§16-2D-11. Exemptions from certificate of need which require approval from the authority.
(a) To obtain an exemption under this section a person shall:
(1) File an exemption application;
(2) Pay the $1,000 application fee; and
(3) Provide a statement detailing which exemption applies and the circumstances justifying the approval of the exemption.
(b) The authority has forty-five days to review the exemption request. The authority may not hold an administrative hearing to review the application. An affected party may not file an objection to the request for an exemption. The applicant may request or agree with the authority to a fifteen day extension of the timeframe. If the authority does not approve or deny the application within forty-five days, then the exemption is immediately approved. If the authority denies the approval of the exemption, the applicant may appeal the authority’s decision to the Office of Judges or refile the application with the authority. The Office of Judges shall follow the procedure provided in section sixteen to perform the review.
(c) Notwithstanding section eight and ten and except as provided in section nine, these health services are exempt from the certificate of need process:
(1) A computed tomography scanner that is installed in a private office practice where at minimum seventy five percent of the scans are for the patients of the practice and the fair market value of the installation and purchase is less than $250,000 for calendar year 2016. The authority shall adjust the dollar amount specified in this subdivision annually and publish an update of the amount on or before December 31, of each year. The adjustment of the dollar amount shall be based on the DRI inflation index published in the Global Insight DRI/WEFA Health Care Cost Review. The authority may at any time request from the private office practice information concerning the number of patients who have been provided scans;
(2) (A) A birthing center established by nonprofit primary care center that has a community board and provides primary care services to people in their community without regard to ability to pay; or
(B) A birthing center established by a nonprofit hospital with less than one hundred licensed acute care beds.
(i) To qualify for this exemption, an applicant shall be located in an area that is underserved with respect to low-risk obstetrical services; and
(ii) Provide a proposed health service area.
(3) (A) A health care facility acquiring major medical equipment, adding health services or obligating a capital expenditure to be used solely for research;
(B) To qualify for this exemption, the health care facility shall show that the acquisition, offering or obligation will not:
(i) 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;
(ii) Result in a substantial change to the bed capacity of the facility; or
(iii) Result in a substantial change to the health services of the facility.
(C) For purposes of this subdivision, the term "solely for research" includes patient care provided on an occasional and irregular basis and not as part of a research program;
(4) The obligation of a capital expenditure to acquire, either by purchase, lease or comparable arrangement, the real property, equipment or operations of a skilled nursing facility.
(5) Shared health services between two or more hospitals licensed in West Virginia providing health services made available through existing technology that can reasonably be mobile. This exemption does not include providing mobile cardiac catheterization;
(6) The acquisition, development or establishment of a certified interoperable electronic health record or electronic medical record system;
(7) The addition of forensic beds in a health care facility;
(8) A behavioral health service selected by the Department of Health and Human Resources in response to its request for application for services intended to return children currently placed in out-of-state facilities to the state or to prevent placement of children in out-of-state facilities is not subject to a certificate of need;
(9) The replacement of major medical equipment with like equipment;
(10) Renovations within a hospital. The renovations may not expand the health care facility’s current square footage, incur a substantial change to the health services, or a substantial change to the bed capacity;
(11) Renovations to a skilled nursing facility;
(12) The construction, development, acquisition or other establishment by a licensed West Virginia hospital of an ambulatory heath care facility in the county in which it is located and in a contiguous county within or outside this state;
(13) The donation of major medical equipment to replace like equipment for which a certificate of need has been issued and the replacement does not result in a substantial change to health services. This exemption does not include the donation of major medical equipment made to a health care facility by a related organization;
(14) A person providing specialized foster care personal care services to one individual and those services are delivered in the provider's home;
(15) A hospital converting the use of beds except a hospital may not convert a bed to a skilled nursing home bed and conversion of beds may not result in a substantial change to health services provided by the hospital;
(16) The construction, renovation, maintenance or operation of a state owned veterans skilled nursing facilities established pursuant to the provisions of article one-b of this chapter;
(17) A nonprofit community group designated by a county to develop and operate a nursing home bed facility with no more than thirty-six beds in any county in West Virginia that currently is without a skilled nursing facility;
(18) A critical access hospital, designated by the state as a critical access hospital, after meeting all federal eligibility criteria, previously licensed as a hospital and subsequently closed, if it reopens within ten years of its closure;
(19) The establishing of a heath care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome;
(20) The construction, development, acquisition or other establishment of community mental health and intellectual disability facility;
(21) Providing behavioral health services;
(22) The construction, development, acquisition or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population;
(23) The transfer or acquisition of intermediate care or skilled nursing beds from an existing health care facility to a nursing home providing intermediate care and skilled nursing services.
