COMMITTEE SUBSTITUTE
FOR
H. B. 2579
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
(Originating in the Committee on Finance)
[February 28, 1995]
A BILL to amend article two, chapter nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section nine-a; to
amend and reenact section two, article four of said chapter;
to amend and reenact sections two-a and two-b, article four-a
of said chapter; to further amend said article four-a by
adding thereto a new section, designated section three; to
further amend said chapter nine by adding thereto a new
article, designated article four-d; to amend and reenact
section twenty-a, article thirteen-a, chapter eleven of said
code; to amend and reenact sections one and three, article
twenty-six of said chapter eleven; to amend and reenact
section thirty-two, article twenty-seven of said chapter; to amend and reenact sections two, three and six, article two-d,
chapter sixteen of said code; and to further amend said
article two-d by adding thereto a new section, designated
section three-a, all relating to the state medicaid program;
authorizing contracts for professional health care, managed
care and actuarial services; providing for deposits into the
medical services fund of the taxes collected under the "West
Virginia Health Care Provider Tax Act of 1993" and the taxes
collected from providers of health care items or services
under the "Severance and Business Privilege Tax Act of 1993";
setting forth cost containment measures; requiring the
repayment of funds transferred from the medical services trust
fund; requiring the elimination of optional services when
medicaid accounts payable are in arrears in specified amounts
and for specified periods of time; revising the expansion of
medicaid coverage to children; providing supervisory ratios
for licensed behavioral health centers; providing exceptions
thereto; establishing credentialling committees; setting forth
duties of committees; setting out training procedures at
centers; establishing professional responsibility standards;
requiring utilization review by committees; setting forth
limitations on reimbursements for case management services; authorizing the department to set licensure fee by legislative
rule; amending legislative findings regarding provider taxes;
establishing moratoriums on the approval of certificates of
need for new home health, hospice and mental and behavioral
health programs and sites and on the implementation of
services pursuant to an existing certificate of need;
providing exemptions of sheltered workshops; and requiring
certificate of need review for new providers of personal care
services seeking medicaid reimbursement.
Be it enacted by the Legislature of West Virginia:
That article two, chapter nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new section, designated section nine-a; that
section two, article four of said chapter be amended and reenacted;
that sections two-a and two-b, article four-a of said chapter be
amended and reenacted; that said article four-a be further amended
by adding thereto a new section, designated section three; that
chapter nine be further amended by adding thereto a new article,
designated article four-d; that section twenty-a, article thirteen-
a, chapter eleven of said code be amended and reenacted; that
sections one and three, article twenty-six of said chapter eleven
be amended and reenacted; that section thirty-two, article twenty-seven of said chapter eleven be amended and reenacted; that
sections two, three and six, article two-d, chapter sixteen of said
code be amended and reenacted; and that said article two-d be
further amended by adding thereto a new section, designated section
three-a, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-9a. Authorization to execute contracts for professional
health care, managed care and actuarial services.
(a) The secretary is hereby given exclusive authorization to
execute such contract or contracts as are necessary to implement
professional health care, managed care, actuarial and independent
referral systems for the medicaid program.
(b) The provisions of article three, chapter five-a of this
code, relating to the division of purchasing of the department of
administration, shall not apply to any contract or contracts for
professional health care, managed care, actuarial and independent
referral services for the medicaid program. Before entering into
any contracts for any professional health care, managed care,
actuarial and independent referral systems for the medicaid program, as herein authorized, the secretary shall invite competent
sealed bids from all qualified providers of said services. The
secretary shall develop specifications and receive proposals and
quotations for bid purposes and may employ, without the requirement
of bidding, a consultant for developing the specifications, and any
consultant so employed shall be disqualified from subsequent
bidding. Bids shall be obtained by public notice and by soliciting
sealed bids by sending requests to prospective providers. The
secretary shall award such contract or contracts on a competitive
bid basis. In awarding the contract or contracts, the secretary
shall take into consideration the experience of the offering
provider.
(c) The provisions of chapter thirty-three of this code,
relating to the licensing and regulation of insurance companies,
shall apply to any entity contracting with the secretary to serve
as the department of health and human resources' managed care
organization for the medicaid managed behavioral health care
program.
(d) The secretary may at the end of any contract period
discontinue any contract or contracts executed pursuant to this
article.
(e) Any provider qualified to participate in a managed care organization shall not be denied participation in any plan
established under this section:
Provided, That the provider shall
agree to the fee schedule, quality assurance standards, and the
utilization review criteria established by the managed care
organization prior to being authorized to participate. If any
essential community provider is denied access to participation in
a plan established under this section, the essental community
provider may request an opportunity to participate in the plan
pursuant to the provisions of subsection (f) of this section.
(f) No essential community provider shall be denied the
opportunity to become a participating provider in any medicaid
physical health managed care plan. If an essential community
provider requests the opportunity to become a participating
provider in any medicaid managed care plan for physical health, the
secretary shall conduct reasonable and good faith negotiations with
essential community providers. If the essential community provider
meets the qualifications and standards set by the secretary then
the secretary shall approve the provider as a participating
provider:
Provided, That any essential community provider shall
meet the indigent and charity care guidelines established by the
department and submit audited financial reports to the secretary
detailing their indigent and charity caseload. For the purposes of this section, the term "essential community provider" means
facilities, entities or individual practitioners which provide a
full range of primary and acute care services to the population of
a medically underserved area or population. These providers are
the infrastructure of care to the uninsured, underinsured, elderly
and high risk populations and ensure access to preventive and acute
care for these individuals. The term includes: county aging
programs, offering personal care services, rural public health
centers, family nurse practitioners, pediatric nurse practitioners
primary care centers designated by the department of health and
human resources, small rural hospitals and other primary care
physicians.
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND;
ADVISORY
COUNCIL; GENERAL RELIEF FUND.
§9-4-2. Medical services fund.
The special fund known as the state of West Virginia public
assistance medical services fund
established by chapter one hundred
forty-three, acts of the Legislature, regular session, one thousand
nine hundred fifty-three, as amended by chapter two, acts of the Legislature, first extraordinary session, one thousand nine hundred
sixty, and chapter forty-nine, acts of the Legislature, regular
session, one thousand nine hundred sixty-six, shall be continued in
accordance with the provisions of this section so long as the same
may be required by federal laws, rules and regulations applicable
to federal-state assistance and thereafter so long as the
commissioner shall deem such fund to be otherwise necessary or
desirable, and henceforth such special fund shall be known as the
department division of human services medical services fund,
hereinafter referred to as the fund.
The fund shall consist of payments made into the fund out of
state appropriations for medical services to recipients of
specified classes of welfare assistance,
taxes deposited under
subsection (a), section twenty-a, article thirteen-a, chapter
eleven of this code, commonly known as the "Severance and Business
Privilege Tax Act of 1993" and under section thirty-two, article
twenty-seven of such chapter, commonly known as the "West Virginia
Health Care Provider Tax Act of 1993", and such federal
grants-in-aid as are made available for specified classes of
welfare assistance. Any balance in the fund at the end of any
fiscal year shall remain in the fund and shall not expire or
revert. Payments shall be made out of the fund upon requisition of the commissioner by means of a warrant signed by the auditor and
treasurer.
