Connecticut Revamps Certificate of Need (CON) Program under DPH

On May 2, 2026, the Connecticut Legislature approved the overhaul of the state’s Certificate of Need (CON) program as part of its appropriations bill for the fiscal year ending June 30, 2027, Public Act No. 26-68 (“the Act”).

The Act significantly revises all aspects of the CON program and process, including most notably by eliminating the independent Office of Health Strategy (OHS) that had overseen CONs since 2018, and returning oversight for CON largely to the State Department of Public Health (DPH). The Act is the culmination of years of debate over the CON process, and the Governor is expected to sign the Act in the near future. 

Various sections of the Act take effect October 1, 2026, with the new CON process fully taking effect July 1, 2027. Below is a summary of the major elements of the new CON process and how they differ from the current process.

Creation of CON Panel within DPH

The Act establishes a new CON program within DPH (referred to herein as the “CON Program”), which will be overseen by a three-person panel consisting of the respective Commissioners of DPH and the Department of Social Services (DSS), as well as the Secretary of the Office of Policy and Management (OPM) (the “CON Panel”).

After July 1, 2027, the Panel’s CON Program responsibilities will notably include:

• Issuing rulings and final decisions on all CON applications;
• Issuing civil penalties and cease and desist orders associated with CON applications, CON decisions/settlements, and related CON Program laws and regulations;
• Approving CON Program policies and procedures, including the promulgation of CON regulations;
• Reviewing and approving hospital plans for continued access to care during service terminations (in connection with the new process for hospital terminations of service established by the Act, which we reference below and will describe in further detail in a forthcoming post); and
• Assuming existing obligations of OHS in connection with the review of proposed sales of nonprofit hospitals to for-profit purchasers under Conn. Gen. Stat. § 19a-486a.

 The CON Panel will meet monthly to address matters related to CON Program applications and other business, as further described below.

Changes to CON Program Definitions and When a CON is Required

Importantly, the Act (i) revises certain key defined terms that impact the applicability of the CON Program, and (ii) streamlines certain current CON categories and CON exemptions while reducing instances in which a CON is required. 

Among other changes, the Act makes the following updates affecting CON definitions and requirements:

Changes of Ownership or Control Subject to CON Review

• Currently, the defined term intended to capture change of ownership-type transactions requiring CON approval is “transfer of ownership” which refers to a “transfer that impacts or changes the governance or controlling body of a health care facility, institution or large group practice, including, but not limited to, all affiliations, mergers or any sale or transfer of net assets of a health care facility.”
  • Going forward, the defined term is updated to “change of ownership or control” which is more broadly applicable to “any change in the ownership or beneficial ownership or the change of control of an entity, including (A) a corporate merger, (B) an acquisition of one or more entities by direct or indirect purchase in any manner of not less than twenty-five per cent of the assets, equity or voting shares of a health care facility, (C) a transfer of control of a board of directors or governing body, or (D) a real estate sale or lease agreement involving not less than twenty per cent of the total assets of a hospital.”
  • Importantly, this new defined term establishes a 25% threshold for asset / equity / voting interest acquisitions for a transaction that could require CON Program review, as well as certain real estate transactions involving hospitals.

Applicability of CON Laws to Hospital Satellites

• The Act expands the current definition of a “health care facility” subject to CON requirements with respect to a hospital to indicate that the term “hospital” is “including any satellite location” under the hospital’s license, as well as an outpatient surgical facility established by a hospital. This defined term expansion is notable because it potentially brings the closure of a hospital satellite location within the new process for hospital service terminations, but could also be construed to potentially require CON review of the establishment of new hospital satellites.

New Process for Terminations

• Consistent with the new process for hospital service terminations (which will no longer require full CON review and approval as described further below), the Act’s new CON defined terms remove the current definition of a “termination of service” which had referred to “the cessation of any services for a combined total of greater than one hundred eighty days within any consecutive two-year period.”

Behavioral Health and Substance Use Disorder Exception

• The Act notably replaces the longstanding current exception to CON requirements for nonprofit facilities and providers (other than hospitals) holding state contracts for certain services, to now establish an exception to CON requirements for all facilities, institutions, and providers that are nonprofit (or operated by the State) and that solely provide behavioral health or substance use disorder treatment services.

CON Exception for 10-Mile Facility Relocations

• Currently, health care facilities seeking to relocate are required to submit a CON Determination to OHS and demonstrate that the proposed relocation will not impact the patient population or payor mix of the facility.
  • The Act includes a new CON exception, permitting all facility relocations within the same town or within 10 miles of the facility’s current location, as long as the relocation does not result in a substantial change to the facility’s payor mix or patient population.

Large Group Practice Notification Process

• The Act establishes a new mandatory notice process applicable to certain changes of ownership or control of a large group practice that are otherwise carved out from full CON review under the Act (e.g., due to the acquirer being a physician).
  • Under the Act, the acquiring person or entity must give DPH at least 30 days’ advance notice prior to closing of the transaction involving the large group practice, and include in such notice certain information required by DPH (including names, medical specialties, addresses, and any entities providing management services, in connection with the transaction).

