With a change in Alabama's Governor, comes a change in the Certificate of Need Review Board ("CON Board") members and the State Health Coordinating Council ("SHCC") members. Just one day after taking office as Alabama's new Governor, Governor Robert Bentley imposed a moratorium on all certificate of need ("CON") matters in order to allow time for him to appoint new members to the CON Board and the SHCC.

The CON Board is the rule-making and adjudicatory board designed to oversee the CON process by determining which providers receive approval to develop and operate specific healthcare services within the state. The members of the CON Board are appointed to staggered terms of one to three years. Although all members are appointed by the Governor, by statute the Board must consist of three consumers, three providers, and three representatives of the Governor.

The SHCC is charged with developing Alabama's State Health Plan, which is a comprehensive plan designed to regulate health planning and development within the state. All projects approved by the CON Board must be consistent with the State Health Plan drafted by the SHCC. By statute, the SHCC must contain at least sixteen (16) members appointed by the Governor to staggered terms of one to three years. At least half of the members must be consumers of healthcare services.

On February 9, 2011, Governor Bentley lifted the moratorium and announced the new appointees to both the CON Board and the SHCC.

The newly appointed members of the CON Board are as follows: Dr. Swaid N. Swaid, Dr. Herb Stone, Dr. Bob Sheppard, Guice Slawson Jr., General Ed Crowell, Hodges Washington, Dr. Michael Gosney, Dr. Chris Harmon, and Neal Morrison, who has been named as Chairman of the CON Board. Dr. Swaid is the only returning member of the CON Board.

The newly appointed members of the SHCC are as follows: Dr. Ruth Yates, Dr. James Walburn, Dr. Vera Soong, Ruth Harrell, Dr. Gillis Payne, Dr. McCain Ashurst, Dr. Theodis Buggs, Dr. Tommy Bender, Dr. Jeff Underwood III, Robbie Owen, Brenda Culver, William Smith, Rebecca Thrasher, Dr. Judy Merritt, Rev. John Killian, Brandon Farmer, Representative Jim McClendon, Senator Greg Reed, Ross Gunnells, Representative Mary Sue McClurkin, F. Wayne Pate, Representative April Weaver, and Mary Holcomb, who has been named as Chairperson of the SHCC. Ms. McClurkin and Ms. Weaver are the only returning members of the SHCC.

As expected given the Governor's medical background, there is a large number of physicians appointed to both the CON Board and the SHCC. What comes as a bit of a surprise is the low number of returning members to both the CON Board and the SHCC. With regard to his appointments, Governor Bentley stated, "I have full confidence in the newly appointed members of both the CON and SHCC Boards. Those I appointed, or re-appointed, have a wealth of experience in their respective fields and will make the right decisions as they serve in their capacity as board members."

Over the next few months, it will be interesting to see how the CON process further evolves under the leadership of Governor Bentley. In general, physicians, such as Bentley, are typically opposed to the CON process. In Alabama, the CON process is created by statute. Therefore, in order to repeal or modify it substantially, action must be taken by the Legislature. With a physician Republican Governor and with a Legislature now controlled by Republicans, such legislative action could be a possibility. Thus, in this instance, a new Governor could equal more than just a new CON Board. 

John Morrow is a partner with Burr & Forman LLP who has represented clients undergoing the CON process for over fifteen years.

Kelli Fleming is an associate with Burr & Forman LLP and practices exclusively within the firm's Health Care Practice Group.