Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
               Introduced Senate Bill 613
              By Senator Maroney [Introduced February 13, 2023; referred to Committee on Health and Human Resources]
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  A BILL to amend and reenact §16-2D-2 and §16-2D-10 of the Code of West Virginia, as amended,
          all relating to certificate of need; defining terms; and providing that hospitals performing
          hospital services are exempt from certificate of need requirements.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 2D. CERTIFICATE OF NEED.
     §16-2D-2.                                                                                Definitions.
          As used in this article:
          (1) "Affected person" means:
          (A) The applicant;
          (B) An agency or organization representing consumers;
          (C) An individual residing within the geographic area but within this state served or to be
  served by the applicant;
          (D) An individual who regularly uses the health care facilities within that geographic area;
          (E) A health care facility located within this state which provide services similar to the
  services of the facility under review and which will be significantly affected by the proposed project;
         (F) A health care facility located within this state which, before receipt by the authority of
 the proposal being reviewed, has formally indicated an intention to provide similar services within
 this state in the future;
         (G) Third-party payors who reimburse health care facilities within this state; or
         (H) An organization representing health care providers;
         (2) "Ambulatory health care facility" means a facility that provides health services to
 noninstitutionalized and nonhomebound persons on an outpatient basis;
         (3) "Ambulatory surgical facility" means a facility not physically attached to a health care
 facility that provides surgical treatment to patients not requiring hospitalization;
         (4) "Applicant" means a person applying for a certificate of need, exemption or
 determination of review;
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           (5) "Authority" means the West Virginia Health Care Authority as provided §16-29B-1 et
 seq. of this code;
           (6) "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;
           (7) "Behavioral health services" means services provided for the care and treatment of
 persons with mental illness or developmental disabilities;
           (8) "Birthing center" means a short-stay ambulatory health care facility designed for low-
 risk births following normal uncomplicated pregnancy;
           (9) "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 the physical area
 immediately adjacent to the hospital’s main buildings, other areas, and structures that are not
 strictly contiguous to the main buildings, but are located within 250 yards of the main buildings;
           (10) "Capital expenditure" means:
           (A) (i) An expenditure made by or on behalf of a health care facility, 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
           (ii) (I) Exceeds the expenditure minimum;
           (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;
           (B) 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
           (C) A series of expenditures, if the sum total exceeds the expenditure minimum and if
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 determined by the authority to be a single capital expenditure subject to review. In making this
 determination, the authority shall consider: Whether the expenditures are for components of a
 system which is required to accomplish a single purpose; 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.
            (11) "Charges" means the economic value established for accounting purposes of the
 goods and services a hospital provides for all classes of purchasers;
            (12) "Community mental health and intellectual disability facility" means a facility which
 provides comprehensive services and continuity of care as emergency, outpatient, partial
 hospitalization, inpatient or consultation and education for individuals with mental illness,
 intellectual disability;
            (13) "Diagnostic imaging" means the use of radiology, ultrasound, mammography;
            (14)   "Drug and Alcohol Rehabilitation Services"    means     a medically or
 psychotherapeutically supervised process for assisting individuals through the processes of
 withdrawal from dependency on psychoactive substances;
            (15) "Expenditure minimum" means the cost of acquisition, improvement, expansion of any
 facility, equipment, or services including the cost of any studies, surveys, designs, plans, working
 drawings, specifications and other activities, including staff effort and consulting at and above $5
 million;
            (16) "Health care facility" means a publicly or privately owned facility, agency or entity that
 offers or provides health services, whether a for-profit or nonprofit entity and whether or not
 licensed, or required to be licensed, in whole or in part;
            (17) "Health care provider" means a person authorized by law to provide professional
 health services in this state to an individual;
            (18) "Health services" means clinically related preventive, diagnostic, treatment or
 rehabilitative services;
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           (19) "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:
           (A) Home health aide services;
           (B) Physical therapy;
           (C) Speech therapy;
           (D) Occupational therapy;
           (E) Nutritional services; or
           (F) Medical social services to persons in their place of residence on a part-time or
 intermittent basis.
           (20) "Hospice" means a coordinated program of home and inpatient care provided directly
 or through an agreement under the direction of a licensed hospice program which provides
 palliative and supportive medical and other health services to terminally ill individuals and their
 families.
           (21) "Hospital" means a facility licensed pursuant to the provisions of §16-5B-1 et seq. of
 this code 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.
