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WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Introduced
Senate Bill 612
By Senators Barrett and Rucker
[Introduced February 13, 2023; referred
to the Committee on Health and Human Resources]
A BILL to amend and reenact §16-2D-8 and §16-2D-11 of the Code of West Virginia, as amended; and to amend said code by adding thereto a new section, designated §16-2D-11a, all relating to certificate of need; eliminating birthing centers as a service that requires a certificate of need; eliminating ambulatory care centers as a service that requires a certificate of need; eliminating ambulatory surgery centers as a service that requires a certificate of need; eliminating birthing centers as having an exemption; creating a pilot project for MRI and CT services; requiring the board make a recommendation to the Legislature regarding the pilot; and providing that if no such recommendation is made, the pilot will become permanent.
Be it enacted by the Legislature of West Virginia:
(a) Except as provided in §16-2D-9, §16-2D-10, and §16-2D-11 of this code, the following proposed health services may not be acquired, offered, or developed within this state except upon approval of and receipt of a certificate of need as provided by this article:
(1) The construction, development, acquisition, or other establishment of a health care facility;
(2) The partial or total closure of a health care facility with which a capital expenditure is associated;
(3) (A) An obligation for a capital expenditure incurred by or on behalf of a health care facility in excess of the expenditure minimum; or
(B) An obligation for a capital expenditure incurred by a person to acquire a health care facility.
(4) An obligation for a capital expenditure is considered to be incurred by or on behalf of a health care facility:
(A) When a valid contract is entered into by or on behalf of the health care facility for the construction, acquisition, lease, or financing of a capital asset;
(B) When the health care facility takes formal action to commit its own funds for a construction project undertaken by the health care facility as its own contractor; or
(C) In the case of donated property, on the date on which the gift is completed under state law.
(5) A substantial change to the bed capacity of a health care facility with which a capital expenditure is associated;
(6) The addition of ventilator services by a hospital;
(7) The elimination of health services previously offered on a regular basis by or on behalf of a health care facility which is associated with a capital expenditure;
(8) (A) A substantial change to the bed capacity or health services offered by or on behalf of a health care facility, whether or not the change is associated with a proposed capital expenditure;
(B) If the change is associated with a previous capital expenditure for which a certificate of need was issued; and
(C) If the change will occur within two years after the date the activity which was associated with the previously approved capital expenditure was undertaken.
(9) The acquisition of major medical equipment;
(10) A substantial change in an approved health service for which a certificate of need is in effect;
(11) An expansion of the service area for hospice or home health agency regardless of the time period in which the expansion is contemplated or made; and
(12) The addition of health services offered by or on behalf of a health care facility which were not offered on a regular basis by or on behalf of the health care facility within the 12-month period prior to the time the services would be offered.
(b) The following health services are required to obtain a certificate of need regardless of the minimum expenditure:
(1) Constructing, developing, acquiring, or establishing a birthing center;
(2) (1) Providing radiation therapy;
(3) (2) Providing computed tomography;
(4) (3) Providing positron emission tomography;
(5) (4) Providing cardiac surgery;
(6) (5) Providing fixed magnetic resonance imaging;
(7) (6) Providing comprehensive medical rehabilitation;
(8) Establishing an ambulatory care center;
(9) Establishing an ambulatory surgical center;
(10) (7) Providing diagnostic imaging;
(11) (8) Providing cardiac catheterization services;
(12) (9) Constructing, developing, acquiring, or establishing kidney disease treatment centers, including freestanding hemodialysis units;
(13) (10) Providing megavoltage radiation therapy;
(14) (11) Providing surgical services;
(15) (12) Establishing operating rooms;
(16) (13) Adding acute care beds;
(17) (14) Providing intellectual developmental disabilities services;
(18) (15) Providing organ and tissue transplants;
(19) (16) Establishing an intermediate care facility for individuals with intellectual disabilities;
(20) (17) Providing inpatient services;
(21) (18) Providing hospice services;
(22) (19) Establishing a home health agency;
(23) (20) Providing personal care services; and
(24) (21) (A) Establishing no more than six four-bed transitional intermediate care facilities: Provided, That none of the four-bed sites shall be within five miles of another or adjacent to another behavioral health facility. This subdivision terminates upon the approval of the sixth four-bed intermediate care facility.
