Virginia Administrative Code › Title 12 - HEALTH › Agency 5 - DEPARTMENT OF HEALTH › Chapter 220 - VIRGINIA MEDICAL CARE FACILITIES CERTIFICATE OF PUBLIC NEED RULES AND REGULATIONS › Part VII - New Nursing Home Bed Review Process › Section 12VAC5-220-385 - Review of complete application

Current through Register Vol. 40, No. 24, July 15, 2024
A. Review cycle. The department shall provide
				  written notification to applicants specifying the acceptance date and review
				  schedule of completed applications, including the date for any informal
				  fact-finding conference that may be held between the eightieth and ninetieth
				  day of the review cycle. The regional health planning agency shall conduct no
				  more than two meetings, one of which must be a public hearing conducted by the
				  regional health planning agency board or a subcommittee of the board and
				  provide applicants with an opportunity, prior to the vote, to respond to any
				  comments made about the project by the regional health planning agency staff,
				  any information in a staff report, the comments of the local governing bodies
				  in the health planning district, all other public comments, or comments by
				  those voting in completing its review and recommendation by the sixtieth day of
				  the cycle. By the seventieth day of the review cycle, the department shall
				  complete its review and recommendation of an application and transmit the same
				  to the applicant or applicants and other appropriate persons. By the
				  seventy-fifth day of the review cycle, the department shall transmit to the
				  applicants and other appropriate persons, its determination whether an informal
				  fact-finding conference is necessary.
An informal fact-finding conference shall be held when (i)
					 determined necessary by the department or (ii) requested by any person seeking
					 to demonstrate good cause. Any person seeking to demonstrate good cause shall
					 file, no later than four days after the department has completed its review and
					 recommendation of an application and has transmitted the same to the applicants
					 and to persons who have prior to the issuance of the report requested a copy in
					 writing, written notification with the commissioner, applicant or applicants
					 and other competing applicants, and regional health planning agency stating the
					 grounds for good cause and providing the factual basis therefor under
					 oath.
For purposes of this section, "good cause" means that (i)
					 there is significant, relevant information not previously presented at and not
					 available at the time of the public hearing, (ii) there have been significant
					 changes in factors or circumstances relating to the application subsequent to
					 the public hearing, or (iii) there is a substantial material mistake of fact or
					 law in the department staff's report on the application or in the report
					 submitted by the regional health planning agency. (See § 32.1-102.6 of the
					 Code of Virginia.)
B. Time
				  period for review. The review period shall begin on the first day of the
				  applicable review cycle within which an application is determined to be
				  complete, in accordance with scheduled batch review cycles described in
				  12VAC5-220-200. If the application
				  is not determined to be complete for the applicable batch cycle within 40
				  calendar days from the date of submission, the application may be refiled in
				  the next applicable batch cycle.
If the regional health planning agency has not completed
					 its review by the sixtieth day of the review cycle, or such other period in
					 accordance with the applicant's request for extension, and submitted its
					 recommendation within ten calendar days after the completion of its review, the
					 department shall, on the eleventh day after expiration of the regional health
					 planning agency's review period, proceed as if the regional health planning
					 agency has recommended approval of the proposed project.
In any case in which an informal fact-finding conference
					 is not held, the project record shall be closed on the earlier of (i) the date
					 established for holding the informal fact-finding conference or (ii) the date
					 that the department determines that an informal fact-finding conference is not
					 necessary. See 12VAC5 220-230 A.
In any case in which an informal fact-finding conference
					 is held, a date shall be established for closing of the record which shall not
					 be more than 30 calendar days after the date for holding the informal
					 fact-finding conference.
C.
				  Determination by the commissioner. If a determination whether a public need
				  exists for a project is not made by the commissioner within 45 calendar days of
				  the closing of the record, the commissioner shall notify the applicant or
				  applicants and any person seeking to show good cause, in writing, that the
				  application or the applications of each shall be deemed approved 25 calendar
				  days after the expiration of such 45-calendar-day period, unless the receipt of
				  recommendations from the person performing the hearing officer functions
				  permits the commissioner to issue his case decision within that 25-calendar-day
				  period. The validity or timeliness of the aforementioned notice shall not, in
				  any event, prevent, delay or otherwise impact the effectiveness of this
				  section.
In any case when a determination whether a public need
					 exists for a project is not made by the commissioner within 70 calendar days
					 after closing of the record, the application shall be deemed approved and a
					 certificate shall be granted.
If a determination whether a public need for a project
					 exists is not made by the commissioner within 45 calendar days of the closing
					 of the record, any applicant who is competing in the relevant batch review
					 cycle or who has filed an application in response to the relevant Request for
					 Applications issued pursuant to
					 12VAC5-220-355 may, prior to the
					 application being deemed approved petition for immediate injunctive relief
					 pursuant to § 2.2-4030 of the Code of Virginia, naming as respondents the
					 commissioner and all parties to the case. During the pendency of proceeding, no
					 applications shall be deemed to be approved. In such a proceeding, the
					 provisions of § 2.2-4030 of the Code of Virginia shall apply.
Deemed approvals shall be construed as the commissioner's
					 case decision on the application pursuant to the Administrative Process Act
					 (§ 2.2-4000 et seq. of the Code of Virginia) and shall be subject to
					 judicial review on appeal as the commissioner's case decision in accordance
					 with such act.
Any person who has sought to participate in the
					 department's review of such deemed-to-be-approved application as a person
					 showing good cause who has not received a final determination from the
					 commissioner concerning such attempt to show good cause petition prior to the
					 date on which the application was approved, shall be deemed to be a person
					 showing good cause for purposes of appeal of a deemed-to-be-approved
					 certificate.
In any appeal of the commissioner's case decision granting
					 a certificate of public need pursuant to a Request for Applications issued
					 pursuant to § 32.1-102.3:2 of the Code of Virginia, the court may require
					 the appellant to file a bond pursuant to § 8.01-676.1 of the Code of
					 Virginia, in such sum as shall be fixed by the court for protection of all
					 parties interested in the case decision, conditioned on the payment of all
					 damages and costs incurred in consequence of such appeal.
The applicants, and only the applicants, shall have the
					 authority to extend any of the time periods for review of the application,
					 which are specified in
					 12VAC5-220-230. If all applicants
					 consent to extending any time period in this section, the commissioner, with
					 the concurrence of the applicants, shall establish a new schedule for the
					 remaining time periods.
D.
				  Regional health planning agency required notifications. Upon notification of
				  the acceptance date of a complete application as set forth in subsection A of
				  this section, the regional health planning agency shall provide written
				  notification of its review schedule to the applicant. The regional health
				  planning agency shall notify the local governing bodies in the planning
				  district, health care providers and specifically identifiable consumer groups
				  who may be affected by the proposed project directly by mail and shall also
				  give notice of the public hearing in a newspaper of general circulation in such
				  county or city wherein a project is proposed or a contiguous county or city at
				  least nine days prior to such public hearing. Such notification by the regional
				  health planning agency shall include:
(i) the
				  date and location of the public hearing which shall be conducted on the
				  application except as otherwise provided in this chapter, in the county or city
				  wherein a project is proposed or a contiguous county or city; and
(ii) the date, time and place the final
				  recommendation of the regional health planning agency shall be made. The
				  regional health planning agency shall maintain a verbatim record of the public
				  hearing that includes any comments of the local governing bodies of the health
				  planning district and all other public comments. A copy of the verbatim record
				  shall be provided to the department. Such public hearing record shall be
				  maintained for at least a one-year time period following the final decision on
				  a certificate of public need application. See definition of "public
				  hearing."