Senate Bill No. 102
(By Senators Caruth and Kessler)
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[Introduced February 11, 2009 referred to the Committee on Health
and Human Resources; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §9-4A-2c; and to
amend and reenact §16-2D-6 of said code, all relating to
providing Medicaid coverage for ventilator patient care at
skilled nursing facilities and through private duty nursing in
the patient's home; defining terms; and revising certificate
of need standards regarding ventilator services in skilled
nursing facilities.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §9-4A-2c; and that
§16-2D-6 of said code be amended and reenacted, all to read as
follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4A. MEDICAID UNCOMPENSATED CARE FUND.
§9-4A-2c. Expansion of coverage to ventilator care patients.
(a) Effective July 1, 2009, the department shall extend
Medicaid coverage to persons, who otherwise qualify for Medicaid,
for ventilator patient care at skilled nursing facilities licensed
pursuant to chapter sixteen of this code or through private duty
nursing in the patient's home.
(b) For purposes of this section,"ventilator patient care"
means the provision of treatment to maintain artificial respiration
by the utilization of a mechanical device which introduces fresh
air into the lungs and expels stagnant air from the lungs.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-6. Minimum criteria for certificate of need reviews.
(a) Except as provided in subsection (f), section nine of this
article, in In making its determination as to whether a certificate
of need shall be issued, the state agency shall, at a minimum,
consider all of the following criteria that are applicable:
Provided, That the criteria set forth in subsection (f) of this
section apply to all hospitals, nursing homes and health care
facilities when ventilator services are to be provided for any
nursing facility bed:
(1) The relationship of the health services being reviewed to
the state health plan;
(2) The relationship of services reviewed to the long-range development plan of the person providing or proposing the services;
(3) The need that the population served or to be served by the
services has for the services proposed to be offered or expanded,
and the extent to which all residents of the area, and in
particular low income persons, racial and ethnic minorities, women,
handicapped persons, other medically underserved population and the
elderly, are likely to have access to those services;
(4) The availability of less costly or more effective
alternative methods of providing the services to be offered,
expanded, reduced, relocated or eliminated;
(5) The immediate and long-term financial feasibility of the
proposal as well as and the probable impact of the proposal on the
costs of and charges for providing health services by the person
proposing the new institutional health service;
(6) The relationship of the services proposed to the existing
health care system of the area in which the services are proposed
to be provided;
(7) In the case of health services proposed to be provided,
the availability of resources, including health care providers,
management personnel, and funds for capital and operating needs,
for the provision of the services proposed to be provided and the
need for alternative uses of these resources as identified by the
state health plan and other applicable plans;
(8) The appropriate and nondiscriminatory utilization of existing and available health care providers;
(9) The relationship, including the organizational
relationship, of the health services proposed to be provided to
ancillary or support services;
(10) Special needs and circumstances of those entities which
provide a substantial portion of their services or resources, or
both, to individuals not residing in the health service areas in
which the entities are located or in adjacent health service areas.
The entities may include medical and other health professional
schools, multidisciplinary clinics and specialty centers;
(11) In the case of a reduction or elimination of a service,
including the relocation of a facility or a service, the need that
the population presently served has for the service, the extent to
which that need will be met adequately by the proposed relocation
or by alternative arrangements, and the effect of the reduction,
elimination or relocation of the service on the ability of low
income persons, racial and ethnic minorities, women, handicapped
persons, other medically underserved population and the elderly, to
obtain needed health care;
(12) In the case of a construction project: (A) The cost and
methods of the proposed construction, including the costs and
methods of energy provision; and (B) the probable impact of the
construction project reviewed on the costs of providing health
services by the person proposing the construction project and on the costs and charges to the public of providing health services by
other persons;
(13) In the case of health services proposed to be provided,
the effect of the means proposed for the delivery of proposed
health services on the clinical needs of health professional
training programs in the area in which the services are to be
provided;
(14) In the case of health services proposed to be provided,
if the services are to be available in a limited number of
facilities, the extent to which the schools in the area for health
professions will have access to the services for training purposes;
(15) In the case of health services proposed to be provided,
the extent to which the proposed services will be accessible to all
the residents of the area to be served by the services;
(16) In accordance with section five of this article, the
factors influencing the effect of competition on the supply of the
health services being reviewed;
(17) Improvements or innovations in the financing and delivery
of health services which foster competition, in accordance with
section five of this article, and serve to promote quality
assurance and cost effectiveness;
(18) In the case of health services or facilities proposed to
be provided, the efficiency and appropriateness of the use of
existing services and facilities similar to those proposed;
(19) In the case of existing services or facilities, the