The Act’s New CON Application Process

Application Submission

The Act creates an entirely new CON application process, described below:

• CON applications will need to be submitted on a monthly rolling deadline, with submission dates on the 15^th of each month.
• At least 21 days prior to submission, the applicant(s) must provide the CON Program a notice for posting on its website with a description of the applicant, any known parties, a description of the proposal, and a reference to the applicable law requiring a CON.
• If the application is not submitted within 90 days of the notice, a new notice must be submitted.
• Importantly, any person wishing to request party or intervenor status with respect to an application must file notice of such intent, including whether the person seeks a hearing on the application, within 20 days after the applicant’s notice of intent to file is posted on the CON Program’s website. The Panel will appoint a hearing officer to decide if intervenor or party status shall be granted, consistent with the Connecticut Uniform Administrative Procedures Act. The CON applicant will have five days to file an objection to the intervenor and the office must issue a decision within 15 days.
  • This is a significant change to the current process, which allows intervenor and party petitions much later in the process.

Application Review and Staff Report

Following submission of an application:

• The CON Program must notify the applicant of whether there is deemed complete status within 15 days of the deadline.
• If an application is deemed incomplete, the CON Program will provide a list of elements of the application inadequately addressed within five days and permit resubmission of a revised application during the next application window ending on the 15th day, or other subsequent application window.

Once deemed complete, the CON Program will review and provide a report on the application and how it meets the new CON factors (described below). This report must be issued at least 10 days prior to any public hearing and in no event later than 90 days after the application is deemed complete. In compiling the report, the CON Program may ask for additional information but is not permitted to do so in a manner that would delay review timelines. The CON Program can supplement the CON application record with additional reports and evidence no later than 75 days after the application is deemed compete, and the CON Program will give the applicant(s) 10 days to respond to such evidence, which will be included in the record.

CON Hearings

Within 90 days of the application being deemed complete, the CON Program will hold a hearing on all CONs, unless the applicant waives this right.

The applicant may waive the right to a hearing within 30 days of the application being deemed complete if the applicant is the only party and no other person or entity has been granted intervenor status. Such waiver will also constitute a waiver of the applicant’s right to appeal a final decision under the CT Administrative Procedures Act; i.e., by waiving the hearing, the CON becomes an “uncontested case” under the Administrative Procedures Act which reduces the applicant’s procedural rights to challenge an unfavorable decision.

If a hearing is held, the following post-hearing process will then occur leading to a final decision:

Once the Panel issues a final decision, it is subject to appeal under the CT Administrative Procedures Act, similar to the current process, and subject to whether the applicant(s) waived the right to a hearing (and thus potentially waived the right to appeal any final decision).

CON Review Criteria

The Act establishes new CON factors which will govern the Panel’s review of all CON applications. The Panel will determine by a preponderance of evidence standard whether the application demonstrates the proposal is in the public interest. The Panel will specifically consider whether the proposal:

• Promotes the delivery of high quality care in the applicant’s primary service area;
• Promotes access to health care services, including for Medicaid beneficiaries, in the primary service area;
• Promotes the delivery of cost-effective care in the applicant’s primary service area;
• Promotes the financial stability of the health care system, including whether the proposal is financially feasible to implement and whether the applicant has any prior evidence of financial mismanagement or misconduct;
• Demonstrates a clear public need; and
• Would result in the unnecessary duplication of services.

The Act thus streamlines the CON review factors (of which there are currently 12, with a number rarely applicable to CON reviews), to focus on access, need, quality, and cost.

As is the case under the current law, the Panel may engage a consultant to review the proposal with costs passed onto the applicant capped at $100,000. The applicant will have the right to withdraw any application before incurring consulting fees.

Expedited CON Review

The Act requires the establishment of an expedited CON review process for certain categories. These categories are:

• Relocations of more than 10 miles and outside of the current town of operation;
• Increases of inpatient or outpatient hospital beds;
• Acquisition of CT, MRI, PET, or PET-CT scanners by any person, physician, provider, or hospital;
• Increases of two or three operating rooms within a three-year period by an outpatient surgical facility or short-term acute care general hospital; or
• any other category the DPH commissioner designates in regulations.

Requests for expedited review will begin on January 1, 2028. Applications must be submitted under the same deadlines as the standard process, but include the expedited request. The CON Program will inform the applicant within 15 days whether an application qualifies for the expedited process. Notably, the decision of whether to hold a hearing as part of an expedited review becomes permissive at the Panel’s discretion. If an application is deemed eligible for expedited review, a proposed final decision will be issued within 60 days of the application being deemed complete, and the application will be considered at the next monthly meeting of the Panel. If an application is determined not to be eligible for expedited review, the application reverts to the (new) standard CON Program process described above.

Enforcement Powers

The Act grants authority to the Panel to investigate CON violations, including by administering oaths and taking testimony, subpoenaing witnesses and documents, and issuing civil penalties. As is the case currently, civil penalties may be issued when a person or health care facility negligently undertakes an activity without a required CON approval or fails to comply with a CON decision’s terms or conditions or a panel-approved agreed settlement. Such penalties are also permissible for negligently failing to submit a required notice about changes in ownership or control of a large group practice that is not subject to CON approval or a hospital’s pause of a service for more than 90 days. As under current law, the maximum penalty is $1,000 per day.