Recipients of those classes of welfare assistance as are
specified by the
department division of human services, consistent
with applicable federal laws, rules and regulations, shall be
entitled to have costs of necessary medical services paid out of
the fund, in the manner and amounts, to the extent, and for the
period determined from time to time to be feasible by the
commissioner pursuant to rules, regulations and standards
established by him. Such rules, regulations and standards shall
comply with requirements of applicable federal laws, rules and
regulations and shall be established on the basis of money
available for the purpose, the number of recipients, the experience
with respect to the incidence of illness, disease, accidents, and
other causes among such recipients causing them to require medical
services and the costs thereof, the amounts which recipients
require otherwise in order to maintain a subsistence compatible
with decency and health, and any other factor considered relevant
and proper by the commissioner:
Provided, That such rules and
regulations respecting qualifications shall permit the expenditure
of state funds to pay for care rendered in any birthing center
licensed under the provisions of article two-e, chapter sixteen of this code, by a licensed nurse midwife or midwife as this
occupation is defined in section one, article fifteen, chapter
thirty of this code, and which care is within the scope of duties
for such licensed nurse midwife or midwife as permitted by the
provisions of section seven, article fifteen of said chapter
thirty.
ARTICLE 4A. MEDICAID UNCOMPENSATED CARE FUND.
§9-4A-2a. Medical services trust fund.
(a) The Legislature finds and declares that certain dedicated
revenues should be preserved in trust for the purpose of
stabilizing the state's medicaid program and providing services for
future federally mandated population groups in conjunction with
federal reform.
(b) There is hereby created a special account within the
department of health and human resources, which shall be an
interest-bearing account and may be invested in the manner
permitted by section nine, article six, chapter twelve of this
code, designated the medical services trust fund. Funds paid into
the account shall be derived from the following sources:
(1) Transfers, by intergovernmental transfer, from the
hospital services revenue account provided for in section fifteen-
a, article one, chapter sixteen of this code;
(2) All interest or return on investment accruing to the fund;
(3) Any gifts, grants, bequests, transfers or donations which
may be received from any governmental entity or unit or any person,
firm, foundation or corporation; and
(4) Any appropriations by the Legislature which may be made
for this purpose.
(c) Expenditures from the fund are limited to the following:
(1) Payment of backlogged billings from providers of medicaid
services when cash-flow problems within the medical services fund
do not permit payment of providers within federally required time
limits; and
(2) Funding for services to future federally mandated
population groups in conjunction with federal health care reform:
Provided, That other medicaid funds have been exhausted for the
federally mandated expansion: Provided, however, That new optional
services for which a state medicaid plan amendment is submitted
after the first day of May, one thousand nine hundred ninety-three,
which are not cost effective for the state, are eliminated prior to
expenditure of any moneys from this fund for medicaid expansion.
(3) Payment of the required state match for medicaid
disproportionate share payments in order to receive federal
financial participation in the disproportionate share hospital program.
(d) Expenditures from the fund solely for the purposes set
forth in subsection (c) of this section shall be authorized in
writing by the governor, who shall determine in his or her
discretion whether any expenditure shall be made, based on the best
interests of the state as a whole and its citizens, and shall
designate the purpose of the expenditure. Upon authorization
signed by the governor, funds may be transferred to the medical
services fund: Provided,
That all expenditures from the medical
services trust fund shall be reported forthwith to the joint
committee on government and finance.
(e) Notwithstanding the provision of section two, article two,
chapter twelve of this code, moneys within the medical services
trust fund may not be redesignated for any purpose other than those
set forth in subsection (c) of this section, except that, upon
elimination of the medicaid program in conjunction with federal
health care reform, moneys within the fund may be redesignated for
the purpose of providing health care coverage or services in
coordination with federal reform.
(f) Any moneys expended or transferred from the fund other
than by appropriation by the Legislature shall be repaid by the
department to the fund within twelve months of withdrawal, transfer or expenditure.
(g) Prior to any expenditures being made from the medical
services trust fund, the department must comply with the provisions
of section three of this article.
§9-4A-2b. Expansion of coverage to children and terminally ill.
(a) It is the intent of the Legislature that steps be taken to
expand coverage to children and the terminally ill and to pay for
this coverage by fully utilizing federal funds. To achieve this
intention, the department of health and human resources shall
undertake the following:
(1) Effective the first day of July, one thousand nine hundred
ninety-four, the department shall initiate a streamlined
application form, which shall be no longer than two pages, for all
families applying only for medicaid coverage for children.
(2) Effective the first day of July, one thousand nine hundred
ninety-four, the department shall initiate the option of hospice
care to terminally ill West Virginians who otherwise qualify for
medicaid. On or before the first day of January, one thousand nine
hundred ninety-five, and periodically thereafter, the department
shall report to the legislative task force on uncompensated health
care and medicaid expenditures created pursuant to section four,
article twenty-nine-c, chapter sixteen of this code regarding the program initiation provided for in this subdivision. The report
shall include, but not be limited to, the total number, by age, of
newly eligible clients served as a result of the initiation of the
program pursuant to this subdivision, the average annual cost of
coverage per client, and the total cost, by provider type, to serve
all clients.
(3) Effective the first day of July, one thousand nine hundred
ninety-four, the department shall accelerate the medicaid option
for coverage of medicaid to all West Virginia children whose family
income is below one hundred percent of the federal poverty level.
On or before the first day of January, one thousand nine hundred
ninety-five, and periodically thereafter, the department shall
report to the legislative task force on uncompensated health care
and medicaid expenditures regarding the program acceleration
provided for in this subdivision. The report shall include, but
not be limited to, the number of newly eligible clients, by age,
served as a result of the acceleration, the average annual cost of
coverage per client and the total cost of all clients served by
provider type.
(4) Effective the first day of July, one thousand nine hundred
ninety-five ninety-six, the department may initiate the medicaid
option to expand coverage of medicaid to all West Virginia children whose family income is below one hundred thirty-three percent of
the federal poverty level.
To prepare for Prior to any such
program expansion,
but no earlier than the first day of January,
one thousand nine hundred ninety-six, the department shall submit
a report to the governor and the Legislature
on the first day of
January, one thousand nine hundred ninety-five, regarding the
feasibility of the expansion. The report is to include, but not be
limited to, the number of newly eligible clients participating in
the programs specified in this section, the average annual cost of
coverage per client, the percentage of expected participation for
the expansion, the projected cost of the expansion, the medical
services trust fund balance and the future disproportionate share
moneys expected to be deposited in the medical services trust fund
pursuant to section two-a of this article. The department shall
continually update the additional information required to be
provided to the governor and the Legislature regarding this
expansion and periodically report the information to the
legislative task force on uncompensated health care and medicaid
expenditures created pursuant to section four, article twenty-
nine-c, chapter sixteen of this code.
(5) Effective the first day of July, one thousand nine hundred
ninety-six ninety-seven, the department may initiate the medicaid option to expand coverage of medicaid to all West Virginia children
whose family income is below one hundred fifty percent of the
federal poverty level.
