§ 44–407. Activities exempt from certificate of need review.

(a) HCFs and persons proposing projects exempted from certificate of need review must file with the SHPDA a letter of notice in accordance with rules promulgated pursuant to § 44-421.

(b) The following projects are exempt from certificate of need review:

(1) The upgrading, maintenance, or correction of facility deficiencies that may be in violation of federal and District of Columbia fire, building, and safety codes, or that will improve patient safety related to a pending violation of federal or District of Columbia fire, building, or safety codes;

(2) The correction of deficiencies identified by private national accrediting associations and District government licensing agencies;

(3) Nonpatient care projects requiring the obligation of a capital expenditure of less than $8 million;

(4) The acquisition of the same or similar medical equipment to replace, upgrade, or expand the capacity of the equipment for which a certificate of need has been granted, if the replaced equipment is removed from service;

(5) The acquisition of major medical equipment to be used solely for research, new institutional health services to be offered solely for research, or the obligation of a capital expenditure to be made solely for research. This provision shall not preclude a HCF from seeking reasonable reimbursement for health care services provided under this exemption;

(6) Repealed.

(7) Any proposal to offer or develop a new institutional health service or obligate a capital expenditure which would otherwise be subject to this section, if the purpose of the service or expenditure is to accommodate a resident to be transferred from D.C. Village;

(8) The voluntary permanent reduction in the number in licensed bed capacity where a request for exemption is made 60 days before the reduction and the SHPDA finds that the reduction in bed capacity would not be inconsistent with the HSP;

(9) For a period of one year, commencing on December 18, 2001, any increase in the licensed psychiatric bed capacity by a private general hospital, psychiatric hospital, other specialty hospital or rehabilitation facility holding a certificate of need to operate psychiatric beds. The health care facility shall provide the Department of Mental Health with a copy of the letter of notice required by SHPDA for projects exempt from certificate of need review;

(10) The acquisition of major medical equipment or establishment of new institutional health services determined by the Department to be necessary for a declared public health purpose or deemed necessary by the Department to provide health care services under contract to or grant from a District of Columbia or federal agency. Participation in programs under Titles XVIII and XIX of the Social Security Act does not qualify as a District of Columbia or federal contract for purposes of this exemption;

(11) District of Columbia public, chartered, and private schools for any health care service offered or developed for students with special needs in compliance with the Individuals with Disabilities Education Act, approved June 4, 1997 (111 Stat. 37; 20 U.S.C. § 1400 et seq.), the Rehabilitation Act of 1973, approved August 7, 1998 (112 Stat. 1092; 29 U.S.C. § 701 et seq.), or the Early and Periodic Screening, Diagnosis, and Treatment Program under Title XIX of the Social Security Act, approved July 30, 1965 (79 Stat. 343; 42 U.S.C. § 1396 et seq.), or any other federal or District of Columbia legal requirements;

(12) The acquisition, prior to October 1, 2003, of any single piece of diagnostic or therapeutic equipment which was acquired by lease, purchase, donation, or other comparable arrangement by or on behalf of a physician, a group of physicians, a private group practice of diagnostic radiology or radiation therapy, or a diagnostic health care facility, or the replacement of such equipment, so long as the equipment to be replaced is removed from service;

(13) Upon October 20, 2005, any increase in the licensed psychiatric bed capacity by a private general hospital, psychiatric hospital, or other specialty or rehabilitation hospital holding a certificate of need to operate psychiatric beds; provided, that the Department of Mental Health has requested such expansion specific to a reduction in psychiatric acute care services offered by Saint Elizabeths Hospital;

(14) Operation by the Not-For-Profit Hospital Corporation of an ambulatory care clinic in the Bellevue neighborhood of Ward 8. The exemption provided in this paragraph shall expire on September 30, 2017;

(15) Repealed.

(16) Repealed.

(17) Repealed.

(18) Except as provided in subsection (k) of this section, the acquisition of equipment for, and the construction of, a full-service, community hospital by the District on the St. Elizabeths Hospital Campus ("East End Hospital") with 200 licensed beds;

(19) Except as provided in subsection (k) of this section, the acquisition of equipment for, and the construction of, a skilled nursing facility in Ward 7 or 8 with up to 125 licensed beds that shall be constructed to accommodate the safe transition of patients who require skilled nursing from United Medical Center by December 31, 2021; and

(20) The operation of a nonprofit specializing in vision screening and providing free diagnostic services and eyewear to school children and youth in the District of Columbia ("nonprofit"); provided, that the nonprofit has entered into a memorandum of understanding with the local education agency that will be served by the nonprofit.

