Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                Introduced Senate Bill 612
          By Senators Barrett and Rucker [Introduced February 13, 2023; referred to the Committee on Health and Human Resources]
     Intr SB 612                                                                                  2023R3653
  A BILL to amend and reenact §16-2D-8 and §16-2D-11 of the Code of West Virginia, as amended;
              and to amend said code by adding thereto a new section, designated §16-2D-11a, all
              relating to certificate of need; eliminating birthing centers as a service that requires a
              certificate of need; eliminating ambulatory care centers as a service that requires a
              certificate of need; eliminating ambulatory surgery centers as a service that requires a
              certificate of need; eliminating birthing centers as having an exemption; creating a pilot
              project for MRI and CT services; requiring the board make a recommendation to the
              Legislature regarding the pilot; and providing that if no such recommendation is made, the
              pilot will become permanent.
     Be it enacted by the Legislature of West Virginia:
     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, 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
                                                           1
     Intr SB 612                                                                                2023R3653
 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
                                                         2
     Intr SB 612                                                                           2023R3653
 the minimum expenditure:
         (1) Constructing, developing, acquiring, or establishing a birthing center;
         (2) (1) Providing radiation therapy;
         (3) (2) Providing computed tomography;
         (4) (3) Providing positron emission tomography;
         (5) (4) Providing cardiac surgery;
         (6) (5) Providing fixed magnetic resonance imaging;
         (7) (6) Providing comprehensive medical rehabilitation;
         (8) Establishing an ambulatory care center;
         (9) Establishing an ambulatory surgical center;
         (10) (7) Providing diagnostic imaging;
         (11) (8) Providing cardiac catheterization services;
         (12) (9) Constructing, developing, acquiring, or establishing kidney disease treatment
 centers, including freestanding hemodialysis units;
         (13) (10) Providing megavoltage radiation therapy;
         (14) (11) Providing surgical services;
         (15) (12) Establishing operating rooms;
         (16) (13) Adding acute care beds;
         (17) (14) Providing intellectual developmental disabilities services;
         (18) (15) Providing organ and tissue transplants;
         (19) (16) Establishing an intermediate care facility for individuals with intellectual
 disabilities;
         (20) (17) Providing inpatient services;
         (21) (18) Providing hospice services;
         (22) (19) Establishing a home health agency;
         (23) (20) Providing personal care services; and
                                                       3
     Intr SB 612                                                                               2023R3653
         (24) (21) (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
                                                       4
     Intr SB 612                                                                             2023R3653
 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-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
                                                       5
     Intr SB 612                                                                               2023R3653
 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) (2) (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) (3) 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
                                                        6
     Intr SB 612                                                                               2023R3653
 in operation for at least ten years.
         (5) (4) 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) (5) The acquisition, development or establishment of a certified interoperable electronic
 health record or electronic medical record system;
         (7) (6) The addition of forensic beds in a health care facility;
         (8) (7) 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) (8) The replacement of major medical equipment with like equipment, only if the
 replacement major medical equipment cost is more than the expenditure minimum;
         (10) (9) 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) (10) Renovations to a skilled nursing facility;
         (12) (11) 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) (12) A person providing specialized foster care personal care services to one
 individual and those services are delivered in the provider’s home;
         (14) (13) 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
                                                          7
     Intr SB 612                                                                                  2023R3653
 services provided by the hospital;
         (15) (14) 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) (15) 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) (16) 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) (17) 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) (18) The construction, development, acquisition or other establishment of community
 mental health and intellectual disability facility;
         (20) (19) Providing behavioral health facilities and services;
         (21) (20) The construction, development, acquisition or other establishment of kidney
 disease treatment centers, including freestanding hemodialysis units but only to a medically
 underserved population;
         (22) (21) 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;
                                                           8
      Intr SB 612