1. (a) Prior to submitting an application for licensure in accordance with He-P 812.05, a proposed health care facility shall comply with the requirements of RSA 151:4-a, II, and send written notification of its intent to submit an application for licensure as an ambulatory surgical center, hospital, emergency medical care center, birthing center, walk in care center, dialysis center, or special health care service, via certified mail to the department and to the chief executive officer of all critical access hospitals with a primary physical location within a 15 mile radius of the proposed ambulatory surgical center, emergency medical care center, hospital, birthing center, walk in care center, dialysis center, or special health care service.

2. (b) The written notification required in (a) above shall contain the following:

   1. (1) Name of the person or entity seeking to establish the proposed ambulatory surgical center, emergency medical care center, hospital, birthing center, walk in care center, dialysis center, or special health care service;
   2. (2) Proposed physical location of the facility;
   3. (3) Type of facility; and
   4. (4) Scope of services for the facility.
3. (c) Upon receipt of the written notification in (a) above, the chief executive officer of the critical access hospital(s) shall have 30 days to file a written objection with the department.

4. (d) The written objection in (c) above shall contain the following:

   1. (1) The critical access hospital’s detailed basis for the objection to the proposed health care facility to include:

      1. a. If the proposed health care facility will have a material adverse impact on the critical access hospital’s operations; and
      2. b. How the proposed heath care facility will impact the health care services in the service area in terms of utilization, patient charges, market share, physician referral patterns, personnel resources, and referral sources; and
   2. (2) Proof that the objection was sent via certified mail to the proposed individual or entity seeking to establish the proposed health care facility.

5. (e) Upon receipt of an objection meeting the requirements of (d) above from a critical access hospital located within a 15 mile radius of a proposed ambulatory surgical center, emergency medical care center, hospital, birthing center, walk in center, dialysis center, or special health care service, the department shall send a letter to the proposed health care facility informing them of the:

   1. (1) Objection and the reason for the objection; and

   2. (2) Opportunity to submit a written response to the objection, which shall include at a minimum:

      1. a. Any information regarding the objection that might be relevant to the determination of material adverse impact; and
      2. b. How the proposed health care facility will not impact the health care services in the service area in terms of utilization, patient charges, market share, physician referral patterns, personnel resources, and referral sources.
6. (f) The department shall provide the names of 3 independent contractors, retained by the department through a competitive procurement process, to the critical access hospital and proposed health care facility for their consideration.
7. (g) The independent contractors proposed in (f) above shall be experts in the provision of health care services and skilled in determining how utilization, patient charges, market share, physician referral patterns, personnel resources, and referral sources could be impacted by the proposed health care facility.
8. (h) If, after proposing 3 independent contractors, the critical access hospital and proposed health care facility cannot agree on an independent contractor within 30 days of the proposal by the department, the department shall designate the independent contractor to perform the assessment and create the expert report.

9. (i) Within 30 days of the selection of the independent contractor in accordance with (f) and (h) above, the department shall send a letter to the selected independent contractor requesting their services. This letter shall include:

   1. (1) A request to engage the independent contractor’s services to perform the assessment and create the expert report as required in RSA 151:4-a, II (b);
   2. (2) A summary of the requirements for the content of the expert report, to include how the proposed project might or might not impact the health care services in the service area in terms of utilization, patient charges, market share, physician referral patterns, personnel resources, and referral sources;
   3. (3) The contact information for the proposed health care facility and chief executive officer of the critical access hospital(s) raising the objection(s);
   4. (4) The objection and response along with any other documentation received by the department relative to this transaction; and
   5. (5) A deadline for completion of the expert report, which shall be no later than 90 days from the date of retention of the expert, unless and extension is granted by the department in accordance with (s) below. Such an extension shall not exceed 30 days.
10. (j) Upon selection of the independent contractor, the department shall notify the proposed health care facility and critical access hospital of the selected independent contractor.
11. (k) The independent contractor shall invoice the proposed health care facility and critical access hospital the cost of any fees associated with the retention and work to be completed. The fees shall be shared equally between the proposed health care facility and the critical access hospital.
12. (l) Invoices shall be paid for in advance of any services performed in accordance with RSA 151:4-a, II(b)(6).
13. (m) Payment of the proposed health care facility’s and critical access hospital’s portion of the advance retainer to the independent contractor shall be paid within 5 business days.
14. (n) If the proposed health care facility fails to make payment in accordance with (m) above, it shall forfeit its right to submit an application for licensure.
15. (o) If the critical access hospital fails to make payment in accordance with (m) above, it shall forfeit its right to object and the proposed health care facility shall be allowed to apply for licensure.

