HB4643 HFA Summers 2-22 #2
CR 3338
Delegates Summers, Tully, Dean and J. Jefferies moved to amend the bill on page 1, by striking everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-8. Proposed health services that require a certificate of need.
(a) Except as provided in §16-2D-9 §16-2D-10, and §16-2D-11 of
this code, the following proposed health services may not be acquired, expanded,
offered, or developed within this state except upon approval of and receipt of
a certificate of need as provided by this article:
(1) The construction, development, acquisition, or other
establishment of a health care facility;
(2) The partial or total closure of a health care facility with
which a capital expenditure is associated;
(3) (A) An obligation for a capital expenditure incurred by or on
behalf of a health care facility in excess of the expenditure minimum; or
(B) An obligation for a capital expenditure incurred by a person
to acquire a health care facility.
(4) An obligation for a capital expenditure is considered to be
incurred by or on behalf of a health care facility:
(A) When a valid contract is entered into by or on behalf of the
health care facility for the construction, acquisition, lease, or financing of
a capital asset;
(B) When 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
(C) In the case of donated property, on the date on which the gift
is completed under state law.
(5) A substantial change to the bed capacity of a health care
facility with which a capital expenditure is associated;
(6) The addition of ventilator services by a hospital;
(7) The elimination of health services previously offered on a regular
basis by or on behalf of a health care facility which is associated with a
capital expenditure;
(8) (A) 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;
(B) If the change is associated with a previous capital
expenditure for which a certificate of need was issued; and
(C) If the change will occur within two years after the date the
activity which was associated with the previously approved capital expenditure
was undertaken.
(9) The acquisition of major medical equipment;
(10) A substantial change in an approved health service for which
a certificate of need is in effect;
(11) An expansion of the service area for hospice or home health
agency regardless of the time period in which the expansion is contemplated or
made. and
(12) The addition of health services offered by or on behalf of a
health care facility which were not offered on a regular basis by or on behalf
of the health care facility within the 12-month period prior to the time the
services would be offered.
(b) The following health services are required to obtain a
certificate of need regardless of the minimum expenditure:
(1) Constructing, developing, acquiring, or establishing a
birthing center;
(2) Providing radiation therapy;
(3) Providing computed tomography;
(4) Providing positron emission tomography;
(5) Providing cardiac surgery;
(6) Providing fixed magnetic resonance imaging;
(7) Providing comprehensive medical rehabilitation;
(8) Establishing an ambulatory care center;
(9) Establishing an ambulatory surgical center;
(10) Providing diagnostic imaging;
(11) Providing cardiac catheterization services;
(12) Constructing, developing, acquiring, or establishing kidney
disease treatment centers, including freestanding hemodialysis units;
(13) Providing megavoltage radiation therapy;
(14) Providing surgical services;
(15) Establishing operating rooms;
(16) Adding acute care beds;
(17) Providing intellectual developmental disabilities services;
(18) Providing organ and tissue transplants;
(19) Establishing an intermediate care facility for individuals
with intellectual disabilities;
(20) Providing inpatient services;
(21) (1) Providing hospice services;
(22) (2) Establishing a home health agency; and
(23) (3) Providing personal care services. and
(24) (A) Establishing no more than six four-bed transitional
intermediate care facilities: Provided, That none of the four-bed sites shall
be within five miles of another or adjacent to another behavioral health
facility. This subdivision terminates upon the approval of the sixth four-bed
intermediate care facility.
(B) Only individuals living in more restrictive institutional
settings, in similar settings covered by state-only dollars, or at risk of
being institutionalized will be given the choice to move, and they will be
placed on the Individuals with Intellectual and Developmental Disabilities
(IDD) Waiver Managed Enrollment List. Individuals already on the IDD Waiver
Managed Enrollment List who live in a hospital or are in an out-of-state
placement will continue to progress toward home- and community-based waiver status
and will also be considered for all other community-based options, including,
but not limited to, specialized family care and personal care.
