Governor Inslee recently announced his intent to rescind Proclamation 20-36, which waived and suspended certain state statutes and rules governing health care facilities including certain certificate of need (CN) requirements. Specifically, the proclamation permitted health care facilities to undertake projects without a CN (including construction of a new facility, sale, purchase or lease of a hospital, and changes in bed capacity) if the project was to provide surge capacity for the COVID-19 response, as further explained here.
Recission of Proclamation 20-36 carries implications for health care facilities who utilized the waivers and may require facilities to obtain a CN, receive construction review approval, and/or update their license. The following is a brief summary of the steps health care facilities must take to move towards compliance with state law applicable to their license type.
Facilities Requiring a Certificate of Need
Health care facilities who relied on the waiver and wish to maintain their changes beyond the waiver’s expiration must obtain CN approval in accordance with the regular statutory process. By October 27, 2022, facilities must submit a CN application and corresponding fee to the Washington Department of Health (DOH). As needed, applications to amend a facility license must be submitted within the same time frame. These rules do not apply to health care facility types that are on a concurrent review cycle for CN applications (including nursing homes, hospice care centers, and end stage renal disease facilities). Such facilities will be required to submit a second Letter of Intent, CN application, and corresponding fee during the next application cycle.
If the DOH denies a CN application a facility must execute its patient transition plan, as applicable, and revert to original operations. The DOH has stated that it does not intend to initiate enforcement actions against facilities that expanded their operations based on the waiver until a decision on their CN application is reached.
Facilities Requiring Construction Review
Health care facilities who wish to maintain their changes beyond the waiver’s expiration may also be required to complete a construction review application by October 27, 2022. Facilities must either: (i) submit formal engineering plans, functional programs, and associated documentation needed to evaluate compliance with the state licensing rules, or (ii) submit a technical assistance application to the DOH to confirm the scope of work and establish documentation requirements. Additional requirements are triggered once the construction review process is underway.
Facilities Who Wish to Extend Changes Temporarily
In some cases, a facility may wish to extend changes made based on the waiver past the waiver’s expiration, but not intend to make the changes permanent. Most facilities will still be required to obtain CN or construction review approval through the appropriate application processes. However, a special case exists for acute care hospitals licensed under RCW 70.41; these facilities may utilize pre-pandemic surge capacity processes when applicable.
Facilities Who do Not Wish to Make Changes Permanent
Facilities who do not wish to maintain their expanded operations must revert to original operations by the October 27, 2022 deadline. No notification to the DOH is required provided the deadline is met.
Affected health care facilities should develop a plan for compliance as soon as possible and before recission of Proclamation 20-36 takes effect on October 27, 2022. For more information regarding the Certificate of Need, Construction Review, or Licensing process and how they interact with the COVID waiver recission, please contact Don Black, Maddie Haller, and/or Adriana Lein.