(24) The construction, development, acquisition or other establishment by a health care facility of a nonhealth related project;
(25) A facility owned or operated by one or more health professionals authorized or organized pursuant to chapter thirty or ambulatory health care facility which offers laboratory or imaging services to patients regardless of the cost associated with the proposal. To qualify for this exemption seventy five percent of the laboratory services are for the patients of the practice or ambulatory health care facility of the total laboratory services performed and seventy-five percent of imaging services are for the patients of the practice or ambulatory health care facility of the total imaging services performed;
(26) The construction, development, acquisition or other establishment of an alcohol or drug treatment facility and drug and alcohol treatment services unless the construction, development, acquisition or other establishment is an opioid treatment facility or programs as set forth in subdivision (4) of section nine of this article;
(27) Assisted living facilities and services; and
(28) The creation, construction, acquisition or expansion of 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 and receives approval from the Health Resources and Services Administration.
(a)A certificate of need is nontransferable and shall be valid for a maximum of one year from the date of issuance. A transfer includes the sale, lease, transfer of stock or partnership shares, or other comparable arrangement which has the effect of transferring the control of the owner of the certificate of need. Upon the expiration of the certificate or during the certification period, the person proposing the new institutional health service shall provide the state agency such information on the development of the project as the state agency may request. The state agency shall periodically monitor capital expenditures obligated under certificates, determine whether sufficient progress is being made in meeting the timetable specified in the approved application for the certificate and whether there has been compliance with the application and any conditions of certification. The certificate of need may be extended by the state agency for additional periods of time as are reasonably necessary to expeditiously complete the project. A certificate of need may no longer be in effect, and may no longer be required, after written notice of substantial compliance with the approved application and any conditions of certification is issued to the applicant, after the activity is undertaken for which the certificate of need was issued, and after the state agency is provided written notice of such undertaking. The person proposing a new institutional health service may not be issued a license therefor until the state agency has issued a written notice of substantial compliance with the approved application and any conditions of certification, nor may a new institutional health service be used until such person has received such notice. A new institutional health service may not be found to be in substantial compliance with the approved application and any conditions of certification if there is a substantial change, as defined in rules adopted pursuant to subsection (b), subdivision (10), section three of this article, in the approved new institutional health service for which change a certificate of need has not been issued.
(b) (1) The certificate of need may be withdrawn by the state agency for:
(A) Insufficient progress in meeting the timetable specified in the approved application for the certificate and for not making a good faith effort to meet it in developing the project; or
(B) Noncompliance with any conditions of certification; or
(C) A substantial change, as defined in rules adopted pursuant to subdivision (10), subsection (b), section three of this article, in an approved new institutional health service for which change a certificate of need has not been issued; or
(D) Material misrepresentation by an applicant upon which the state agency relied in making its decision; or
(E) Other reasons that may be established by the state agency in rules adopted pursuant to section eight of this article.
(2) Any decision of the state agency to withdraw a certificate of need shall be based solely on:
(A) The provisions of this article and on rules adopted in accordance with section eight of this article; and
(B) The record established in administrative proceedings held with respect to the state agency's proposal to withdraw the certificate.
(3) In the case of a proposed withdrawal of a certificate of need:
(A) After commencement of a hearing on the state agency's proposal to withdraw a certificate of need and before a decision is made on withdrawal, there may be no ex parte contacts between: (i) The holder of the certificate of need, any person acting on behalf of the holder, or any person in favor of the withdrawal; and (ii) any person in the state agency who exercises responsibility respecting withdrawal of the certificate;
(B) The state agency shall follow the notification of review provisions of subsections (g) and (h), the public hearing provisions of subsection (l), the notification of the status of review and findings provisions of subsection (o), the annual report provisions of subsection (p), and the reconsideration provisions of subsection (r), all of section seven of this article, and the conditional decision provisions of subsection (d), and the notification of decision and findings provisions of subsection (g), section nine of this article; and
(C) Appeals of withdrawals of certificates of need shall be made pursuant to section ten of this article.
(4) A new institutional health service may not be acquired, offered, or developed within this state if a certificate of need authorizing that new institutional health service has been withdrawn by the state agency and the acquisition, offering, or development of the new institutional health service is subject to review under this article.
Note: WV Code updated with legislation passed through the 2016 Regular Session
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