Senate Bill No. 426
(By Senator Walker)
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[Introduced February 16, 1996; referred to the Committee
on Health and Human Resources.]
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A BILL to amend and reenact sections two, three and four, article
two-d, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
generally to certificate of need; amending certain
definitions to increase the amount for expenditure minimums
and to increase the limit for capital expenditures; and
exempting from certificate of need review the replacement of
major medical equipment within the expenditure minimum.
Be it enacted by the Legislature of West Virginia:
That sections two, three and four, article two-d, chapter
sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2D. CERTIFICATE OF NEED.
§ 16-2D-2. Definitions.
As used in this article, unless otherwise indicated by the
context:
(a) "Affected person" means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area
served or to be served by the applicant;
(4) Any individual who regularly uses the health care
facilities within that geographic area;
(5) The health care facilities which provide services
similar to the services of the facility under review and which
will be significantly affected by the proposed project;
(6) The health care facilities which, prior to receipt by
the state agency of the proposal being reviewed, have formally
indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities
similar to those proposed for services;
(8) Any agency which establishes rates for health care facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a facility which
is free-standing and not physically attached to a health care
facility and which provides health care to noninstitutionalized
and nonhomebound persons on an outpatient basis. This definition
does not include the private office practice of any one or more
health professionals licensed to practice in this state pursuant
to the provisions of chapter thirty of this code: Provided, That
such exemption from review of private office practice shall not
be construed to include such practices where major medical
equipment otherwise subject to review under the provisions of
this article is acquired, offered or developed: Provided,
however, That such exemption from review of private office
practice shall not be construed to include certain health
services otherwise subject to review under the provisions of
subdivision (1), subsection (a), section four of this article.
(c) "Ambulatory surgical facility" means a facility which is
free-standing and not physically attached to a health care
facility and which provides surgical treatment to patients not
requiring hospitalization. This definition does not include the private office practice of any one or more health professionals
licensed to practice surgery in this state pursuant to the
provisions of chapter thirty of this code: Provided, That such
exemption from review of private office practice shall not be
construed to include such practices where major medical equipment
otherwise subject to review under the provisions of this article
is acquired, offered or developed: Provided, however, That such
exemption from review of private office practice shall not be
construed to include certain health services otherwise subject to
review under the provisions of subdivision (1), subsection (a),
section four of this article.
(d) "Applicant" means: (1) The governing body or the person
proposing a new institutional health service who is, or will be,
the health care facility licensee wherein the new institutional
health service is proposed to be located, and (2) in the case of
a proposed new institutional health service not to be located in
a licensed health care facility, the governing body or the person
proposing to provide such new institutional health service.
Incorporators or promoters who will not constitute the governing
body or persons responsible for the new institutional health
service may not be an applicant.
(e) "Bed capacity" means the number of beds for which a
license is issued to a health care facility, or, if a facility is
unlicensed, the number of adult and pediatric beds permanently
staffed and maintained for immediate use by inpatients in patient
rooms or wards.
(f) "Capital expenditures" means an expenditure:
(1) Made by or on behalf of a health care facility; and
(2) (A) Which: (i) Under generally accepted accounting
principles is not properly chargeable as an expense of operation
and maintenance; or (ii) is made to obtain either by lease or
comparable arrangement any facility or part thereof or any
equipment for a facility or part; and (B) which: (i) Exceeds the
expenditure minimum; or (ii) is a substantial change to the bed
capacity of the facility with respect to which the expenditure is
made; or (iii) is a substantial change to the services of such
facility. For purposes of subparagraph (i), paragraph (B),
subdivision (2) of this definition, the cost of any studies,
surveys, designs, plans, working drawings, specifications and
other activities, including staff effort and consulting and other
services, essential to the acquisition, improvement, expansion or
replacement of any plant or equipment with respect to which an expenditure described in paragraph (B), subdivision (2) of this
definition is made shall be included in determining if such
expenditure exceeds the expenditure minimum. Donations of
equipment or facilities to a health care facility which if
acquired directly by such facility would be subject to review
shall be considered capital expenditures, and a transfer of
equipment or facilities for less than fair market value shall be
considered a capital expenditure for purposes of such
subdivisions if a transfer of the equipment or facilities at fair
market value would be subject to review. A series of
expenditures, each less than the expenditure minimum, which when
taken together are in excess of the expenditure minimum, may be
determined by the state agency to be a single capital expenditure
subject to review. In making its determination, the state agency
shall consider: Whether the expenditures are for components of a
system which is required to accomplish a single purpose; whether
the expenditures are to be made over a two-year period and are
directed towards the accomplishment of a single goal within the
health care facility's long-range plan; or whether the
expenditures are to be made within a two-year period within a
single department such that they will constitute a significant modernization of the department.