(C) The department shall work to find the most integrated
placement based upon an individualized assessment. Individuals already on the
IDD waiver will not be considered for placement in the 24 new intermediate care
beds.
(D) A monitoring committee of not more than 10 members, including
a designee of Mountain State Justice, a designee of Disability Rights of West
Virginia, a designee of the Statewide Independent Living Council, two members
or family of members of the IDD waiver, the Developmental Disabilities Council,
the Commissioner of the Bureau of Health and Health Facilities, the
Commissioner of the Bureau for Medical Services, and the Commissioner of the
Bureau for Children and Families. The secretary of the department shall chair
the first meeting of the committee at which time the members shall elect a
chairperson. The monitoring committee shall provide guidance on the
department’s transitional plans for residents in the 24 intermediate care
facility beds and monitor progress toward home- and community-based waiver
status and/or utilizing other community-based options and securing the most
integrated setting for each individual.
(E) Any savings resulting from individuals moving from more
expensive institutional care or out-of-state placements shall be reinvested
into home- and community-based services for individuals with intellectual
developmental disabilities.
(c) A certificate of need previously approved under this article remains in effect unless revoked by the authority.
§16-2D-10. Exemptions from certificate of need.
Notwithstanding
§16-2D-8 §16-2D-9, a person may provide the following health
services without obtaining a certificate of need or applying to the authority
for approval.
(1) The transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital to a skilled nursing facility providing intermediate care and skilled nursing services. The Department of Health and Human Resources may not create a policy which limits the transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital. The transferred beds shall retain the same certification status that existed at the nursing home or hospital skilled nursing unit from which they were acquired. If construction is required to place the transferred beds into the acquiring nursing home, the acquiring nursing home has one year from the date of purchase to commence construction;
(2) Renovations to a skilled nursing facility;
(3) The construction, renovation, maintenance or operation of a state owned veterans skilled nursing facilities established pursuant to the provisions of article one-b of this chapter.
(1) The creation of a private office of one or more licensed
health professionals to practice in this state pursuant to chapter thirty of
this code;
(2) Dispensaries and first-aid stations located within business or
industrial establishments maintained solely for the use of employees that does
not contain inpatient or resident beds for patients or employees who generally
remain in the facility for more than twenty-four hours;
(3) A place that provides remedial care or treatment of residents
or patients conducted only for those who rely solely upon treatment by prayer
or spiritual means in accordance with the creed or tenets of any recognized
church or religious denomination;
(4) Telehealth;
(5) A facility owned or operated by one or more health
professionals authorized or organized pursuant to chapter thirty or ambulatory
health care facility which offers laboratory services or diagnostic imaging to
patients regardless of the cost associated with the proposal. To qualify for
this exemption seventy-five percent of the laboratory services are for the
patients of the practice or ambulatory health care facility of the total
laboratory services performed and seventy-five percent of diagnostic imaging
services are for the patients of the practice or ambulatory health care
facility of the total imaging services performed. The authority may, at any
time, request from the entity information concerning the number of patients who
have been provided laboratory services or diagnostic imaging;
(6) (A) Notwithstanding the provisions of section seventeen of
this article, any hospital that holds a valid certificate of need issued
pursuant to this article, may transfer that certificate of need to a person
purchasing that hospital, or all or substantially all of its assets, if the
hospital is financially distressed. A hospital is financially distressed if, at
the time of its purchase:
(i) It has filed a petition for voluntary bankruptcy;
(ii) It has been the subject of an involuntary petition for
bankruptcy;
(iii) It is in receivership;
(iv) It is operating under a forbearance agreement with one or
more of its major creditors;
(v) It is in default of its obligations to pay one or more of its
major creditors and is in violation of the material, substantive terms of its
debt instruments with one or more of its major creditors; or
(vi) It is insolvent: evidenced by balance sheet insolvency and/or
the inability to pay its debts as they come due in the ordinary course of
business.
