WEST virginia legislature
2020 regular session
House Bill 4108
By Delegates Summers, Waxman, Porterfield, Fast, Householder, Jennings and Ellington
[Introduced January 13, 2020; Referred to the Committee on Health and Human Resources.]
A BILL to repeal §16-2D-11 of the Code of West Virginia, 1931, as amended; to amend and reenact §16-2D-10 of said code, all relating generally to certificates of need for health care services; and changing those health care services that require approval from the West Virginia Health Care Authority to be exempt from a certificate of need to being exempt without approval.
Be it enacted by the Legislature of West Virginia:
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-10. Exemptions from certificate of need.
Notwithstanding §16-2D-8 of this code, a person may provide the following health services without obtaining a certificate of need or applying to the authority for approval:
(1) The creation of a private office of one or more licensed health professionals to practice in this state pursuant to chapter 30 of this code;
(2) Dispensaries and first-aid stations located within business or industrial establishments maintained solely for the use of employees that does not contain inpatient or resident beds for patients or employees who generally remain in the facility for more than twenty-four hours;
(3) A place that provides remedial care or treatment of residents or patients 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) A facility owned or operated by one or more health professionals authorized or organized pursuant to chapter 30 or ambulatory health care facility which offers laboratory services or diagnostic imaging to patients regardless of the cost associated with the proposal. To qualify for this exemption 75 percent of the laboratory services are for the patients of the practice or ambulatory health care facility of the total laboratory services performed and 75 percent of diagnostic imaging services are for the patients of the practice or ambulatory health care facility of the total imaging services performed. The authority may, at any time, request from the entity information concerning the number of patients who have been provided laboratory services or diagnostic imaging;
(6) (A) Notwithstanding the provisions of §16-2D-17 of this code, any hospital that holds a valid certificate of need issued pursuant to this article, may transfer that certificate of need to a person purchasing that hospital, or all or substantially all of its assets, if the hospital is financially distressed. A hospital is financially distressed if, at the time of its purchase:
(i) It has filed a petition for voluntary bankruptcy;
(ii) It has been the subject of an involuntary petition for bankruptcy;
(iii) It is in receivership;
(iv) It is operating under a forbearance agreement with one or more of its major creditors;
(v) It is in default of its obligations to pay one or more of its major creditors and is in violation of the material, substantive terms of its debt instruments with one or more of its major creditors; or
(vi) It is insolvent: evidenced by balance sheet insolvency and/or the inability to pay its debts as they come due in the ordinary course of business.
(B) A financially distressed hospital which is being purchased pursuant to the provisions of this subsection shall give notice to the authority of the sale 30 days prior to the closing of the transaction and shall file simultaneous with that notice evidence of its financial status. The financial status or distressed condition of a hospital shall be evidenced by the filing of any of the following:
(i) A copy of a forbearance agreement;
(ii) A copy of a petition for voluntary or involuntary bankruptcy;
(iii) Written evidence of receivership, or
(iv) Documentation establishing the requirements of subparagraph (v) or (vi), paragraph (A) of this subdivision. The names of creditors may be redacted by the filing party.
(C) Any substantial change to the capacity of services offered in that hospital made subsequent to that transaction would remain subject to the requirements for the issuance of a certificate of need as otherwise set forth in this article.
(D) Any person purchasing a financially distressed hospital, or all or substantially all of its assets, that has applied for a certificate of need after January 1, 2017, shall qualify for an exemption from certificate of need;
(7) The acquisition by a qualified hospital which is party to an approved cooperative agreement as provided in §16-29B-28 of this code, of a hospital located within a distance of twenty highway miles of the main campus of the qualified hospital; and
(8) The acquisition by a hospital of a physician practice group which owns an ambulatory surgical center as defined in this article.
(9) 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 75 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 75 percent, shall be reduced to 75 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 20 locations in the state on April 8, 2017.
(10)(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 100 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.
(11) (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;
(12) 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 10 years.
(13) 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;
(14) The acquisition, development or establishment of a certified interoperable electronic health record or electronic medical record system;
(15) The addition of forensic beds in a health care facility;
(16) 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;
(17) The replacement of major medical equipment with like equipment, only if the replacement major medical equipment cost is more than the expenditure minimum;
(18) 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;
(19) Renovations to a skilled nursing facility;
(20) 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;
(21) A person providing specialized foster care personal care services to one individual and those services are delivered in the provider's home;
(22) 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;
(23) The construction, renovation, maintenance, or operation of a state-owned veterans skilled nursing facilities established pursuant to the provisions of §16-1B-1 et seq. of this code;
(24) To develop and operate a skilled nursing facility with no more than 36 beds in a county that currently is without a skilled nursing facility;
(25) 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 10 years of its closure;
(26) The establishing of a heath care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome;
(27) The construction, development, acquisition, or other establishment of community mental health and intellectual disability facility;
(28) Providing behavioral health facilities and services;
(29) The construction, development, acquisition, or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population;
(30) 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;
(31) 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;
(32) 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 §16-2D-9(4) of this code.
(33) Assisted living facilities and services;
(34) 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
(35) 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.
§16-2D-11. Exemptions from certificate of need which require approval from the authority.
NOTE: The purpose of this bill is to make those health care services that require approval from the West Virginia Health Care Authority to be exempt from a certificate of need to ones that would be exempt without approval.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.