To prepare for Prior to any such program
expansion,the department shall submit a report to the governor and
the Legislature
on the first day of January, one thousand nine
hundred ninety-six, regarding the feasibility of the expansion.
Additionally, the report is to include, but not be limited to, the
number of clients who would be newly eligible to participate in the
program, the average annual cost of coverage per client, by age,
the percentage of expected participation for the expansion and the
projected cost of the expansion, the balance of the medical
services trust fund and the future disproportionate share moneys
expected to be deposited in the medical services trust fund
pursuant to section two-a of this article. The department shall
periodically update and report to the legislative task force on
uncompensated health care and medicaid expenditures created
pursuant to section four, article twenty-nine-c, chapter sixteen of
this code regarding the additional information required to be
submitted to the governor and the Legislature.
(6) The provisions of this section shall not be construed as
requiring the department to expand medicaid coverage to children
after the first day of July, one thousand nine hundred ninety-four.
(b) Notwithstanding the provisions of section two-a of this
article, the accruing interest in the medical services trust fund
may be utilized to pay for the programs specified in subsection (a)
of this section:
Provided, That to the extent the accrued interest
is not sufficient to fully fund the specified programs, the
disproportionate share hospital funds paid into the medical
services trust fund after the thirtieth day of June, one thousand
nine hundred ninety-four, may be applied to cover the cost of the
specified programs:
Provided, however, That in fiscal year one
thousand nine hundred ninety-five, the amount of funds applied from
the disproportionate share funds, not including accrued interest,
shall not exceed ten million dollars:
Provided further, That in
the interest of fiscal responsibility, the department shall
terminate the program specified in subdivisions (4) and (5) of
subsection (a) of this section, if the future moneys deposited from
disproportionate share payments in the medical services trust fund
are insufficient to cover the cost of the expanded program.
(c) On the first day of January, one thousand nine hundred
ninety-five and annually thereafter, the department shall report to
the governor and to the Legislature information regarding the
number of children and elderly covered by the program, the cost of
services by type of service provided, a cost-benefit analysis of the acceleration and expansion on other insurers and the reduction
of uncompensated care in hospitals as a result of the programs.
(d) The health care cost review authority established by
section five, article twenty-nine-b of this chapter shall consider
in its rate review that uncompensated care and charity care are
reduced by the programs specified in subsection (a) of this section
and shall take the reduction into account when determining rates.
This determination shall be undertaken in each hospital's next rate
review and shall be determined prospectively.
(e) On the first day of January, one thousand nine hundred
ninety-five, and annually thereafter, the health care cost review
authority shall present to the governor and to the Legislature a
report concerning the reduction in cost shift created by the
operation of the provisions of this article.
(f) The department shall review the additional utilization by
behavioral health centers as a result of the acceleration and
expansion for a period of eighteen months from the enactment of
this article:
Provided, That during the eighteen-month study
period the department shall not issue additional behavioral health
licenses:
Provided, however, That this license provision does not
apply to facilities filing for renewal applications
or to any
health care facility which has a certificate of need in effect or an application pending on the first day of March, one thousand nine
hundred ninety-four:
Provided further, That this licensure
prohibition shall not apply to behavioral health services provided
pursuant to any agreement for state owned psychiatric hospitals
which are approved by the federal health care finance
administration.
§9-4A-3. Cost containment procedures.
(a) At any time that accounts payable by the state to
providers of medicaid services exceeds one hundred million dollars
for a period of thirty consecutive days, the single state agency
shall prepare the necessary plan amendments, if any, notify
providers, recipients of services and the federal health care
finance administration as may be required by law, and implement a
plan to eliminate optional medicaid services as provided in
subsection (b) of this section. At any time that accounts payable
by the state to providers of medicaid services exceeds two hundred
million dollars for a period of thirty consecutive days, the single
state agency shall prepare the necessary plan amendments, if any,
and notify providers, recipients of services and the health care
finance administration as may be required by law, and implement a
plan to eliminate optional medicaid services as provided in
subsection (c) of this section.
(b) In accordance with subsection (a) of this section, all of
the following optional services shall be eliminated when accounts
payable to providers of medicaid services exceeds one hundred
million dollars for thirty consecutive days: physical therapy,
occupational therapy, speech therapy, private duty nursing, nurse
anesthetists, audiology, diagnostic services, respiratory care
services, prosthetic devices and seventy percent of the optional
disproportionate share payments to hospitals. These optional
services shall be eliminated only in so far as they are provided to
persons twenty-one years of age or older.
(c) In accordance with subsection (a) of this section, the
following optional services shall be eliminated when accounts
payable to providers of medicaid services exceeds two hundred
million dollars for thirty consecutive days: the remaining thirty
percent of the disproportionate share payments to hospitals,
psychologic services; chiropractic services and podiatry services.
These optional services shall be eliminated only in so far as they
are provided to persons twenty-one years of age or older.
(d) Prior to any withdrawal from the medical services trust
fund and after the provisions of subsections (b) and (c) have been
fully implemented, the following optional services shall be
eliminated: prescription drugs, emergency transportation and the aged and disabled waiver services.
(e) The provisions of subsection (b), (c) and (d) of this
section must be fully implemented prior to the transfer or
withdrawal of any moneys from the medical services trust fund
created pursuant to section two-a of this article.
(f) The department shall implement the prospective payment to
hospitals program by the first day of November, one thousand nine
hundred ninety-five.
ARTICLE 4D. BEHAVIORAL HEALTH SERVICE PROVIDERS.
§9-4D-1. Definitions.
(a) "Level I" provider means a person capable of independent
clinical practice and able to provide supervision to "Level II" and
"Level III" personnel and shall include a medical doctor, a doctor
of osteopathy, a psychologist possessing a doctoral degree in
psychology, a psychologist possessing a master's degree in
psychology and having five years of clinical experience performed
under a licensed psychologist and a person possessing a master's
degree of social work with an independent clinical social work
license;
(b) "Level II" provider means a person capable of limited
clinical practice with direct supervision and shall include a
psychologist possessing a master's degree in psychology, a person possessing a master's degree in counseling, a registered nurse, and
a social worker possessing a master's degree in social work;
(c) "Level III" provider means a person capable of
administering therapeutic milieu units and limited clinical
services and shall include a licensed social worker; and
(d) "Level IV" provider means a person trained in
rehabilitative and supportive services for chronically ill
behavioral health patients.
§9-4D-2. Credentialing committee created; composition of members
and duties.
(a) Each licensed behavioral health entity shall appoint a
behavioral health credentialing committee. The committee shall
consist of members representative of the various providers defined
in section one of this article which provide service at the
licensed entity:
Provided, That at least one member shall be
appointed from each of the provider levels defined in section one
of this article. The committee shall follow the most recent
standards of the Joint Commission on the Accreditation of Health
Care Organizations or other nationally recognized accrediting
organization when carrying out its duties and responsibilities.
(b)The committee shall have the following duties and
responsibilities:
(1) To develop written criteria for each specific type of
behavioral health service provided. The criteria will identify the
required education, licensure, certification, training and
experience necessary for a person to provide each type of service.