(b-1) For the purposes of a project exempt under subsection (b)(13) of this section, the facility shall provide the Department of Mental Health with a copy of the letter of notice required by SHPDA for projects exempt from the certificate of need review.

(b-2) Changes in ownership, whether voluntary or involuntary, of the short-term, acute-care hospital known as the United Medical Center and a long-term acute-care hospital and a skilled-nursing facility at the same location, known as the Southern Avenue Facilities, shall be exempt from the certificate-of-need requirements for the purpose of:

(A) Allowing the transfer from the owner of record to another owner of all or a portion of the Southern Avenue Facilities;

(B) Notwithstanding any other provision of District law, allowing the owner of record, a subsequent owner, or caretaker, regardless of whether the transfer is voluntary or involuntary, to close or terminate a health service outside of the United Medical Center within 30 days after July 7, 2010; or

(C) Allowing the entity acquiring the United Medical Center to establish, within 90 days of July 7, 2010, a skilled-nursing facility with no more than 120 beds in the existing buildings located in the 1300 block of Southern Avenue, S.E.

(c) An HMO, or combination of HMOs, shall be exempt from certificate of need requirements if it meets the following requirements:

(1) The facility in which the service will be provided is or will be geographically located so that the service will be reasonably accessible to the enrolled individuals; and

(2) At least 75% of the patients who can reasonably be expected to receive the health service will be individuals enrolled in the HMO or combination of HMOs.

(d) The District government is exempt from certificate of need requirements until January 1, 1998.

(e) Any proposal to offer or develop a new institutional health service, obligate a new capital expenditure, or reduce or terminate a health service that would otherwise be subject to certificate of need requirements, by a health care entity that has contracted with the District of Columbia Financial Responsibility Management Assistance Authority, or with the Mayor pursuant to § 7-1405, to provide new health care services shall be exempt from certificate of need requirements only for the purpose of maintaining the same level of care and services provided by the District of Columbia Health and Hospitals Public Benefit Corporation (“Public Benefit Corporation”). The exemptions granted by this subsection shall be for a period of 225 days from July 12, 2001, except that proposals to develop trauma I capability to match the levels existing at D.C. General Hospital as of January 1, 2001, shall be exempt from certificate of need requirements for a period of 1 year from July 12, 2001.

(f) The Administrator of the Health Care Safety Net Administration (“Administrator”), established pursuant to § 7-1401, shall determine which new institutional health services, capital expenditures, and reductions or terminations of health services qualify as health care services being taken over from the Public Benefit Corporation. The Administrator’s authority to make determinations and the exemptions from certificate of need review pursuant to subsection (e) shall expire 1 year after the date the first contract for health care services entered into pursuant to § 7-1405 is signed.

(g) The District government and the Public Benefit Corporation are exempt from certificate of need requirements for any changes in health care service that may result from the abolishment of the Public Benefit Corporation.

(h) Not Funded.

[(i)] Repealed.

[(j)] Repealed.

[(k)] Repealed.

(l) The provisions of subsection (b)(18) and (19) of this section shall apply upon the satisfaction of the following conditions:

(1) The execution of a mutually agreed upon contract between the District and a hospital operator to operate and manage the East End Hospital that includes, without limitation, requirements to:

(A) Provide a detailed workforce development plan that includes strategies to:

(i) Prepare qualified District residents for employment at the East End Hospital;

(ii) Train District residents for employment at the East End Hospital; and

(iii) Provide preference in hiring for employment at the East End Hospital to:

(I) Qualified employees of United Medical Center who meet the minimum standards for employment established by the hospital operator; and

(II) District residents, with a particular emphasis on the residents of Wards 7 and 8.

