Certificate of Need

There is no national Certificate of Need law. Congress repealed the federal mandate in 1986, and CON has been purely state law ever since — which is why a provider operating in Tennessee, Georgia, and Alabama is dealing with three different programs, three different agencies, three different lists of what triggers review, and three different appeal routes. The framework rhymes across the three states; the specifics do not. A CON proceeding has two sides, and money rides on both: the provider trying to build, and the competitor trying to stop it. This page lays out how the process actually works, where the three states diverge, and what changes depending on which side you’re on.

Overview

A Certificate of Need is a prior approval. Before a provider may build a new facility, relocate or expand an existing one, add a regulated service line, change bed capacity, or in some cases acquire major medical equipment, it has to persuade a state agency that the project is needed — and do so before committing the capital. The burden is affirmative and it sits on the applicant: you are not asking permission to be denied, you are required to prove your case.

The policy behind CON is contested, and worth understanding because it shapes how the agencies behave. The premise the regulators operate under is that health-care capacity is unusual — adding beds, scanners, or operating rooms tends to raise total system spending rather than lower it through competition, so a regulator rations capacity to curb duplication. The counter-premise, the one driving the recent wave of repeals, is that CON mostly shields incumbents from new entrants. Both are live. For your purposes the practical takeaway is the same either way: in a CON state, an economically meaningful project is a regulated event, and an existing competitor has a legal seat at the table to oppose it.

That seat is the feature of CON that defines this practice. A CON proceeding has two sides. We represent the applicant building or expanding, and we represent the competitor or incumbent opposing a rival’s application — and when the agency has ruled, we represent either party on appeal: an applicant whose CON was denied can appeal, and — outside Tennessee, where a 2024 reform limits the post-decision petition to the denied applicant — so can a competitor who opposed a CON that was nonetheless granted. Certificate of Need is one of seven practice areas at the firm; it sits alongside the firm’s broader administrative-law and home-health regulatory work, because a contested CON case is, mechanically, an administrative-law proceeding, and the facilities most often caught by CON are home-health, hospice, and nursing operations.

One distinction to clear up at the outset, because it trips up newcomers: a CON is not a license. It is a prerequisite to licensure. Winning a CON establishes that the state will permit the service to exist; you still license and certify the facility afterward through a separate process.

When a Certificate of Need Is Required

Whether your project needs a CON is the first question, and increasingly it is not a simple yes. Tennessee and Georgia both narrowed their lists of regulated services in 2024, and some of Tennessee’s exemptions carry future effective dates — so a service that requires a CON today may be exempt next year. Because of that, the safe and correct first move is a reviewability determination: a written confirmation from the agency that your specific project does, or does not, require a CON, obtained before you spend money on it.

Across the three states, the events that typically trigger CON review include:

• Establishing a new health-care facility — a hospital, nursing home, ambulatory surgery center, home-health agency, hospice, and similar regulated institutions.
• Relocating an existing facility, or expanding it by adding licensed beds or operating-room capacity.
• Adding a new regulated service line — for example, open-heart surgery, organ transplantation, cardiac catheterization, neonatal intensive care, or other services the state designates.
• Acquiring major medical equipment — in some states only above a cost threshold, though Georgia’s 2024 reform deleted its equipment dollar floor, so regulated diagnostic or therapeutic equipment there can trigger review regardless of cost (and several equipment categories have been deregulated in Tennessee; see below).
• A capital expenditure on a health-care project above a dollar threshold the state sets.

What is not on a state’s list is exempt — and the exemption itself is often worth confirming in writing, because an agency’s published “basics” page can lag the statute. The list of regulated services is exactly where the three states diverge most, and where the law is moving fastest, so treat the items above as the shape of the question, not the answer for your specific facility. The state-by-state section below is where the current triggers live.

The Review Process

The procedural spine is similar in all three states, even though the names and clocks differ. A CON application moves through recognizable stages.

First, where the state requires it, a letter of intent is filed on the agency’s schedule and published as public notice, which starts the clock and tells competitors a project is coming. Then the application itself is filed, with the agency’s fee, and it must address every statutory and rule criterion — a single criterion left unmet can sink the whole thing. The agency’s staff reviews the application for completeness and substance, and during a public-comment window the public and, critically, competing and existing providers may weigh in or formally oppose. The agency or board then approves, denies, or defers.

