Practices:
Certificate of Need
The sensitive and political nature of the CON process requires extensive understanding of all the variables: the Planning Act and regulations, the applicable administrative laws, the planning area inventory, the role of the provider in the market, and the substantive standards required for approval. Ungaretti & Harris has this understanding. We have helped clients draft applications for a wide spectrum of projects, including:
- Long term care facilities
- ASTCs
- Dialysis Centers
- Hospital modernization and expansion projects
- Academic medical center replacement facilities
Following are some of the key challenges applicants face, as well as our approach for overcoming them.
Crafting an effective application
An effective CON application must provide in-depth information and analysis to show that the project would satisfy an important need in the market. We help clients analyze planning area inventory, client volume, line drawings and cost estimating. When necessary, we derive substantive basis for the state agency need calculation so that any epidemiological errors are revealed for Board consideration. We also help applicants understand and calculate the impact of difficult variables such as new technologies, developments in medicine, and the full scope of treatment modalities.
Anticipating challenges during the public hearing process
The public hearing process in Illinois CON law creates the opportunity for adverse providers to portray a project negatively in an effort to turn sentiment against the project. We help to craft a clear story about the provider, its commitment to the community, and how the project will improve the health care system and consumers’ access to services. We also ensure that provider and community spokespersons are well prepared to articulate the benefits of the project.
Preparing for the Board hearing
At the Planning Board hearing, an applicant must be able to cogently describe the project and the need it meets as well as feel comfortable answering questions that may seem adverse. Our experience with CON projects enables us to anticipate difficult questions and equip the spokesperson with effective, straightforward answers.
Overcoming competitors’ challenges in Circuit Court
Our extensive analysis of judicial reversals shows that, with few exceptions, the reversals result because an applicant failed to include in the application readily available evidence that would have likely persuaded the court. Our strategy is to ensure that the client has created a record in Planning Board approval that leaves the court with little opportunity to reverse or remand the case. Our experience shows this preemptive approach to be the most effective counter to a challenge in Circuit Court.
Dealing with unforeseeable events
Construction problems, financial market turmoil and new technology can all affect a project during its implementation. Because the Planning Board maintains jurisdiction over a project until it is closed out, it is critical to understand how to work with the Board to negotiate win-win alterations to the project when the unexpected happens. Ungaretti & Harris attorneys have long experience negotiating effectively with the Planning Board to allow projects to move ahead on agreeable terms.
Litigating against the Planning Board
While litigation is seldom desirable, we have achieved success by litigating against Planning Boards when no other options were left. Our government litigation group includes former Illinois Attorney General officials, an Assistant United States Attorney of distinction, and a former Co-Chairman of JCAR, a key state agency administering the Administrative Procedure Act. Our attorneys have won cases against numerous state and local agencies, and are well equipped to litigate on behalf of our clients to help them secure or protect a Certificate of Need.
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