Tenn. Comp. R. & Regs. 0720-10-.05 - EXPIRATION, REVOCATION, AND MODIFICATION OF ISSUED CERTIFICATES

(1) Prolonged certification periods and extensions of expiration dates of certificates are disfavored. Any request for a prolonged certification period must be clearly set forth in the application in order to be considered. A request for an extension of the expiration date must be made in writing to the Agency and filed prior to the first day of the month in which the request is to be considered by the Agency, and will be processed in accordance with policies established by staff.

(2) Prolonged certification period. A prolonged certification period will be granted only where exceptional circumstances are shown to exist which make completion of the project within the time limits prescribed by statute unachievable using all reasonable means.

(3) Extension of expiration date may be granted due to unforeseen occurrences. All requests for extension of the expiration date must be filed at the Agency's office and be accompanied by a filing fee. The filing fee shall be an amount which bears the same ratio to the initial examination fee submitted with the application, as the requested extension of time bears to the original certification period.

(4) Extension of expiration date due to appeal. In the event of a proper and timely appeal of the Agency's decision to grant a certificate of need, the certification period will be automatically extended, and the expiration date will be automatically stayed, during the pendency of the appeal.

(a) The time period of the extension/stay will be equal to the period of time beginning with the date the petition is received at the Agency's office, and ending with the effective date of the decision of the appellate court of last resort, or the expiration of the time period available for seeking further appellate review (where such appellate review is not sought), whichever occurs first.

(b) At the conclusion of the appellate process, as described in subparagraph (4)(a) above, a revised certificate of need, reflecting the new expiration date, may be issued upon request of the certificate holder.

(5) The Agency will conduct an annual review of progress of each project for which a certificate of need has been granted. The certificate holder shall timely respond to staff requests for information in connection with such progress reviews, and otherwise cooperate with staff in such progress reviews. As part of this progress review, the certificate holder shall submit to the Agency a copy of any signed agreements with TennCare managed care organizations executed after the date the certificate of need was granted, or a status update on any pending negotiations with such entities, within six (6) months after issuance of the certificate of need, and again at twelve (12) months. The certificate holder must show that it is making substantial and timely progress in implementing the project. In the absence of such a showing, the Agency may initiate proceedings to revoke the certificate of need.

(6) Special corrections and revised certificates. Any issued certificate of need containing typographical errors or requiring similar clerical changes on its face, should be reported by the certificate holder and/or may be recalled by the Agency or staff. In the event of such nonsubstantive changes, or technical errors or omissions the Executive Director may issue a "revised" certificate in correct form. The certificate holder shall surrender the original certificate prior to its reissuance in corrected form.

(a) Examples of errors and omissions and other nonsubstantive changes which may be made through a revised certificate include:

1. A typographical error;

2. A change in the "doing business as" name of an institution or facility;

3. An extension of the expiration date due to a completed appeal; and

4. Other non-substantive changes as approved by the Executive Director;

(b) Except for changing the expiration date due to a completed appeal as provided above, a revised certificate pursuant to this subdivision shall not be construed as extending the expiration date.

(7) Modifications and/or addendums to issued certificates. In the event a certificate holder wishes to make substantive changes relating to the scope, cost, or duration of the project, written request must be made to, and formally approved by, the Agency in its discretion. If approved, such changes may be reflected in either the issuance of a modified certificate of need, or by the issuance of an addendum to the original certificate. If the request is denied, the Agency's decision is final, and no appeal shall be allowed.

(a) Changes included within the provisions of this subdivision may include, but are not limited to, cost increases or decreases, downscaling or increasing the scope or square footage of a project, requests for an extension of the expiration date and changes of ownership where allowed by law and Agency rules. Generally, such changes resulting in either a thirty (30) percent increase or decrease shall be presumed substantive, though there will be instances where changes greater than thirty (30) percent would not be substantive and instances where changes less than thirty (30) percent would be substantive, depending upon the totality of the circumstances. In no event will any change in cost of less than $100,000 be deemed a substantive cost modification. In no event will any change which would independently require a certificate of need be considered for a modification or addendum. Multiple requests for modifications of a certificate of need, and such other modifications which in the discretion of the Agency would have significantly impacted public participation in the Agency's consideration of the original application, may be considered by the Agency as requiring a separate certificate of need.

1. Certain changes of ownership ("change of control"), prior to licensure constitute the transfer of a certificate of need, and will render the certificate null and void, as provided in T.C.A. § 68-11-1618.

In addition to the circumstances constituting a change of ownership ("change of control") as specified in T.C.A. § 68-11-1618, the termination of interest of over 50% of the membership of a non-profit corporation constitutes a change of ownership/change of control. If the change is made from a non-profit, membership corporation to a non-profit, non-membership corporation, there is no change of control if the boards of directors of the corporations are interlocking to the extent that there is no actual change of control of the corporate powers of the corporation which will hold the certificate of need.

(b) Any certificate holder seeking a modification or addendum must make a formal request in writing to the Agency, in accordance with policies adopted by the Agency staff. Such written request must be accompanied by the appropriate supporting documentation justifying the requested modification. Simultaneously with the submission of such written request, the certificate holder shall also file written notice with all parties who sought simultaneous review, filed competing applications, or who opposed the original application. Where an extension of the expiration date is sought, the request must be accompanied by the fee referred to elsewhere in this rule.

(c) A change of site may not be approved through a modification or addendum; a separate certificate of need or exemption is required.

(8) Any certificate holder seeking the removal of a condition which was placed on the certificate of need may make an application in writing to the Agency, in accordance with policies adopted by the Agency staff. At the time it makes such written application with the Agency, the certificate holder shall also file written notice with all parties who sought simultaneous review, filed competing applications, or who opposed the original application, and shall publish notice thereof in a newspaper of general circulation. In order to show "good cause" for removing a condition, the certificate holder has the burden of showing that circumstances have significantly changed, which necessitate the removal of the condition. Mere disagreement or dissatisfaction with the condition will normally not be considered to be good cause for removing the condition.

(a) Application to the Agency for the addition of a specialty to an issued certificate that is limited to either a single specialty or specific multiple specialties shall be made by the filing of a new certificate of need application form.

(b) Application to the Agency for the addition of therapeutic cardiac catheterization to an issued certificate that is limited to diagnostic cardiac catheterization shall be made by the filing of a new certificate of need application.

Notes

Tenn. Comp. R. & Regs. 0720-10-.05

Original rule filed August 31, 2005; effective November 14, 2005. Rule was previously numbered 0720-10-.06 but was renumbered 0720-10-.05 with the deletion of the original rule 0720-10-.02 filed October 24, 2017; effective January 22, 2018. Amendments filed October 24, 2017; effective January 22, 2018. Emergency rules filed September 28, 2021; effective through March 27, 2022. Amendments filed December 27, 2021; effective 3/27/2022.

Authority: T.C.A. §§ 4-5-201, et seq., 4-5-202, 68-11-1605, 68-11-1606, 68-11-1607, 68-11-1609, 68-111611, and 68-11-1620; 2016 Tenn. Pub. Acts Ch. 1043; and 2021 Tenn. Pub. Acts Ch. 557.