Committee debates narrowing Vermont certificate-of-need rules, thresholds and exemptions

Members of the Vermont Legislature Health Committee spent most of a meeting reviewing the state’s certificate-of-need (CON) law and a draft bill that would raise several monetary thresholds and add or clarify exclusions from CON review.

Legislative Council attorney Jen Cardby briefed the committee on the statute’s purpose and scope, citing Title 18, subchapter 5 on health facility planning. Cardby summarized the statute’s policy language and the types of projects that historically have triggered CON review, and she noted how the law directs the Green Mountain Care Board to administer the program and adopt rules.

The discussion focused on several linked topics: whether the statutory phrase “includes, but is not limited to” gives the board open-ended jurisdiction; proposed new monetary thresholds (committee members discussed $10 million, $5 million and $3 million thresholds for different categories); a potential exemption for projects procured through state contracts; and a list of existing statutory exclusions (for example, physician offices, designated community mental health agency projects with commissioner approval, opioid-use-disorder medication programs, and overdose prevention centers).

“I think the certificate-of-need process is connected with the health resource allocation plan,” Cardby said, explaining that the board considers statewide allocation and access when weighing applications. The committee discussed whether the bill should remove the word “includes” so the statute would list only enumerated triggers, or whether to retain a narrowly defined safety valve to allow the board limited authority in unforeseen circumstances.

Hospital and provider witnesses told the committee the CON process can be costly and slow. Devon Green of the Vermont Association of Hospitals and Health Systems said the process can add months and cost to projects: “It’s been over a year with the CON process now, and that has gone up a million dollars due to delayed construction costs.” David Michenberg, representing Green Mountain Surgical Center, described a multi‑year experience: “The time is not just the—when they’re subject in CUN, the time is not basically time for the application ... it really took like 7 years. The actual application process took 2 years.”

Committee members agreed they want to reduce unnecessary regulatory barriers while preserving protections the board provides, such as review of market or service‑closure impacts. Several members proposed seeking the Green Mountain Care Board’s and other stakeholders’ input on (1) criteria that would justify board jurisdiction for projects below the monetary thresholds and (2) reasonable time limits or procedural steps for CON review. Chair comments and multiple committee members, including one who asked for a clearer description of existing statutory exemptions, signaled broad agreement to pursue revisions while soliciting the board’s operational guidance.

On thresholds and exclusions, members recorded several specific proposals during the discussion: align certain monetary triggers at $10 million for some projects, $5 million for others and $3 million for lower‑tier projects (committee members also mentioned a hospital conceptual project threshold moving from $30 million to $50 million in the draft under review); add exclusions such as replacement of fully depreciated nonmedical equipment and emergency/non‑emergency ground transport; and clarify that designated community mental health agency projects that have written commissioner approval are exempt when the statute so provides.

Committee direction: members asked Legislative Council to solicit written guidance and examples from the Green Mountain Care Board, the Agency of Human Services and other stakeholders on how the board currently applies jurisdictional determinations, on reasonable timeline targets for CON reviews, and on operational consequences if state‑contracted projects are exempted. Members also requested information from parties that have both succeeded and struggled with CON applications to help calibrate any statutory timing limits.

The committee did not take any formal votes during the session. By the end of the meeting members expressed consensus to move forward with the effort to revise CON law and to reconvene for markup after the board and affected agencies provide feedback. The committee chair scheduled follow‑up work and asked staff to circulate the written recommendations the Green Mountain Care Board and the Health Care Advocate previously submitted.

Ending: Committee members flagged additional items for later meetings — including a possible “reverse CON” provision (review of service reductions or closures), work on price‑cap expiration language, and how to handle projects already underway when a new statute takes effect — and asked staff to gather more examples and written testimony for the next session.