Where the contested-case hearing fits in the timeline differs by state, and the difference matters. In Alabama, a contested application is heard in a trial-like administrative proceeding — before a hearing officer or an administrative law judge, on the record, with discovery, exhibits, and expert testimony — as part of reaching the decision. In Georgia, the Department decides first: the trial-like hearing comes after the initial grant or denial, as an administrative appeal that a dissatisfied applicant or a qualifying opponent takes to a hearing officer (a short window applies). In Tennessee, the hearing is also on the back end: opposition is registered in writing and supporters and opponents are heard before the Commission at the decision meeting, and a contested-case hearing before an administrative law judge is a separate petition filed after the Commission’s decision (again within a short window — and since a 2024 reform, a petition only a denied applicant can file). So outside Alabama, no one should expect an ALJ-style hearing before the initial decision — in Georgia and Tennessee the trial-like stage, if it comes, comes after it, on a deadline that starts running the day the decision issues.

Three proof pillars recur across all three states, and they are what an application has to carry:

• Need — that the service area genuinely needs the added capacity, shown with current utilization data, demographics, and the state’s own planning methodology, not assertion.
• Financial feasibility — that the project pencils out, with realistic volumes, a credible payor mix, and pro formas that survive scrutiny.
• Orderly development and the effect on competition — that the project fits the State Health Plan and does not simply duplicate services already available, with appropriate attention to access for underserved populations.

The honest answer to “how long does this take” is that it depends almost entirely on whether the application is opposed. An uncontested application generally runs several months from letter of intent to decision, because the agencies work on fixed monthly or cyclical calendars. A contested application is litigation, and litigation runs on its own clock — a contested case can extend well past a year, and an appeal adds more. The paperwork is rarely what determines the timeline; the opposition is.

Opposing or Defending an Application

This is the part of CON that most firms’ pages bury, and it is half of what this practice does. Opposition is not obstruction or gamesmanship — it is built into the statute. An existing provider in the service area has standing, as an “affected person” or competing provider, to participate in and contest a rival’s application, on the theory that the new capacity is unneeded or duplicative. The state’s whole rationing premise assumes someone will make that argument.

If you are opposing a competitor’s application, the mechanics track the state’s timeline above. In Alabama, you file comment, formally intervene as a party, and litigate the contested case before the decision issues. In Tennessee, you file a written objection with the Commission and are heard at the decision meeting — and that stage is where an objector’s case is decided: since a 2024 reform, the post-decision contested case belongs only to a denied applicant (Tenn. Code § 68-11-1610(a)), so an objector unhappy with an approval cannot petition for one. In Georgia, you oppose during review and, if the Department approves the project anyway, take the post-decision administrative appeal within its short window. The burden of proving need sits on the applicant, so your objective is not to disprove need from scratch; it is to show the applicant has failed to carry its burden. The recurring grounds are the mirror image of the proof pillars: the area is already adequately served and the utilization data do not support more capacity; the project is unnecessary duplication; the financial-feasibility case rests on inflated demand or optimistic pro formas; the project is inconsistent with the State Health Plan; or it falls short on a specific criterion. The practical constraint is timing — the windows to comment and to intervene are short, so an incumbent that wants to protect its service area has to be watching agency filings and ready to move when a competitor surfaces.

If you are the applicant defending against opposition, the work begins before anyone objects: you build a record designed to survive an attack. That means documenting need against the agency’s own methodology and the State Health Plan; proving feasibility with defensible volumes and payor assumptions; addressing access and quality squarely; anticipating the specific lines a competitor will run and pre-building the rebuttal and expert testimony to meet them; and — because one unmet criterion is fatal — addressing every criterion rather than the convenient ones. Most CON disputes are won or lost on the strength of the administrative record and the quality of the expert presentation, not on courtroom theatrics. The contested hearing is the forum where a well-built case prevails; the goal is to make it unwinnable for the other side before the hearing starts.

One related mechanism is worth naming because it is distinct from simple opposition: competing or comparative applications. When two or more providers apply to meet the same identified need — say, a county’s allotment of new nursing-home beds, or a single cardiac program the plan will support — the agency may batch them and review them comparatively, then select the superior applicant. There, both sides want a CON and are measured against each other, which is a different posture from one provider opposing another’s project outright.

Appeals

After a decision, the losing side — a denied applicant, or (outside Tennessee) a competitor unhappy that a rival was approved — can seek review. In most postures the route runs administrative first, then judicial, and the two stages work very differently — a distinction that trips people up. The exception is Alabama: a decision that has already been fought through a contested-case hearing goes straight to judicial review in the Court of Civil Appeals, on a short deadline, with no second administrative stop.