(g) "Expenditure minimum" means seven hundred fifty thousand
one million dollars per fiscal year unless adjusted by the state
agency pursuant to the provisions of section eight of this
article.
(h) "Health," used as a term, includes physical and mental
health.
(i) "Health care facility" is defined as including
hospitals, skilled nursing facilities, kidney disease treatment
centers, including free-standing hemodialysis units, intermediate
care facilities, ambulatory health care facilities, ambulatory
surgical facilities, home health agencies, rehabilitation
facilities and health maintenance organizations; community mental
health and mental retardation facilities, whether under public or
private ownership, or as a profit or nonprofit organization and
whether or not licensed or required to be licensed in whole or in
part by the state. For purposes of this definition, "community
mental health and mental retardation facility" means a private
facility which provides such comprehensive services and
continuity of care as emergency, outpatient, partial
hospitalization, inpatient and consultation and education for individuals with mental illness, mental retardation or drug or
alcohol addiction.
(j) "Health care provider" means a person, partnership,
corporation, facility or institution licensed or certified or
authorized by law to provide professional health care service in
this state to an individual during that individual's medical
care, treatment or confinement.
(k) "Health maintenance organization" means a public or
private organization, organized under the laws of this state,
which:
(1) Is a qualified health maintenance organization under
Section 1310(d) of the Public Health Service Act, as amended,
Title 42 United States Code Section 300e-9(d); or
(2) (A) Provides or otherwise makes available to enrolled
participants health care services, including substantially the
following basic health care services: Usual physician services,
hospitalization, laboratory, X ray, emergency and preventive
services and out-of-area coverage; and
(B) Is compensated except for copayments for the provision
of the basic health care services listed in paragraph (A),
subdivision (2), subsection (k) of this definition to enrolled participants on a predetermined periodic rate basis without
regard to the date the health care services are provided and
which is fixed without regard to the date the health care
services are provided and which is fixed without regard to the
frequency, extent or kind of health service actually provided;
and
(C) Provides physicians' services primarily: (i) Directly
through physicians who are either employees or partners of such
organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a
group practice or individual practice basis.
(l) "Health services" means clinically related preventive,
diagnostic, treatment or rehabilitative services, including
alcohol, drug abuse and mental health services.
(m) "Home health agency" is an organization primarily
engaged in providing directly or through contract arrangements,
professional nursing services, home health aide services, and
other therapeutic and related services, including, but not
limited to, physical, speech and occupational therapy and
nutritional and medical social services to persons in their place
of residence on a part-time or intermittent basis.
(n) "Hospital" means an institution which is primarily
engaged in providing to inpatients, by or under the supervision
of physicians, diagnostic and therapeutic services for medical
diagnosis, treatment, and care of injured, disabled or sick
persons, or rehabilitation services for the rehabilitation of
injured, disabled or sick persons. This term also includes
psychiatric and tuberculosis hospitals.
(o) "Intermediate care facility" means an institution which
provides, on a regular basis, health-related care and services to
individuals who do not require the degree of care and treatment
which a hospital or skilled nursing facility is designed to
provide, but who, because of their mental or physical condition,
require health-related care and services above the level of room
and board.
(p) "Long-range plan" means a document formally adopted by
the legally constituted governing body of an existing health care
facility or by a person proposing a new institutional health
service. Each long-range plan shall consist of the information
required by the state agency in regulations rules adopted
pursuant to section eight of this article.