quality of care provided by the services or facilities in the past;
(20) In the case where an application is made by an
osteopathic or allopathic facility for a certificate of need to
construct, expand or modernize a health care facility, acquire
major medical equipment or add services, the need for that
construction, expansion, modernization, acquisition of equipment or
addition of services shall be considered on the basis of the need
for and the availability in the community of services and
facilities for osteopathic and allopathic physicians and their
patients. The state agency shall consider the application in terms
of its impact on existing and proposed institutional training
programs for doctors of osteopathy and medicine at the student,
internship and residency training levels;
(21) The special circumstances of health care facilities with
respect to the need for conserving energy;
(22) The contribution of the proposed service in meeting the
health-related needs of members of medically underserved
populations which have traditionally experienced difficulties in
obtaining equal access to health services, particularly those needs
identified in the state health plan as deserving of priority. For
the purpose of determining the extent to which the proposed service
will be accessible, the state agency shall consider:
(A) The extent to which medically underserved populations currently use the applicant's services in comparison to the
percentage of the population in the applicant's service area which
is medically underserved, and the extent to which medically
underserved populations are expected to use the proposed services
if approved;
(B) The performance of the applicant in meeting its
obligation, if any, under any applicable federal regulations
requiring provision of uncompensated care, community service or
access by minorities and handicapped persons to programs receiving
federal financial assistance, including the existence of any civil
rights access complaints against the applicant;
(C) The extent to which Medicare, Medicaid and medically
indigent patients are served by the applicant; and
(D) The extent to which the applicant offers a range of means
by which a person will have access to its services, including, but
not limited to, outpatient services, admission by a house staff and
admission by personal physician;
(23) The existence of a mechanism for soliciting consumer
input into the health care facility's decision-making process.
(b) The state agency may include additional criteria which it
prescribes by rules adopted pursuant to section eight of this
article.
(c) Criteria for reviews may vary according to the purpose for
which a particular review is being conducted or the types of health services being reviewed.
(d) An application for a certificate of need may not be made
subject to any criterion not contained in this article, in rules
adopted pursuant to section eight of this article or in the
certificate of need standards approved pursuant to section five of
this article.
(e) In the case of any proposed new institutional health
service, the state agency may not grant a certificate of need under
its certificate of need program unless, after consideration of the
appropriateness of the use of existing facilities providing
services similar to those being proposed, the state agency makes,
in addition to findings required in section nine of this article,
each of the following findings in writing: (1) That superior
alternatives to the services in terms of cost, efficiency and
appropriateness do not exist and the development of alternatives is
not practicable; (2) that existing facilities providing services
similar to those proposed are being used in an appropriate and
efficient manner; (3) that in the case of new construction,
alternatives to new construction, such as modernization or sharing
arrangements, have been considered and have been implemented to the
maximum extent practicable; (4) that patients will experience
serious problems in obtaining care of the type proposed in the
absence of the proposed new service; and (5) that in the case of a
proposal for the addition of beds for the provision of skilled nursing or intermediate care services, the addition will be
consistent with the plans of other agencies of the state
responsible for the provision and financing of long-term care
facilities or services including home health services.
(f) In the case where an application is made by a hospital,
nursing home or other health care facility to provide ventilator
services which have not previously been provided for a nursing
facility bed, the state agency shall consider the application in
terms of the need for the service and whether the cost exceeds the
level of current Medicaid services. No facility may, by providing
ventilator services, provide a higher level of service for a
nursing facility bed without demonstrating that the change in level
of service by provision of the additional ventilator services will
result in no additional fiscal burden to the state apply the
standard certificate of need criteria contained in this article and
in applicable agency rules.
(g) In the case where application is made by any person or
entity to provide personal care services which are to be billed for
Medicaid reimbursement, the state agency shall consider the
application in terms of the need for the service and whether the
cost exceeds the level of the cost of current Medicaid services.
No person or entity may provide personal care services to be billed
for Medicaid reimbursement without demonstrating that the provision
of the personal care service will result in no additional fiscal burden to the state. Provided, That a However, a certificate of
need is not required for a person providing specialized foster care
personal care services to one individual and those services are
delivered in the provider's home. The state agency shall also
consider the total fiscal liability to the state for all
applications which have been submitted.
NOTE:
The purpose of this bill is to provide Medicaid coverage
for ventilator patient care at health facilities and to update the
certificate of need standards applicable to ventilator services.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§9-4A-2c is new, therefore, strike-throughs and underscoring
have been omitted.