Senate Bill No. 426
(By Senators Bowman, Minard, Sharpe, Wooton,
McKenzie, Edgell, Kessler, Bailey, Anderson, Caldwell, Deem,
Boley and Fanning)
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[Introduced March 7, 2001; referred to the Committee on Health
and Human Resources.]
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A BILL to amend and reenact section four, article two-d, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to exempting certain
open heart surgery programs from the certificate of need
program.
Be it enacted by the Legislature of West Virginia:
That section four, article two-d, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, 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 subsection (b), subdivision (9) 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 the
exemption from review of private office practice shall may 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 the
exemption from review of private office practice shall may 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 the 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 may 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 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; and
(7) The creation of new open heart surgery programs in
inpatient hospitals providing a minimum of six hundred cardiac
catheterization services annually and located in a Class II city,
as classified in section three, article one, chapter eight:
Provided, That the inpatient hospital is located in a county that
is adjacent and contiguous to the border of a surrounding state and
the hospital is at least twenty miles from the nearest in-state
open heart services provider or that the inpatient hospital is
located at least fifty miles from the nearest in-state open heart services provider or that the inpatient hospital is located less
than fifty miles from the nearest in-state open heart services
provider and whose open heart surgery program is developed as a
fully integrated program with an existing tertiary open heart
services provider: Provided, however, That the new open heart
surgery program must utilize existing hospital beds licensed in the
city and the creation of the new open heart surgery program will
not increase the number of licensed hospital beds in the city.
(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 the health care facility shall notify in writing the
state agency of such the facility's intent and the use to be made
of such the 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 the acquisition, offering or
obligation as provided in subdivision (1) of this subsection, such
the equipment or service or equipment or facilities acquired
through the obligation of such the 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 subdivision unless
the state agency issues a certificate of need approving such the
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 that subdivision with respect to
such the 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 the acquisition, that the services
or bed capacity of the facility will be changed by reason of said
the acquisition.
(2) Before any person enters into a contractual arrangement to
acquire an existing health care facility, such the 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 The 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.
NOTE: The purpose of this bill is to exempt certain open
heart surgery programs from certificate of need programs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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