The administrative stage, where it applies, can be a real second look at the merits. Georgia is the clearest example: an initial administrative appeal goes before a CON Appeal Panel hearing officer and is conducted de novo, meaning the parties may put on relevant evidence and are not confined to what was before the Department — so this is a stage where the record can still be built. After HB 1339, that hearing officer’s decision is the final agency decision (the older appeal to the DCH Commissioner was eliminated). In Tennessee, the post-decision contested case before an administrative law judge is that stage — though since a 2024 reform it is open only to an applicant challenging a denial, not to an objector challenging an approval; in Alabama the contested case happens before the Board’s decision, which is exactly why the next stop afterward is the appellate court.

The judicial stage is the deferential one, and this is the principle that’s widely misunderstood: once agency action is final, a court reviewing it generally will not reweigh the evidence or substitute its judgment for the agency’s. It reverses or remands only for legal error, a lack of substantial and material evidence, arbitrary or capricious action, or a procedural or constitutional defect — and it reviews the record that already exists rather than holding a fresh trial. The practical takeaway: the administrative record is what a court will live with, so the work that wins on judicial review is mostly work done earlier, at the agency. The forums and deadlines are short and differ by state — so the first step on any adverse decision is to find the deadline and calendar it immediately.

Certificate of Need in Tennessee, Georgia & Alabama

This is where the three programs part ways. The framework above is shared; the specifics below differ by state, and Tennessee’s are changing on a schedule — so for any particular project, the current status with the agency controls.

Tennessee. Tennessee’s CON program is administered by the Tennessee Health Facilities Commission (HFC) — the independent agency created in 2022 from what was previously the Health Services and Development Agency (HSDA); the older “HSDA” name still appears in many operators’ files. Tennessee is the reform state of the three, and it is deregulating in waves. A 2021 law removed CON for several services; a sweeping 2024 law (Public Chapter 985) exempts a long list of services on staggered dates — for example, most MRI moved out of CON and into licensure on December 1, 2025, though the Commission’s current list still requires a CON for MRI in counties with a population of 175,000 or less and, in larger counties, for services furnished to patients fourteen or younger more than five times a year; and a 2026 law (Public Chapter 887) goes further still, removing the CON requirement for cardiac catheterization services and satellite emergency departments (both July 1, 2028) and for acute-care hospitals (July 1, 2030), which move to a licensing regime instead. As a result, the question “what still requires a CON in Tennessee” has to be answered by date. The categories that still clearly require a CON include nursing homes, home-health agencies, hospice, rehabilitation hospitals, and nonresidential opioid-treatment centers, while several others have already been largely removed (most MRI) or are being removed on the set dates above. To challenge a Commission decision: since Public Chapter 985 rewrote the section effective July 1, 2024, the post-decision contested-case hearing before an administrative law judge is available to the applicant, after a denial of all or part of its application, by petition filed within fifteen days (Tenn. Code § 68-11-1610(a)). Objectors participate through the written-objection process and are heard at the Commission’s decision meeting (§ 68-11-1609(g)), but no longer have a post-decision petition of their own. Judicial review of the resulting order then lies in chancery court under the state’s Uniform Administrative Procedures Act.

Georgia. Georgia’s program is run by the Georgia Department of Community Health through its Office of Health Planning. Georgia also overhauled its program in 2024 (House Bill 1339): it deleted most of the capital- and equipment-expenditure dollar thresholds that used to pull projects into review, broadened exemptions for certain ambulatory surgery centers and for some rural and behavioral-health services, and — procedurally — made the hearing officer’s decision final at the agency level, with judicial review following in superior court.

Alabama. Alabama splits the function between two bodies, and it is worth keeping them separate: the State Health Planning and Development Agency (SHPDA) receives applications, makes reviewability and exemption determinations, and maintains the State Health Plan; the Certificate of Need Review Board is the body that actually grants or denies. A CON is required in Alabama for any “new institutional health service” — broadly, a new facility, certain capital expenditures above threshold, a change in bed capacity, a new service, or major medical equipment. When an application is contested, an administrative law judge hears it and submits a recommended order to the Review Board, which adopts or rejects it. Appeal from a final decision runs directly to the Alabama Court of Civil Appeals.

Representative Matters

Michael represented a venture-capital startup that won a contested Certificate of Need to establish a Medicare-certified home-health agency in a major market, and defended the grant on appeal in Hometown Home Health Care of Shelby County, LLC v. State Health Planning & Development Agency, 190 So. 3d 44 (Ala. Civ. App. 2015). Prior results do not guarantee a similar outcome.

Earlier in his career, Michael served as an Agency Attorney at the Alabama Certificate of Need Board from 1995 to 1997, working on certificate-of-need, administrative, and regulatory law, agency rulemaking, and contested cases — experience from inside the agency that decides these cases.