The criteria shall be specific to the age group and disability
populations served and shall be sufficiently detailed to ensure
that persons have demonstrated competence in areas in which they
provide services.
(2)The committee shall review all documented evidence of
credentials such as university or college transcripts, copies of
professional licenses, certificates or documents relating to
completion of training, and letters of reference and supervision
for any person seeking clinical privileges at a behavioral health
center. After review, the committee shall make a written
determination of the clinical privileges of the person and include
a list of relevant limitations, if any, to the privileges. The
committee shall review the granting of clinical privileges every
two years. Documentation of each individuals credentials shall be
maintained in each staff member's personnel file and the
credentials shall be open to inspection and review by the
department of health and human resources. Such documentation must
be available on or before the first day of January, one thousand nine hundred ninety-six.
§9-4D-3. Training and supervision.
(a)The committee shall develop standards for the ongoing
professional supervision and training of every member of clinical
staff. These standards shall include minimum qualifications for
supervisory staff, minimum ratios of supervisors to supervisees
which ratio is appropriate to the clinical population and service
environment, and a plan of supervision which outlines the manner in
which supervision activity occurs, the manner in which cases are
reviewed, and provides a periodic summary of performance. These
standards shall be kept on file and will be open to the public for
review.
(b)In establishing supervision standards for the area in
which the services are to be provided, specific standards form
national accreditation bodies, such as the Joint Commission for the
Accreditation of Health Care Organizations, must be followed. If
no specific standards are established by national norms, the
provisions of section two of this article shall be followed.
(c) The supervisory standard established in this section may
be waived by the secretary for any behavioral health center that
demonstrates undue hardship in complying with the supervisory
standards. The center must make a written application for the waiver. The secretary may only grant the waiver upon a written
finding of undue hardship as demonstrated in the application by the
center.
(d)Each year the committee shall develop training plans for
each member of the staff which is appropriate to the clinical
population and service environment. The content of the training
must be clearly documented and must reflect the most current
effective practices in the area in which services are to be
provided by the staff member. Evidence of successful completion of
any required training must also be clearly documented. The
documentation regarding training plans and completion of the plans
shall be open to inspection by the department of health and human
resources. The performance of each member of the staff shall be
reviewed on an annual basis to determine whether the staff member
effectively performs the responsibilities assigned. The reviews
are to be considered by the committee in determining clinical
privileges of the staff member.
(e)The department may waive the supervisory standards
established in this section for sheltered workshops which
demonstrate that either the supervisory ratios are inappropriate to
the setting of the individual sheltered workshop or will cause
undue hardship for the sheltered workshop to maintain. The waiver will only be granted upon written application by the individual
sheltered workshop and a written finding by the department that the
ratios are inappropriate to the individual sheltered workshop or
pose an undue hardship for the sheltered workshop.
(f)The department will assess the adequacy and
appropriateness of the training standards, supervision standards,
training procedures and performance evaluation procedures
established by the committee. The assessment will be conducted in
a manner consistent with the standards of the Joint Commission on
Accreditation of Health Care Organizations, or other nationally
recognized accreditation and certification organizations. If the
training or supervision standards are found to be inadequate, a
plan of correction shall be promptly prepared by the department and
implemented by committee within sixty days of the submission of the
plan.
§9-4D-4. Alternative supervision ratios.
(a) Unless specific standards are established by an
appropriate national accrediting organization approved by the
secretary of the department of health and human resources, licensed
behavioral health centers may only be reimbursed by medicaid for
chronic behavioral health services provided by the center when the
provider maintains at least the following supervisory ratios:
(1)one Level I provider for every three Level II providers;
(2)one Level I or Level II provider for every six Level III
providers; and
(3)one Level III provider for every six Level IV providers.
(b) The department may waive the provisions of this section
for Sheltered workshops which demonstrate that either the
supervisory ratios are inappropriate to the setting of the
individual sheltered workshop or will cause undue hardship for the
sheltered workshop to maintain. The waiver will only be granted
upon written application by the individual sheltered workshop and
a written finding by the department that the ratios are
inappropriate to the individual sheltered workshop or pose an undue
hardship for the sheltered workshop.
(c) As used in this section "sheltered workshop" means a
particular type of vocational rehabilitation facility where any
manufacture or handiwork is carried on and which is operated by a
public agency or by a private corporation or association, no part
of the net earnings of which inures or may lawfully inure to the
benefit of any private shareholder or individual, or by a
cooperative, for the primary purpose of providing remunerative
employment to disabled persons (1) as an interim step in the
rehabilitation process for those who cannot be readily absorbed in the competitive labor market; or (2) during such time as employment
opportunities for them in the competitive labor market do not
exist; or (3) for providing vocational evaluation and work
adjustment services for disadvantaged persons.
(d) The provisions of this section may be waived by the
secretary for any behavioral health center that demonstrates undue
hardship in complying with the supervisory ratios set forth in
subsection (a) of this section. The center must make a written
application for the waiver. The secretary may only grant the
waiver upon a written finding of undue hardship as demonstrated in
the application by the center.
§9-4D-5. Professional responsibility.
Staff responsible under this code for the rendering of
clinical diagnosis are responsible for ensuring that the criteria
for the diagnosis in the most current version of the Diagnostic
and Statistical Manual of Mental Disorders of the American
Psychiatric Association are met. Treatment that is provided shall
be commensurate with the diagnosis and the most current effective
treatment practices. Staff members with the authority for approval
of treatment plans and oversight of service provision shall assume
professional responsibility for the validity , appropriateness and
quality of services rendered by the provider. Failure of any staff member to fulfill the responsibilities set forth in this section
shall be grounds for the committee to revoke the clinical
privileges of the staff member failing to fulfill his or her
responsibilities hereunder.
§9-4D-6. Utilization review.
Each committee shall have a system for regular review that is
designed to evaluate the appropriateness of the admissions to any
program provided, the length of stay of patients, the treatment
service plans, the discharge practices and other factors that may
contribute to positive clinical and life quality outcomes for
clients and effective use of resources.
§9-4D-7. Case management services.
Case management services reimbursement shall be included in
any rate-bundling for behavioral health services. Case management
shall be as defined in the West Virginia Targeted Case Management
Manual issued by the department of health and human resources:
Provided, That advocacy, as defined in the above-mentioned manual,
shall be excluded from medicaid reimbursement. Twenty units of
case management service for any type of health service, per
patient, per month, may be reimbursed by medicaid without prior
authorization from the department of health and human resources.
Any case management service provided to a patient in excess of twenty units shall not be reimbursed by medicaid unless prior
authorization for such units has been authorized by the department
for each month that the twenty units are exceeded:
Provided, That
in order to be eligible for reimbursement the patient to whom case
management services are being provided may not have more than one
case manager.
§9-4D-8. License and Inspection fees.
Notwithstanding any other section of this code to the contrary
or any other rule to the contrary, the secretary of the department
of health and human services may promulgate rules to set reasonable
fees for the licensure and inspection of behavioral health
facilities. Any fee structure so established shall be sufficient
to pay the total cost of the licensure and inspection procedures
required by law for behavioral health facilities.
