ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4471
(By Mr. Speaker, Mr. Kiss, and Delegates Ashley
and Michael)
[Passed March 11, 1998; in effect ninety days from passage.]
AN ACT 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 the conversion of
rural hospital acute care beds to skilled nursing beds
certified by both medicare and medicaid; exception to agency
rules and certain statutory requirements.
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 shall administer the certificate of need
program as provided by this article.
(b) The state agency is responsible for coordinating and
developing the health planning research efforts of the state and
for amending and modifying the state health plan which includes the certificate of need standards.
(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
the 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 the
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 shall 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.
(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 (b), section three of this article, an existing acute
care hospital may apply to the health care 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
shall not bill for any medicaid reimbursement for any converted
beds. In converting beds, the hospital shall convert a minimum of
one acute care bed into one medicare certified only skilled nursing
bed. The health care authority may require a hospital to convert
up to and including three acute care beds for each medicare
certified only skilled nursing bed:
Provided further, That a
hospital designated or provisionally designated by the state agency
as a rural primary care hospital may convert up to thirty beds to
a distinct-part nursing facility, including skilled nursing beds
and intermediate care beds, on a one-for-one basis if the rural
primary care hospital is located in a county without a certified
free-standing nursing facility and the hospital may bill for
medicaid reimbursement for the converted beds:
And provided
further, That if the hospital rejects the designation as a rural primary care hospital then the hospital may not bill for medicaid
reimbursement. The health care 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 (b), section three of this article for which purposes 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
(ff), 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 shall demonstrate a need for the project.
(4) The hospital shall 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 shall 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 negatively affects the rights of inspection and certification which are otherwise required by
federal law or regulations or by this code or duly adopted rules of
an authorized state entity.
(j) (1) 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 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 is not applicable to projects submitted under
this subsection. The health care authority shall adopt rules to
implement this subsection which shall include a requirement that:
(A) The one hundred eighty beds are to be distributed on a
statewide basis;
(B) There be a minimum of twenty beds and a maximum of sixty
beds in each approved unit;
(C) The unit developed by the retirement life care center meet
all federal and state licensing certification and operational
requirements applicable to nursing homes;
(D) The retirement center demonstrate a need for the project;
(E) The retirement center offer personal care, home health
services and other lower levels of care to its residents; and
(F) The retirement center demonstrate both short and long-term
financial feasibility.
(2) Nothing in this subsection negatively affects the rights of inspection and certification which are otherwise required by
federal law or regulations or by this code or duly adopted rules of
an authorized state entity.
(k) The state agency may order a moratorium upon the
processing of an application or applications for the development of
a new institutional health service filed pursuant to section three
of this article, when criteria and guidelines for evaluating the
need for the new institutional health service have not yet been
adopted or are obsolete. The moratorium shall be declared by a
written order which shall detail the circumstances requiring the
moratorium. Upon the adoption of criteria for evaluating the need
for the new institutional health service affected by the
moratorium, or one hundred eighty days from the declaration of a
moratorium, whichever is less, the moratorium shall be declared to
be over and affected applications shall be processed pursuant to
section six of this article.
(l) (1) The state agency shall coordinate the collection of
information needed to allow the state agency to develop recommended
modifications to certificate of need standards as required in this
article. When the state agency proposes amendments or modifications
to the certificate of need standards, it shall file with the
secretary of state, for publication in the state register, a notice
of proposed action, including the text of all proposed amendments
and modifications, and a date, time and place for receipt of
general public comment. To comply with the public comment
requirement of this section, the state agency may hold a public hearing or schedule a public comment period for the receipt of
written statements or documents.
(2) All proposed amendments and modifications to the
certificate of need standards, with a record of the public hearing
or written statements and documents received pursuant to a public
comment period, shall be presented to the governor. Within thirty
days of receiving the proposed amendments or modifications, the
governor shall either approve or disapprove all or part of the
amendments and modifications, and, for any portion of amendments or
modifications not approved, shall specify the reason or reasons for
nonapproval. Any portions of the amendments or modifications not
approved by the governor may be revised and resubmitted.
(m) The state agency may exempt from or expedite rate review,
certificate of need, and annual assessment requirements and issue
grants and loans to financially vulnerable health care facilities
located in underserved areas that the state agency and the office
of community and rural health services determine are collaborating
with other providers in the service area to provide cost effective
health care services.
(n) Notwithstanding any provision contained in this article or
section and any rule issued by the state agency, including
compliance with certificate of need requirements, any rural
hospital with less than eighty licensed acute care beds as of the
first day of January, one thousand nine hundred ninety-eight, may
convert up to forty-four percent of existing licensed acute care
beds to skilled nursing beds for certification by both medicare and medicaid for reimbursement purposes provided that the following
conditions are met:
(1) There is no overall increase in the bed capacity of the
hospital; one acute care bed is converted to one dually certified
medicare and medicaid skilled nursing bed.
(2) All converted acute care beds shall be permanently deleted
from the acute care bed complement of the hospital, which may not
thereafter add, by conversion or otherwise, acute care beds to its
bed complement without satisfying the requirements of subdivision
(4), subsection (b), section three of this article, for which
purposes the 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 as found in subsection
(e), section two of this article.
(3) Prior to the conversion, the occupancy rate for licensed
acute care beds cannot exceed forty percent for twenty-four
consecutive months prior to the first month in which this section
is effective.
(4) The hospital shall meet all federal and state licensing
requirements for the provision of skilled nursing services.
Additionally, all skilled nursing beds created under this exemption
shall be located in distinct long-term care units in a previously
constructed part of the hospital that can be used for that purpose.
(5) The hospital is located in a nonmetropolitan statistical
area as defined by the bureau of the census of the federal
government and is located in the same city in which a hospital providing mental health inpatient services owned and operated by
the state of West Virginia ceased offering the inpatient services
not later than one thousand nine hundred ninety.
(6) Nothing in this section negatively affects the rights of
inspection and certification which are elsewhere required by
federal law or regulations.