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The Kentucky Office of Health Policy Wants Your Comments

On October 1, 2013, the Kentucky Office of Health Policy issued a Special Notice stating that the Cabinet for Health and Family Services is accepting written comments in preparation of the filing of the 2014 update to the 2013-2015 State Health Plan. According to the Special Notice, the Cabinet is particularly interested in comments regarding revisions to the State Health Plan in order for it to comply with the Affordable Care Act. Although the State Health Plan is only prepared triennially, it is updated and signed by the Governor annually.

The State Health Plan is a critical element of the certificate of need (“CON”) process. Kentucky health care providers planning to establish new facilities or expand existing services must first obtain a CON from the state to establish new services, additional sites, and add acute and long term care beds in many circumstances. This administrative process is complicated by other laws and regulations governing health care facilities, operations and transactions and does not necessarily represent the needs of the Commonwealth. Filing comments about the State Health Plan is one of the most effective tools for requesting changes.

With Kentucky’s expansion of Medicaid eligibility as well as increasing numbers of individuals with health insurance coverage, health care providers should think carefully about the services that may be established in the next few years.  As always, different providers have different and competing interests, but as Medicaid expands, the need for access to care should also expand.  Typically, filing comments involves proposing a change in specific review criteria.  While industry associations file comments that reflect the consensus of a committee of the association, these comments may not always represent the interests of individual members, who also have the opportunity to request changes.  Because case law has established that compliance with the relevant State Health Plan is mandatory for every CON application, the State Health Plan is probably the very most important aspect of the CON process.

With the extended November 30, 2013 deadline for submission of comments, health care providers should review strategic plans and stay abreast of what the industry associations are proposing.  And, bear in mind that there is a little gamesmanship involved in the timing of comments and the public hearing when there is one.  Please contact us if you have any questions or need assistance.

Gina M. Riddell, MPA, is a Research and Compliance Analyst of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Riddell concentrates her practice in healthcare law and is located in the firm’s Lexington office. She can be reached at griddell@mmlk.com  or at (859) 231-8780.

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