(q) "Major medical equipment" means a single unit of medical equipment or a single system of components with related functions
which is used for the provision of medical and other health
services and which costs in excess of three five hundred thousand
dollars, except that such term does not include medical
equipment acquired by or on behalf of a clinical laboratory to
provide clinical laboratory services if the clinical laboratory
is independent of a physician's office and a hospital and it has
been determined under Title XVIII of the Social Security Act to
meet the requirements of paragraphs ten and eleven of Section
1861(s) of such act, Title 42 United States Code Sections 1395(x)
(10) and (11). In determining whether medical equipment costs
more than three five hundred thousand dollars, the cost of
studies, surveys, designs, plans, working drawings,
specifications, and other activities essential to the acquisition
of such equipment shall be included. If the equipment is
acquired for less than fair market value, the term "cost"
includes the fair market value.
(r) "Medically underserved population" means the population
of an urban or rural area designated by the state agency as an
area with a shortage of personal health services or a population
having a shortage of such services, after taking into account unusual local conditions which are a barrier to accessibility or
availability of such services. Such designation shall be in
regulations rules adopted by the state agency pursuant to section
eight of this article, and the population so designated may
include the state's medically underserved population designated
by the federal secretary of health and human services under
Section 330(b)(3) of the Public Health Service Act, as amended,
Title 42 United States Code Section 254(b)(3).
(s) "New institutional health service" means such service as
described in section three of this article.
(t) "Offer," when used in connection with health services,
means that the health care facility or health maintenance
organization holds itself out as capable of providing, or as
having the means for the provision of, specified health services.
(u) "Person" means an individual, trust, estate,
partnership, committee, corporation, association and other
organizations such as joint-stock companies and insurance
companies, a state or a political subdivision or instrumentality
thereof or any legal entity recognized by the state.
(v) "Personal care services" means medically oriented
activities or tasks ordered by a physician and which is implemented according to a nursing plan of care which has been
completed by, and which is supervised by, a registered nurse and
billed to the state. These services include those activities
which are intended to enable persons to meet their physical needs
and to be treated by a physician in their place of residence.
The term shall include, but not be limited to, services related
to personal hygiene, dressing, feeding, nutrition, environmental
support functions and health related tasks.
(w) "Physician" means a doctor of medicine or osteopathy
legally authorized to practice by the state.
(x) "Proposed new institutional health service" means such
service as described in section three of this article.
(y) "Psychiatric hospital" means an institution which
primarily provides to inpatients, by or under the supervision of
a physician, specialized services for the diagnosis, treatment
and rehabilitation of mentally ill and emotionally disturbed
persons.
(z) "Rehabilitation facility" means an inpatient facility
which is operated for the primary purpose of assisting in the
rehabilitation of disabled persons through an integrated program
of medical and other services which are provided under competent professional supervision.
(aa) "Review agency" means an agency of the state,
designated by the governor as the agency for the review of state
agency decisions.
(bb) "Skilled nursing facility" means an institution or a
distinct part of an institution which is primarily engaged in
providing to inpatients skilled nursing care and related services
for patients who require medical or nursing care, or
rehabilitation services for the rehabilitation of injured,
disabled or sick persons.
(cc) "State agency" means the health care cost review
authority created, established, and continued pursuant to article
twenty-nine-b of this chapter.
(dd) "State health plan" means the document approved by the
governor after preparation by the former health care planning
commission, or that document as approved by the governor after
amendment by the health care planning council or its successor
agency.
(ee) "Substantial change to the bed capacity" of a health
care facility means any change, with which a capital expenditure
is associated, that increases or decreases the bed capacity or relocates beds from one physical facility or site to another, but
does not include a change by which a health care facility
reassigns existing beds as swing beds between acute care and
long-term care categories: Provided, That a decrease in bed
capacity in response to federal rural health initiatives shall be
excluded from this definition.
(ff) "Substantial change to the health services" of a health
care facility means the addition of a health service which is
offered by or on behalf of the health care facility and which was
not offered by or on behalf of the facility within the twelve-
month period before the month in which the service is first
offered, or the termination of a health service which was offered
by or on behalf of the facility, but does not include the
providing of hospice care, ambulance service, wellness centers or
programs, adult day care, or respite care by acute care
facilities.
(gg) "To develop," when used in connection with health
services, means to undertake those activities which upon their
completion will result in the offer of a new institutional health
service or the incurring of a financial obligation, in relation
to the offering of such a service.
§ 16-2D-3. Certificate of need.