           (22) "Hospital services" means inpatient services, out-patient services, emergency room
 services, surgical services, diagnostic and imaging services, and laboratory services provided on
 the hospital’s campus;
           (22) (23) "Intermediate care facility" means an institution that provides health-related
 services to individuals with 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.
           (23) (24) "Like equipment" means medical equipment in which functional and technological
 capabilities are similar to the equipment being replaced; and the replacement equipment is to be
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  used for the same or similar diagnostic, therapeutic, or treatment purposes as currently in use; and
 it does not constitute a substantial change in health service or a proposed health service.
           (24) (25) "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 the expenditure minimum. 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, Section 1861(s) of such act, Title 42 U.S.C. §1395x. 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.
           (25) (26) "Medically underserved population" means the population of an area designated
 by the authority as having a shortage of a specific health service.
           (26) (27) "Nonhealth-related project" means a capital expenditure for the benefit of
 patients, visitors, staff or employees of a health care facility and not directly related to health
 services offered by the health care facility.
           (27) (28) "Offer" means the health care facility holds itself out as capable of providing, or as
 having the means to provide, specified health services.
           (28) (29) "Opioid treatment program" means as that term is defined in §16-5Y-1 et seq. of
 this code.
           (29) (30) "Person" means an individual, trust, estate, partnership, limited liability
 corporation, committee, corporation, governing body, 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.
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            (30) (31) "Personal care agency" means an entity that provides personal care services
 approved by the Bureau of Medical Services.
            (31) (32) "Personal care services" means personal hygiene; dressing; feeding; nutrition;
 environmental support and health-related tasks provided by a personal care agency.
            (32) (33) "Physician" means an individual who is licensed to practice allopathic medicine
 by the board of Medicine or licensed to practice osteopathic medicine by the board of Osteopathic
 Medicine.
            (33) (34) "Proposed health service" means any service as described in section eight of this
 article.
            (34) (35) "Purchaser" means an individual who is directly or indirectly responsible for
 payment of patient care services rendered by a health care provider, but does not include third-
 party payers.
            (35) (36) "Rates" means charges imposed by a health care facility for health services.
            (36) (37) "Records" means accounts, books and other data related to health service costs
 at health care facilities subject to the provisions of this article which do not include privileged
 medical information, individual personal data, confidential information, the disclosure of which is
 prohibited by other provisions of this code and the laws enacted by the federal government, and
 information, the disclosure of which would be an invasion of privacy.
            (37) (38) "Rehabilitation facility" means an inpatient facility licensed in West Virginia
 operated for the primary purpose of assisting in the rehabilitation of disabled persons through an
 integrated program of medical and other services.
            (38) (39) "Related organization" means an organization, whether publicly owned,
 nonprofit, tax-exempt or for profit, related to a health care facility through common membership,
 governing bodies, trustees, officers, stock ownership, family members, partners or limited
 partners, including, but not limited to, subsidiaries, foundations, related corporations and joint
 ventures. For the purposes of this subdivision "family members" means parents, children, brothers
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 and sisters whether by the whole or half blood, spouse, ancestors and lineal descendants.
           (39) (40) "Secretary" means the Secretary of the West Virginia Department of Health and
 Human Resources;
           (40) (41) "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.
           (41) (42) "Standard’’ means a health service guideline developed by the authority and
 instituted under section six.
           (42) (43) "State health plan" means a document prepared by the authority that sets forth a
 strategy for future health service needs in this state.
           (43) (44) "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.
           (44) (45) "Substantial change to the health services" means:
           (A) 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 was first offered; or
           (B) The termination of a health service offered by or on behalf of the facility but does not
 include the termination of ambulance service, wellness centers or programs, adult day care or
 respite care by acute care facilities.
           (45) (46) "Telehealth" means the use of electronic information and telecommunications
 technologies to support long-distance clinical health care, patient and professional health-related
 education, public health and health administration.
           (46) (47) "Third-party payor" means an individual, person, corporation or government
 entity responsible for payment for patient care services rendered by health care providers.
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           (47) (48) "To develop" means to undertake those activities which upon their completion will
 result in the offer of a proposed health service or the incurring of a financial obligation in relation to
 the offering of such a service.
      §16-2D-10. Exemptions from certificate of need.
            Notwithstanding section eight, a person may provide the following health services without
  obtaining a certificate of need or applying to the authority for approval:
            (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