CHAPTER 11. TAXATION.
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-20a. Dedication of tax.
(a) The amount of taxes collected under this article from
providers of health care items or services, including any interest,
additions to tax and penalties collected under article ten of this
chapter, less the amount of allowable refunds and any interest
payable with respect to such refunds, shall be deposited into the
division of human services medical services fund named in section
two, article four, chapter nine of this code. Any funds remaining
on the last day of June, one thousand nine hundred ninety-five, in
the special revenue fund created in the state treasurer's office
and known as the medicaid state share fund
shall be transferred to
the division of human services medical services fund, and any
subsequent deposits in the medicaid state share fund shall also be
so transferred. Said fund shall have separate accounting for those
health care providers as set forth in articles four-b and four-c
,
chapter nine of this code.
(b) Notwithstanding the provisions of subsection (a) of this
section, for the remainder of fiscal year one thousand nine hundred
ninety-three and for each succeeding fiscal year, no expenditures
from taxes collected from providers of health care items or
services are authorized except in accordance with appropriations by
the Legislature.
(c) The amount of taxes on the privilege of severing timber
collected under section three-b of this article, including any
interest, additions to tax and penalties collected under article
ten of this chapter, less the amount of allowable refunds and any
interest payable with respect to such refunds, shall be paid into
a special revenue account in the state treasury to be appropriated by the Legislature for purposes of the division of forestry.
(d) The amount of taxes collected under this article from all
other persons, including any interest, additions to tax and
penalties collected under article ten of this chapter, less the
amount of allowable refunds and any interest payable with respect
to such refunds, shall be deposited into the general revenue fund.
ARTICLE 26. HEALTH CARE PROVIDER MEDICAID TAX.
§11-26-1. Legislative findings.
The Legislature finds and declares that:
(a) Medicaid provides access to basic medical care for our
citizens who are not physically, mentally or economically able to
provide for their own care;
(b) Inadequate compensation for health care providers
rendering medicaid services is a barrier to indigent persons
seeking access to health care services;
(c) Health care providers in this state are providing care,
without compensation, to many citizens who are not medicaid
eligible;
(d) Many health care providers are leaving this state due to
economic conditions;
(e) Without adequate compensation this state cannot attract or
retain a sufficient number of health care providers necessary to serve our indigent population;
(f) Without additional medicaid funding this state cannot
adequately compensate health care providers for the health care
services rendered to indigent patients;
(g) The Tenth Amendment of the United States Constitution
guarantees to the states the power to tax;
(h) The Congress of the United States has enacted Section 4701
of the Omnibus Budget Reconciliation Act of 1990, P.L. 101-508,
amending Section 1902 of the Social Security Act and authorizing
state medicaid agencies to attribute taxes imposed on medicaid
providers as part of the state share;
(i) By levying a tax on the medicaid reimbursements of health
care providers for the purpose of meeting state fund matching
requirements pursuant to Title XIX of the Social Security Act,
federal matching funds will be increased;
(j) (i) By dedicating such additional revenue to the medicaid
program, health care provider fees may conform as closely as
possible to usual and customary charges;
(k) (j) Moneys generated in accordance with this article are
supplementary only and shall not be used to reduce the general
financial obligations of the state's medical assistance program as
appropriated by the Legislature;
and
(l) (k) These funds shall not be used for any purpose other
than those purposes stated in this article.
and articles four-b
and four-c, chapter nine of this code; and
(m) The medicaid enhancement boards and medicaid enhancement
funds created pursuant to articles four-b and four-c, chapter nine
of this code are created to carry out the purposes of this article.
§11-26-3. Definitions.
The following words when used in this article have the meaning
ascribed to them in this section, except in those instances where
a different meaning is distinctly expressed or the context in which
the word is used clearly indicates a different meaning is intended:
(a) "Cost-based service" means any service delivered by a
health care provider reimbursed under the medical assistance
program of this state solely on the basis of costs reported to the
single state agency, whether or not the provider is operating on a
profit or not-for-profit basis.
(b) "Department" means the West Virginia department of health
and human resources. The term "secretary" means the secretary of
the West Virginia department of health and human resources, or his
or her designee.
(c) "Gross receipts" or "gross proceeds" means all payments
received by a health care provider enrolled in this state's medical assistance program for services delivered pursuant to Title XIX of
the United States Social Security Act, as amended, and means any
and all medicaid reimbursement payments made by the West Virginia
department of health and human resources, or a division thereof,
within the limitations set forth in this subsection, to such health
care provider:
Provided, That this definition does not include
payments received for medicare coinsurance and deductibles as
defined in Title XVIII of the Social Security Act, and does not
include reimbursements made for cost-based services.
(d) "Health care provider" or "provider" includes physician
providers, as defined in section one, article four-b, chapter nine
of this code, ambulance service providers, dentist providers,
general health care providers, and outpatient hospital service
providers as defined in section one, article four-c, chapter nine
of this code, and any other person directly receiving enhanced
medicaid reimbursement payments pursuant to article four-b or
four-c, chapter nine of this code.
(e) "Single state agency" means the single state agency for
medicaid in this state.
(f) "Taxpayer" means a health care provider required to pay
the medicaid enhancement tax imposed by this article.
and entitled
to receive the increased reimbursement in accordance with article four-b or four-c, chapter nine of this code
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-32. Dedication of tax.
(a) The amount of taxes collected under this article,
including any interest, additions to tax and penalties collected
under article ten of this chapter, less the amount of allowable
refunds, the amount of any interest payable with respect to such
refunds, and costs of administration and collection, shall be
deposited into the
division of human services medical services fund
named in section two, article four, chapter nine of this code. Any
funds remaining on the last day of June, one thousand nine hundred
ninety-five, in the special revenue fund created in the state
treasurer's office and known as the medicaid state share fund
shall
be transferred to the division of human services medical services
fund, and any subsequent deposits in the medicaid state share fund
shall also be so transferred. The tax commissioner shall have
separate accounting for those health care providers as set forth in
articles four-b and four-c chapter nine of this code, except that
taxes paid by hospitals may be combined and reported as a single
item. The tax commissioner shall retain from the taxes collected
during each fiscal year the amount of two hundred thousand dollars
to be used for administration and collection of these taxes.
(b) Notwithstanding the provisions of subsection (a) of this
section, for the remainder of fiscal year one thousand nine hundred
ninety-three and for each succeeding fiscal year, no expenditures
from any of the several health care provider funds are authorized
except in accordance with appropriations by the Legislature.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-2. Definitions.
As used in this article, unless otherwise indicated by the
context:
(a) "Affected person" means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area served
or to be served by the applicant;
(4) Any individual who regularly uses the health care
facilities within that geographic area;
(5) The health care facilities which provide services similar
to the services of the facility under review and which will be
significantly affected by the proposed project;
(6) The health care facilities which, prior to receipt by the
state agency of the proposal being reviewed, have formally indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities
similar to those proposed for services;
(8) Any agency which establishes rates for health care
facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a facility which
is free-standing and not physically attached to a health care
facility and which provides health care to noninstitutionalized and
nonhomebound persons on an outpatient basis. This definition does
not include the 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
exemption from review of private office practice shall 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
exemption from review of private office practice shall not be
construed to include certain health services otherwise subject to
review under the provisions of subdivision (1), subsection (a),
section four of this article.