(B) Only individuals living in more restrictive institutional settings, in similar settings covered by state-only dollars, or at risk of being institutionalized will be given the choice to move, and they will be placed on the Individuals with Intellectual and Developmental Disabilities (IDD) Waiver Managed Enrollment List. Individuals already on the IDD Waiver Managed Enrollment List who live in a hospital or are in an out-of-state placement will continue to progress toward home- and community-based waiver status and will also be considered for all other community-based options, including, but not limited to, specialized family care and personal care.
(C) The department shall work to find the most integrated placement based upon an individualized assessment. Individuals already on the IDD waiver will not be considered for placement in the 24 new intermediate care beds.
(D) A monitoring committee of not more than 10 members, including a designee of Mountain State Justice, a designee of Disability Rights of West Virginia, a designee of the Statewide Independent Living Council, two members or family of members of the IDD waiver, the Developmental Disabilities Council, the Commissioner of the Bureau of Health and Health Facilities, the Commissioner of the Bureau for Medical Services, and the Commissioner of the Bureau for Children and Families. The secretary of the department shall chair the first meeting of the committee at which time the members shall elect a chairperson. The monitoring committee shall provide guidance on the department’s transitional plans for residents in the 24 intermediate care facility beds and monitor progress toward home- and community-based waiver status and/or utilizing other community-based options and securing the most integrated setting for each individual.
(E) Any savings resulting from individuals moving from more expensive institutional care or out-of-state placements shall be reinvested into home- and community-based services for individuals with intellectual developmental disabilities.
(c) A certificate of need previously approved under this article remains in effect unless revoked by the authority.
(a) To obtain an exemption under this section a person shall:
(1) File an exemption application; and
(2) Provide a statement detailing which exemption applies and the circumstances justifying the exemption.
(b) 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) (2) (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) (3) 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) (4) 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) (5) The acquisition, development or establishment of a certified interoperable electronic health record or electronic medical record system;
(7) (6) The addition of forensic beds in a health care facility;
(8) (7) 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) (8) The replacement of major medical equipment with like equipment, only if the replacement major medical equipment cost is more than the expenditure minimum;
(10) (9) 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) (10) Renovations to a skilled nursing facility;
(12) (11) 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) (12) A person providing specialized foster care personal care services to one individual and those services are delivered in the provider’s home;
(14) (13) 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) (14) 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) (15) 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) (16) 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) (17) 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) (18) The construction, development, acquisition or other establishment of community mental health and intellectual disability facility;
(20) (19) Providing behavioral health facilities and services;
(21) (20) The construction, development, acquisition or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population;
(22) (21) 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) (22) 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) (23) 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) (24) Assisted living facilities and services;
(26) (25) 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) (26) 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.
Notwithstanding §16-2D-8 and §16-2D-10 of this code, and except as provided in §16-2D-9 of this code, the Legislature finds that a need exists to study the provision of expanding access to magnetic resonance imaging (MRI) and computed tomography (CT) imaging services in an ambulatory health care facility as defined in §16-2D-2 of this code. Certificate of need regulations are associated with 3.93 more MRI scans and 3.52 CT scans occurring out-of-state. Since certificate of need regulations appear to cause patients to travel out-of-state more often than patients living in non-CON states, a three-year pilot program for these services shall be initiated on a statewide basis to evaluate whether allowing the acquiring, offering or developing of MRI and CT services in the State of West Virginia in an ambulatory health care setting will drive down the need for West Virginia residents to travel out-of-state for these services thereby enhancing patient care and reducing the cost of such care. At the end of the three-year period, the board will present the Legislative Oversight Commission on Health and Human Resources Accountability with a recommendation regarding whether the pilot program should be terminated, become permanent, or that further study is needed. The recommendation should be based upon data collected during the pilot period, including, but not limited to, the number of patients served during the pilot timeframe, where they were serviced, and the cost of the service. If the board makes no recommendation, then the pilot program shall become permanent.
NOTE: The purpose of this bill is to eliminate birthing centers, ambulatory surgery centers, and ambulatory care centers, from certificate of need review. The bill eliminates birthing centers from exemptions; creates a three-year pilot program for MRI and CT; and directs the board to make a recommendation regarding the pilot program. In the absence of a recommendation, the pilot program will become permanent.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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