H. B. 2423
(By Delegates Burke and Nichols)
[Introduced February 9, 1995; referred to the
Committee on Health and Human Resources then Finance.]
A BILL to amend and reenact section five, article two-d, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to public health;
certificate of need; powers and duties of state agency; and
the conversion of excess acute care beds to skilled nursing
beds.
Be it enacted by the Legislature of West Virginia:
That section five, 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-5. Powers and duties of state agency.
(a) The state agency is hereby empowered to administer the
certificate of need program as provided by this article.
(b) The state agency shall cooperate with the health care planning commission in developing rules and regulations for the
certificate of need program to the extent appropriate for the
achievement of efficiency in their reviews and consistency in
criteria for such reviews.
(c) The state agency may seek advice and assistance of other
persons, organizations and other state agencies in the
performance of the state agency's responsibilities under this
article.
(d) For health services for which competition appropriately
allocates supply consistent with the state health plan, the state
agency shall, in the performance of its functions under this
article, give priority, where appropriate to advance the purposes
of quality assurance, cost effectiveness and access, to actions
which would strengthen the effect of competition on the supply of
such services.
(e) For health services for which competition does not or
will not appropriately allocate supply consistent with the state
health plan, the state agency shall, in the exercise of its
functions under this article, take actions, where appropriate to
advance the purposes of quality assurance, cost effectiveness and
access and the other purposes of this article, to allocate the
supply of such services.
(f) Notwithstanding the provisions of section seven of this
article, the state agency may charge a fee for the filing of any application, the filing of any notice in lieu of an application,
the filing of any exemption determination request or the filing
of any request for a declaratory ruling. The fees charged may
vary according to the type of matter involved, the type of health
service or facility involved or the amount of capital expenditure
involved. The state agency shall implement this subsection by
filing procedural rules pursuant to chapter twenty-nine-a of this
code. The fees charged shall be deposited into a special fund
known as the certificate of need program fund to be expended for
the purposes of this article.
(g) No hospital, nursing home or other health care facility
shall add any intermediate care or skilled nursing beds to its
current licensed bed complement. This prohibition also applies
to the conversion of acute care or other types of beds to
intermediate care or skilled nursing beds: Provided, That
hospitals eligible under the provisions of section four-a and
subsection (i), section five of this article may convert acute
care beds to skilled nursing beds in accordance with the
provisions of these sections, upon approval by the state agency.
Furthermore, no certificate of need shall be granted for the
construction or addition of any intermediate care or skilled
nursing beds except in the case of facilities designed to replace
existing beds in unsafe existing facilities. A health care
facility in receipt of a certificate of need for the construction or addition of intermediate care or skilled nursing beds which
was approved prior to the effective date of this section must
incur an obligation for a capital expenditure within twelve
months of the date of issuance of the certificate of need. No
extensions shall be granted beyond the twelve-month period:
Provided, however, That a maximum of sixty beds may be approved,
as a demonstration project, by the state agency for a unit to
provide nursing services to patients with alzheimer's disease if:
(1) The unit is located in an existing facility which was
formerly owned and operated by the state of West Virginia and is
presently owned by a county of the state of West Virginia; (2)
the facility has provided health care services, including
personal care services, within one year prior to the effective
date of this section; (3) the facility demonstrates that awarding
the certificate of need and operating the facility will be cost
effective for the state; and (4) that any applicable lease,
lease-purchase or contract for operating the facility was awarded
through a process of competitive bidding consistent with state
purchasing practices and procedures: Provided further, That an
application for said demonstration project shall be filed with
the state agency on or before the twenty-first day of October,
one thousand nine hundred ninety-three.