(B) A financially distressed hospital which is being purchased
pursuant to the provisions of this subsection shall give notice to the
authority of the sale thirty days prior to the closing of the transaction and
shall file simultaneous with that notice evidence of its financial status. The
financial status or distressed condition of a hospital shall be evidenced by
the filing of any of the following:
(i) A copy of a forbearance agreement;
(ii) A copy of a petition for voluntary or involuntary bankruptcy;
(iii) Written evidence of receivership, or
(iv) Documentation establishing the requirements of subparagraph
(v) or (vi), paragraph (A) of this subdivision. The names of creditors may be
redacted by the filing party.
(C) Any substantial change to the capacity of services offered in
that hospital made subsequent to that transaction would remain subject to the
requirements for the issuance of a certificate of need as otherwise set forth
in this article.
(D) Any person purchasing a financially distressed hospital, or
all or substantially all of its assets, that has applied for a certificate of
need after January 1, 2017, shall qualify for an exemption from certificate of
need;
(7) The acquisition by a qualified hospital which is party to an
approved cooperative agreement as provided in section twenty-eight, article
twenty-nine-b, chapter sixteen of this code, of a hospital located within a
distance of twenty highway miles of the main campus of the qualified hospital;
and
(8) The acquisition by a hospital of a physician practice group
which owns an ambulatory surgical center as defined in this article.
§16-2D-11. Exemptions from Certificate of Need which require the submission of information to the authority.
(a) To obtain an exemption under this section a person shall:
(1) File an exemption application; and
(2) Provide a statement detailing which exemption applies and the
circumstances justifying the exemption.
(b) Notwithstanding section eight and ten and except as provided
in section nine of this article, the Legislature finds that a need exists and
these health services are exempt from the certificate of need process:
(1) The acquisition and utilization of one computed tomography
scanner with a purchase price up to $750,000 that is installed in a private
office practice where at minimum seventy-five percent of the scans are
performed on the patients of the practice. The private office practice shall
obtain and maintain accreditation from the American College of Radiology prior to,
and at all times during, the offering of this service. The authority may at
any time request from the private office practice information relating to the
number of patients who have been provided scans and proof of active and
continuous accreditation from the American College of Radiology. If a
physician owns or operates a private office practice in more than one location,
this exemption shall only apply to the physician’s primary place of business
and if a physician wants to expand the offering of this service to include more
than one computed topography scanner, he or she shall be required to obtain a
certificate of need prior to expanding this service. All current certificates
of need issued for computed tomography services, with a required percentage
threshold of scans to be performed on patients of the practice in excess of
seventy-five percent, shall be reduced to seventy-five percent: Provided, That
these limitations on the exemption for a private office practice with more than
one location shall not apply to a private office practice with more than twenty
locations in the state on April 8, 2017.
(2) (A) A birthing center established by a nonprofit primary care
center that has a community board and provides primary care services to people
in their community without regard to ability to pay; or
(B) A birthing center established by a nonprofit hospital with
less than one hundred licensed acute care beds.
(i) To qualify for this exemption, an applicant shall be located
in an area that is underserved with respect to low-risk obstetrical services;
and
(ii) Provide a proposed health service area.
(3) (A) A health care facility acquiring major medical equipment,
adding health services or obligating a capital expenditure to be used solely
for research;
(B) To qualify for this exemption, the health care facility shall
show that the acquisition, offering or obligation will not:
(i) Affect the charges of the facility for the provision of
medical or other patient care services other than the services which are
included in the research;
(ii) Result in a substantial change to the bed capacity of the
facility; or
(iii) Result in a substantial change to the health services of the
facility.
(C) For purposes of this subdivision, the term “solely for research”
includes patient care provided on an occasional and irregular basis and not as
part of a research program;
(4) The obligation of a capital expenditure to acquire, either by
purchase, lease or comparable arrangement, the real property, equipment or
operations of a skilled nursing facility: Provided, That a skilled
nursing facility developed pursuant to subdivision (17) of this section and
subsequently acquired pursuant to this subdivision may not transfer or sell any
of the skilled nursing home beds of the acquired skilled nursing facility until
the skilled nursing facility has been in operation for at least ten years.