Except as provided in section four of this article, any new
institutional health service may not be acquired, offered or
developed within this state except upon application for and
receipt of a certificate of need as provided by this article.
Any new provider of personal care service offered by any person,
facility, corporation or entity, other than an agency of the
state, may not be offered or developed in this state, if the
service is to be funded in whole, or in part, by state or federal
medicaid funds, except upon application for and receipt of a
certificate of need as provided in section six of this article:
Provided, That a certificate of need shall not be required for a
person providing specialized foster care personal care services
to one individual or two individuals and those services are
delivered in the provider's home. Whenever a new institutional
health service for which a certificate of need is required by
this article is proposed for a health care facility for which,
pursuant to section four of this article, no certificate of need
is or was required, a certificate of need shall be issued before
the new institutional health service is offered or developed. No
person may knowingly charge or bill for any health services associated with any new institutional health service that is
knowingly acquired, offered or developed in violation of this
article, and any bill made in violation of this section is
legally unenforceable. For purposes of this article, a proposed
"new institutional health service" includes means:
(a) The construction, development, acquisition or other
establishment of a new health care facility or health maintenance
organization;
(b) The partial or total closure of a health care facility
or health maintenance organization with which a capital
expenditure is associated;
(c) Any obligation for a capital expenditure incurred by or
on behalf of a health care facility, except as exempted in
section four of this article, or health maintenance organization
in excess of the expenditure minimum or any obligation for a
capital expenditure incurred by any person to acquire a health
care facility. An obligation for a capital expenditure is
considered to be incurred by or on behalf of a health care
facility:
(1) When a contract, enforceable under state law, is entered
into by or on behalf of the health care facility for the construction, acquisition, lease or financing of a capital asset;
(2) When the governing board of the health care facility
takes formal action to commit its own funds for a construction
project undertaken by the health care facility as its own
contractor; or
(3) In the case of donated property, on the date on which
the gift is completed under state law;
(d) A substantial change to the bed capacity of a health
care facility with which a capital expenditure is associated;
(e)(1) The addition of health services which are offered by
or on behalf of a health care facility or health maintenance
organization and which were not offered on a regular basis by or
on behalf of the health care facility or health maintenance
organization within the twelve-month period prior to the time the
services would be offered;
(2) The addition of ventilator services for any nursing
facility bed by any health care facility or health maintenance
organization;
(f) The deletion of one or more health services, previously
offered on a regular basis by or on behalf of a health care
facility or health maintenance organization which is associated with a capital expenditure;
(g) A substantial change to the bed capacity or health
services offered by or on behalf of a health care facility,
whether or not the change is associated with a proposed capital
expenditure, if the change is associated with a previous capital
expenditure for which a certificate of need was issued and if the
change will occur within two years after the date the activity
which was associated with the previously approved capital
expenditure was undertaken;
(h) The acquisition of major medical equipment;
(i) A substantial change in an approved new institutional
health service for which a certificate of need is in effect. For
purposes of this subsection, "substantial change" shall be
defined by the state agency in regulations rules adopted pursuant
to section eight of this article.
§ 16-2D-4. Exemptions from certificate of need program.
