SB335 SUB1
Senate Bill 335 History
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COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 335
(By Senators
Yost, Edgell and Fitzsimmons)
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[Originating in the Committee on Government Organization;
reported February 28, 2013.]
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A BILL to amend and reenact §16-2D-4 of the Code of West Virginia,
1931, as amended, relating to permitting certain hospitals to
request an exemption from certificates of need for health care
facilities in specific instances.
Be it enacted by the Legislature of West Virginia:
That §16-2D-4 of the Code of West Virginia, 1931, 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 subdivision (9), subsection (b),
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 that 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.
(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 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 health care facility shall notify in writing the
state agency of such facility's intent and the use to be made of
such 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 acquisition, offering or
obligation as provided in subdivision (1) of this subsection, such
equipment or service or equipment or facilities acquired through
the obligation of such 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 that 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 said 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 that
acquisition.
(2) Before any person enters into a contractual arrangement to
acquire an existing health care facility, such 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 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 catheterization 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.
(e) The state agency shall promulgate rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code to specify the circumstances
under which, and the procedures by which, a certificate of need may
not be required for the construction, development, acquisition or
other establishment by a hospital of an ambulatory health care facility. Certificate of need may not be required if:
(1) The ambulatory health care facility is located in the same
county as the hospital: Provided, That a hospital that is the only
hospital in the county, is located less than one-half mile from the
county line in which it is located and is located less than one
mile from a state bordering West Virginia may request this
exemption for a health care facility located in the same zip code
as the hospital;
(2) Employs five or less physicians licensed to practice in
this state pursuant to either article three or article fourteen,
chapter thirty of this code;
(3) The total capital expenditure does not exceed the
expenditure minimum set forth in subsection two of this section;
and
(4) The construction, development, acquisition or other
establishment of an ambulatory health care facility is not opposed
by an affected person after substantive public notice pursuant to
the provisions of article three, chapter fifty-nine of this code
has been given by the Health Care Authority.
(f) The Health Care Authority shall provide at least thirty
days' notice to the public of the intent of a health care facility
to construct, acquire or develop an ambulatory health care
facility. The Health Care Authority shall cause a Class II legal
advertisement to be published in a qualified newspaper of general
circulation where the construction, acquisition or development of the ambulatory health care facility is or will be geographically
located. The thirty-day notice shall commence with the first date
of publication. Additionally, if the county in which the
ambulatory health care facility is or will be geographically
located contains a daily newspaper, a legal advertisement shall
also be placed at least once in the daily newspaper. Any public
notice shall include the name of the hospital seeking to develop,
acquire or construct an ambulatory health care facility, the kind
of practice to be developed, acquired or constructed, the
geographic location of the ambulatory health care facility and the
address where protests may be submitted or filed.
(g) The state agency shall promulgate emergency rules pursuant
to the provision of chapter twenty-nine-a of this code by July 1,
2009, to establish an exemption process for such projects.
(h) The acquisition, development or establishment of a
certified interoperable electronic health record or electronic
medical record system is not subject to certificate of need review.
(i) A health care facility is not required to obtain a
certificate of need for any nonhealth-related project that does not
exceed:
(1) $5 million for a hospital with less than one hundred
licensed acute care beds;
(2) $10 million for a hospital with one hundred or more
licensed acute care beds; or
(3) $5 million for any other project.
(j) A certificate of need is not required for a psychiatric
hospital operated by state government for the purpose of
constructing forensic beds.
(k) Any behavioral health care 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.