ENROLLED
Senate Bill No. 553
(By Senators Wooton, Ball, Dittmar, Fanning, Hunter, Ross,
Schoonover, Snyder, White, Buckalew, Deem and Kimble)
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[Passed April 12, 1997; in effect ninety days from passage.]
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AN ACT to amend and reenact section two, article two-d, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections six and nine, article one, chapter twenty-seven of
said code, all relating generally to the definition of the
terms "hospital", "state hospital" and "mental health
facilities" and definitions of certain terms applicable to
regulation of hospitals; and clarifying that regional jail
facilities and correctional centers are not hospitals or
mental health facilities.
Be it enacted by the Legislature of West Virginia:
That section two, article two-d, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that sections six and nine, article
one, chapter twenty-seven of said code be amended and reenacted,
all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-2. Definitions.
Definitions of words and terms defined in articles five-f and
twenty-nine-b of this chapter are incorporated in this section
unless this section has different 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 that establishes rates for health care facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a free-standing
facility that provides health care to noninstitutionalized and
nonhomebound persons on an outpatient basis. For purposes of this
definition, a free-standing facility is not located on the campus
of an existing health care facility. 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 this
exemption from review shall not be construed to include practices
where major medical equipment otherwise subject to review under the
provisions of this article is acquired, offered or developed:
Provided, however, That this exemption from review 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 free-standing
facility that provides surgical treatment to patients not requiring
hospitalization. For purposes of this definition, a free-standing
facility is not physically attached to a health care facility.
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 this exemption from review shall not be
construed to include practices where major medical equipment
otherwise subject to review under the provisions of this article is
acquired, offered or developed:
Provided, however, That this
exemption from review shall not be construed to include 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 the 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 licensed to a
health care facility, or the number of adult and pediatric beds
permanently staffed and maintained for immediate use by inpatients
in patient rooms or wards in an unlicensed facility.
(f) "Campus" means the adjacent grounds and buildings, or
grounds and buildings not separated by more than a public right-of- way, of a health care facility.
(g) "Capital expenditure" means:
(1) An expenditure made by or on behalf of a health care
facility, which: (A) (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) (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; or
(2) The donation of equipment or facilities to a health care
facility, which if acquired directly by that facility would be
subject to review; or
(3) The transfer of equipment or facilities for less than fair
market value if the transfer of the equipment or facilities at fair
market value would be subject to review; or
(4) A series of expenditures, if the sum total exceeds the
expenditure minimum and if determined by the state agency to be a
single capital expenditure subject to review. In making this
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.
(h) "Expenditure minimum" means one million dollars and
includes 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.
(i) "Health", used as a term, includes physical and mental
health.
(j) "Health care facility" means a publicly or privately owned
facility, agency or entity that offers or provides health care
services, whether a for-profit or nonprofit entity and whether or
not licensed, or required to be licensed, in whole or in part, and
includes, but is not limited to, 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; hospice agencies; rehabilitation facilities;
health maintenance organizations; and community mental health and
mental retardation facilities. 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 or consultation and education for
individuals with mental illness, mental retardation or drug or
alcohol addiction.
(k) "Health care provider" means a person, partnership,
corporation, facility, hospital 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, remedial or behavioral health care, treatment or
confinement.
(l)"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 U.S.C. §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) of this
subdivision 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: (i) Directly through
physicians who are either employees or partners of the
organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a group
practice or individual practice basis.
(m) "Health services" means clinically related preventive,
diagnostic, treatment or rehabilitative services, including
alcohol, drug abuse and mental health services.
(n) "Home health agency" means an organization primarily
engaged in providing professional nursing services either directly
or through contract arrangements and at least one of the following
services: Home health aide services, other therapeutic services,
physical therapy, speech therapy, occupational therapy, nutritional
services or medical social services to persons in their place of
residence on a part-time or intermittent basis.
(o) "Hospice agency" means a private or public agency or
organization licensed in West Virginia for the administration or
provision of hospice care services to terminally ill persons in the
persons' temporary or permanent residences by using an
interdisciplinary team, including, at a minimum, persons qualified
to perform nursing services; social work services; the general
practice of medicine or osteopathy; and pastoral or spiritual
counseling.
(p) "Hospital" means a facility licensed as such pursuant to
the provisions of article five-b of this chapter, and any acute care facility operated by the state government, that primarily
provides inpatient diagnostic, treatment or rehabilitative services
to injured, disabled or sick persons under the supervision of
physicians and includes psychiatric and tuberculosis hospitals.
(q) "Intermediate care facility" means an institution that
provides health-related services to individuals with mental or
physical conditions that require services above the level of room
and board, but do not require the degree of services provided in a
hospital or skilled-nursing facility.
(r) "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, which contains the information required by the state
agency in rules adopted pursuant to section eight of this article.
(s) "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 costs in excess of seven hundred fifty thousand
dollars. This 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
U.S.C. §1395x (10) and (11). In determining whether medical equipment is major medical equipment, 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.
(t) "Medically underserved population" means the population of
an area designated by the state agency as having a shortage of
personal health services. The state agency may consider unusual
local conditions that are a barrier to accessibility or
availability of health services. The designation shall be in rules
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 U.S.C.
§254(b)(3).
(u) "New institutional health service" means any service as
described in section three of this article.
(v) "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 to provide specified health services.
(w) "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.
(x) "Physician" means a doctor of medicine or osteopathy
legally authorized to practice by the state.
(y) "Proposed new institutional health service" means any
service as described in section three of this article.
(z) "Psychiatric hospital" means an institution that 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.
(aa) "Rehabilitation facility" means an inpatient facility
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.
(bb) "Review agency" means an agency of the state, designated
by the governor as the agency for the review of state agency
decisions.
(cc) "Skilled nursing facility" means an institution, or a
distinct part of an institution, that primarily provides inpatient
skilled nursing care and related services, or rehabilitation
services, to injured, disabled or sick persons.
(dd) "State agency" means the health care cost review authority
created, established and continued pursuant to article twenty-nine- b of this chapter.
(ee) "State health plan" means the document approved by the
governor after preparation by the former statewide health
coordinating council, or that document as approved by the governor
after amendment by the former health care planning council or the
state agency.
(ff) "Substantial change to the bed capacity" of a health care
facility means any change, associated with a capital expenditure,
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.
(gg) "Substantial change to the health services" of a health
care facility means: (1) The addition of a health service offered
by or on behalf of the health care facility, 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; (2) or the
termination of a health service offered by or on behalf of the
facility:
Provided, That "substantial change to the health
services" does not include the providing of ambulance service,
wellness centers or programs, adult day care or respite care by
acute care facilities.
(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.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-6. State hospital.
"State hospital" means any hospital, center or institution, or
part thereof, established, maintained and operated by the
department of health, or by the department of health in conjunction
with a political subdivision of the state, to provide inpatient or
outpatient care and treatment for the mentally ill, mentally
retarded or addicted. The terms "hospital" and "state hospital"
exclude correctional and regional jail facilities.
§27-1-9. Mental health facility.
"Mental health facility" means any inpatient, residential or
outpatient facility for the care and treatment of the mentally ill,
mentally retarded or addicted which is operated, or licensed to
operate, by the department of health and includes state hospitals
as defined in section six of this article. The term also includes
veterans administration hospitals, but does not include any
regional jail, juvenile or adult correctional facility, or juvenile
detention facility.