Delaware's Certificate of Public Review: CON by Another Name

Statutory and regulatory basis

• 16 Del. C. Ch. 93 (§§ 9301–9312) — the CPR statute.
• 16 DE Admin. Code 5002 — Delaware Health Resources Management Plan, the implementing regulatory framework.
• Delaware Health Resources Board (HRB) — issues decisions on CPR applications.
• Delaware Health Care Commission (HCC) — provides staff support and administrative management, sits within DHSS Office of the Secretary.
• DHSS Office of Health Facilities Licensing and Certification (OHFLC) — separate body handling facility licensure.

Primary source: dhss.delaware.gov (Health Care Commission and Health Resources Board pages).

CPR vs CON — the 1999 rename

The 1999 rename from CON to CPR was a branding change rather than a functional reset. The program still:

• Reviews healthcare facility additions and major expenditures against need criteria.
• Uses mathematical need calculations and a statutorily-mandated Health Resources Management Plan.
• Aims to prevent duplication of infrastructure and control healthcare cost growth.
• Provides public scrutiny of proposed developments, particularly where they could affect medically indigent access.

The "Public Review" framing emphasizes the transparency/public-interest dimension. Functionally, a DE CPR and a VA COPN (see our CON Across the Mid-Atlantic essay) address similar policy space.

What triggers CPR review

Per 16 Del. C. § 9304(a)(2) and the Health Resources Management Plan, review triggers include:

• New healthcare facility construction, development, or establishment.
• Acquisition of a nonprofit healthcare facility.
• Capital expenditure above $5.8M by or on behalf of a healthcare facility (the threshold is inflation-adjusted annually; verify current threshold before scoping).
• Bed capacity increases of more than 10 beds or more than 10% of total licensed beds, whichever is less, over a two-year period.
• Major medical equipment acquisition meeting the $5.8M cost threshold, or involving new technology not yet available in DE, or specifically designated by HRB for review.
• Catch-all expenditure provision for any expenditure above $5.8M where no other specific CPR requirement applies.

The bed-capacity and catch-all thresholds catch projects that might not be obvious capital-expansion plays — a hospital adding beds through renovation within an existing footprint can hit the threshold even without "new construction" in the traditional sense.

The $5.8M threshold is cumulative, not per-line-item

One of the common misunderstandings: the threshold applies to project-scope aggregate expenditure, not per-invoice or per-piece-of-equipment. A hospital doing an ICU upgrade that combines facility modifications + equipment purchases reaching the aggregate threshold triggers CPR even if individual components fall below.

Interaction with DHSS facility licensure

CPR and facility licensure are distinct tracks but sequentially related:

• CPR first. Where triggered, CPR approval from HRB is obtained before or alongside project development.
• OHFLC licensure second. Upon project completion, DHSS Office of Health Facilities Licensing and Certification issues the operational license.
• Licensure risk if CPR not obtained. Operating without a required CPR can lead to denial, revocation, or restriction of licensure or operating authority.
• Licensure doesn't retroactively fix missing CPR. The two reviews address different questions — CPR is the need and planning question; licensure is the operational-fitness question.

For the broader CON vs licensure distinction that applies across the Mid-Atlantic, see our CON vs Facility Licensure Distinction essay.

Process overview

1. Trigger determination. Applicant evaluates project against CPR triggers and the Health Resources Management Plan.
2. Pre-application consultation. HCC staff can provide initial guidance on whether a project is subject to CPR review.
3. Letter of Intent / application filed with HRB / HCC.
4. Review period. Staff analysis, public comment, potential competitive review where multiple applications are pending.
5. HRB decision. Board meeting decisions; may include conditions attached to approval.
6. Compliance with CPR conditions through project completion.
7. OHFLC licensure upon operational readiness.
8. Ongoing compliance for operational reporting required under CPR conditions.

Specific timelines depend on review category, batch cycle, and whether public hearing is warranted.

What DE developers and designers should know

• Budget + CPR are linked. Know whether your project's capital scope triggers CPR before committing to financing structure.
• Bed-change math. Watch the two-year look-back and the "10 beds or 10%" trigger. Multiple small capacity increases can accumulate to a trigger.
• New technology provision. Major medical equipment not yet in DE can trigger review regardless of cost. First-in-state technologies warrant early consultation.
• Integrate with architectural scope. Hospital renovation scopes that add beds, change occupancy, or introduce major equipment can trigger CPR. The design team should be part of the trigger analysis.
• OHFLC licensure is separate. CPR approval doesn't automatically confer licensure. Plan for both tracks.
• Conditions persist. CPR approvals can come with service obligations, reporting requirements, or charity-care commitments. These affect operational reality post-opening.

How DE's CPR compares to neighbors

• Pennsylvania. No CON / CPR analog. PA repealed its CON statute in 1996. Facility licensure only.
• New Jersey. NJ DOH Certificate of Need still active.
• Maryland. MHCC administers CON.
• Virginia. Certificate of Public Need (COPN) through VDH.
• Delaware. CPR via HRB/HCC. Same regulatory mechanism as the others, branded differently.

For the five-state picture, see our CON Across the Mid-Atlantic essay and the Mid-Atlantic Healthcare Facility Licensure Hub.

What to do with this

If you're developing DE healthcare: run CPR trigger analysis against 16 Del. C. § 9304 and the current Health Resources Management Plan at project scoping.

If your capital budget is near $5.8M: verify the current inflation-adjusted threshold with HCC staff. A project that was below threshold at budget time may be above at application time.

If you're adding beds or acquiring major equipment: check the two-year look-back cumulative calculation and the new-technology provision.

If you're planning the licensure path: treat CPR as a prerequisite; don't assume OHFLC licensure picks up everything.

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