(B) Hire a majority of the current non-supervisory employees of United Medical Center; and

(C) Enter into a labor peace agreement with a labor organization that requests a labor peace agreement and which represents, or reasonably might represent, workers at the hospital; and

(2)(A)(i) The filing, by the Mayor, with the Office of the Secretary to the Council of one or more academic affiliation agreements (including physician services agreements) between Howard University and one or more health care facilities to ensure that Howard University College of Medicine meets its applicable accreditation requirements to continue its academic mission.

(ii) For the purposes of this subparagraph the term "health care facilities" shall not be limited to health care facilities in the District or existing health care facilities, and may include the East End Hospital; and

(B) The submission of an academic affiliation agreement in accordance with subparagraph (A) of this paragraph that specifies accommodations for Howard University College of Medicine's medical faculty, medical students, and medical residents; provided, that such an agreement may summarize or redact any confidential information negotiated between the contracting parties.

(April 9, 1997, D.C. Law 11-191, § 8, 43 DCR 4535; July 12, 2001, D.C. Law 14-18, § 8(3), 48 DCR 4047; Dec. 18, 2001, D.C. Law 14-56, § 116(i)(3), 48 DCR 7674; Apr. 22, 2004, D.C. Law 15-149, § 2(e), 51 DCR 2802; Oct. 20, 2005, D.C. Law 16-33, § 5123, 52 DCR 7503; Sept. 14, 2011, D.C. Law 19-21, § 5150, 58 DCR 6226; Sept. 26, 2012, D.C. Law 19-171, §§ 108, 109, 59 DCR 6190; Oct. 8, 2016, D.C. Law 21-160, § 5112, 63 DCR 10775; Mar. 13, 2019, D.C. Law 22-246, § 201, 66 DCR 967; Mar. 28, 2019, D.C. Law 22-273, § 2, 66 DCR 1581; Sept. 11, 2019, D.C. Law 23-16, §§ 5093, 5094, 66 DCR 8621; Mar. 10, 2020, D.C. Law 23-60, § 2(c), 67 DCR 568; July 12, 2022, D.C. Law 24-147, § 111, 69 DCR 003386.)

Section References

This section is referenced in § 44-406.

Effect of Amendments

D.C. Law 14-18 added subsecs. (e), (f) and (g).

D.C. Law 14-56, in subsecs. (b)(7) and (b)(8), made nonsubstantive changes; and added subsec. (b)(9).

D.C. Law 15-149, in subsec. (b), rewrote pars. (1), (3), and (4), repealed par. (6), made nonsubstantive changes in pars. (8) and (9), and added pars. (10), (11), and (12).

D.C. Law 16-33 added subsec. (b)(13).

D.C. Law 19-21 added subsec. (b)(14).

The 2012 amendment by D.C. Law 19-171 redesignated the last sentence in (b)(13) as (b-1); redesignated (b)(14) as (b-2) and made related changes; and added “For the purposes of a project exempt under subsection (b)(13) of this section” in (b-1).

Applicability

Applicability of D.C. Law 22-273: § 3 of D.C. Law 22-273 provided that the change made to this section by § 2 of D.C. Law 22-273 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Applicability of D.C. Law 22-246: § 301 of D.C. Law 22-246 provided that the change made to this section by § 201 of D.C. Law 22-246 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 2 of Children and Youth Vision Screening Emergency Amendment Act of 2020 (D.C. Act 23-209, Jan. 28, 2020, 67 DCR 1100).

For temporary (90 days) amendment of this section, see § 5094 of Fiscal Year 2020 Budget Support Congressional Review Emergency Act of 2019 (D.C. Act 23-112, Sept. 4, 2019, 66 DCR 11964).

For temporary (90 days) amendment of this section, see § 5093 of Fiscal Year 2020 Budget Support Congressional Review Emergency Act of 2019 (D.C. Act 23-112, Sept. 4, 2019, 66 DCR 11964).

For temporary (90 days) amendment of this section, see § 5094 of Fiscal Year 2020 Budget Support Emergency Act of 2019 (D.C. Act 23-91, July 22, 2019, 66 DCR 8497).

For temporary (90 days) amendment of this section, see § 5093 of Fiscal Year 2020 Budget Support Emergency Act of 2019 (D.C. Act 23-91, July 22, 2019, 66 DCR 8497).

For temporary (90-day) amendment of section, see § 2 of the East of Anacostia River Acute Care Hospital Services Emergency Amendment Act of 1999 (D.C. Act 13-189, November 22, 1999, 46 DCR 10412).

