WEST virginia legislature
2017 First Extraordinary session
House Bill 117
By Delegate Miley
[By Request of the Executive]
[Passed June 13, 2017; in effect from passage.]
AN ACT to amend and reenact §16-2D-11 of the Code of West Virginia, 1931, as amended; to amend and reenact §16-29B-3 and §16-29B-8 of said code; and to amend said code by adding two new sections, designated §16-29B-24 and §16-29B-25, all relating to West Virginia Health Care Authority; defining terms; clarifying an exemption to the certificate of need; prohibiting the department from limiting the transfer of skilled nursing beds; authorizing legislative rulemaking; establishing an assessment on acute care hospitals; requiring entities file certain information with the authority; permitting the assessing of a penalty for failing to file reports; authorizing the authority to coordinate the collection of health data; requiring the authority to provide access to data; requiring the authority to charge a fee to obtain data; requiring a report to the Legislative Oversight Commission on Health and Human Resources; permitting the secretary to assume control of the data repository if certain conditions are met; authorizing emergency rules to implement the provisions of new article.
Be it enacted by the Legislature of West Virginia:
That §16-2D-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §16-29B-3 and §16-29B-8 of said code be amended and reenacted; and that of said code be amended by adding thereto two new sections designated §16-29B-24 and §16-29B-25, all to read as follows:
ARTICLE 2D. CERTIFICATE OF NEED.
§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. A person 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, only the applicant may appeal the authority’s decision to the Office of Judges or refile the application with the authority.
(c) Notwithstanding section eight and ten and except as provided in section nine of this article, the Legislature finds that a need exists and these health services are exempt from the certificate of need process:
(1) The acquisition and utilization of one computed tomography scanner with a purchase price up to $750,000 that is installed in a private office practice where at minimum seventy-five percent of the scans are performed on the patients of the practice. The private office practice shall obtain and maintain accreditation from the American College of Radiology prior to, and at all times during, the offering of this service. The authority may at any time request from the private office practice information relating to the number of patients who have been provided scans and proof of active and continuous accreditation from the American College of Radiology. If a physician owns or operates a private office practice in more than one location, this exemption shall only apply to the physician’s primary place of business and if a physician wants to expand the offering of this service to include more than one computed topography scanner, he or she shall be required to obtain a certificate of need prior to expanding this service. All current certificates of need issued for computed tomography services, with a required percentage threshold of scans to be performed on patients of the practice in excess of seventy-five percent, shall be reduced to seventy-five percent: Provided, That these limitations on the exemption for a private office practice with more than one location shall not apply to a private office practice with more than twenty locations in the state on April 8, 2017.
(2) (A) A birthing center established by a 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: Provided, That a skilled nursing facility developed pursuant to subdivision (17) of this section and subsequently acquired pursuant to this subdivision may not transfer or sell any of the skilled nursing home beds of the acquired skilled nursing facility until the skilled nursing facility has been in operation for at least ten years.
(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, only if the replacement major medical equipment cost is more than the expenditure minimum;
(10) Renovations within a hospital, only if the renovation cost is more than the expenditure minimum. 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 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;
(13) A person providing specialized foster care personal care services to one individual and those services are delivered in the provider's home;
(14) 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;
(15) 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;
(16) To develop and operate a skilled nursing facility with no more than thirty-six beds in a county that currently is without a skilled nursing facility;
(17) 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;
(18) The establishing of a heath care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome;
(19) The construction, development, acquisition or other establishment of community mental health and intellectual disability facility;
(20) Providing behavioral health facilities and services;
(21) The construction, development, acquisition or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population;
(22) The transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital to a skilled nursing facility providing intermediate care and skilled nursing services. The Department of Health and Human Resources may not create a policy which limits the transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital. The transferred beds shall retain the same certification status that existed at the nursing home or hospital skilled nursing unit from which they were acquired. If construction is required to place the transferred beds into the acquiring nursing home, the acquiring nursing home has one year from the date of purchase to commence construction;
(23) The construction, development, acquisition or other establishment by a health care facility of a nonhealth related project, only if the nonhealth related project cost is more than the expenditure minimum;
(24) 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;
(25) Assisted living facilities and services;
(26) 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; and
(27) The acquisition and utilization of one computed tomography scanner and/or one magnetic resonance imaging scanner with a purchase price of up to $750,000 by a hospital.
ARTICLE 29B. HEALTH CARE AUTHORITY.
(a) Definitions of words and terms defined in article two-d of this chapter are incorporated in this section unless this section has different definitions.
