West Virginia

West Virginia requires CONs within five broad categories—hospital beds, beds outside hospitals, equipment, facilities and services. Overall, West Virginia maintains a broad CON law with additional moratoria on opioid treatment programs as well as specified intermediate care and skilled nursing homes and building or replacing skilled nursing beds and facilities. West Virginia is the only state with a moratorium on opioid treatment programs. See W. Va. Code § 16-2D-9. West Virginia further maintains a catch-all CON. If no other CON applies to a specific project, this catch-all CON applies to expenditures of $5,508,217, as updated annually, for nearly any purpose. W. Va. §§ 16-2D-2(15), (24), 16-2D-3(a)(3), 16-2D-8(a)(3)(A).

West Virginia’s COVID-19 Response 

On March 24, 2020, the Governor signed a bill that eliminated a 45-day administrative review period for applicants seeking to take advantage of dozens of statutory exemptions from the CON law. This streamlining bill took effect on June 4, 2020. See H.B. 4108 (2020) (amending W. Va. Code § 16-2D-11).

Application Process 

In West Virginia, the CON application process takes 60 days after the date that the application is batched, and if a hearing is conducted, the state renders a decision within 45 days of the closing of the file in the administrative proceedings. See W. Va. Code § 16-2D-13(g)(8), -14; W. Va. Code R. § 65-32-8.32. Applications must be submitted based on a review cycle. W. Va. Code R. § 65-32-21; see also 2020 Review Cycles.⁷⁷ Fees for the CON application range from $1,500 to $35,000. W. Va. Code § 16-2D-13(b)(2). Competitors can intervene in the application process and can offer evidence or argument as to why an application should be denied. W. Va. Code § 16-2D-13. 

Types of CONs in West Virginia 

	CON?	CON applies with expenditure of:	Temporary  COVID-19 response:
Hospital Beds	Yes	Any amount	–
Beds Outside Hospitals	Yes	Any amount	–
Equipment	Yes	$0 – $5,508,217+	–
Facilities/Buildings	Yes	Any amount	–
Services	Yes	$0 – $5,508,217+	–
Emergency Medical Transport	No	-	–