(h) No additional intermediate care facility for the
mentally retarded (ICF/MR) beds shall be granted a certificate of need, except that prohibition does not apply to ICF/MR beds
approved under the Kanawha County circuit court order of the
third day of August, one thousand nine hundred eighty-nine, civil
action number MISC-81-585 issued in the case of E. H. v. Matin,
168 W.V. 248, 284 S.E.2d 232 (1981).
(i) Notwithstanding the provisions of subsection (g),
section five of this article and, further notwithstanding the
provisions of subsection (d), section three of this article, an
existing acute care hospital may apply to the health care cost
review authority for a certificate of need to convert acute care
beds to skilled nursing beds: Provided, That the proposed
skilled nursing beds are medicare certified only: Provided,
however, That any hospital which converts acute care beds to
medicare certified only skilled nursing beds is prohibited from
billing for any medicaid reimbursement for any beds so converted.
In converting beds, the hospital must convert a minimum of one
acute care bed into one medicare certified only skilled nursing
bed. The health care cost review authority may require a
hospital to convert up to and including three acute care beds for
each medicare certified only skilled nursing bed: Provided, That
an acute care hospital provisionally designated as a rural
primary care hospital by the bureau of public health located in
a rural county without a certified skilled nursing facility may
also accept and bill for medicaid skilled patients if the distinct-part skilled nursing unit does not exceed thirty beds.
The health care cost review authority shall adopt rules to
implement this subsection which require that:
(1) All acute care beds converted shall be permanently
deleted from the hospital's acute care bed complement and the
hospital may not thereafter add, by conversion or otherwise,
acute care beds to its bed complement without satisfying the
requirements of subsection (d), section three of this article for
which purposes such an addition, whether by conversion or
otherwise, shall be considered a substantial change to the bed
capacity of the hospital notwithstanding the definition of that
term found in subsection (ee), section two of this article.
(2) The hospital shall meet all federal and state licensing
certification and operational requirements applicable to nursing
homes including a requirement that all skilled care beds created
under this subsection shall be located in distinct-part,
long-term care units.
(3) The hospital must demonstrate a need for the project.
(4) The hospital must use existing space for the medicare
certified only skilled nursing beds. Under no circumstances
shall the hospital construct, lease or acquire additional space
for purposes of this section.
(5) The hospital must notify the acute care patient, prior
to discharge, of facilities with skilled nursing beds which are located in or near the patient's county of residence.
Nothing in this subsection shall negatively affect the
rights of inspection and certification which are otherwise
required by federal law or regulations or by this code of duly
adopted regulations of an authorized state entity.
(j) Notwithstanding the provisions of subsection (g) of this
section, a retirement life care center with no skilled nursing
beds may apply to the health care cost review authority for a
certificate of need for up to sixty skilled nursing beds provided
the proposed skilled beds are medicare certified only. On a
statewide basis, a maximum of one hundred eighty skilled beds
which are medicare certified only may be developed pursuant to
this subsection. The state health plan shall not be applicable
to projects submitted under this subsection. The health care
cost review authority shall adopt rules to implement this
subsection which shall include:
(1) A requirement that the one hundred eighty beds are to be
distributed on a statewide basis;
(2) There shall be a minimum of twenty beds and a maximum of
sixty beds in each approved unit;
(3) The unit developed by the retirement life care center
shall meet all federal and state licensing certification and
operational requirements applicable to nursing homes;
(4) The retirement center must demonstrate a need for the project;
(5) The retirement center must offer personal care, home
health services and other lower levels of care to its residents;
and
(6) The retirement center must demonstrate both short and
long-term financial feasibility.
Nothing in this subsection shall negatively affect the
rights of inspection and certification which are otherwise
required by federal law or regulations or by this code of duly
adopted regulations of an authorized state entity.
(k) The provisions of this article are severable and if any
provision, section or part thereby shall be held invalid,
unconstitutional or inapplicable to any person or circumstance,
such invalidity, unconstitutionality or inapplicability shall not
affect or impair any other remaining provisions contained herein.
NOTE: The purpose of this bill is to permit an acute care
hospital, located in a rural county without a certified skilled
nursing facility, to accept and bill for medicaid skilled
patients if the distinct-part skilled nursing unit does not
exceed 30 beds.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.