(A20, R27, S164)

AN ACT TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY RENAMING ARTICLE 3, CHAPTER 7, TITLE 44 AS THE "STATE HEALTH FACILITY LICENSURE ACT"; BY AMENDING SECTIONS 44-7-110, 44-7-120, 44-7-130, 44-7-150, AND 44-7-320, ALL RELATING TO THE REGULATION OF HEALTH CARE FACILITIES IN THE STATE, SO AS TO ELIMINATE REFERENCES TO CERTIFICATE OF NEED; BY AMENDING SECTION 44-7-160, RELATING TO CERTIFICATE OF NEED REQUIREMENTS, SO AS TO APPLY ONLY TO NURSING HOMES; BY ADDING SECTION 44-7-161 SO AS TO PROVIDE THAT THE MEDICAL UNIVERSITY OF SOUTH CAROLINA MUST APPEAR BEFORE THE JOINT BOND REVIEW COMMITTEE AND OBTAIN APPROVAL FROM THE STATE FISCAL ACCOUNTABILITY AUTHORITY PRIOR TO TAKING CERTAIN ACTIONS; BY ESTABLISHING THE CERTIFICATE OF NEED STUDY COMMITTEE TO ASSESS HEALTH CARE IN RURAL SOUTH CAROLINA; BY ADDING SECTION 44-7-266 SO AS TO REQUIRE AMBULATORY SURGICAL FACILITIES TO PROVIDE UNCOMPENSATED INDIGENT CARE AND FOR OTHER PURPOSES; BY AMENDING SECTION 44-7-170, RELATING TO CERTIFICATE OF NEED EXEMPTIONS, SO AS TO MAKE CONFORMING CHANGES TO CERTAIN EXEMPTIONS; BY AMENDING SECTION 44-7-190, RELATING TO PROJECT REVIEW CRITERIA, SO AS TO REQUIRE THE PRIORITIZATION OF TIMELY ACCESS TO HEALTH CARE SERVICES; BY AMENDING SECTION 44-7-200, RELATING TO THE CERTIFICATE OF NEED APPLICATION PROCESS, SO AS TO CHANGE THE TIMELINE FOR THE APPLICATION PROCESS; AND BY AMENDING SECTIONS 44-7-210 AND 44-7-220, RELATING TO CERTIFICATE OF NEED ADMINISTRATIVE AND JUDICIAL PROCEEDINGS, SO AS TO SHORTEN CERTAIN TIME FRAMES OF THESE PROCEEDINGS AND ELIMINATE THE ROLE OF THE COURT OF APPEALS.

Be it enacted by the General Assembly of the State of South Carolina:

Citation

SECTION 1.A.    (A) Article 3, Chapter 7, Title 44 of the S.C. Code is renamed the "State Health Facility Licensure Act".

B.    Section 44-7-110 of the S.C. Code is amended to read:

Section 44-7-110.    This article may be cited as the "State Health Facility Licensure Act".

Purpose

SECTION 2.    Section 44-7-120 of the S.C. Code is amended to read:

Section 44-7-120.    The purpose of this article is to ensure that high quality services are provided in health facilities in this State. To achieve these purposes, this article requires the licensure of facilities rendering medical, nursing, and other health care.

Definitions

SECTION 3.    Section 44-7-130 of the S.C. Code is amended to read:

Section 44-7-130.    As used in this article:

(1) "Affected person" means the applicant, a person residing within the geographic area served or to be served by the applicant, persons located in the health service area in which the project is to be located and who provide similar services to the proposed project, persons who before receipt by the department of the proposal being reviewed have formally indicated an intention to provide similar services in the future, persons who pay for health services in the health service area in which the project is to be located and who have notified the department of their interest in Certificate of Need applications, the State Consumer Advocate, and the State Ombudsman. Persons from another state who would otherwise be considered "affected persons" are not included unless that state provides for similar involvement of persons from South Carolina in its certificate of need process.

(2) "Ambulatory surgical facility" means a facility organized and administered for the purpose of performing surgical procedures for which patients are scheduled to arrive, receive surgery, and be discharged on the same day. The owner or operator makes the facility available to other providers who comprise an organized professional staff.

(3) "Birthing center" means a facility or other place where human births are planned to occur. This does not include the usual residence of the mother, any facility that is licensed as a hospital, or the private practice of a physician who attends the birth.

(4) "Board" means the State Board of Health and Environmental Control.

(5) "Children, adolescents, and young adults in need of mental health treatment in a residential treatment facility" means a child, adolescent, or young adult under age twenty-one who manifests a substantial disorder of cognitive or emotional process that lessens or impairs to a marked degree that child's, adolescent's, or young adult's capacity either to develop or to exercise age-appropriate or age-adequate behavior including, but not limited to, marked disorders of mood or thought processes; severe difficulties with self-control and judgment, including behavior dangerous to himself or others; and serious disturbances in a child's, adolescent's, or young adult's ability to care for and relate to others.