(5) Shared health services between two or more hospitals licensed
in West Virginia providing health services made available through existing
technology that can reasonably be mobile. This exemption does not include
providing mobile cardiac catheterization;
(6) The acquisition, development or establishment of a certified
interoperable electronic health record or electronic medical record system;
(7) The addition of forensic beds in a health care facility;
(8) A behavioral health service selected by the Department of
Health and Human Resources in response to its request for application for
services intended to return children currently placed in out-of-state
facilities to the state or to prevent placement of children in out-of-state
facilities is not subject to a certificate of need;
(9) The replacement of major medical equipment with like
equipment, only if the replacement major medical equipment cost is more than
the expenditure minimum;
(10) Renovations within a hospital, only if the renovation cost is
more than the expenditure minimum. The renovations may not expand the health
care facility’s current square footage, incur a substantial change to the
health services, or a substantial change to the bed capacity;
(11) Renovations to a skilled nursing facility;
(12) The donation of major medical equipment to replace like
equipment for which a certificate of need has been issued and the replacement
does not result in a substantial change to health services. This exemption does
not include the donation of major medical equipment made to a health care
facility by a related organization;
(13) A person providing specialized foster care personal care
services to one individual and those services are delivered in the provider’s
home;
(14) A hospital converting the use of beds except a hospital may
not convert a bed to a skilled nursing home bed and conversion of beds may not
result in a substantial change to health services provided by the hospital;
(15) The construction, renovation, maintenance or operation of a
state owned veterans skilled nursing facilities established pursuant to the
provisions of article one-b of this chapter;
(16) To develop and operate a skilled nursing facility with no
more than thirty-six beds in a county that currently is without a skilled
nursing facility;
(17) A critical access hospital, designated by the state as a
critical access hospital, after meeting all federal eligibility criteria,
previously licensed as a hospital and subsequently closed, if it reopens within
ten years of its closure;
(18) The establishing of a heath care facility or offering of
health services for children under one year of age suffering from Neonatal
Abstinence Syndrome;
(19) The construction, development, acquisition or other
establishment of community mental health and intellectual disability facility;
(20) Providing behavioral health facilities and services;
(21) The construction, development, acquisition or other
establishment of kidney disease treatment centers, including freestanding
hemodialysis units but only to a medically underserved population;
(22) The transfer, purchase or sale of intermediate care or
skilled nursing beds from a skilled nursing facility or a skilled nursing unit
of an acute care hospital to a skilled nursing facility providing intermediate
care and skilled nursing services. The Department of Health and Human
Resources may not create a policy which limits the transfer, purchase or sale
of intermediate care or skilled nursing beds from a skilled nursing facility or
a skilled nursing unit of an acute care hospital. The transferred beds shall
retain the same certification status that existed at the nursing home or hospital
skilled nursing unit from which they were acquired. If construction is
required to place the transferred beds into the acquiring nursing home, the
acquiring nursing home has one year from the date of purchase to commence
construction;
(23) The construction, development, acquisition or other
establishment by a health care facility of a nonhealth related project, only if
the nonhealth related project cost is more than the expenditure minimum;
(24) The construction, development, acquisition or other establishment
of an alcohol or drug treatment facility and drug and alcohol treatment
services unless the construction, development, acquisition or other
establishment is an opioid treatment facility or programs as set forth in
subdivision (4) of section nine of this article;
(25) Assisted living facilities and services;
(26) The creation, construction, acquisition or expansion of a
community-based nonprofit organization with a community board that provides or
will provide primary care services to people without regard to ability to pay
and receives approval from the Health Resources and Services Administration;
and
(27) The acquisition and utilization of one computed tomography
scanner and/or one magnetic resonance imaging scanner with a purchase price of
up to $750,000 by a hospital.
Adopted
Rejected