL 2007, c. 440, § 19, is further 
amended to read: 
6. Maintenance of the record. The record created purs_uant to su~section 5-A first 
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opens on the day the department receives a letter of intent certificate of need application. 
From that day, all of the record is a public record, 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 department must receive public comments and additional information from the 
applicant for a period ono days after the public infonnational meeting held under section 
337, subsection 5, or the public hearing held under section 339, subsection 2, whichever 
is later. The record will then close until public notice that the preliminary staff analysis 
has been made part of the record. 
The record will re~pen for 10 business days following the publication that the preliminary 
staff review is complete and will close 10 business 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 
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published until after the preliminary staff analysis of the application is made part of the 
record. 
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The department may also determine to reopen the rec.ord in other circumstances that it 
determines to be appropriate for a limited time to permit submission of additional 
information, as long as the department gives public notice consistent with the provisions 
of this subsection. 
Sec. 15. 22 MRSA §337, sub-§2, ~, as enacted byPL 2001, c. 664, §2, IS 
amended to read: 
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B. 
Within 30 days of filing the letter of intent, the applicant shall meet schedule a 
meeting with the depaJ1ment staff in order to assist the department in understanding 
the application and to receive technical assistance concerning the nature, extent and 
format of the documentary evidence, statistical data and financial data required for 
the. department to evaluate the proposal. 
The department may' not accept an 
application for review until the applicant has satisfied this technical assistance 
requirement. 
Sec. 16. 22 MRS A §337, sub-§5, as enacted by PL 2001, c. 664, §2, is amended 
to read: 
5. Public notice; public informational meeting. Within.§. lQ business days of the 
filing of a certificate by an applicant that a complete certificate of need application is on 
file with the department, public notice that the application has been filed and that a public 
informational meeting must be held regarding the application must be given by 
publication in a newspaper of general circulation in Kennebec County and in a newspaper 
publislled within the service area in which the proposed expenditure will occur. The 
notice must also be provided to all persons who have requested notification by means of 
asking that their names be placed on a mailing list maintained by the department for this 
purpose. This notice must include: . 
A. 
A briefdescription of the proposed expenditure or other action; 
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B. 
A description of the review process and schedule; . 
C. 
A statement that any person may examine the application,submit comments in 
writing to the department regarding the application and .examine the entire record 
assembled by the department at any time from the date of publication of the notice 
until the application process is closed for comment; and 
D. 
The time and location of the public informational meeting and a statement that 
any person may appear at the meeting to question .the applicant regarding the project 
or the department regarding the conditions that the applicant must satisfy in order to 
receive a certificate of need for the project. 
The department shall make an electronic or stenographic record of the public 
informational nieeting. 
A public informational' meeting is not required for the simplified review and approval 
process in section 336. 
Sec. 17. 22 MRSA§339, sub-§2, ~ 
is enacted to read: 
D. A public hearing is not required for the simplified review and approval process 
set forth in section 336. 
Sec. 18. 22 MRSA §350, as enacted by PL 2001, c. 664, §2, is repealed and the 
following enacted in its place: 
§350. Penalty 
L Violation. An individual, partnership, association, organization, corporation or 
trustthat violates any provision of this chapter or any rate, rule or regulation pursuant to 
this chapter is subject t6 a civil fine payable to the State of not more than $50,000. The 
department may hold these funds in a special revenue account that may be used only to 
suppOli certificate of need reviews, such as for hiring expert analysts on a short,.term 
consulting basis. 
2. Appeal. To appeal the imposition of a fine under this section, the individual, 
partnership, association, organization, corporation or trust shall submit to the depaliment 
'a written request for an administrative hearing within 10 days of notice of imposition of a 
fine pursuant to this section. 
Sec. 19. 22 MRSA §350-A, as <l;mended by PL 2007, c. 681, §7; is. repealed. 
Sec. 20. 22MRSA §1844, sub-§2, ~ 
is enacted to read: 
E. Notwithstanding any other provision of this chapter, applicants seeking both a 
certificate of public advantage under this section and a certificate of need under 
chapter 103-A shall submit a department-approved combined application format, and 
the certificate of need timelines in chapter 103-A and rules adopted pursuant to that 
chapter apply to this combined application. Afterreview of the combined application 
and based on the relevant statutes and rules, the commissioner shall render a decision 
on the application for a certificate of public advantage and a separate decision on the 
application for a certificate of need. Rules adopted pursuant to this subsection are 
routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. 
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Sec. 21. 
Appli~ation. Notwithstanding the limitations of the capital investment 
fund established pursuant to the Maine Revised Statutes, Title 2, section 102, the 
approval of certificates of ne,ed for those projects or activities that require a certificate of 
need as a result of the changes enacted in this Act are not subject to the limitations 
. established under the capital investment fund until the 'certificate of need review cycle 
that begins January 1,2013. 
Sec. 22. Cost associated with. .energy-efficient improvements. For purposes 
of the Maine Revised Statutes, Title 9-B, section 334-A, subsection 4, the rules governing 
special reimbursement provisions for energy-efficient improvements are set fOlih in the 
Department of Health and Human Services MaineCare Benefits Manual, Chapter III, 
Section 67, subsection 44.2.4. 
Emergency clause. 
In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
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SUMMARY 
This bill clarifies that a portion of an ambulatory surgical facility functioning as the 
office of a health care practitioner that contains major medical equipment is considered to 
be a health care facility. 
This bill adds medical office buildings owned or subsidized by a hospital or a . 
hospital's parent company to the definition of "hospital" and deletes the definition of 
"replacement equipment." 
This bill eliminates indexing and changes the capital expenditure threshold from 
$2,400,000 to $2,000,000. 
This bill eliminates the exemption of replacement equipment from the certificate of 
need requirements. 
This bill changes the category of rules adopted for procedures after voluntary nursing 
facility reductions from major substantive to routine technical rules. 
This bill exempts energy-efficient improvements in nursing facilities from MaineCare 
neutrality calculations. This bill includes the cost of energy-efficient improvements in 
nursing facilities in the overall improvement cost when determining whether the 
thresholds are triggered. 
This bill states that the certificate of need record opens on the day the Department of 
He.alth and Human Services receives a certificate of need application instead of the day 
the department receives a letter of intent. 
This bill requires the certificate of need applicant to schedule a meeting within 30 
days of filing a letter of intent, instead of requiring the meeting to occur within 30 days. 
The department is required to give public notice that there will be a public informational 
meeting within 10 business days, instead of 5, of receipt of an applicant's certificate that 
. the complete certificate of need application is on file with the department. 
This bill eliminates the requirement for a public informational meeting and a public 
hearing for simplified reviews. 
This bill authorizes the department to collect fines without a civil court action and 
gives the recipient of the notice of imposition of a fine an opportunity to request an 
administrative hearing on the matter. This bill increases the civil fine from a maximum 
of $5,000 to not more than $50,000. 
This bill removes redundancies and aligns the procedural timelines when applicants 
seek both a certificate of public advantage and a certificate or need. 
This bill specifies that activity newly subject to certificate of need as a result of this 
Act is not subject to the capital investment fund until the certificate of need review cycle 
beginning January 1,2013.