TITLE 12. HEALTH

STATE BOARD OF HEALTH

Fast-Track Regulation

Title of Regulation: 12VAC5-220. Virginia Medical Care Facilities Certificate of Public Need Rules and Regulations (amending 12VAC5-220-100).

Statutory Authority: §§ 32.1-12 and 32.1-102.2 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 22, 2026.

Effective Date: May 7, 2026.

Agency Contact: Geoff Garner, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Henrico, VA 23233, telephone (804) 367-2157, or email geoff.garner@vdh.virginia.gov.

Basis: Section 32.1-12 authorizes the State Board of Health to make, adopt, promulgate, and enforce regulations necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by the board, the Commissioner of Health, or the Virginia Department of Health. Section 32.1-102.2 of the Code of Virginia requires the board to promulgate regulations consistent with Article 1.1 (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia and, specifically, to establish an exemption from the requirement for a certificate for a project involving a temporary increase in the total number of beds in an existing hospital or nursing home under certain conditions.

Purpose: This action is essential to protect the health, safety, and welfare of citizens because normal state controls on the hospital and nursing home bed inventory in the Commonwealth have proven to be too inflexible during certain public health emergencies where demand for beds outstrips both the current inventory and the mandated processes by which additional inventory can be authorized. These amendments will allow hospitals and nursing homes to temporarily increase bed inventory in response to disasters and other public health emergencies, while still allowing the commissioner sufficient oversight to ensure the beds are being operated and staffed safely.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because the minimum information required when requesting temporary beds and the process described are consistent with the minimum information requested of hospitals and nursing homes and the process that was utilized during the COVID-19 pandemic pursuant to Executive Orders 52 (2020), 84 (2022), 11 (2022), and 16 (2022).

Substance: The amendments (i) create a process that is exempt from Certificate of Public Need requirements to allow hospitals and nursing homes to temporarily increase bed inventory during disasters or other public health emergencies and (ii) add a Request for Temporary Beds form.

Issues: The primary advantage to the public is the ability to rapidly and temporarily increase hospital or nursing home bed inventory during disasters or other public health emergencies while preserving life safety code protections and safe staffing. The primary advantage to the Commonwealth is a new exemption process that grants more discretion and flexibility to the board and commissioner in responding to public health emergencies for which additional bed inventory is needed without needing either a legislative amendment to the Code of Virginia or an executive order from the Governor. There are no primary disadvantages to the public or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. Pursuant to Chapters 712 and 772 of the 2022 Acts of Assembly, the State Board of Health (board) proposes to incorporate in the regulation an exemption from the certificate of public need rules for nursing homes and hospitals that may request a temporary increase in their bed capacity to respond to public health emergencies and to specify the information needed to evaluate such requests.

Background. Prior to the COVID-19 pandemic, § 32.1-102.2 A 6 of the Code of Virginia provided the board or the Commissioner of Health with limited authority to grant an exemption from the requirement for a certificate of public need for a temporary increase in the total number of beds in an existing hospital or nursing home for no more than 30 days when a natural or man-made disaster has caused the evacuation of a hospital or nursing home and a public health emergency exists due to a shortage of hospital or nursing home beds. However, this authority was insufficient for the board or the commissioner to grant an exemption from the certificate of public need rules for a temporary increase in nursing home or hospital beds in order to respond to the COVID-19 pandemic. Instead, during the pandemic, the Virginia Department Health (VDH) utilized an alternative authorization process pursuant to Executive Orders 52 (2020), 84 (2022), 11 (2022), and 16 (2022). According to VDH, normal state controls (i.e., existing certificate of need statutes and regulations) on the hospital and nursing home bed inventory in the Commonwealth have proven to be too inflexible during certain public health emergencies where demand for beds outstrips both the existing inventory and the mandated processes by which additional inventory can be authorized. In order to address these concerns, the 2022 General Assembly passed Chapters 712 and 772. This legislation requires the board to amend its regulation about exemptions for certificates of public need for a temporary increase in the total number of beds in an existing hospital or nursing home to include a temporary increase in the total number of beds resulting from the addition of beds at a temporary structure or satellite location operated by the hospital or nursing home, provided that the ability remains to safely staff services across the existing hospital or nursing home. These acts also amended the exemption to now also be triggered by an emergency order entered pursuant to § 32.1-13 or 32.1-20 of the Code of Virginia for the purpose of suppressing a nuisance dangerous to public health or a communicable, contagious, or infectious disease or other danger to the public life and health.² The duration of this exemption was amended to be either (i) a period of no more than the duration of the commissioner's determination plus 30 days when the commissioner has determined that a natural or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of hospital or nursing home beds or (ii) a period of no more than the duration of the emergency order entered pursuant to § 32.1-13 or 32.1-20 of the Code of Virginia plus 30 days. In short, this regulatory action would amend the regulation to provide an exemption from the certificate of public need rules at the discretion of the board or the commissioner for a temporary increase in nursing home or hospital beds during certain public health emergencies as directed by the legislation.