(c) "Ambulatory surgical facility" means a facility which is free-standing and not physically attached to a health care facility
and which provides surgical treatment to patients not requiring
hospitalization. This definition does not include the private
office practice of any one or more health professionals licensed to
practice surgery in this state pursuant to the provisions of
chapter thirty of this code:
Provided, That such exemption from
review of private office practice shall 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 exemption from review of
private office practice shall not be construed to include certain
health services otherwise subject to review under the provisions of
subdivision (1), subsection (a), section four of this article.
(d) "Applicant" means: (1) The governing body or the person
proposing a new institutional health service who is, or will be,
the health care facility licensee wherein the new institutional
health service is proposed to be located, and (2) in the case of a
proposed new institutional health service not to be located in a
licensed health care facility, the governing body or the person
proposing to provide such new institutional health service.
Incorporators or promoters who will not constitute the governing
body or persons responsible for the new institutional health service may not be an applicant.
(e) "Bed capacity" means the number of beds for which a
license is issued to a health care facility, or, if a facility is
unlicensed, the number of adult and pediatric beds permanently
staffed and maintained for immediate use by inpatients in patient
rooms or wards.
(f) "Capital expenditure" means an expenditure:
(1) Made by or on behalf of a health care facility; and
(2) (A) Which (i) under generally accepted accounting
principles is not properly chargeable as an expense of operation
and maintenance, or (ii) is made to obtain either by lease or
comparable arrangement any facility or part thereof or any
equipment for a facility or part; and (B) which (i) exceeds the
expenditure minimum, or (ii) is a substantial change to the bed
capacity of the facility with respect to which the expenditure is
made, or (iii) is a substantial change to the services of such
facility. For purposes of subparagraph (i), paragraph (B),
subdivision (2) of this definition, the cost of any studies,
surveys, designs, plans, working drawings, specifications, and
other activities, including staff effort and consulting and other
services, essential to the acquisition, improvement, expansion, or
replacement of any plant or equipment with respect to which an expenditure described in paragraph (B), subdivision (2) of this
definition is made shall be included in determining if such
expenditure exceeds the expenditure minimum. Donations of
equipment or facilities to a health care facility which if acquired
directly by such facility would be subject to review shall be
considered capital expenditures, and a transfer of equipment or
facilities for less than fair market value shall be considered a
capital expenditure for purposes of such subdivisions if a transfer
of the equipment or facilities at fair market value would be
subject to review. A series of expenditures, each less than the
expenditure minimum, which when taken together are in excess of the
expenditure minimum, may be determined by the state agency to be a
single capital expenditure subject to review. In making its
determination, the state agency shall consider: Whether the
expenditures are for components of a system which is required to
accomplish a single purpose; whether the expenditures are to be
made over a two-year period and are directed towards the
accomplishment of a single goal within the health care facility's
long-range plan; or whether the expenditures are to be made within
a two-year period within a single department such that they will
constitute a significant modernization of the department.
(g) "Expenditure minimum" means seven hundred fifty thousand dollars per fiscal year.
(h) "Health," used as a term, includes physical and mental
health.
(i) "Health care facility" is defined as including hospitals,
skilled nursing facilities, kidney disease treatment centers,
including free-standing hemodialysis units, intermediate care
facilities, ambulatory health care facilities, ambulatory surgical
facilities, home health agencies, rehabilitation facilities and
health maintenance organizations; community mental health and
mental retardation facilities, whether under public or private
ownership, or as a profit or nonprofit organization and whether or
not licensed or required to be licensed in whole or in part by the
state. For purposes of this definition, "community mental health
and mental retardation facility" means a private facility which
provides such comprehensive services and continuity of care as
emergency, outpatient, partial hospitalization, inpatient and
consultation and education for individuals with mental illness,
mental retardation or drug or alcohol addiction.
(j) "Health care provider" means a person, partnership,
corporation, facility or institution licensed or certified or
authorized by law to provide professional health care service in
this state to an individual during that individual's medical care, treatment or confinement.
(k) "Health maintenance organization" means a public or
private organization, organized under the laws of this state,
which:
(1) Is a qualified health maintenance organization under
Section 1310(d) of the Public Health Service Act, as amended, Title
42 United States Code Section 300e-9(d); or
(2) (A) Provides or otherwise makes available to enrolled
participants health care services, including substantially the
following basic health care services: Usual physician services,
hospitalization, laboratory, X ray, emergency and preventive
services and out-of-area coverage; and
(B) Is compensated except for copayments for the provision of
the basic health care services listed in paragraph (A), subdivision
(2), subsection (k) of this definition to enrolled participants on
a predetermined periodic rate basis without regard to the date the
health care services are provided and which is fixed without regard
to the frequency, extent or kind of health service actually
provided; and
(C) Provides physicians' services primarily (i) directly
through physicians who are either employees or partners of such
organization, or (ii) through arrangements with individual physicians or one or more groups of physicians organized on a group
practice or individual practice basis.
(l) "Health services" means clinically related preventive,
diagnostic, treatment or rehabilitative services, including
alcohol, drug abuse and mental health services.
(m) "Home health agency" is an organization primarily engaged
in providing directly or through contract arrangements,
professional nursing services, home health aide services, and other
therapeutic and related services, including, but not limited to,
physical, speech and occupational therapy and nutritional and
medical social services to persons in their place of residence on
a part-time or intermittent basis.
(n) "Hospital" means an institution which is primarily engaged
in providing to inpatients, by or under the supervision of
physicians, diagnostic and therapeutic services for medical
diagnosis, treatment, and care of injured, disabled or sick
persons, or rehabilitation services for the rehabilitation of
injured, disabled or sick persons. This term also includes
psychiatric and tuberculosis hospitals.
(o) "Intermediate care facility" means an institution which
provides, on a regular basis, health-related care and services to
individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to
provide, but who, because of their mental or physical condition,
require health-related care and services above the level of room
and board.
(p) "Long-range plan" means a document formally adopted by the
legally constituted governing body of an existing health care
facility or by a person proposing a new institutional health
service. Each long-range plan shall consist of the information
required by the state agency in regulations adopted pursuant to
section eight of this article.
(q) "Major medical equipment" means a single unit of medical
equipment or a single system of components with related functions
which is used for the provision of medical and other health
services and which costs in excess of three hundred thousand
dollars, except that such term does not include medical equipment
acquired by or on behalf of a clinical laboratory to provide
clinical laboratory services if the clinical laboratory is
independent of a physician's office and a hospital and it has been
determined under Title XVIII of the Social Security Act to meet the
requirements of paragraphs ten and eleven of Section 1861(s) of
such act, Title 42 United States Code Sections 1395x (10) and (11).
In determining whether medical equipment costs more than three hundred thousand dollars, the cost of studies, surveys, designs,
plans, working drawings, specifications, and other activities
essential to the acquisition of such equipment shall be included.
If the equipment is acquired for less than fair market value, the
term "cost" includes the fair market value.