(6) "Community residential care facility" means a facility which offers room and board and provides a degree of personal assistance for two or more persons eighteen years old or older.

(7) "Competing applicants" means two or more persons or health care facilities as defined in this article who apply for Certificates of Need to provide similar services or facilities in the same service area within a time frame as established by departmental regulations and whose applications, if approved, would exceed the need for services or facilities.

(8) "Crisis stabilization unit facility" means a facility, other than a health care facility, operated by the Department of Mental Health or operated in partnership with the Department of Mental Health that provides a short-term residential program, offering psychiatric stabilization services and brief, intensive crisis services to individuals eighteen and older, twenty-four hours a day, seven days a week.

(9) "Daycare facility for adults" means a facility for adults eighteen years or older that:

(a) offers in a group setting a program of individual and group activities and therapies;

(b) is directed toward providing community-based care for those in need of a supportive setting for less than twenty-four hours a day, in order to prevent unnecessary institutionalization; and

(c) provides a minimum of four and a maximum of fourteen hours of operation a day.

(10) "Department" means the Department of Health and Environmental Control.

(11) "Facility for chemically dependent or addicted persons" means a facility organized to provide outpatient or residential services to chemically dependent or addicted persons and their families based on an individual treatment plan including diagnostic treatment, individual and group counseling, family therapy, vocational and educational development counseling, and referral services.

(12) "Facility wherein abortions are performed" means a facility, other than a hospital, in which any second trimester or five or more first trimester abortions are performed in a month.

(13) "Freestanding emergency service" or "off-campus emergency service" means an extension of an existing hospital emergency department that is intended to provide comprehensive emergency service but does not include a service that does not provide twenty-four hour, seven day per week operation or that is not capable of providing basic services as defined for hospital emergency departments. A service that does not qualify as a freestanding emergency service must not be classified as a freestanding emergency service and must not advertise, or display or exhibit any signs or symbols, that would identify the service as a freestanding emergency service.

(14) "Freestanding or mobile technology" means medical equipment owned or operated by a person other than a health care facility for which the total cost is in excess of that prescribed by regulation and for which specific standards or criteria are prescribed in the State Health Plan.

(15) "Health care facility" means, at a minimum, acute care hospitals, psychiatric hospitals, alcohol and substance abuse hospitals, nursing homes, ambulatory surgical facilities, hospice facilities, radiation therapy facilities, rehabilitation facilities, residential treatment facilities for children and adolescents, intermediate care facilities for persons with intellectual disability, or narcotic treatment programs.

(16) "Health service" means clinically related, diagnostic, treatment, or rehabilitative services and includes alcohol, drug abuse, and mental health services.

(17) "Hospital" means a facility that is organized and administered to provide overnight medical or surgical care or nursing care for an illness, injury, or infirmity and must provide on-campus emergency services; that may provide obstetrical care; and in which all diagnoses, treatment, or care is administered by or under the direction of persons currently licensed to practice medicine, surgery, or osteopathy.

"Hospital" may include a residential treatment facility for children, adolescents, or young adults in need of mental health treatment that is physically a part of a licensed psychiatric hospital. This definition does not include facilities that are licensed by the Department of Social Services. A residential treatment facility for children, adolescents, or young adults in need of mental health treatment that is physically part of a licensed psychiatric hospital is not required to provide on-campus emergency services.

(18) "Intermediate care facility for persons with intellectual disability" means a facility that serves four or more persons with intellectual disability or persons with related conditions and provides health or rehabilitative services on a regular basis to individuals whose mental and physical conditions require services including room, board, and active treatment for their intellectual disability or related conditions.

(19) "Like equipment with similar capabilities" means medical equipment in which functional and technological capabilities are identical to the equipment to be replaced; and the replacement equipment is to be used for the same or similar diagnostic, therapeutic, or treatment purposes as currently in use; and does not constitute a material change in service or a new service.

(20) "Nursing home" means a facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing intermediate or skilled nursing care for persons who are not in need of hospital care.

(21) "Person" means an individual, a trust or estate, a partnership, a corporation including an association, joint stock company, insurance company, and a health maintenance organization, a health care facility, a state, a political subdivision, or an instrumentality including a municipal corporation of a state, or any legal entity recognized by the State.

(22) "Radiation therapy facility" means a person or a health care facility that provides or seeks to provide mega-voltage therapeutic services to patients through the use of high energy radiation.

(23) "Residential treatment facility for children and adolescents" means a facility operated for the assessment, diagnosis, treatment, and care of two or more "children and adolescents in need of mental health treatment" which provides:

(a) a special education program with a minimum program defined by the South Carolina Department of Education;

(b) recreational facilities with an organized youth development program; and

(c) residential treatment for a child or adolescent in need of mental health treatment.

