Certificate of Need (CON) Introduction

Like many other states, Delaware has an extensive CPR process in place for healthcare services and facilities. Winning approval for a CPR application is often a time-consuming and difficult undertaking. Working with RPC provides clients with a team of consultants with experience working to develop state applications for new health services.

When working on a CPR project, RPC can prepare the entire CPR application or sections of the application as the client prefers. When the client is defining the project and deciding whether to file an application, RPC can help assess the market and regulatory situation to determine the relative likelihood of success for a project. RPC not only works to create a thorough market, need and financial analysis, but also works seamlessly with the client’s staff, architects, engineers and other outside consultants to create a solid CPR application.

RPC is led by Ron Luke, JD, PhD, who has prepared applications for health care facilities and services and presented testimony in related hearings since 1981 in more than 20 states. RPC’s work on these projects includes the opening of new acute care hospitals, hospices, physical rehabilitation and psychiatric specialty hospitals, nursing homes, the relocation and addition of beds, and the acquisition of major medical equipment. Working with RPC during the CPR process gives the applicant the advantage of a skilled expert team that can provide expert advice and produce an effective CPR application.

Contents last updated on July 2024

State Agencies

Department Health and Social Services, Office of the Secretary, the Delaware Health Care Commission (HCC). The HCC provides administration and staffing for the Delaware Health Resources Board (HRB). HRB oversees the CPR process. The Governor appoints a chair, vice chair and 13 other members all of which are appointed by the Governor. Duties of the board include: Developing a Health Resources Management Plan, reviewing CPR applications, gathering and analyzing data, addressing specific health care issues as requested by the Governor, adopting bylaws for conducting its affairs, and rendering final decisions on CPR applications.

The Board is staffed by the Delaware Health Care Commission (HCC) within the Delaware Health Resources Board. The HCC Commission Director of Planning and Policy serves as its Chief Administrative Officer.

The Delaware Health Care Commission
Herman M. Holloway Sr. Health and Social Services Campus
1901 N. Dupont Highway Main Administration Building First Floor
New Castle, DE 19720
(302) 255-4750

Services that Require CPR

Delaware conducts the Certificate of Public Review Process to assure that there is a continuing public scrutiny of certain health care developments that could negatively affect the quality of health care or services to the medically indigent. Certain projects are exempt from review or entitled to expedited review. Projects requiring CPR include, but are not limited to, the following:

  1. The construction, development or other establishment of a health care facility or the acquisition of a nonprofit health care facility
  2. An expenditure by or on behalf of a health care facility in excess of $5,800,000 (this amount must be adjusted annually for inflation)
    • The Commission may exempt projects in excess of this amount if the expenditure is necessary for maintaining the physical structure of the facility and is not related to patient care.
  3. A change in bed capacity of a health care facility that increases the total number of beds (by distribution or relocation) by more than 10 beds or more than 10% of total licensed bed capacity, whichever is less, over a two-year period
  4. The acquisition of major medical equipment identified by the Board is subject to review

Certificate of Need Process Milestones

For a regular review, the applicant follows the process described below:

    1. Notice of Intent
      The notice is filed at least 30 days but no more than 180 days before the application. The notice of intent must include information on the scope and nature of the proposed project.
    2. Application Submission
      The applicant submits one original hard copy application via USPS, FedEx or UPS with an original signature, plus one electronic version on a CD to the Commission’s office.
    3. Completeness Review
      Upon receipt of an application, the Commission has up to 15 business days to notify the applicant as to whether the application is considered complete. If incomplete, the applicant will be advised of what additional information is required. When the additional information is received, the Commission again has a maximum of 15 business days to determine whether the application is complete.
    4. Applicant Filing Fees
      Within 5 business days of providing written notification of an application deemed complete, the HRB will notify the applicant of filing fee due. Filing fees shall be due 30 days after the date of notification.
    5. Notification
      Within five days of completeness approval, the Commission provides written notification to all health care facilities in the state and others who request notification that the review is beginning. The official start of the review period is the day notification is published in a newspaper of general circulation.
    6. Public Hearing
      Within 10 days of the notification date, any person may submit a written request for a public hearing. The Board schedules a time and place for the hearing and publishes that information in a newspaper at least 14 days before the hearing. Fees are not imposed for public hearings; any person may present testimony at the hearing.
    7. Agency Review and Findings
      The review of an application takes no longer than 90 days from the date of notification, however, this is extended to 120 days in the case of a public hearing, within 30 days from the date of notification (60 days if a public hearing is requested). The Board may extend the maximum review period up to 180 days from the date of notification.
    8. Administrative Reconsideration
      Any person may submit a written request for a reconsideration hearing on the Board’s decision within 10 days of the decision. The request must show good cause, which includes:

      1. Presents new, relevant information not previously available or considered by the HRB; and
      2. Demonstrates significant changes in circumstances relied upon the HRB; or
      3. Demonstrates material failure on the part of the Board in reaching its decision.

      The hearing, if granted, commences within 45 days of the request. Notice is sent at least 15 days before the hearing. Upon completion of the hearing, the Board had 45 days to issue a new decision.

    9. Appeal
      Within 30 days, an appeal may be made to the Superior Court for any of the following:

      1. A decision of the Board following review of a CPR application.
      2. A decision of the HRB following an administrative reconsideration hearing
      3. The denial of a request for extension of a CPR pursuant to 16 Del. C. § 9307.

      What criteria are used to review CPR?

      The Board reviews the proposal based on the following criteria.

        1. Relationship to the Health Resources Management Plan
        2. Need of the population for the proposed project
        3. Availability of less costly/ more effective alternatives
        4. Relationship to existing health care system
        5. Immediate and long-term viability in terms of the applicant’s access to financial, management, and other resources
        6. Anticipated effect on the costs and charges of health care
        7. Anticipated impact on the quality of healthcare

        The applicant should demonstrate the project’s financial viability, as well as how it will increase availability and access to care, and quality and efficiency of care.

        Charity Care

        Any entity subject to a CPR review shall perform and accept charity care to the extent required by the Board. A formal written charity care plan must be developed and filed with the Delaware HRB with the CPR application. Upon CPR approval, the applicant must submit an annual report to the HRB documenting the amount of charity care provided each fiscal year.

        Certificate of Need Application Filing Fee

        Filing fees are determined by the following schedule:

        Capital Expenditure Fee
        Less than $500,000 $100
        $500,000 to $999,999 $750
        $1,000,000 to $4,999,999 $3,000
        $5,000,000 to $9,999,999 $7,500
        $10,000,000 or more $10,000

        Additional Sources

        (Links good as of July 2024)

        Delaware Health Resources Board
        https://www.dhss.delaware.gov/dhss/dhcc/hrb/dhrbhome.html

        CPR Statute
        https://delcode.delaware.gov/title16/c093/index.shtml

        Delaware Health Resources Management Plan (updated September 2017)
        https://www.dhss.delaware.gov/dhss/dhcc/hrb/files/hrmpfinal.pdf

Contact RPC Consulting

Should you or your client need an expert team to help you with the Delaware Certificate of Public Review process (CPR) please contact Regulatory Practice Manager Darcy Schaeffer, MLS at 512‑371‑8011.

Disclaimer: The information on this page has been compiled by RPC based on sources believed to be reliable. It was updated in July 2024. Where possible we have had the material reviewed by state CON officials or others knowledgeable of the state’s CON program. The information is not offered as legal advice. A state may change its rules, forms and procedures at any time and RPC offers no assurance that the information will be correct on the date it is viewed. Therefore the reader is urged to use this information only as a starting point for any CON application and to speak with state officials or seek legal or consulting advice early in the process.