(b) As used in this article, unless a different meaning clearly appears from the context:
(1) “Authority” means the Health Care Authority created pursuant to the provisions of this article;
(2) "Board" means the five-member board of directors of the West Virginia Health Care Authority;
(3) "Charges" means the economic value established for accounting purposes of the goods and services a hospital provides for all classes of purchasers;
(4) "Class of purchaser" means a group of potential hospital patients with common characteristics affecting the way in which their hospital care is financed. Examples of classes of purchasers are Medicare beneficiaries, welfare recipients, subscribers of corporations established and operated pursuant to article twenty-four, chapter thirty-three of this code, members of health maintenance organizations and other groups as defined by the authority;
(5) "Covered facility" means a hospital, behavioral health facility, kidney disease treatment center, including a free-standing hemodialysis unit; ambulatory health care facility; ambulatory surgical facility; home health agency; rehabilitation facility; or community mental health or intellectual disability facility, 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: Provided, That nonprofit, community-based primary care centers providing primary care services without regard to ability to pay which provide the Secretary with a year-end audited financial statement prepared in accordance with generally accepted auditing standards and with governmental auditing standards issued by the Comptroller General of the United States shall be deemed to have complied with the disclosure requirements of this section.
(6) “Executive Director” or “Director” means the administrative head of the Health Care Authority as set forth in section five-a of this article;
(7) "Health care provider" means a person, partnership, corporation, facility, hospital or institution licensed, certified or authorized by law to provide professional health care service in this state to an individual during this individual's medical, remedial, or behavioral health care, treatment or confinement. For purposes of this article, "health care provider" shall not include the private office practice of one or more health care professionals licensed to practice in this state pursuant to the provisions of chapter thirty of this code;
(8) "Hospital" means a facility subject to licensure as such under the provisions of article five-b of this chapter, and any acute care facility operated by the state government 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, and does not include state mental health facilities or state long-term care facilities;
(9) "Person" means an individual, trust, estate, partnership, committee, corporation, association or other organization such as a joint stock company, a state or political subdivision or instrumentality thereof or any legal entity recognized by the state;
(10) "Purchaser" means a consumer of patient care services, a natural person who is directly or indirectly responsible for payment for such patient care services rendered by a health care provider, but does not include third-party payers;
(11) "Rates" means all value given or money payable to health care providers for health care services, including fees, charges and cost reimbursements;
(12) "Records" means accounts, books and other data related to health care costs at health care facilities subject to the provisions of this article which do not include privileged medical information, individual personal data, confidential information, the disclosure of which is prohibited by other provisions of this code and the laws enacted by the federal government, and information, the disclosure of which would be an invasion of privacy;
(13) "Related organization" means an organization, whether publicly owned, nonprofit, tax-exempt or for profit, related to a health care provider through common membership, governing bodies, trustees, officers, stock ownership, family members, partners or limited partners including, but not limited to, subsidiaries, foundations, related corporations and joint ventures. For the purposes of this subsection family members means brothers and sisters, whether by the whole or half blood, spouse, ancestors and lineal descendants;
(14) “Secretary” means the Secretary of the Department of Health and Human Resources; and
(15) "Third-party payor" means any natural person, person, corporation or government entity responsible for payment for patient care services rendered by health care providers.
§16-29B-8. Powers generally; budget expenses of the authority.
(a) The authority may:
(1) Adopt, amend and repeal necessary, appropriate and lawful policy guidelines, and in cooperation with the Secretary, propose rules in accordance with article three, chapter twenty-nine-a of this code;
(2) Hold public hearings, conduct investigations and require the filing of information relating to matters affecting the costs of health care services subject to the provisions of this article and may subpoena witnesses, papers, records, documents and all other data in connection therewith. The board may administer oaths or affirmations in any hearing or investigation;
(3) Exercise, subject to limitations or restrictions herein imposed, all other powers which are reasonably necessary or essential to effect the express objectives and purposes of this article.
