H. B. 2272
(By Delegate P. White, H. White and L. White)
[Introduced February 24, 1993; referred to the
Committee on Finance.]
A BILL to amend and reenact section six, article two-d, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to public health;
certificates of need; and setting criteria for certificate
of need review for additional ventilator beds in health care
facilities.
Be it enacted by the Legislature of West Virginia:
That section six, article two-d, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-6. Minimum criteria for certificate of need reviews.
(a) Except as provided in subsections (f) and (g) of section
nine of this article, in making its determination as to whether
a certificate of need shall be issued, the state agency shall, at
a minimum, consider all of the following criteria that are
applicable, but in the case of a health maintenance organizationor an ambulatory care facility or health care facility
controlled, directly or indirectly, by a health maintenance
organization or combination of health maintenance organizations,
the criteria considered shall be only those set forth in
subdivision (12) of this subsection:
(1) The recommendation of the designated health systems
agency for the health service area in which the proposed new
institutional health service is to be located;
(2) The relationship of the health services being reviewed
to the state health plan and to the applicable health systems
plan and annual implementation plan adopted by the designated
health systems agency for the health service area in which the
proposed new institutional health service is to be located;
(3) The relationship of services reviewed to the long-range
development plan of the person providing or proposing such
services;
(4) The need that the population served or to be served by
such services has for such services proposed to be offered or
expanded, and the extent to which all residents of the area, and
in particular low income persons, racial and ethnic minorities,
women, handicapped persons, other medically underserved
population, and the elderly, are likely to have access to those
services;
(5) The availability of less costly or more effective
alternative methods of providing such services to be offered,
expanded, reduced, relocated or eliminated;
(6) The immediate and long-term financial feasibility of the
proposal as well as the probable impact of the proposal on the
costs of and charges for providing health services by the person
proposing the new institutional health service;
(7) The relationship of the services proposed to the
existing health care system of the area in which such services
are proposed to be provided;
(8) In the case of health services proposed to be provided,
the availability of resources, including health care providers,
management personnel, and funds for capital and operating needs,
for the provision of the services proposed to be provided and the
need for alternative uses of these resources as identified by the
state health plan, applicable health systems plan and annual
implementation plan;
(9) The appropriate and nondiscriminatory utilization of
existing and available health care providers;
(10) The relationship, including the organizational
relationship, of the health services proposed to be provided to
ancillary or support services;
(11) Special needs and circumstances of those entities which
provide a substantial portion of their services or resources, or
both, to individuals not residing in the health service areas in
which the entities are located or in adjacent health service
areas. Such entities may include medical and other health
professional schools, multidisciplinary clinics and specialty
centers;
(12) To the extent not precluded by subdivision (1),
subsection (f), section nine of this article, the special needs
and circumstances of health maintenance organizations. These
needs and circumstances shall be limited to:
(A) The needs of enrolled members and reasonably anticipated
new members of the health maintenance organization for the health
services proposed to be provided by the organization; and
(B) The availability of the new health services from
nonhealth maintenance organization providers or other health
maintenance organizations in a reasonable and cost-effective
manner which is consistent with the basic method of operation of
the health maintenance organization. In assessing the
availability of these health services from these providers, the
agency shall consider only whether the services from these
providers:
(i) Would be available under a contract of at least five
years duration;
(ii) Would be available and conveniently accessible through
physicians and other health professionals associated with the
health maintenance organization;
(iii) Would cost no more than if the services were provided
by the health maintenance organization; and
(iv) Would be available in a manner which is
administratively feasible to the health maintenance organization;
(13) The special needs and circumstances of biomedical and
behavioral research projects which are designed to meet anational need and for which local conditions offer special
advantages;
(14) In the case of a reduction or elimination of a service,
including the relocation of a facility or a service, the need
that the population presently served has for the service, the
extent to which that need will be met adequately by the proposed
relocation or by alternative arrangements, and the effect of the
reduction, elimination or relocation of the service on the
ability of low income persons, racial and ethnic minorities,
women, handicapped persons, other medically underserved
population, and the elderly, to obtain needed health care;
(15) In the case of a construction project: (A) The cost
and methods of the proposed construction, including the costs and
methods of energy provision and (B) the probable impact of the
construction project reviewed on the costs of providing health
services by the person proposing such construction project and on
the costs and charges to the public of providing health services
by other persons;
(16) In the case of health services proposed to be provided,
the effect of the means proposed for the delivery of proposed
health services on the clinical needs of health professional
