Health-care advocate and providers spar over Certificate of Need reform, thresholds and timelines in House Health Care hearing

Mike Fisher, the Vermont Health Care Advocate, and Sam Poyesh, a health policy analyst with the HCA, presented conceptual recommendations to the House Committee on Health Care on Feb. 12 aimed at reforming the Certificate of Need (CON) process. The presenters said the recommendations are conceptual and would be drafted into legislative language if the committee shows interest.

The HCA outlined several components: raise the CON monetary threshold for full review (discussed at $10 million in construction as a proposed dividing line), create a lower-tier expedited review for projects between the current and new thresholds, and place limits on how many rounds of prehearing written questions the Green Mountain Care Board may issue. The HCA said projects that fall below the expedited threshold should be automatically expedited rather than requiring an applicant to request it. The office also proposed that large new health-care facilities affiliated with hospitals be required to take Medicaid and that commercial prices for certain facilities be capped at no more than Medicare rates plus 10%.

Sam Poyesh said the HCA generally supports the CON process and its criteria in the Health Resource Allocation Plan, but that the system needs streamlining and speed: recent CON proceedings have taken months to years and can impose high costs on applicants and the health system. HCA staff cited examples of projects that prompted concern during past reviews: a platelet-enrichment service that would have been cash-only with limited evidence of benefit and a proposed eating-disorder program that the board ultimately denied because the record did not show improved health or access. The witnesses said those projects illustrate why some checks remain important even with higher thresholds.

Committee members pressed on details. Questions included how a tiered approach would work in practice; whether limiting rounds of written questions would risk rushed decisions; how interested‑party status and amicus briefs fit into the process; and whether other regulatory avenues (licensure, scope-of-practice rules, Act 250, or other jurisdictional determinations) might catch problematic providers before they open. The HCA said jurisdictional inquiries (to determine whether a project is subject to CON) already exist and are generally handled quickly but argued that the statutes and application materials could be clarified and streamlined.

David Mickenberg, an attorney representing Green Mountain Surgery Center (GMSC), spoke in favor of H.96 and described the center’s lengthy CON experience. He said GMSC’s CON docket ran many years, involved multiple hearings and intervening parties, produced 29 conditions on the project, required numerous implementation reports and generated litigation resolved through the Vermont Supreme Court. Mickenberg said that the drawn-out process delayed access to lower-cost community-based ambulatory surgical care and deterred potential innovators from proposing similar projects in Vermont.

The HCA also noted a related bill, H.80, addressing the HCA’s access to confidential materials in CON and other proceedings; staff suggested the committee could consider folding or coordinating that clarification into CON statutory changes.

No committee vote or formal action was taken during the hearing; HCA witnesses said their proposals were conceptual and that they would work with the committee and stakeholders to draft legislative language if the committee requested it.

Ending

The hearing included extensive questioning by committee members on thresholds, timing limits, enforcement of conditions, and whether requirements such as Medicaid acceptance should be permanent conditions attached to CON awards. Witnesses agreed the objective is to balance timely access to needed services with consumer protections and equitable access. The committee did not take formal action that day.