16. (p) In accordance with RSA 151:4-a, II(b), the proposed health care facility and critical access hospital shall provide any information requested by the independent contractor to complete its report in accordance with the following:

    1. (1) Information obtained at the request of the independent contractor shall not be considered confidential under RSA 151:13, unless the department determines that it should be exempt from disclosure under RSA 91-A:5;
    2. (2) The proposed health care facility and critical access hospital shall provide the information within a reasonable time, as determined by the independent contractor based on the scope of work of the project and the expected time to review said documentation, so that the independent contractor may finish its report in the required 90 day time period;
    3. (3) If the proposed health care facility fails to provide requested information in a reasonable time, it shall forfeit its right to submit an application for licensure; and
    4. (4) If the critical access hospital fails to provide requested information in a reasonable time, it shall forfeit its right to object and the proposed health care facility shall be allowed to apply for licensure.
17. (q) Within 30 days of retention of the independent contractor, the department shall publish a notice on the department’s website to notify the public of the proposed health care facility and solicit public comment for a period of at least 7 days.
18. (r) All public comments received in (q) above shall be provided to and considered by the independent contractor for use in the analysis.

19. (s) Within 90 days of retention of the independent contractor, the report as described in RSA 151:4-a, II(b) and (i)(2) above, shall be submitted to the department, unless an extension is granted by the department in accordance with the following:

    1. (1) The department shall grant an extension for good cause;
    2. (2) Good cause shall be determined by the Department and a finding of good cause shall require the independent contractor to show why the report cannot be completed within the 90 days and that the extension is not a result of the proposed health care facility or critical access hospitals failure to comply with the rules; and
    3. (3) Such an extension shall not exceed 30 days.
20. (t) Within 10 days of receipt of the expert report, the department shall provide a copy of the report to the proposed health care facility and critical access hospital.
21. (u) If the report finds that the proposed health care facility will have a material adverse impact, then the proposed health care facility shall not be allowed to apply for licensure.
22. (v) If the report finds that the proposed health care facility will not have a material adverse impact, then the proposed health care facility may proceed with application for licensure.
23. (w) The person or entity seeking to establish the proposed health care facility and the critical access hospital(s) shall have the right to request a rehearing by the commissioner, pursuant to RSA 541:3.
24. (x) The result of the rehearing may be appealed by petition to the Supreme Court, pursuant to RSA 541:6.
25. (y) If the proposed health care facility chooses to move forward with the licensing process prior to all appeal rights being exhausted, the proposed health care facility shall do so at its own risk and shall not hold the critical access hospital or the department liable for any costs incurred.
26. (z) The appellant shall bear all costs of the state in connection with any rehearing or petition for appeal, including the state’s attorneys’ fees.

Source. #5514, eff 11-25-92; amd by #6530, eff 6-27-97; amd by #6895, INTERIM, eff 11-26-98, EXPIRED: 3-26-99; paragraph (e) EXPIRED: 6-27-05 New. #9727-B, eff 6-18-10; ss by #12557, INTERIM, ,eff 6-26-18, EXPIRES: 12-24-18 New. #12926, eff 11-26-19; ss by #14042, eff 8-6-24