(a) Except as provided in subdivision (h), section three of
this article, nothing in this article or the rules and
regulations adopted pursuant to the provisions of this article
may be construed to authorize the licensure, supervision,
regulation or control in any manner of the following:
(1) Private office practice of any one or more health
professionals licensed to practice in this state pursuant to the
provisions of chapter thirty of this code: Provided, That such
the exemption from review of private office practice shall not be
construed to include such private office practices where major
medical equipment otherwise subject to review under the
provisions of this article is acquired, offered or developed:
Provided, however, That such the exemption from review of private
office practice shall not be construed to include the
acquisition, offering or development of one or more health
services, including ambulatory surgical facilities or centers,
lithotripsy, magnetic resonance imaging, radiation therapy by one
or more health professionals. The state agency shall adopt rules
pursuant to section eight of this article which specify the
health services acquired, offered or developed by health
professionals which are subject to certificate of need review;
(2) Dispensaries and first-aid stations located within
business or industrial establishments maintained solely for the
use of employees: Provided, That such facility does not contain
inpatient or resident beds for patients or employees who
generally remain in the facility for more than twenty-four hours;
(3) Establishments, such as motels, hotels and boarding-
houses, which provide medical, nursing personnel and health
related services;
(4) The remedial care or treatment of residents or patients
in any home or institution conducted only for those who rely
solely upon treatment by prayer or spiritual means in accordance
with the creed or tenets of any recognized church or religious
denomination;
(5) The creation of new primary care services located in
communities that are underserved with respect to primary care
services: Provided, That to qualify for this exemption, an
applicant must be a community-based nonprofit organization with
a community board that provides or will provide primary care
services to people without regard to ability to pay: Provided,
however, That the exemption from certificate of need review of
new primary care services provided by this subdivision shall not
include the acquisition, offering or development of major medical
equipment otherwise subject to review under the provisions of
this article or to include the acquisition, offering or
development of CT scanners, ambulatory surgical facilities,
lithotripsy, magnetic resonance imaging or radiation therapy. The office of community and rural health services shall define
which services constitute primary care services for purposes of
this subdivision, and shall, to prevent duplication of primary
care services, determine whether a community is underserved with
respect to certain primary care services within the meaning of
this subdivision. Any organization planning to qualify for an
exemption pursuant to this subdivision shall submit to the state
agency a letter of intent describing the proposed new services
and area of service; and
(6) The creation of birthing centers by nonprofit primary
care centers that have a community board and provide primary care
services to people in their community without regard to ability
to pay, or by nonprofit hospitals with less than one hundred
licensed acute care beds: Provided, That to qualify for this
exemption, an applicant must be located in an area that is
underserved with respect to low-risk obstetrical services:
Provided, however, That if a primary care center attempting to
qualify for this exemption is located in the same county as a
hospital that is also eligible for this exemption, or if a
hospital attempting to qualify for this exemption is located in
the same county as a primary care center that is also eligible for this exemption, then at least one primary care center and at
least one hospital from said county shall be required to
collaborate for the provision of services at a birthing center in
order to qualify for this exemption: Provided further, That for
purposes of this subsection, a "birthing center" is a short-stay
ambulatory health care facility designed for low-risk births
following normal uncomplicated pregnancy. Any primary care
center or hospital planning to qualify for an exemption pursuant
to this subdivision shall submit to the state agency a letter of
intent describing the proposed birthing center and area of
service.
(b)(1) A certificate of need is not required for the
offering of an inpatient institutional health service or the
acquisition of major medical equipment for the provision of an
inpatient institutional health service or the obligation of a
capital expenditure for the provisions of an inpatient
institutional health service, if with respect to such offering,
acquisition or obligation, the state agency has, upon application
under subdivision (2) of this subsection, granted an exemption
to:
(A) A health maintenance organization or a combination of health maintenance organizations if: (i) The organization or
combination of organizations has, in the service area of the
organization or the service areas of the organizations in the
combination, an enrollment of at least fifty thousand
individuals; (ii) the facility in which the service will be
provided is or will be geographically located so that the service
will be reasonably accessible to such enrolled individuals; and
(iii) at least seventy-five percent of the patients who can
reasonably be expected to receive the institutional health
service will be individuals enrolled with such organizations in
the combination;
(B) A health care facility if: (i) The facility primarily
provides or will provide inpatient health services; (ii) the
facility is or will be controlled, directly or indirectly, by a
health maintenance organization or a combination of health
maintenance organizations which has, in the service area of the
organization or service areas of the organizations in the
combination, an enrollment of at least fifty thousand
individuals; (iii) the facility is or will be geographically
located so that the service will be reasonably accessible to such
enrolled individuals; and (iv) at least seventy-five percent of the patients who can reasonably be expected to receive the
institutional health service will be individuals enrolled with
such organization or organizations in the combination; or
(C) A health care facility, or portion thereof; if: (i) The
facility is or will be leased by a health maintenance
organization or combination of health maintenance organizations
which has, in the service area of the organization or the service
areas of the organizations in the combination, an enrollment of
at least fifty thousand individuals and on the date the
application is submitted under subdivision (2) of this
subsection, at least fifteen years remain in the term of the
lease; (ii) the facility is or will be geographically located so
that the service will be reasonably accessible to such enrolled
individuals; and (iii) at least seventy-five percent of the
patients who can reasonably be expected to receive the new
institutional health service will be individuals enrolled with
such organization.
