§16-2D-13. Procedures for certificate of need reviews.
(a) An application for a certificate of need shall be submitted to the authority prior to the offering or development of a proposed health service.
(b) A person proposing a proposed health service shall:
(1) Submit a letter of intent ten days prior to submitting the certificate of need application. The information required within the letter of intent shall be detailed by the authority in legislative rule;
(2) Submit the appropriate application fee;
(A) Up to $1,500,000 a fee of $1,500.00;
(B) From $1,500,001 to $ 5,000,000 a fee of $5,000.00;
(C) From $5,000,001 to 25,000,000 a fee of $25,000.00; and
(D) From $25,000,001 and above a fee of $35,000.00.
(3) Submit to the Director of the Office of Insurance Consumer Advocacy a copy of the application;
(c) The authority shall determine if the submitted application is complete within ten days of receipt of the application. The authority shall provide written notification to the applicant of this determination. If the authority determines an application to be incomplete, the authority may request additional information from the applicant.
(d) Within five days of receipt of a letter of intent, the authority shall provide notification to the public through a newspaper of general circulation in the area where the health service is being proposed and by placing of copy of the letter of intent on its website. The newspaper notice shall contain a statement that, further information regarding the application is on the authority’s web site.
(e) The authority may batch completed applications for review on the fifteenth day of the month or the last day of month in which the application is deemed complete.
(f) When the application is submitted, ten days after filing the letter of intent, the application shall be placed on the authority’s website.
(g) An affected party has thirty days starting from the date the application is batched to request the authority hold an administrative hearing.
(1) A hearing order shall be approved by the authority within fifteen days from the last day an affected person may requests an administrative hearing on a certificate of need application.
(2) A hearing shall take place no later than three months from that date the hearing order was approved by the authority.
(3) The authority shall conduct the administrative hearing in accordance with administrative hearing requirements in article five, chapter twenty-nine-a of this code.
(4) In the administrative hearing an affected person has the right to be represented by counsel and to present oral or written arguments and evidence relevant to the matter which is the subject of the public hearing. An affected person may conduct reasonable questioning of persons who make factual allegations relevant to its certificate of need application.
(5) The authority shall maintain a verbatim record of the administrative hearing.
(6) After the commencement of the administrative hearing on the application and before a decision is made with respect to it, there may be no ex parte contacts between:
(A) The applicant for the certificate of need, any person acting on behalf of the applicant or holder of a certificate of need or any person opposed to the issuance of a certificate for the applicant; and
(B) Any person in the authority who exercises any responsibility respecting the application.
(7) The authority may not impose fees to hold the administrative hearing.
(8) The authority shall render a decision within forty-five days of the conclusion of the administrative hearing.
(h) If an administrative hearing is not conducted during the review of an application, the authority shall provide a file closing date five days after an affected party may no longer request an administrative hearing, after which date no other factual information or evidence may be considered in the determination of the application for the certificate of need. A detailed itemization of documents in the authority’s file on a proposed health service shall, on request, be made available by the authority at any time before the file closing date.
(i) The extent of additional information received by the authority from the applicant for a certificate of need after a review has begun on the applicant's proposed health service, with respect to the impact on the proposed health service and additional information which is received by the authority from the applicant, may be cause for the authority to determine the application to be a new proposal, subject to a new review cycle.
(j) The authority shall have five days to provide the written status update upon written request by the applicant or an affected person. The status update shall include the findings made in the course of the review and any other appropriate information relating to the review.
(k) (1) The authority shall annually prepare and publish to its website, a status report of each ongoing and completed certificate of need application reviews.
(2) For a status report of an ongoing review, the authority shall include in its report all findings made during the course of the review and any other appropriate information relating to the review.
(3) For a status report of a completed review, the authority shall include in its report all the findings made during the course of the review and its detailed reasoning for its final decision.
(l) The authority shall provide for access by the public to all applications reviewed by the authority and to all other pertinent written materials essential to agency review.
(b) The state agency may assess a civil penalty for violation of this article. Upon the state agency determining that there is probable cause to believe that any person is knowingly offering, developing, or has acquired any new institutional health service subject to certificate of need review without having first obtained a certificate of need therefor or that any person is otherwise in violation of the provisions of this article, or any lawful rule promulgated thereunder, the state agency shall provide such person with written notice which shall state the nature of the alleged violation and the time and place at which such person shall appear to show good cause why a civil penalty should not be imposed, at which time and place such person shall be afforded an opportunity to cross-examine the state agency's witnesses and afforded an opportunity to present testimony and other evidence in support of his position. The hearing shall be conducted in accordance with the administrative hearing provisions of section four, article five, chapter twenty-nine-a of this code. If, after reviewing the record of such hearing, the state agency director determines that such person is in violation of the certificate of need law, the state agency shall assess a civil penalty of not less than five hundred dollars nor more than twenty-five thousand dollars. In determining the amount of the penalty, the state agency shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage. Any person assessed shall be notified of the assessment in writing, and the notice shall specify the reasons for the assessment. If the person assessed fails to pay the amount of the assessment to the state agency within thirty days, the state agency may institute a civil action in the circuit court of the county wherein such violation has occurred, or wherein such person may be found to recover the amount of the assessment. In any such civil action, the scope of the court's review of the state agency's action, which shall include a review of the amount of the assessment, shall be as provided in section four, article five, chapter twenty-nine-a of this code for the judicial review of contested administrative cases.
Note: WV Code updated with legislation passed through the 2016 Regular Session
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