(r) "Medically underserved population" means the population of
an urban or rural area designated by the state agency as an area
with a shortage of personal health services or a population having
a shortage of such services, after taking into account unusual
local conditions which are a barrier to accessibility or
availability of such services. Such designation shall be in
regulations adopted by the state agency pursuant to section eight
of this article, and the population so designated may include the
state's medically underserved population designated by the Federal
Secretary of Health and Human Services under Section 330(b)(3) of
the Public Health Service Act, as amended, Title 42 United States
Code Section 254(b)(3).
(s) "New institutional health service" means such service as
described in section three of this article.
(t) "Offer", when used in connection with health services,
means that the health care facility or health maintenance
organization holds itself out as capable of providing, or as having the means for the provision of, specified health services.
(u) "Person" means an individual, trust, estate, partnership,
committee, corporation, association and other organizations such as
joint-stock companies and insurance companies, a state or a
political subdivision or instrumentality thereof or any legal
entity recognized by the state.
(v)
"Personal care services" means medically oriented
activities or tasks ordered by a physician and which is
implemented according to a nursing plan of care which has been
completed by, and which is supervised by, a registered nurse and
billed to the state. These services include those activities which
are intended to enable persons to meet their physical needs and to
be treated by a physician in their place of residence. The term
shall include, but not be limited to, services related to personal
hygiene, dressing, feeding, nutrition, environmental support
functions and health related tasks.
(v)(w) "Physician" means a doctor of medicine or osteopathy
legally authorized to practice by the state.
(w)(x) "Proposed new institutional health service" means such
service as described in section three of this article.
(x)(y) "Psychiatric hospital" means an institution which
primarily provides to inpatients, by or under the supervision of a physician, specialized services for the diagnosis, treatment and
rehabilitation of mentally ill and emotionally disturbed persons.
(y)(z) "Rehabilitation facility" means an inpatient facility
which is operated for the primary purpose of assisting in the
rehabilitation of disabled persons through an integrated program of
medical and other services which are provided under competent
professional supervision.
(z)(aa) "Review agency" means an agency of the state,
designated by the governor as the agency for the review of state
agency decisions.
(bb) "Sheltered workshop" means a particular type of
vocational rehabilitation facility where any manufacture or
handiwork is carried on and which is operated by a public agency or
by a private corporation or association, no part of the net
earnings of which inures or may lawfully inure to the benefit of
any private shareholder or individual, or by a cooperative, for the
primary purpose of providing remunerative employment to disabled
persons (1) as an interim step in the rehabilitation process for
those who cannot be readily absorbed in the competitive labor
market; or (2) during such time as employment opportunities for
them in the competitive labor market do not exist; or (3) for
providing vocational evaluation and work adjustment services for disadvantaged persons. The term "sheltered workshop" also includes
a community rehabilitation program as designated by federal law.
(aa)(cc) "Skilled nursing facility" means an institution or a
distinct part of an institution which is primarily engaged in
providing to inpatients skilled nursing care and related services
for patients who require medical or nursing care, or rehabilitation
services for the rehabilitation of injured, disabled or sick
persons.
(bb)(dd) "State agency" means the health care cost review
authority created, established, and continued pursuant to article
twenty-nine-b of this chapter.
(cc)(ee) "State health plan" means the document approved by
the governor after preparation by the former
statewide health
coordinating council health care planning commission, or that
document as approved by the governor after amendment by the health
care planning
council commission or its successor agency.
(dd) "Health care planning council" means the body established
by section five-a of this article to participate in the preparation
and amendment of the state health plan and to advise the state
agency.
(ee)(ff) "Substantial change to the bed capacity" of a health
care facility means any change, with which a capital expenditure is associated, that increases or decreases the bed capacity, or
relocates beds from one physical facility or site to another, but
does not include a change by which a health care facility reassigns
existing beds as swing beds between acute care and long-term care
categories:
Provided, That a decrease in bed capacity in response
to federal rural health initiatives shall be excluded from this
definition.
(hh)(gg) "Substantial change to the health services" of a
health care facility means the addition of a health service which
is offered by or on behalf of the health care facility and which
was not offered by or on behalf of the facility within the twelve-
month period before the month in which the service is first
offered, or the termination of a health service which was offered
by or on behalf of the facility, but does not include the providing
of
hospice care, ambulance service, wellness centers or programs,
adult day care, or respite care by acute care facilities.
(gg)(hh) "To develop", when used in connection with health
services, means to undertake those activities which upon their
completion will result in the offer of a new institutional health
service or the incurring of a financial obligation, in relation to
the offering of such a service.
§16-2D-3. Certificate of need.
Except as provided in section four of this article, any new
institutional health service may not be acquired, offered or
developed within this state except upon application for and receipt
of a certificate of need as provided by this article.
Any new
provider of personal care service offered by any person, facility,
corporation or entity, other than an agency of the state, may not
be offered or developed in this state, if the service is to be
funded in whole, or in part, by state or federal medicaid funds,
except upon application for and receipt of a certificate of need as
provided in section six of this article. Whenever a new
institutional health service for which a certificate of need is
required by this article is proposed for a health care facility for
which, pursuant to section four of this article, no certificate of
need is or was required, a certificate of need shall be issued
before the new institutional health service is offered or
developed. No person may knowingly charge or bill for any health
services associated with any new institutional health service that
is knowingly acquired, offered or developed in violation of this
article, and any bill made in violation of this section is legally
unenforceable. For purposes of this article, a proposed "new
institutional health service" includes:
(a) The construction, development, acquisition or other establishment of a new health care facility or health maintenance
organization;
(b) The partial or total closure of a health care facility or
health maintenance organization with which a capital expenditure is
associated;
(c) Any obligation for a capital expenditure incurred by or on
behalf of a health care facility, except as exempted in section
four of this article, or health maintenance organization in excess
of the expenditure minimum or any obligation for a capital
expenditure incurred by any person to acquire a health care
facility. An obligation for a capital expenditure is considered to
be incurred by or on behalf of a health care facility:
(1) When a contract, enforceable under state law, is entered
into by or on behalf of the health care facility for the
construction, acquisition, lease or financing of a capital asset;
(2) When the governing board of 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
(3) In the case of donated property, on the date on which the
gift is completed under state law;
(d) A substantial change to the bed capacity of a health care
facility with which a capital expenditure is associated;
(e) (1) The addition of health services which are offered by
or on behalf of a health care facility or health maintenance
organization and which were not offered on a regular basis by or on
behalf of the health care facility or health maintenance
organization within the twelve-month period prior to the time the
services would be offered; and
(2) The addition of ventilator services for any nursing
facility bed by any health care facility or health maintenance
organization;
(f) The deletion of one or more health services, previously
offered on a regular basis by or on behalf of a health care
facility or health maintenance organization which is associated
with a capital expenditure;
(g) 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, if the change is associated with a previous capital
expenditure for which a certificate of need was issued and if the
change will occur within two years after the date the activity
which was associated with the previously approved capital
expenditure was undertaken;
(h) The acquisition of major medical equipment;
(i) A substantial change in an approved new institutional
health service for which a certificate of need is in effect. For
purposes of this subsection, "substantial change" shall be defined
by the state agency in regulations adopted pursuant to section
eight of this article.