West Virginia CONs in Detail

Category	Types of CONs	W. Va. Code
Hospital Beds	Hospital beds.	§§ 16-2D-2(21), 16-2D-8(5), (8)
Beds Outside Hospitals	Moratorium on adding intermediate care beds to any health care facility except for non-health related projects.   Moratorium on adding skilled nursing beds to any health care facility except for non-health related projects.	§ 16-2D-9(1)
	Moratorium on adding beds in an intermediate care facility for individuals with an intellectual disability except as approved under court order in E.H. v. Matin, 284 S.E.2d 232 (W. Va. 1981).	§ 16-2D-9(3)
	Acute care beds.	§ 16-2D-8(b)(16)
	Ambulatory health care facility beds.	§ 16-2D-2(2)
	Ambulatory surgical facility beds.	§ 16-2D-2(3)
	Rehabilitation facility beds.	§ 16-2D-2(37)
	Skilled nursing facility beds.	§ 16-2D-2(40)
	Intermediate care beds.	§ 16-2D-2(22)
Equipment	A single unit of medical equipment or a single system of components with related functions which is used for the provision of medical and other health services and costs in excess of $5,508,217, as updated annually.	§§ 16-2D-2(15), (24), 16-2D-8(9)
Equipment	Radiation therapy equipment. Magnetic resonance imaging equipment. PET scanners.	W. Va. Code R. § 65-32-2.1.j.9
Category	Types of CONs	W. Va. Code
Facilities/Buildings   A CON is required for the construction, development, acquisition, or other establishment of the following facilities. W.V. Code § 16-2D-8(a)(1)	Moratorium on developing, constructing, or replacing a skilled nursing facility except in the case of facilities replacing existing beds in existing facilities that may soon be deemed unsafe.	§ 16-2D-9(2)
	Ambulatory health care facility.	§ 16-2D-2(2)
	Ambulatory surgical facility.	§ 16-2D-2(3)
	A publicly or privately owned facility, agency or entity that offers or provides health services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part.	§ 16-2D-2(16)
	Hospitals.	§ 16-2D-2(21)
	Rehabilitation facility.	§ 16-2D-2(37)
	Skilled nursing facility.	§ 16-2D-2(40)
	Intermediate care facilities.	§ 16-2D-2(22)
	Birthing centers.	§ 16-2D-8(b)(1)
	Kidney disease treatment centers.	§ 16-2D-8(b)(12)
	Establishing no more than six four-bed transitional intermediate care facilities.	§ 16-2D-8(b)(24)(A)
	The closure of a health care facility with which a capital expenditure is associated.	§ 16-2D-8(a)(2)
Services	Moratorium on opioid treatment programs.	§ 16-2D-9(4)
	Radiation therapy services.	§ 16-2D-8(b)(2)
	Computed tomography services.	§ 16-2D-8(b)(3)
	Positron emission tomography services.	§ 16-2D-8(b)(4)
	Cardiac surgery services.	§ 16-2D-8(b)(5)
	Fixed magnetic resonance imaging services.	§ 16-2D-8(b)(6)
	Comprehensive medical rehabilitation services.	§ 16-2D-8(b)(7)
	Ambulatory care center services.	§ 16-2D-8(b)(8)
	Ambulatory surgical center services.	§ 16-2D-8(b)(9)
	Diagnostic imaging services.	§ 16-2D-8(b)(10)
	Cardiac catheterization services.	§ 16-2D-8(b)(11)
	Megavoltage radiation therapy services.	§ 16-2D-8(b)(13)
Category	Types of CONs	W. Va. Code
Services	Surgical services.	§ 16-2D-8(b)(14)
	Operating room services.	§ 16-2D-8(b)(15)
	Intellectual developmental disability services.	§ 16-2D-8(b)(17)
	Organ and tissue transplant services.	§ 16-2D-8(b)(18)
	Services for individuals with intellectual disabilities at intermediate care facilities.	§ 16-2D-8(b)(19)
	Inpatient services.	§ 16-2D-8(b)(20)
	Hospice services.	§ 16-2D-8(b)(21)
	Home health agency services.	§ 16-2D-8(b)(22)
	Personal care services.	§ 16-2D-8(b)(23)
	Ventilator services by a hospital.	§ 16-2D-8(a)(6)
	Any capital expenditure above $5,508,217, as updated annually.	§ 16-2D-8(a)(3)(A); see generally, W.V. Health Care Authority, Certificate of Need⁷⁸
Emergency Medical Transport	No CONs in this category.

