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

29 Hazen Drive

Concord, New Hampshire 03301-6527

 

(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 board’s 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 board’s 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)  New Hampshire Health Maintenance Organization Association;

 

(2)  Business and Industry Association of N.H.;

 

(3)  Any organization of New Hampshire licensed health insurance companies that registers with the board;

 

(4)  New Hampshire Association of Counties;

 

(5)  N.H. Coalition For Handicapped Citizens;

 

(6)  New Hampshire Health Care Association;

 

(7)  New Hampshire Home Care Association of N.H.;

 

(8)  New Hampshire Hospital Association;

 

(9)  New Hampshire Legal Assistance;

 

(10)  New Hampshire Medical Society;

 

(11)  New Hampshire Municipal Association;

 

(12)  New Hampshire Ambulatory Surgery Association;

 

(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 entity’s 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, entity’s officers, directors or trustees that are entitled to nominate, appoint or elect the majority of another entity’s 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 board’s 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 signer’s 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 board’s 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 party’s 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 petitioner’s 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 officer’s 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 New Hampshire shall also apply to proceedings under this chapter.

 

          (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 United States, of this state or of another state, or by a nationally recognized organization or association.

 

          (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 board’s 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 board’s 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 board’s 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 board’s 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 board’s 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 board’s 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 board’s 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 board’s 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 year’s 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 board’s 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 board’s 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 board’s 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 marshall or other lawful authority with similar jurisdiction of the subject matter; or

 

          (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 project’s 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 ADA in terms of;

 

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