(4) Assess a fee on a pro rata basis on hospitals, except critical access hospital, using net patient revenue, as defined under generally accepted accounting principles. The assessment may not exceed a total five one hundredths of one percent of its net patient revenue in a fiscal year. The amount of the assessment shall be determined by the authority based upon the information provided in a hospital’s most recent audited financial statement. The authority shall collect the assessment on a semi-annual basis. Two hundred and fifty thousandths of one percent shall be collected on July 1st. The amount of the second assessment shall be based upon the projected expenses to perform the duties consistent with article twenty-nine-b, chapter sixteen, and article two-d, chapter sixteen, but may not exceed two hundred and fifty thousandths of one percent and shall be collect after the first of January of the next year. The assessment shall be paid into the state treasury and kept as a special revolving fund designated "Health Care Cost Review Fund", with the moneys in the fund being expendable after appropriation by the Legislature for purposes consistent with article twenty-nine-b, chapter sixteen, article two-d, chapter sixteen. The Secretary may use any balance remaining in the “Health Care Cost Review Fund” at the end of June 30, 2017 to support the financial viability of certain critical access hospitals that operate rural health clinics in West Virginia. Any balance remaining in the fund at the end of June 30, 2018 and thereafter shall not revert to the treasury, but shall remain in said fund and such moneys shall be expendable after appropriation by the Legislature in ensuing fiscal years. The assessment shall terminate on July 1, 2020.
(b) The legislature finds that health care services will be disrupted and important data could be lost which could create significant hardships upon health care providers and the citizens of this state, therefore an emergency exists and the authority shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine of this code, to effectuate the changes in this article by July 1, 2017.
§16-29B-24. Reports required to be filed.
(a) A covered facility, within one hundred twenty days after the end of its fiscal year, unless an extension be granted by the authority, shall file with the authority its annual financial report prepared by an accountant or auditor.
(b) A covered facility, if applicable by legislative rule, shall submit upon request of the authority but at least annually:
(1) A statement of charges for all services rendered, except a behavioral health facility shall submit its gross rates for its top thirty services by utilization;
(2) The Health Care Authority Financial Report, through the Uniform Reporting System;
(3) The current Uniform Bill form in effect for inpatients. This data is not subject to the provisions of subsection (f), section twenty-five of this article.
(c) The authority may request from a covered facility, except hospitals, the information from subsection (a) and (b) from its related organization.
(d) A home health agency shall annually submit a utilization survey.
(e) A covered facility failing to submit a report to the authority shall be notified by the authority and, if the failure continues for ten days after receipt of the notice, the delinquent facility or organization is subject to a penalty of $1,000 for each day thereafter that the failure continues.
§16-29B-25. Data repository.
(a) The authority shall:
(1) Coordinate and oversee the health data collection of state agencies;
(2) Lead state agencies’ efforts to make the best use of emerging technology to effect the expedient and appropriate exchange of health care information and data, including patient records and reports; and
(3) Coordinate database development, analysis and report to facilitate cost management, review utilization review and quality assurance efforts by state payor and regulatory agencies, insurers, consumers, providers and other interested parties.
(b) A state agency collecting health data shall work through the authority to develop an integrated system for the efficient collection, responsible use and dissemination of data and to facilitate and support the development of statewide health information systems that will allow for the electronic transmittal of all health information and claims processing activities of a state agency within the state and to coordinate the development and use of electronic health information systems within state government.
(c) The authority shall establish minimum requirements and issue reports relating to information systems of state health programs, including simplifying and standardizing forms and establishing information standards and reports for capitated managed care programs;
(d) The authority shall develop a comprehensive system to collect ambulatory health care data.
(e) The authority may access any health-related database maintained or operated by a state agency for the purposes of fulfilling its duties. The use and dissemination of information from that database shall be subject to the confidentiality provisions applicable to that database.
(f) A report, statement, schedule or other filing may not contain any medical or individual information personally identifiable to a patient or a consumer of health services, whether directly or indirectly.
(g) A report, statement, schedule or other filing filed with the authority is open to public inspection and examination during regular hours. A copy shall be made available to the public upon request upon payment of a fee.
(h) The authority may require the production of any records necessary to verify the accuracy of any information set forth in any statement, schedule or report filed under the provisions of this article.
(i) The authority may provide requested aggregate data to an entity. The authority may charge a fee to an entity to obtain the data collected by the authority. The authority may not charge a fee to a covered entity to obtain the data collected by the authority.
(j) The authority shall provide to the Legislative Oversight Commission on Health and Human Resources Accountability before July 1, 2018, and every other year thereafter, a strategic data collection and analysis plan:
(1) What entities are submitting data;
(2) What data is being collected;
(3) The types of analysis performed on the submitted data;
(4) A way to reduce duplicative data submissions;
(5) The current and projected expenses to operate the data collection and analysis program.
(k) The Secretary of the Department of Health and Human Resources may assume the powers and duties provided to the authority in this section, if the secretary determines it is more efficient and cost effective to have direct control over the data repository program.