§ 22-21-275 — Procedures for Review of Applications for Certificates of Need

The SHPDA, pursuant to the provisions of Section 22-21-274, shall prescribe by rules and regulations the procedures for review of applications for certificates of need and for issuance of certificates of need. Rules and regulations governing review procedures shall include, but not necessarily be limited to, the following:
(1) Agreement with other review agencies for review procedures consistent with this article and federal regulations.
(2) Application procedures and forms of the application necessary to elicit and provide all necessary information as required by the review criteria.
(3) Establishment of a project review period of 90 days from the date the state agency determines that the application is complete and notification thereof is made to the applicant. The rules and regulations may provide for a period of not more than 15 days for determination of the completeness of the application, notification of the beginning and termination dates of the project review period and criteria for determining by the state agency of an extension of the project review period not to exceed 30 days with or without the consent of the applicant. An extension of the review period without limitation may be made with the written consent of the applicant or shall occur automatically without the consent of the applicant or the time period necessary to accommodate referral to an administrative law judge under this chapter and the issuance of a recommended order. All reviews must be completed prior to the termination of the review period. If the state agency does not make a decision within the period of time specified for state agency review, the proposal shall be deemed to have been found not to be needed.
(4) Provision for a “nonsubstantive” review which shall be a modified review applicable to proposals for capital expenditures up to $500,000.00 and which:
a. Do not result in a substantial change in a service; or
b. Propose equipment to upgrade or expand an existing service; or
c. Increase the bed capacity by not more than 10 percent of the existing bed capacity; provided, that such increase in bed capacity is consistent with the State Health Plan.
(5) Public notification of receipt of application, review periods, public hearings, decisions of the state agency, fair hearings if requested and final decisions regarding a certificate of need.
(6) Provisions and procedures for public hearings in the course of agency review on any application for the certificate of need for new institutional health service which requires substantive review. The SHPDA shall make provisions for a public hearing of any contested case before an administrative law judge designated by the Governor, which shall be conducted as a contested hearing pursuant to the requirements of the Alabama Administrative Procedure Act, Chapter 22 of Title 41, and regulations consistent therewith adopted under this article. The fee for the administrative law judge shall be based on an hourly rate approved by the Executive Director of SHPDA on an annual basis and shall be apportioned, on a pro rata basis, between all parties to the contested case hearing, with each party paying its pro rata amount within 30 days of receipt of an itemized invoice from the administrative law judge. Unless extended by agreement of all parties: a. Any public hearing before an administrative law judge pursuant to this article shall begin within 45 days of assignment to the administrative law judge and completed within 90 days; and b. The administrative law judge shall render proposed findings of fact and conclusions of law in accordance with the Administrative Procedure Act within 30 days of completion of the transcript. SHPDA shall make provisions that if neither the applicant nor aggrieved party shall have requested the application be heard before an administrative law judge, the application shall be heard before SHPDA at a public hearing. Any aggrieved party to a final decision of SHPDA may appeal the final decision of SHPDA to the Court of Civil Appeals. An appeal shall be perfected by filing a written notice of appeal with the clerk of the Court of Civil Appeals within 21 days after the decision of the agency becomes final. The notice of appeal shall be on a form prescribed by the Alabama Rules of Appellate Procedure. The Court of Civil Appeals shall have no discretion to refuse to hear appeals of the final decisions of SHPDA timely filed under this article. Within 30 days after a notice of appeal is filed, SHPDA shall transmit the administrative record to the clerk, with the appealing party bearing the costs associated with the preparation and transmission of the record and transcript of the hearing and of giving notice to the parties of the transmittal. Upon the transmittal of the administrative record to the Court of Civil Appeals, the appeal shall proceed in accordance with the Alabama Rules of Appellate Procedure.
(7) Schedule for reviews to include hearings before the state agency, beginning and ending of review periods and time of the review period as provided in this section.