Michael is admitted in Tennessee, Georgia, and Alabama, and before the U.S. Courts of Appeals for the Sixth and Eleventh Circuits — the federal appellate courts for those states. (He is also admitted to the Ninth Circuit, which covers western states and does not hear appeals from these three.) Because each of the three states runs its own CON program, full admission across all three means a CON matter in Tennessee, Georgia, or Alabama can be handled without handing it to out-of-state counsel.

Related

A contested CON case is an administrative-law proceeding, and the facilities most often subject to CON are home-health, hospice, and nursing operations — so the natural next reads are the firm’s administrative-law and home-health regulatory pages.

When You’re Ready to Talk It Through

Whether you are planning a facility or service that may need a Certificate of Need, weighing whether to oppose a competitor’s application in your service area, or facing a decision you want to appeal, the path is usually clearer once someone has mapped your specific project against the right state’s program. Reach out whenever you’re ready, and we’ll talk through where your matter stands and what the next step looks like.

This page is general information about Certificate of Need law, not legal advice, and reading it doesn’t create an attorney-client relationship.

Common questions

Do I need a Certificate of Need in Tennessee, Georgia, or Alabama?

It depends on the project and the state. A CON is generally required before you build, relocate, or expand a regulated facility, add a regulated service, or acquire major medical equipment — but each state regulates a different list, and Tennessee and Georgia both narrowed their lists in 2024. The safe first step is a written reviewability determination confirming whether your specific project needs a CON before you commit capital.

How long does the Certificate of Need process take?

An uncontested application commonly runs several months from letter of intent to decision, on the agency's fixed review cycle. If a competitor opposes it, the matter can turn into contested-case litigation — in Alabama before the decision issues, in Tennessee through a denied applicant's post-decision petition, in Georgia through a post-decision appeal — and the timeline can extend past a year, with appeals adding more. Timing depends far more on whether the application is opposed than on the paperwork.

Can a competitor oppose my Certificate of Need application?

Yes — and in any economically meaningful application, expect it. Existing providers in the service area have standing to oppose — filing comments or objections everywhere, and, in Alabama, intervening as a party and contesting the application at a trial-like hearing (in Tennessee and Georgia the trial-like stage, where available, comes after the decision) — arguing the new capacity isn't needed or would duplicate existing services. Opposition is a normal, statutorily contemplated part of the process, which is why an application must be built to survive it from the start.

How do I oppose a competitor's Certificate of Need application?

The mechanics depend on the state. In Alabama, you file comment, intervene as a party, and litigate the contested-case hearing before the decision issues; in Tennessee, you file a written objection and are heard before the Commission — and since a 2024 reform that is the objector's decisive stage, because the post-decision contested case is available only to a denied applicant; in Georgia, you oppose during review and take the post-decision administrative appeal if the project is approved. The burden of proving need sits on the applicant, and effective opposition attacks the need and feasibility case with utilization data, demographic evidence, and State Health Plan inconsistencies. The windows are short, so monitoring filings and acting quickly matters.

What happens if my Certificate of Need is denied?

A denial can be appealed, but the route depends on the state and on how the decision was reached. In Georgia, the first appeal is administrative — a de novo hearing before a CON Appeal Panel hearing officer, where new evidence is allowed — with deferential judicial review after. In Tennessee, the next step is a contested-case hearing before an administrative law judge, petitioned within a short window, then chancery-court review. In Alabama, a decision that was already fought through a contested-case hearing goes directly to the Court of Civil Appeals on a short deadline; the agency-level fair-hearing route applies to decisions that were not. In every state the later judicial stage is deferential — the record is decisive — so calendar the state-specific deadline immediately.

Does Tennessee still require a Certificate of Need?

Yes, but for fewer services than before. Tennessee has been deregulating its CON program in waves: most MRI moved to licensure on December 1, 2025 — though a CON is still required in counties of 175,000 or less and for regular pediatric MRI volumes in larger ones — and a 2026 law removes CON for cardiac catheterization and satellite emergency departments (July 1, 2028) and acute-care hospitals (July 1, 2030). Categories such as home health (pediatric-only agencies are exempt), hospice, nursing homes, rehabilitation hospitals, and nonresidential opioid treatment still require a CON. Confirm your specific service against the current Health Facilities Commission list.

Do I need a lawyer or a consultant to file a Certificate of Need application?

Many applicants use both: a health-planning consultant builds the need and financial-feasibility data, and an attorney builds the legal record, handles the contested-case hearing, and manages any appeal. A consultant cannot represent you when a competitor intervenes and the matter becomes administrative litigation — that is legal work.

Wherever your matter stands, the next step is a conversation. Call (615) 378-8942 or email mfb@braun-law.com.