(2) (A) A health maintenance organization, combination of
health maintenance organizations or other health care facility is
not exempt under subdivision (1) of this subsection from
obtaining a certificate of need unless:
(i) It has submitted, at such time and in such form and
manner as the state agency shall prescribe, an application for
such exemption to the state agency;
(ii) The application contains such information respecting
the organization, combination or facility and the proposed
offering, acquisition or obligation as the state agency may
require to determine if the organization or combination meets the
requirements of subdivision (1) of this subsection or the
facility meets or will meet such requirements; and
(iii) The state agency approves such application.
(B) The state agency shall approve an application submitted
under paragraph (A) of this subdivision, if it determines that
the applicable requirements of subdivision (1) of this subsection
are met or will be met on the date the proposed activity for
which an exemption was requested will be undertaken.
(3) A health care facility, or any part thereof, or medical
equipment with respect to which an exemption was granted under
subdivision (1) of this subsection, may not be sold or leased and
a controlling interest in such facility or equipment or in a
lease of such facility or equipment may not be acquired and a
health care facility described in paragraph (C) of said subdivision, which was granted an exemption under this
subdivision, may not be used by any person other than the lessee
described in paragraph (C) of said subdivision, unless:
(A) The state agency issues a certificate of need approving
the sale, lease, acquisition or use; or
(B) The state agency determines, upon application, that the
entity to which the facility or equipment is proposed to be sold
or leased, which intends to acquire the controlling interest in
or to use the facility is:
(i) A health maintenance organization or a combination of
health maintenance organizations which meets the enrollment
requirements of subparagraph (i), paragraph (A), subdivision (1)
of this subsection, and with respect to such facility or
equipment, the entity meets the accessibility and patient
enrollment requirements of subparagraphs (ii) and (iii) of said
paragraph; or
(ii) A health care facility which meets the inpatient,
enrollment and accessibility requirements of subparagraphs (i),
(ii) and (iii), paragraph (B), subdivision (1) of this subsection
and with respect to its patients meets the enrollment
requirements of subparagraph (iv) of said paragraph (B).
(4) In the case of a health maintenance organization or an
ambulatory care facility or health care facility which ambulatory
or health care facility is controlled, directly or indirectly, by
a health maintenance organization or a combination of health
maintenance organizations, the certificate of need requirements
apply only to the offering of inpatient institutional health
services, the acquisition of major medical equipment, and the
obligation of capital expenditures for the offering of inpatient
institutional health services and then only to the extent that
such offering, acquisition or obligation is not exempt under
subdivision (1) of this subsection.
(5) The state agency shall establish the period within which
approval or disapproval by the state agency of applications for
exemptions under subdivision (1) of this subsection shall be
made.
(c)(1) A health care facility is not required to obtain a
certificate of need for the acquisition of major medical
equipment to be used solely for research, the addition of health
services to be offered solely for research, or the obligation of
a capital expenditure to be made solely for research if the
health care facility provides the notice required in subdivision (2) of this subsection, and the state agency does not find,
within sixty days after it receives such notice, that the
acquisition, offering or obligation will, or will have the effect
to:
(A) Affect the charges of the facility for the provision of
medical or other patient care services other than services which
are included in the research,
(B) Results in a substantial change to the bed capacity of
the facility; or
(C) Result in a substantial change to the health services of
the facility.
(2) Before a health care facility acquires major medical
equipment to be used solely for research, offers a health service
solely for research or obligates a capital expenditure solely for
research, such health care facility shall notify in writing the
state agency of such facility's intent and the use to be made of
such medical equipment, health service or capital expenditure.
(3) If major medical equipment is acquired, a health service
is offered or a capital expenditure is obligated and a
certificate of need is not required for such acquisition,
offering or obligation as provided in subdivision (1) of this subsection, such equipment or service or equipment or facilities
acquired through the obligation of such capital expenditure may
not be used in such a manner as to have the effect or to make a
change described in paragraphs (A), (B) and (C) of said
subdivision unless the state agency issues a certificate of need
approving such use.
(4) For purposes of this subsection, the term "solely for
research" includes patient care provided on an occasional and
irregular basis and not as part of a research program.
