Virginia Department of Health Issues Updated Guidance for COPN IFFCs

On May 31, 2013, the Virginia Department of Health issued an updated guidance document regarding Certificate of Public Need (COPN) Informal Fact Finding Conference (IFFC) Policies and Procedures. While no substantive changes have been made to the requirements for applicants at IFFCs, the guidance document simplifies directions to applicants and emphasizes important steps in the IFFC process.

General Policies:

Section 2.B. of the new guidance document, which corresponds to prior Part I, Section 4, emphasizes that, when possible, IFFCs should be conducted on the date identified in the DCOPN’s letter acknowledging receipt of responses to completeness review questions.

Should applicants require that an IFFC be rescheduled, Section 2.C. states that pursuant to notification of the adjudication officer requesting the IFFC be held on a later date, applicants are required to agree that any awarded extensions of time will not be the cause of statutory deemed approval of any application. The guidance document emphasizes that if an extension of time would result in an approval, then the IFFC must be held on the date originally identified by DCOPN in its response to the completeness questions.

Sections 2.D., 2.E., and 2.F. clarify requirements for documents filed pre-IFFC and requirements for oral presentation at the IFFC. For any documents filed or oral evidence provided, brevity, clarity, and germaneness is encouraged. Further, the adjudication officer has the right to manage the oral proceedings and post-IFFC submissions in the interest of brevity, clarity, and germaneness within the confines of due process, and customary practice and/or precedent. The guidance document emphasizes that this requirement applies to all oral and written evidence.

Policies and Procedures for Conduct of an IFFC:

This section contains the same information as Section III in the prior guiding document but lays out the chronological procedure for the entire IFFC. This section also omits the Good Cause IFFC Petition explanation, now located in Section 4.

Summarily, procedure for an IFFC is as follows:

  • A roster designating persons in attendance will be provided as well as transcription of the proceedings.
  • The adjudication officer will introduce counsel and applicants and may make opening statements; further, the officer may ask clarifying questions at any time during the proceeding.
  • No cross-examination will occur, and objections will be taken under advisement and addressed in the adjudication officer’s decision, as appropriate.
  • In competing applications, each side will have the opportunity to present witnesses testimony and written exhibits in the order determined by COPN request number; for single applications, the applicant will have the same opportunity to provide witness testimony and written exhibits.
  • Following applicant(s) presentation, any regional health planning agency and DCOPN analyst who authored the staff report will have the opportunity to orally present the recommendation and its basis.
  • At the end of the presentation of evidence, the adjudication officer may ask for extension of statutory deadlines for the review of the application and the Commissioner’s decision if there is a backlog in the adjudicatory workload.
  • Dates for post-IFFC submissions will be memorialized based either upon the statutory deadlines or other deadlines agreed upon by the parties.

Good Cause Petition

The guidance document emphasizes the following process and rules for a good cause petition in Section 4:

  • Good cause petitions shall precede an IFFC on an application and should be brief.
  • The petitioner for cause may only discuss the issues brought up in the petition.
  • A good cause petition IFFFC will be held distinct and separate from an IFFC on the application(s).

Finally, a person who attempts to show good cause will be notified regarding the success of their petition before the review of the application(s) on their merits begins.

Policies and Procedures Post-IFFC:

Section 5 of the new guidance document discusses all requirements for filings and procedures after the IFFC has occurred. Namely, the section emphasizes three important parts of the post-IFFC process. First, all conferences for the purpose of clarifying or discussing an application must include all applicants. Second, submissions on the deadlines agreed to at the IFFC must occur by 5 pm on the agreed-upon date in order to be considered. Related to this condition, the document highlights that hard copy submissions are appreciated, and if the applicant submits by email the submission must come from the email account of a recognized counsel or the email must identify in its body that it is submitted on behalf of a recognized counsel. Further, if the email is the only submission with no hard copy to follow, the email must state this in its body. Finally, the guidance document provides that the adjudication officer will submit a timely decision to the Commissioner to allow for adequate review and consideration. The Commissioner’s decision should be submitted by the date memorialized at the IFFC and may be extended for hardship for 25 days, per the statutory requirement.

As part of its service to clients, Mellette PC is follows Virginia Department of Health updates and changes to guidance on all COPN requirements. If our firm can provide advise you further on Virginia COPN issues and procedures, or on other matters, please let Peter Mellette or Harrison Gibbs know.

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