training programs in the area in which such services are to be
provided;
(17) In the case of health services proposed to be provided,
if such services are to be available in a limited number of
facilities, the extent to which the schools in the area forhealth professions will have access to the services for training
purposes;
(18) In the case of health services proposed to be provided,
the extent to which such proposed services will be accessible to
all the residents of the area to be served by such services;
(19) In accordance with section five of this article, the
factors influencing the effect of competition on the supply of
the health services being reviewed;
(20) Improvements or innovations in the financing and
delivery of health services which foster competition, in
accordance with section five of this article, and serve to
promote quality assurance and cost effectiveness;
(21) In the case of health services or facilities proposed
to be provided, the efficiency and appropriateness of the use of
existing services and facilities similar to those proposed;
(22) In the case of existing services or facilities, the
quality of care provided by such services or facilities in the
past;
(23) In the case where an application is made by an
osteopathic or allopathic facility for a certificate of need to
construct, expand, or modernize a health care facility, acquire
major medical equipment, or add services, the need for that
construction, expansion, modernization, acquisition of equipment,
or addition of services shall be considered on the basis of the
need for and the availability in the community of services and
facilities for osteopathic and allopathic physicians and theirpatients. The state agency shall consider the application in
terms of its impact on existing and proposed institutional
training programs for doctors of osteopathy and medicine at the
student, internship, and residency training levels;
(24) The special circumstances of health care facilities
with respect to the need for conserving energy;
(25) The contribution of the proposed service in meeting the
health related needs of members of medically underserved
populations which have traditionally experienced difficulties in
obtaining equal access to health services, particularly those
needs identified in the state health plan, applicable health
systems plan and annual implementation plan, as deserving of
priority. For the purpose of determining the extent to which the
proposed service will be accessible, the state agency shall
consider:
(A) The extent to which medically underserved populations
currently use the applicant's services in comparison to the
percentage of the population in the applicant's service area
which is medically underserved, and the extent to which medically
underserved populations are expected to use the proposed services
if approved;
(B) The performance of the applicant in meeting its
obligation, if any, under any applicable federal regulations
requiring provision of uncompensated care, community service, or
access by minorities and handicapped persons to programs
receiving federal financial assistance, including the existenceof any civil rights access complaints against the applicant;
(C) The extent to which medicare, medicaid and medically
indigent patients are served by the applicant; and
(D) The extent to which the applicant offers a range of
means by which a person will have access to its services,
including, but not limited to, outpatient services, admission by
house staff and admission by personal physician.
(26) The existence of a mechanism for soliciting consumer
input into the health care facility's decision making process.
(b) The state agency may include additional criteria which
it prescribes by regulations adopted pursuant to section eight of
this article.
(c) Criteria for reviews may vary according to the purpose
for which a particular review is being conducted or the types of
health services being reviewed.
(d) An application for a certificate of need may not be made
subject to any criterion not contained in this article or not
contained in regulations adopted pursuant to section eight of
this article.
(e) In the case of any proposed new institutional health
service, the state agency may not grant a certificate of need
under its certificate of need program unless, after consideration
of the appropriateness of the use of existing facilities
providing services similar to those being proposed, the state
agency makes, in addition to findings required in section nine of
this article, each of the following findings in writing: (1)That superior alternatives to such services in terms of cost,
efficiency and appropriateness do not exist and the development
of such alternatives is not practicable; (2) that existing
facilities providing services similar to those proposed are being
used in an appropriate and efficient manner; (3) that in the case
of new construction, alternatives to new construction, such as
modernization or sharing arrangements, have been considered and
have been implemented to the maximum extent practicable; (4) that
patients will experience serious problems in obtaining care of
the type proposed in the absence of the proposed new service; and
(5) that in the case of a proposal for the addition of beds for
the provision of skilled nursing or intermediate care services,
the addition will be consistent with the plans of other agencies
of the state responsible for the provision and financing of long-
term care facilities or services including home health services.
(27) In the case where an application is made by a hospital,
nursing home or other health care facility to provide a higher
level of service intermediate care bed, the state agency shall
consider the application in terms of the need for the service and
whether the cost exceeds the level of current medicaid services.
No facility may provide a higher level of service intermediate
care bed without demonstrating that the change in level of
service will result in no additional fiscal burden to the state.
NOTE: The purpose of this bill is to set the criteria for
certificate of need review for additional ventilator beds inhealth care facilities.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.