Estimated Benefits and Costs. Without the proposed changes to this regulation, the board or the commissioner must rely on executive orders to temporarily increase the bed capacity at nursing homes and hospitals as it has been done between 2020 and 2022. Under the proposed amendments, the board or the commissioner would have the discretion and authority to temporarily increase the bed capacity at nursing homes and hospitals as provided in the legislation. According to VDH, the information required when requesting temporary beds and the process described in this regulatory action is consistent with the minimum information that was requested of hospitals and nursing homes and the process that was utilized during the COVID-19 pandemic pursuant to the executive orders. Requested information included name, license number, contact information for the nursing home or the hospital requesting the increase, the planned use and staffing for the temporary beds, location, and some other attendant information to ensure safety. The main benefit of the proposed regulatory change is to implement a legislative mandate to create an expeditious process by which hospitals and nursing homes can request temporary beds in responding to public health emergencies while ensuring that the commissioner and VDH have sufficient information to take action on the request. There does not appear to be any significant costs associated with the proposed regulatory changes as the authority and discretion provided to the commissioner or the board to grant an exemption from the certificate of public need rules for a temporary bed capacity are mandated by the legislation and the information to be provided with an application is the same as what had been requested in the process utilized under the executive orders.

Businesses and Other Entities Affected. The proposed changes apply to existing nursing homes and hospitals. According to VDH, there are 106 licensed general hospitals and 287 nursing homes. Between 2020 and 2022, 57 facilities (49% of all inpatient hospitals and 1.0% of all nursing homes) added over 3,700 temporary beds under the executive orders in response to COVID-19 pandemic. None of the affected entities appear to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined. The authority and discretion provided to the board or the commissioner is legislatively mandated, and the information the board is proposing to require with a temporary bed capacity increase application is the same as what had been requested under the executive orders. Thus, no adverse impact is indicated.

Small Businesses⁴ Affected.⁵ VDH does not believe any general hospital meets the definition of small business and does not have any data to estimate how many nursing homes may, if any, meet the definition of small business. However, the proposed amendments do not appear to adversely affect small businesses.

Localities⁶ Affected.⁷ The County of Bedford operates a nursing home. Lee County and Chesapeake Hospital Authorities each operate a licensed general hospital. However, the proposed amendments do not appear to introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. No impact on the use and value of private property or real estate development costs is expected from promulgation of the proposed regulatory amendments.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title32.1/chapter1/section32.1-13/ and https://law.lis.virginia.gov/vacode/title32.1/chapter1/section32.1-20/.

³ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁴ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁵ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The State Board of Health has reviewed the economic impact analysis prepared by the Department of Planning and Budget and believes the contents to be substantively complete and accurate.

Summary:

Pursuant to Chapters 712 and 772 of the 2022 Acts of Assembly, the amendments adjust the exemption from the certificate of public need rules at the discretion of the State Board of Health or the Commissioner of Health for a temporary increase in nursing home or hospital beds during certain public health emergencies.

12VAC5-220-100. Requirements for reviewable medical care facility projects; exceptions.

A. Prior to initiating a reviewable medical care facility project, the owner or sponsor shall obtain a certificate of public need from the commissioner, except as provided in subsection B of this section. In the case of an acquisition of an existing medical care facility, the notification requirement set forth in 12VAC5-220-120 shall be met.

B. Projects Provided that an existing hospital or nursing home complies with subsections C, D, and F of this section, a project involving a temporary increase in the total number of beds in an existing hospital or nursing home shall be exempt from the requirement for a certificate, for a period of no more than 30 days, if the:

1. The commissioner has determined that a natural disaster or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of hospital or nursing home beds.; or

2. The board has entered an emergency order pursuant to § 32.1-13 of the Code of Virginia or if the commissioner has entered an emergency order pursuant to §§ 32.1-13 and 32.1-20 of the Code of Virginia for the purpose of suppressing:

a. A nuisance dangerous to public health;

b. A communicable, contagious, or infectious disease; or

c. Other danger to the public life and health.

