Get Full Government Meeting Transcripts, Videos, & Alerts Forever!
Get email alerts on the Certificate Of Need Loi topic
No spam. Unsubscribe anytime.
'But not limited to' language draws questions as committee reviews CON LOI rule
Summary
Committee debated a proposed change that would allow Certificate of Need staff to treat applications as nonconforming if they differ from the letter of intent 'but not limited to' listed items; counsel argued the phrase provides needed flexibility while members warned it risks arbitrary denials.
Clayton Weems, attorney for the Missouri Attorney General’s Office appearing on behalf of the Department of Health and Senior Services, told the Joint Committee on Administrative Rules that proposed language expanding what constitutes a nonconforming Certificate of Need (CON) application would allow staff to treat changes in owner, operator, project site, requested bed counts or scope of services — and other similar but unlisted changes — as reasons to require a conforming filing or a new letter of intent.
Weems framed the addition of a catchall phrase, described in the hearing as 'but not limited to,' as a drafting choice intended to give the committee flexibility: 'When there is a general phrase surrounded by specific examples, those specific examples provide guardrails or provide a limiting construction for the general phrase,' he said. He argued that the surrounding terms (change in owner, change in operator, project site, increase in requested beds or scope of services) would provide the context needed to interpret the catchall language.
Several committee members said the combination of that catchall language with a clause permitting automatic denial risks arbitrary or capricious application. Senator Coleman said staff should pull the proposed rule back for more precise drafting and work with the program staff who handle day‑to‑day administration: 'My preference at this point would be for them to pull back this proposed rule and let's get something with the people who are actually gonna, you know, do this as their day to day job to move forward,' Senator Coleman said. Other members pressed for a clear definition of what 'substantially conform' means and for numeric or objective guardrails (for example, percent changes in bed counts) to reduce discretion.
Weems told the committee that certain statutory processes constrain the timeline — including a 120‑day automatic approval deadline for applications not granted or denied within the statutory window — and that staff often work with applicants to cure curable defects rather than seeking automatic denials. The committee agreed to seek additional input and to consider tabling or reworking the rule to provide greater specificity before final action.
The committee did not take a final vote on the LOI conformity language during the session and scheduled further consideration at a follow‑up meeting.
