Senate Bill No. 502
(By Senators Bowman and McKenzie)
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[Introduced February 15, 2000; referred to the
Committee on Health and Human Resources; and then to the
Committee on Finance.]
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A BILL to amend and reenact section four, article two-d, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to exemptions from
certificate of need program.
Be it enacted by the Legislature of West Virginia:
That section four, 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-4. Exemptions from certificate of need program.
(a) Except as provided in subsection (b), subdivision (9), section three of this article, nothing in this article or the
rules 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
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 the acquisition, offering or development of
one or more health services, including ambulatory surgical
facilities or centers, lithotripsy, magnetic resonance imaging
and 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
boardinghouses, 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 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 shall 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 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.
(7) The creation of an open heart surgery program located in
a West Virginia municipality that is adjacent and contiguous to
the border of two surrounding states: Provided, That an
inpatient hospital providing cardiac catheterization services
currently exists in the municipality: Provided, however, That
there will be no increase in the number of licensed hospital beds
within the municipality and the program uses existing beds licensed in the municipality: Provided further, That the
proposed program will be located at least twenty miles from the
nearest West Virginia open heart surgery program.
(b) (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 the 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 the services
which are included in the research;
(B) Result 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 the health care facility shall notify in writing
the state agency of such the
facility's intent and the use to be
made of such the 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 the acquisition,
offering or obligation as provided in subdivision (1) of this
subsection, such the equipment or service or equipment or
facilities acquired through the obligation of such the 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.
(c) (1) The state agency may adopt 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 is 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 the 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 The 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 requires.
(d) The state agency shall adopt rules 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 rules and under what
circumstances mobile MRI and mobile lithotripsy may be so
exempted from review. In no case, however, will mobile cardiac
catherization 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.
NOTE: The purpose of this bill is to add an exemption to
the certificate of need program to permit an open heart surgery
program.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.