(d)(1) The state agency may adopt regulations rules pursuant
to section eight of this article to specify the circumstances
under which a certificate of need may not be required for the
obligation of a capital expenditure to acquire, either by
purchase or under lease or comparable arrangement, an existing
health care facility: Provided, That a certificate of need shall
be required for the obligation of a capital expenditure to
acquire, either by purchase or under lease or comparable
arrangement, an existing health care facility if:
(A) The notice required by subdivision (2) of this
subsection is not filed in accordance with that subdivision with
respect to such acquisition; or
(B) The state agency finds, within thirty days after the
date it receives a notice in accordance with subdivision (2) of
this subsection, with respect to such acquisition, that the
services or bed capacity of the facility will be changed by
reason of said acquisition.
(2) Before any person enters into a contractual arrangement
to acquire an existing health care facility, such person shall
notify the state agency of his or her intent to acquire the
facility and of the services to be offered in the facility and
its bed capacity. Such notice shall be made in writing and shall
be made at least thirty days before contractual arrangements are
entered into to acquire the facility with respect to which the
notice is given. The notice shall contain all information the
state agency required in accordance with subsections (e) and (s),
section seven of this article.
(e) The state agency shall adopt regulations rules, pursuant
to section eight of this article, wherein criteria are
established to exempt from review the addition of certain health
services, not associated with a capital expenditure, that are
projected to entail annual operating costs of less than the
expenditure minimum for annual operating costs. For purposes of this subsection, "expenditure minimum for annual operating costs"
means three five hundred thousand dollars for the first twelve
months following the effective date of this section per fiscal
year and for each twelve month period thereafter, the state
agency may, by regulations rules adopted pursuant to section
eight of this article, adjust the expenditure minimum for annual
operating costs to reflect the impact of inflation.
(f) The state agency shall adopt rules within ninety days of
the effective date of the amendment of this section in the year
one thousand nine hundred ninety pursuant to section eight of
this article to specify the circumstances under which and the
procedures by which a certificate of need may not be required for
shared services between two or more acute care facilities
providing services made available through existing technology
that can reasonably be mobile. The state agency shall specify
the types of items in the regulations rules and under what
circumstances mobile MRI and mobile lithotripsy may be so
exempted from review. In no case, however, will mobile cardiac
catheterization be exempted from certificate of need review. In
addition, if the shared services mobile unit proves less cost
effective than a fixed unit, the acute care facility will not be exempted from certificate of need review.
On a yearly basis, the state agency shall review existing
technologies to determine if other shared services should be
included under this exemption.
(g) This subsection applies only to hospitals designated as
rural primary care hospitals by West Virginia office of rural
health policy in conformance with requirements of the health care
financing administration of the federal department of health and
human services under Section 1920 of Public Law 101-239, Section
6000(g) of the federal Omnibus Budget Reconciliation Act of 1989.
A hospital, designated as a rural primary care hospital, in
accordance with final rules issued by the health care financing
administration, shall undergo a reduction in its number of
licensed acute care beds as determined by the office of rural
health policy.
The office of rural health policy shall notify the health
care cost review authority of such designation and the number of
acute care beds certified by the health care financing
administration.
A rural primary care hospital may reject this designation
any time within twenty-four calendar months, beginning from the date of designation by the office of rural health policy. If a
hospital chooses to reject this designation, it may do so upon
written notification to the office of rural health policy and the
health care cost review authority. If such designation is
rejected by a rural primary care hospital, license restoration,
not to exceed the number of acute care beds staffed and operated
by the hospital immediately prior to receiving designation as a
rural primary care hospital, shall be exempt from the certificate
of need program review.
Within twenty-five months from designating rural primary
care hospitals, the office of rural health policy shall notify
the health care cost review authority of the status of the
designated hospitals including the number of licensed beds.
The state agency shall promulgate rules within ninety days
of the effective date of this amendment in order to carry out the
purpose of this subsection.
NOTE: The purpose of this bill is to increase the
expenditure minimum for certificate of need determinations from
$750,000 to $1,000,000; to increase the cost of major medical
equipment subject to certificate of need from $300,000 to
$500,000; to specifically exempt from certificate of need the
replacement of major medical equipment when the capital
expenditure is less than the expenditure minimum; to increase the expenditure minimum for annual operating costs from $300,000 to
$500,000.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.