(j) An expansion of the service area of any hospice agency pr
home health service, regardless of the time period in which the
expansion is comtemplated or made.
§16-2D-3a. Moratoriums on letters of intent and applications for
certificates of need for home health, hospice, group
residential facilities and mental and behavioral
health facilities.
(a) There shall be a moratorium on the filing of letters of
intent and applications for all certificates of need for new
services within agencies and facilities which provide or propose to
provide home health services, as described in article two-c of this
chapter, and upon new sites by any facility, agency or service
which offers or seeks to offer such services. This moratorium
shall end on the first day of August, one thousand nine hundred
ninety-six. No agency, facility or service shall tender a letter
of intent or application for a certificate of need for such
services prior to that date. The provisions of this subsection shall not apply to new services within agencies and facilities
which provide or propose to provide home health services which are
reimbursed by medicare.
(b) There shall be a moratorium on the filing of letters of
intent and applications for all certificates of need for new
services within those agencies or facilities which provide or
propose to provide hospices and bereavement services, as described
in article five-i of this chapter, and upon new sites by any
facility, agency or service which offers or seeks to offer such
services. This moratorium shall end on the first day of August,
one thousand nine hundred ninety-six. No agency, facility or
service shall tender a letter of intent or application for a
certificate of need for such services prior to that date.
(c) There shall be a moratorium on the filing of letters of
intent and applications for all certificates of need for new
services within those agencies or facilities which provide or
propose to provide group residential facility services, mental and
behavioral health services including partial inpatient services for
mental and behavioral health, and any other services governed by
chapter twenty-seven of this code, as amended, and upon new sites
by any facility, agency or service which offers or seeks to offer
such services. This moratorium shall not apply to agencies or facilities which seek a certificate of need for the sole purpose of
creating placements, services, programs or sites for individuals
who were residents of the Colin Anderson Center on or after the
first day of January, one thousand nine hundred ninety-five, or for
individuals displaced by residents of Colin Anderson Center moving
into community-based settings; for the purpose of creating
placements, services, programs or sites necessary to prevent
individuals from being institutionalized; or for the purpose of
creating placements, services, programs or sites for specialized
foster care:
Provided, That nothing in this subsection shall
alter, amend or abolish the provisions set forth in subsection (h),
section five of this article. This moratorium shall end on the
first day of August, one thousand nine hundred ninety-seven or upon
the date of implementation of a medicaid managed behavioral health
plan, whichever occurs first. No agency, facility or service
subject to this moratorium shall tender a letter of intent or
pursue application for a certificate of need for such services
prior to that date unless the stated purpose: Is to provide
placements, services, programs or sites for individuals who were
residents of the Colin Anderson Center on or after the first day of
January, one thousand nine hundred ninety-five, or for individuals
displaced by residents of Colin Anderson Center moving into community-based settings; is to create placements, services,
programs or sites necessary to prevent individuals from being
institutionalized; or is to create placements, services, programs
or sites for specialized foster care.
(d) No extensions beyond the twelve month period from
certificate of need approval shall be granted for those facilities,
agencies and services described in subsections (a), (b) and (c) of
this section. This subsection shall apply only to those
certificates approved after the twenty-ninth day of January, one
thousand nine hundred ninety-five and prior to the effective date
of this section.
(e) A substantial change of a pending or approved certificate
of need for those services described in subsections (a), (b) and
(c) shall be subject to the moratorium imposed by this section.
(f) Any sheltered workshop that was existent on the first day
of January, one thousand nine hundred ninety-five which had not, as
of that date, obtained a certificate of need required as a result
of the shelter workshop being considered a "health care facility"
or a "health care provider" under this article shall not be
required to obtain a certificate of need. Sheltered workshops, as
defined in section two of this article, shall not be subject to the
provisions of this section.
§16-2D-6. Minimum criteria for certificate of need reviews.
(a) Except as provided in subsections (f) and (g), section
nine of this article, 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 in the case of a health maintenance
organization or an ambulatory care facility or health care facility
controlled, directly or indirectly, by a health maintenance
organization or combination of health maintenance organizations,
the criteria considered shall be only those set forth in
subdivision (12) of this subsection: Provided, however, That the
criteria set forth in subsection (f) of this section applies to all
hospitals, nursing homes and health care facilities when ventilator
services are to be provided for any nursing facility bed:
(1) The recommendation of the designated health systems agency
for the health service area in which the proposed new institutional
health service is to be located;
(2) The relationship of the health services being reviewed to
the state health plan and to the applicable health systems plan and
annual implementation plan adopted by the designated health systems
agency for the health service area in which the proposed new
institutional health service is to be located;
(3) The relationship of services reviewed to the long-range
development plan of the person providing or proposing the services;
(4) 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;
(5) The availability of less costly or more effective
alternative methods of providing the services to be offered,
expanded, reduced, relocated or eliminated;
(6) The immediate and long-term financial feasibility of the
proposal as well as 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;
(7) The relationship of the services proposed to the existing
health care system of the area in which the services are proposed
to be provided;
(8) 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, applicable health systems plan and annual
implementation plan;
(9) The appropriate and nondiscriminatory utilization of
existing and available health care providers;
(10) The relationship, including the organizational
relationship, of the health services proposed to be provided to
ancillary or support services;
(11) 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;
(12) To the extent not precluded by subdivision (1),
subsection (f), section nine of this article, the special needs and
circumstances of health maintenance organizations. These needs and
circumstances are limited to:
(A) The needs of enrolled members and reasonably anticipated
new members of the health maintenance organization for the health
services proposed to be provided by the organization; and
(B) The availability of the new health services from nonhealth maintenance organization providers or other health maintenance
organizations in a reasonable and cost-effective manner which is
consistent with the basic method of operation of the health
maintenance organization. In assessing the availability of these
health services from these providers, the agency shall consider
only whether the services from these providers:
(i) Would be available under a contract of at least five
years' duration;
(ii) Would be available and conveniently accessible through
physicians and other health professionals associated with the
health maintenance organization;
(iii) Would cost no more than if the services were provided by
the health maintenance organization; and
(iv) Would be available in a manner which is administratively
feasible to the health maintenance organization;
(13) The special needs and circumstances of biomedical and
behavioral research projects which are designed to meet a national
need and for which local conditions offer special advantages;
(14) 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;
(15) 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;
(16) 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;
(17) 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;
(18) 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;
(19) In accordance with section five of this article, the
factors influencing the effect of competition on the supply of the
health services being reviewed;
(20) 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;
(21) 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;
(22) In the case of existing services or facilities, the
quality of care provided by the services or facilities in the past;
(23) 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;
(24) The special circumstances of health care facilities with
respect to the need for conserving energy;
(25) 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, applicable health systems plan
and annual implementation 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;
(26) 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 regulations 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 or not
contained in regulations adopted pursuant to section eight 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.
(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 state or medicaid
expenditures for like or similar 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. The state agency will also consider any and all
applications which have are submitted for personal care services at
the same time.
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