West Virginia CON Exceptions

No CON Required For:	W. Va. Code
The creation of a private office of one or more licensed health professionals to practice pursuant to W. Va. Code ch. 30.	§ 16-2D-10(1)
Dispensaries and first-aid stations located within business or industrial establishments maintained solely for the use of employees that does not contain inpatient or resident beds for patients or employees who generally remain in the facility for more than twenty-four hours.	§ 16-2D-10(2)
A place that provides remedial care or treatment of residents or patients conducted only for those who rely solely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any recognized church or religious denomination.	§ 16-2D-10(3)
Telehealth.	§ 16-2D-10(4)
A facility owned or operated by one or more health professionals authorized or organized pursuant to W. Va. Code ch. 30 or ambulatory health care facility which offers laboratory services or diagnostic imaging to patients regardless of the cost associated with the hospital, subject to conditions requiring near-limitation of services to patients of the practice or ambulatory health care facility.	§ 16-2D-10(5)
Transfer of CON by a financially distressed hospital to a purchasing hospital.	§ 16-2D-10(6)
The acquisition by a qualified hospital, pursuant to an approved cooperative agreement under W. Va. Code § 16-29B-28, of a hospital located within a distance of twenty highway miles of the main campus of the qualified hospital.	§ 16-2D-10(7)
The acquisition by a hospital of a physician practice group which owns an ambulatory surgical center.	§ 16-2D-10(8)
The acquisition and utilization of one computed tomography scanner with a purchase price up to $750,000 that is installed in a private office practice where at minimum seventy-five percent of the scans are performed on the patients of the practice.	§ 16-2D-11(b)(1)
A birthing center established by a nonprofit primary care center that has a community board and provides primary care services to people in their community without regard to ability to pay, or established by a nonprofit hospital with less than one hundred licensed acute care beds; this exemption applies only in areas that are underserved with respect to low-risk obstetrical services.	§ 16-2D-11(b)(2)
A health care facility acquiring major medical equipment, adding health services or obligating a capital expenditure to be used solely for research.	§ 16-2D-11(b)(3)
The obligation of a capital expenditure to acquire, either by purchase, lease or comparable arrangement, the real property, equipment or operations of a skilled nursing facility.	§ 16-2D-11(b)(4)
Shared health services between two or more hospitals licensed in West Virginia providing health services made available through existing technology, other than cardiac catheterization, that can reasonably be mobile.	§ 16-2D-11(b)(5)
The acquisition, development or establishment of a certified interoperable electronic health record or electronic medical record system.	§ 16-2D-11(b)(6)
The addition of forensic beds in a health care facility.	§ 16-2D-11(b)(7)
A behavioral health service selected by the Department of Health and Human Resources in response to its request for application for services intended to return children currently placed in out-of-state facilities to the state or to prevent placement of children in out-of-state facilities.	§ 16-2D-11(b)(8)
The replacement of major medical equipment with like equipment, only if the replacement major medical equipment cost is more than the expenditure minimum.	§§ 16-2D-2(23), 16-2D-11(b)(9)
Renovations within a hospital, only if the renovation cost is more than the expenditure minimum.	§ 16-2D-11(b)(10)
Renovations to a skilled nursing facility.	§ 16-2D-11(b)(11)
The donation of major medical equipment to replace like equipment for which a certificate of need has been issued and the replacement does not result in a substantial change to health services. This exemption does not include the donation of major medical equipment made to a health care facility by a related organization.	§ 16-2D-11(b)(12)
A person providing specialized foster care personal care services to one individual and those services are delivered in the provider’s home.	§ 16-2D-11(b)(13)
A hospital converting the use of beds except a hospital may not convert a bed to a skilled nursing home bed and conversion of beds may not result in a substantial change to health services provided by the hospital.	§ 16-2D-11(b)(14)
No CON Required For:	W. Va. Code
The construction, renovation, maintenance or operation of a state owned veterans skilled nursing facilities established pursuant to article one-b.	§ 16-2D-11(b)(15)
Developing and operating a skilled nursing facility with no more than thirty-six beds in a county that currently is without a skilled nursing facility.	§ 16-2D-11(b)(16)
A critical access hospital, designated by the state as a critical access hospital, after meeting all federal eligibility criteria, previously licensed as a hospital and subsequently closed, if it reopens within ten years of its closure.	§ 16-2D-11(b)(17)
The establishing of a health care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome.	§ 16-2D-11(b)(18)
The construction, development, acquisition or other establishment of community mental health and intellectual disability facility.	§ 16-2D-11(b)(19)
Providing behavioral health facilities and services.	§ 16-2D-11(b)(20)
The construction, development, acquisition or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population.	§ 16-2D-11(b)(21)
The transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital to a skilled nursing facility providing intermediate care and skilled nursing services.	§ 16-2D-11(b)(22)
The construction, development, acquisition, or other establishment by a health care facility of a non-health related project, only if the non-health related project cost is more than the expenditure minimum.	§ 16-2D-11(b)(23)
The construction, development, acquisition or other establishment of an alcohol or drug treatment facility and drug and alcohol treatment services unless the construction, development, acquisition or other establishment is an opioid treatment facility or programs as set forth in subdivision (4) of section nine of this article.	§ 16-2D-11(b)(24)
Assisted living facilities and services.	§ 16-2D-11(b)(25)
The creation, construction, acquisition or expansion of a community-based nonprofit organization with a community board that provides or will provide primary care services to people without regard to ability to pay and receives approval from the Health Resources and Services Administration.	§ 16-2D-11(b)(26)
The acquisition and utilization of one computed tomography scanner and/or one magnetic resonance imaging scanner with a purchase price of up to $750,000 by a hospital.	§ 16-2D-11(b)(27)

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