(8) Provision of the applicant to submit such information that he may deem advisable in justification of the application over and above the minimum information required by this article and the regulations adopted hereunder.
(9) Provisions for periodic reports by the health provider or applicant respecting the development of the proposal subject to review and for which a certificate of need is issued.
(10) Provisions for written findings, as appropriate, which the state used as the basis for its decision or any recommendation of the state agency. Such findings and recommendations shall be provided to the applicant and available to other interested persons upon request and upon payment of a reasonable fee to cover actual costs of reproduction and handling.
(11) Notification upon request of providers of health services and other persons subject to review of findings, recommendations and decisions made under this article.
(12) Provision for a public hearing upon written request for the reconsideration of a decision by the SHPDA and for good cause by any aggrieved party, including any competing applicant, or any aggrieved person who has intervened pursuant to Section 41-22-14. Request for reconsideration shall be made in writing not more than 15 days subsequent to the date the agency (SHPDA) decision is deemed final and shall have the effect of holding in abeyance the final decision and suspending any certificate of need issued pursuant thereto, subject to the outcome of the public hearing. The provision shall state that there can be no reconsideration by the SHPDA of a decision on a prior request for reconsideration; that an aggrieved party shall not be required to request reconsideration prior to or as a condition to requesting a fair hearing; and that an aggrieved party shall not be required to request reconsideration or a fair hearing prior to or as a condition to seeking judicial review pursuant to Section 41-22-20.
(13) Provision that no decision of the SHPDA under this article shall be deemed final until 15 days following the date of the decision.
(14) Provisions that any adverse decision of the agency (SHPDA) (other than a SHPDA decision after first being heard as a contested case before an administrative law judge pursuant to the requirements of the Alabama Administrative Procedure Act) may be appealed to an administrative law judge designated by the Governor for fair hearing which appeal shall be heard de novo as a contested case in accordance with Sections 41-22-12 and 41-22-13. The fair hearing appeal proceedings shall be conducted pursuant to the requirements of the Alabama Administrative Procedure Act, Chapter 22 of Title 41, and regulations consistent therewith adopted under this article. The fee for the administrative law judge shall be based on a standard hourly rate approved by the Executive Director of SHPDA and shall be apportioned, on a pro rata basis, between all parties to the hearing, with each party paying its pro rata amount within 30 days of receipt of an itemized invoice from the administrative law judge. Unless extended by agreement of all parties: a. Any public hearing before an administrative law judge pursuant to this article shall begin within 45 days of assignment to the administrative law judge and completed within 90 days; and b. The administrative law judge shall issue an order within 30 days of completion of the transcript. The appeal shall be commenced by a request for a fair hearing by the applicant or any competing applicant, which request shall be made within 15 days of the date that the decision by the state agency became final, or in the event of a request for reconsideration, within 15 days of the date that the decision of the state agency on reconsideration became final and shall have the effect of holding in abeyance the decision and suspending any certificate of need issued pursuant thereto subject to the outcome of the fair hearing. The decision of the administrative law judge in the fair hearing proceedings shall be considered the final decision of the state agency (SHPDA); provided, that any aggrieved party may appeal the decision to the Court of Civil Appeals in accordance with the provisions of subdivision (6).
(15) Preparation and publication, at least annually, of reports by the state agency of the reviews being conducted, decisions reached, certificates issued and status of proposals.
(16) Access by the general public to applications reviewed by the SHPDA and to other written material pertinent to the review.
(17) Provisions for letters of intent in the case of construction projects by persons proposing such projects. Letters of intent shall be in such detail as the SHPDA may direct by regulations. Letters of intent shall not substitute for the formal application for a certificate of need as provided in this article.
(18) Provision that the review procedure may vary according to the purpose for which a particular review is being conducted and/or the nature and type of service or expenditure proposed.

Legislative History

(Acts 1977, 1st Ex. Sess., No. 82, p. 1509, §14; Acts 1979, No. 79-577, p. 1033, §4; Acts 1982, 2nd Ex. Sess., No. 82-770, p. 249, §13; Act 98-341, p. 597, §1; Act 2012-294, p. 620, §1.)