C. An existing hospital or nursing home may request a temporary increase in its total number of beds by filing a Request for Temporary Beds form with the department that includes:

1. The name of the hospital or nursing home;

2. The license number of the hospital or nursing home;

3. The name of the nursing home administrator, the hospital chief executive officer, or the chief executive officer's designee;

4. The telephone number of the nursing home administrator, the hospital chief executive officer, or the chief executive officer's designee;

5. The email address of the nursing home administrator, the hospital chief executive officer, or the chief executive officer's designee;

6. The number and type of temporary beds the hospital or nursing home anticipates adding;

7. The planned use of the temporary beds;

8. The plans for staffing the temporary beds;

9. The efforts undertaken or to be undertaken to reduce or eliminate the number of temporary beds needed;

10. The address of the building, temporary structure, or satellite location where the hospital or nursing home intends to locate the temporary beds;

11. The specific locations within the building, temporary structure, or satellite location where the hospital or nursing home intends to locate the temporary beds;

12. Whether the locations identified in subdivision 11 of this subsection meet life safety code requirements for the type of patients or residents expected to occupy those temporary beds;

13. If life safety code requirements are not currently met for the locations identified in subdivision 11 of this subsection, what action the hospital or nursing home will take to meet life safety code requirements; and

14. Any other information that the board or commissioner may request.

D. The hospital or nursing home shall provide additional information as may be requested or required by the commissioner to evaluate the temporary bed request.

E. The commissioner shall notify the hospital or nursing home in writing of the commissioner's decision on the temporary bed request. If granted, the commissioner may attach conditions to the approval that, in the sole judgment of the commissioner, protects public, patient, or resident health, safety, or welfare.

F. The hospital or nursing home may not add temporary beds unless its request has been granted and may not operate temporary beds more than 30 days after the expiration of:

1. The commissioner's determination pursuant to subdivision B 1 of this section; or

2. The board's or the commissioner's emergency order pursuant to subdivision B 2 of this section.

G. The department shall promptly inform the Department of Medical Assistance Services and the Centers for Medicare and Medicaid Services of the identity of any hospital or nursing home certified as a Medicare provider or Medicaid provider that fails to comply with subsection F of this section.

H. The commissioner may rescind or modify the approval of a temporary bed request if:

1. Additional information becomes known that alters the basis for the original approval, including if the hospital or nursing home added temporary beds prior to receiving the approval; or

2. The hospital or nursing home fails to meet any conditions attached to the approval.

I. No certificate of public need shall be required for use of up to 10 beds per day among the medical care facility's inpatient hospital beds as swing beds for the furnishing of services of the type that if furnished by a nursing home or certified nursing facility would constitute skilled care services by a medical care facility described in § 32.1-102.1:3 A 1 of the Code Virginia that is certified as a critical access hospital by the Centers for Medicare and Medicaid Services pursuant to Title XVIII of the Social Security Act (42 USC § 1395 et seq.). For purposes of this subsection, a critical access hospital may calculate the 10-swing-bed-per-day limitation as an average over the fiscal year of the hospital. In the event the calculation exceeds an average of equal to or fewer than 10 swing beds in any fiscal year, the critical access hospital shall have the following fiscal year to reduce the fiscal year average to equal to or fewer than 10 swing beds. Any critical access hospital that fails to reduce the fiscal year average to equal to or fewer than 10 swing beds during the second fiscal year shall no longer be able to calculate the 10-swing-bed limitation by averaging on a fiscal year basis and shall calculate the limitation on a daily basis until such time as it has met the 10-swing-bed-per-day limit for two consecutive fiscal years, at which time averaging may resume. No critical access hospital shall have more than 15 swing beds per day for more than five consecutive days. A critical access hospital shall make a good faith effort and document the efforts made to place each additional patient in a certified nursing facility prior to exceeding the 10-swing-bed-per-day limit.

FORMS (12VAC5-220)

Application for Expedited Review for Certificate of Public Need (eff. 6/1994).

Registration Form for Capital Expenditures of $1,000,000 or More But Less than $2,000,000 Which are Not Defined as a Project on or After July 1, 1993.

Request for Extension of a Certificate of Public Need Beyond Two Years from Date of Issuance.

Request for Extension of a Certificate of Public Need Beyond One Year, But Less then than Two Years from Date of Issuance (Rev. rev. 7/1993).

Application for a Medical Care Facilities Certificate of Public Need - Outpatient Facilities (Rev. rev. 12/1992).

Application for a Medical Care Facilities Certificate of Public Need - Hospitals (Rev. rev. 12/1992).

Application for a Medical Care Facilities Certificate of Public Need - Long-Term Care Facilities (Rev. rev. 10/2007).

Request for Temporary Beds, OLC-1009-F (eff. 6/2022)