KRS 216B.095: Nonsubstantive review of application.

(1) An applicant may waive the procedures for formal review of an application for a

certificate of need and request a nonsubstantive review as provided below. The

cabinet may grant or deny nonsubstantive review status within ten (10) days of the

date the appli cation is deemed completed and shall give notice to all affected

persons of the decision to conduct a nonsubstantive review. Any affected person

other than the applicant may request a hearing by filing a request with the cabinet

within ten (10) days of the notice to conduct a nonsubstantive review. As

applicable, hearings shall be conducted as provided in KRS 216B.085. Based solely

upon the record established with regard to the matter, the cabinet shall approve or

deny a certificate of need on all projects assigned nonsubstantive review status

within thirty-five (35) days of the determination of nonsubstantive review status. If

the application is denied nonsubstantive review status, it shall automatically be

placed in the formal review process.

(2) If a cert ificate of need is denied following a nonsubstantive review, the applicant

may request that the application be placed in the next cycle of the formal review

process. Nothing in this subsection shall require an applicant to pursue a formal

review before obtaining judicial review pursuant to KRS 216B.115.

(3) The cabinet may grant nonsubstantive review status to an application for a

certificate of need which is required:

(a) To change the location of a proposed health facility;

(b) To replace or relocate a li censed health facility, if there is no substantial

change in health services or substantial change in bed capacity;

(c) To replace or repair worn equipment if the worn equipment has been used by

the applicant in a health facility for five (5) years or more;

(d) For cost escalations; or

(e) In other circumstances the cabinet by administrative regulation may prescribe.

(4) Notwithstanding any other provision to the contrary in this chapter, the cabinet may

approve a certificate of need for a project required for the purposes set out in

subsection (3)(a) to (e) of this section, unless it finds the facility or service with

respect to which the capital expenditure is proposed to be made is not required; or

to the extent the facility or services contemplated by th e proposed capital

expenditure is addressed in the state health plan, the cabinet finds that the capital

expenditure is not consistent with the state health plan.

(5) The decision of the cabinet approving or denying a certificate of need pursuant to

this s ection shall be final for purposes of judicial appeal, unless the applicant

requests the application be placed in the formal review process. An approved

certificate shall be issued thirty (30) days after notice of the cabinet's decision,

unless a judicial appeal is taken and issuance is enjoined by the court.

(6) Notwithstanding any other provision of law, the cabinet shall not grant

nonsubstantive review status to a certificate of need application that indicates an

intent to apply for Medicaid certificatio n of nursing home beds within a continuing

care retirement community established under KRS 216B.015, 216B.020, 216B.330,

and 216B.332.

(7) Notwithstanding any provision of state law or the state health plan promulgated by

administrative regulation in accordance with KRS 216B.040, the cabinet shall grant

nonsubstantive review for a certificate of need proposal to establish an ambulatory

surgical center if the applicant complies with the following:

(a) The applicant is an ambulatory surgical center that was o rganized and in

operation as the private office of a physician or physician group prior to

October 1, 2006;

(b) 1. The cabinet's general counsel has submitted a letter to the Accreditation

Association for Ambulatory Health Care advising that the cabinet do es

not object to the applicant's parent company applying for and obtaining

Medicare certification; or

2. The applicant is an ambulatory surgical center that has received from the

cabinet a favorable advisory opinion dated June 14, 2005, confirming

that the applicant would be exempt from the certificate of need or

licensure requirement;

(c) The applicant's amb ulatory surgical center has been inspected and accredited

by the Accreditation Association for Ambulatory Health Care since December

31, 2006, and has maintained accreditation with that organization consistently

since that time; and

(d) The applicant was a party to litigation concerning the ambulatory surgical

center and physician office issue and, prior to July 12, 2012, obtained a Court

of Appeals ruling in its favor.