For temporary (90-day) amendment of section, see § 2 of the Public Benefit Corporation Certificate of Need Exemption Emergency Amendment Act of 2000 (D.C. Act 13-432, August 14, 2000, 47 DCR 7465).

For temporary (90 day) amendment of section, see § 2 of the Health Services Planning Program Emergency Amendment Act of 2000 (D.C. Act 13-473, November 7, 2000, 47 DCR 9644).

For temporary (90 day) amendment of section, see § 16(i)(3) of Department of Mental Health Establishment Emergency Amendment Act of 2001 (D.C. Act 14-55, May 2, 2001, 48 DCR 4390).

For temporary (90 day) amendment of section, see § 16(i)(3) of Department of Mental Health Establishment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-101, July 23, 2001, 48 DCR 7123).

For temporary (90 day) amendment of section, see § 116(i)(3) of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).

For temporary (90 day) amendment of section, see § 2(d) of Health Services Planning and Development Emergency Amendment Act of 2003 (D.C. Act 15-49, March 28, 2003, 50 DCR 2943).

For temporary (90 day) amendment of section, see § 2(d) of Health Services Planning and Development Congressional Review Emergency Amendment Act of 2003 (D.C. Act 15-87, May 19, 2003, 50 DCR 4325).

For temporary (90 day) amendment of section, see § 2(d) of Health Services Planning and Development Emergency Amendment Act of 2004 (D.C. Act 15-322, January 28, 2004, 51 DCR 1581).

For temporary (90 day) amendment of section, see § 5123 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 day) amendment of section, see § 3(b) of Comprehensive Psychiatric Emergency Program Long-Term Ground Lease Emergency Act of 2006 (D.C. Act 16-529, December 4, 2006, 53 DCR 9833).

For temporary (90 day) amendment of section, see § 3(b) of Comprehensive Psychiatric Emergency Program Long-Term Ground Lease Congressional Review Emergency Amendment Act of 2007 (D.C. Act 17-16, February 20, 2007, 54 DCR 1774).

For temporary (90 day) amendment of section, see § 2 of Health Service Planning Program Re-establishment Emergency Amendment Act of 2007 (D.C. Act 17-137, October 17, 2007, 54 DCR 10727).

For temporary (90 day) amendment of section, see § 2 of Health Services Planning Program Re-establishment Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-250, January 23, 2008, 55 DCR 1257).

For temporary (90 day) amendment of section, see § 2 of Health Services Planning Program Re-establishment Emergency Amendment Act of 2010 (D.C. Act 18-442, June 17, 2010, 57 DCR 5401).

For temporary (90 day) amendment of section, see § 201 of Not-for-Profit Hospital Corporation Establishment Emergency Amendment Act of 2010 (D.C. Act 18-476, July 7, 2010, 57 DCR 6937).

For temporary (90 day) amendment of section, see § 201 of Not-for-Profit Hospital Corporation Establishment Congressional Review Emergency Amendment Act of 2010 (D.C. Act 18-541, October 4, 2010, 57 DCR 9615).

For temporary (90 day) amendment of section, see § 2 of Health Services Planning Program Re-establishment Emergency Amendment Act of 2010 (D.C. Act 18-597, November 17, 2010, 57 DCR 11016).

For temporary (90 day) amendment of section, see § 201 of Not-for-Profit Hospital Corporation Establishment Second Congressional Review Emergency Amendment Act of 2010 (D.C. Act 18-668, December 28, 2010, 58 DCR 106).

For temporary (90 day) amendment of section, see § 201 of Not-for-Profit Hospital Corporation Establishment Emergency Amendment Act of 2011 (D.C. Act 19-73, June 8, 2011, 58 DCR 5080).

For temporary (90 day) amendment of section, see § 201 of Not-for-Profit Hospital Corporation Establishment Congressional Review Emergency Amendment Act of 2011 (D.C. Act 19-128, August 1, 2011, 58 DCR 6772).

For temporary (90 days) amendment of this section, see § 2 of the Long-Term Care Stabilization Emergency Amendment Act of 2014 (D.C. Act 20-444, Oct. 8, 2014, 61 DCR 10755, 20 STAT 4165).