(24) "Solely for research" means a service, procedure, or equipment which has not been approved by the Food and Drug Administration (FDA) but which is currently undergoing review by the FDA as an investigational device. FDA research protocol and any applicable Investigational Device Exemption (IDE) policies and regulations must be followed by a facility proposing a project "solely for research".

Duties, Department of Health and Environmental Control

SECTION 4.        Section 44-7-150 of the S.C. Code is amended to read:

Section 44-7-150.    (A) In carrying out the purposes of this article, the department shall:

(1) require reports and make inspections and investigations as considered necessary;

(2) to the extent that is necessary to effectuate the purposes of this article, enter into agreements with other departments, commissions, agencies, and institutions, public or private;

(3) adopt in accordance with Article I of the Administrative Procedures Act substantive and procedural regulations considered necessary by the department and approved by the board to carry out the department's licensure duties under this article;

(4) accept on behalf of the State and deposit with the State Treasurer, any grant, gift, or contribution made to assist in meeting the cost of carrying out the purpose of this article and expend it for that purpose; and

(5) promulgate regulations, in accordance with the Administrative Procedures Act, that establish fees as authorized by this article.

(B) Fee schedules authorized by Article 3, Chapter 7, Title 44 that are in effect as of January 1, 2023, shall remain in effect until further regulations are promulgated pursuant to Section 44-7-150(5), as amended by this act.

Licensing, grounds for sanctions

SECTION 5.    Section 44-7-320 of the S.C. Code is amended to read:

Section 44-7-320.    (A)(1) The department may deny, suspend, or revoke licenses or assess a monetary penalty, or both, against a person or facility for:

(a) violating a provision of this article or departmental regulations;

(b) engaging in conduct or practices detrimental to the health or safety of patients, residents, clients, or employees of a facility or service. This provision does not refer to health practices authorized by law;

(c) refusing to admit and treat alcoholic and substance abusers, the mentally ill, or persons with intellectual disability, whose admission or treatment has been prescribed by a physician who is a member of the facility's medical staff, or discriminating against alcoholics, the mentally ill, or persons with intellectual disability solely because of the alcoholism, mental illness, or intellectual disability; or

(d) failing to allow a team advocacy inspection of a community residential care facility by the South Carolina Protection and Advocacy System for the Handicapped, Inc., as allowed by law.

(2) Consideration to deny, suspend, or revoke licenses or assess monetary penalties, or both, is not limited to information relating to the current licensing period but includes consideration of all pertinent information regarding the facility and the applicant.

(3) If in the department's judgment conditions or practices exist in a facility that pose an immediate threat to the health, safety, and welfare of the residents, the department immediately may suspend the facility's license and shall contact the appropriate agencies for placement of the residents. Within five calendar days of the suspension a preliminary hearing must be held to determine if the immediate threatening conditions or practices continue to exist. If they do not, the license must be immediately reinstated. Whether the license is reinstated or suspension remains due to the immediate threatening conditions or practices, the department may proceed with the process for permanent revocation pursuant to this section.

(B) Should the department determine to assess a penalty, deny, suspend, or revoke a license, it shall send to the appropriate person or facility, by certified mail, a notice setting forth the particular reasons for the determination. The determination becomes final thirty days after the mailing of the notice, unless the person or facility, within such thirty-day period, requests in writing a contested case hearing before the board, or its designee, pursuant to the Administrative Procedures Act. On the basis of the contested case hearing, the determination involved must be affirmed, modified, or set aside. Judicial review may be sought in accordance with the Administrative Procedures Act.

(C) The penalty imposed by the department for violation of this article or its regulations must be not less than one hundred nor more than five thousand dollars for each violation of any of the provisions of this article. Each day's violation is considered a subsequent offense.

(D) Failure to pay a penalty within thirty days is grounds for suspension, revocation, or denial of a renewal of a license. A license must not be issued, reissued, or renewed until all penalties finally assessed against a person or facility have been paid.

(E) All penalties collected pursuant to this article must be deposited in the state treasury and credited to the general fund of the State.

Certificate of Need requirements

SECTION 6.    Section 44-7-160 of the S.C. Code is amended to read:

Section 44-7-160.    (A) A person or nursing home as defined in this article is required to obtain a Certificate of Need from the department before undertaking any of the following:

(1) the construction or other establishment of a new nursing home;

(2) a change in the existing bed complement of a nursing home through the addition of one or more beds or change in the classification of licensure of one or more beds;

(3) an expenditure by or on behalf of a nursing home in excess of an amount to be prescribed by regulation which, under generally acceptable accounting principles consistently applied, is considered a capital expenditure except those expenditures exempted in Section 44-7-170(B)(1). The cost of any studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the development, acquisition, improvement, expansion, or replacement of any plant or equipment must be included in determining if the expenditure exceeds the prescribed amount;

(4) a capital expenditure by or on behalf of a nursing home which is associated with the addition or substantial expansion of a health service for which specific standards or criteria are prescribed in the South Carolina Health Plan;

(5)