For temporary (90 days) amendment of this section, see § 2 of the Not-For-Profit Hospital Corporation Certificate of Need Exemption Emergency Amendment Act of 2014 (D.C. Act 20-563, Jan. 6, 2015, 62 DCR 491, 21 STAT 525).

For temporary (90 days) amendment of this section, see § 5062 of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

For temporary (90 days) amendment of this section, see § 2 of the Not-for-Profit Hospital Corporation Certificate of Need Exemption Congressional Review Emergency Amendment Act of 2015 (D.C. Act 21-32, Mar. 27, 2015, 62 DCR 4538, 21 DCSTAT 868).

Temporary Legislation

For temporary (225 day) amendment of section, see § 16(i)(3) of Department of Mental Health Establishment Temporary Amendment Act of 2001 (D.C. Law 14-51, November 3, 2001, law notification 48 DCR 10807).

For temporary (225 day) amendment of section, see § 2(d) of Health Services Planning and Development Temporary Amendment Act of 2003 (D.C. Law 15-19, June 21, 2003, law notification 50 DCR 5463).

Section 3(b) of D.C. Law 16-298 added par. (14) to subsec. (b), and amended subsec. (d) to read as follows:

“(14) Community-based mental health services providers, CPEP, and services directly operated by the Department of Mental Health.”

“(d) Community-based mental health services providers, CPEP, and the Department of Mental Health are exempt from certificate of need requirements.”

Section 5(b) of D.C. Law 16-298 provided that the act shall expire after 225 days of its having taken effect.

Section 2 of D.C. Law 17-91 added subsec. (b)(14) to read as follows:

“(14) A non-hospital-based substance abuse treatment facility shall be exempt from the certificate of need requirements, but shall continue to be subject to the certification requirements under section 5 of the District of Columbia Substance Abuse Treatment and Prevention Act of 1989, effective March 15, 1990 (D.C. Law 8-80; D.C. Official Code § 44-1204). This exemption shall expire 2 years from the effective date of the Health Services Planning Program Re-establishment Act Amendment Act of 2007, as introduced on September 17, 2007 (D.C. Bill 17-358).”

Section 4(b) of D.C. Law 17-91 provided that the act shall expire after 225 days of its having taken effect.

Section 2 of D.C. Law 18-225 added subsec. (b)(14) to read as follows:

“(14) The acquisition of the Washington Center for Aging Services by the Stoddard Baptist Home Foundation, Inc.”.

Section 4(b) of D.C. Law 18-225 provided that the act shall expire after 225 days of its having taken effect.

Section 201 of D.C. Law 18-254 added subsec. (b)(15) to read as follows:

“(15) Changes in ownership, whether voluntary or involuntary, of the short-term, acute-care hospital known as the United Medical Center and a long-term acute care hospital and a skilled nursing facility at the same location, known as the Southern Avenue Facilities, shall be exempt from the certificate of need requirements for the purpose of:

“(A) Allowing the transfer from the owner of record to another owner of all or a portion of the Southern Avenue Facilities;

“(B) Notwithstanding any other provision of District law, allowing the owner of record, a subsequent owner, or caretaker, regardless of whether the transfer is voluntary or involuntary, to close or terminate a health service outside of the United Medical Center within 30 days after the effective date of the Not-for-Profit Hospital Corporation Establishment Emergency Amendment Act of 2010, passed on emergency basis on June 29, 2010 (Enrolled version of Bill 18-877) (‘Hospital Act’); or

“(C) Allowing the entity acquiring the United Medical Center to establish, within 90 days of the effective date of the Hospital Act, a skilled nursing facility with no more than 120 beds in the existing buildings located in the 1300 block of Southern Avenue, S.E.”.

Section 303(b) of D.C. Law 18-254 provided that the act shall expire after 225 days of its having taken effect.

For temporary (225 days) amendment of this section, see § 2 of the Not-For-Profit Hospital Corporation Certificate of Need Exemption Temporary Amendment Act of 2015 (D.C. Law 20-253, Apr. 30, 2015, 62 DCR 1960).

References in Text

Titles XVIII and XIX of the Social Security Act, referred to in subsec. (b)(10), are codified at 42 U.S.C. § 1395 et seq. and 42 U.S.C. § 1396 et seq., respectively.