Bill Text: WV HB2523 | 2018 | Regular Session | Introduced
Bill Title: Eliminating the certificate of need program
Sponsorship: Partisan Bill (Republican 7)
Status: (Introduced - Dead) 2018-01-10 - To House Health and Human Resources [HB2523 Detail]
Download: West_Virginia-2018-HB2523-Introduced.html
FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
Referred to the Committee on Health and Human Resources then the Judiciary.
A BILL to repeal §9-5-19 of
the Code of West Virginia,1931, as amended; to repeal §16-2D-2, §16-2D-3, §16-2D-4,
§16-2D-5, §16-2D-5c; §16-2D-5f; §16-2D-6, §16-2D-7, §16-2D-8, §16-2D-9, §16-2D-10,
§16-2D-11, §16-2D-12, §16-2D-13, §16-2D-14, §16-2D-15, §16-2D-16, §16-2D-17, §16-2D-18,
§16-2D-19, §16-2D-20 of said code; to repeal §16-2N-3 of said code; to repeal §16-5Y-12
of said code; to repeal §16-29A-20 of said code; to repeal §49-2-124 of said
code; to amend and reenact §16-2D-1 of said code; to amend and reenact §16-2E-2
of said code; to amend and reenact §16-5Y-3 and §16-5Y-4 of said code; to amend
and reenact §16-29B-1, §16-29B-3, §16-29B-8, §16-29B-11 and §16-29B-28 of said
code; and to amend and reenact §33-15B-5 of said code, all relating to eliminating
the certificate of need program and deleting references to the certificate of
need program throughout the code.
Be it enacted by the
Legislature of West Virginia:
That §9-5-19 of the
Code of West Virginia,1931, as amended, be repealed; that §16-2D-2, §16-2D-3, §16-2D-4,
§16-2D-5, §16-2D-5c; §16-2D-5f; §16-2D-6, §16-2D-7, §16-2D-8, §16-2D-9, §16-2D-10,
§16-2D-11, §16-2D-12, §16-2D-13, §16-2D-14, §16-2D-15, §16-2D-16, §16-2D-17, §16-2D-18,
§16-2D-19 and §16-2D-20 of said code be repealed; that §16-2N-3 of said code be
repealed; that §16-5Y-12 of said code be repealed; that §16-29A-20 of said code
be repealed; that §49-2-124 of said code be repealed; that §16-2D-1 of said
code be amended and reenacted; that §16-2E-2 of said code be amended and
reenacted; that §16-5Y-3 and §16-5Y-4 of said code be amended and reenacted;
that §16-29B-1, §16-29B-3, §16-29B-8, §16-29B-11 and §16-29B-28 of said code be
amended and reenacted; and that §33-15B-5 of said code be amended and reenacted,
all to read as follows:
CHAPTER 16. PUBLIC
HEALTH.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-1. Certificate
of need program terminated.
(a) Notwithstanding any
other provision of this code, the certificate of need program previously
authorized by this article is terminated.
A health care facility may not be required to obtain a certificate of
need or similar authorization before operating in this state.
(b) All of the
authority’s rules previously promulgated pursuant to this article that are not
in conflict with the provisions of this section shall remain in effect until the
authority promulgates new rules pursuant to section eleven, article twenty-nine-b,
chapter sixteen of this code.
(c) For the purposes of
this section, “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.
ARTICLE 2E. BIRTHING
CENTERS.
§16-2E-2. Birthing
centers to obtain license, application, fees, suspension, or revocation.
No person, partnership,
association or corporation, or any local governmental unit or any division,
department, board or agency thereof may operate a birthing center unless such
operation shall have been approved and licensed by the state director of health
in accordance with the provisions of this article and the rules and regulations
lawfully promulgated hereunder. provided that all birthing centers which are
in operation or which have received a certificate of need valid as of the date
of passage of this act shall be deemed to have been so approved and shall be issued
a license within thirty days of passage of this act
Any person, partnership,
association or corporation, or any local governmental unit or any division,
department, board or agency thereof desiring a license hereunder shall file
with the department of health an application in such form as the department
shall prescribe and furnish accompanied by a fee of $10. Information received
by the department of health under the provisions of this section shall be
confidential. The director of health is authorized to issue licenses for the
operation of birthing centers which are found to comply with the provisions of
this article and with all rules and regulations promulgated by the department.
The license issued shall not be transferred or assignable. The director of
health is authorized to suspend or revoke a license issued hereunder if the
provisions of this article or of the rules and regulations are violated.
Before any such license is
suspended or revoked, however, written notice shall be given the licensee,
stating the grounds of the complaint, and the date, time and place set for the
hearing on the complaint, which date shall not be less than thirty days from
the time notice is given. Such notice shall be sent by registered mail to the
licensee at the address where the institution concerned is located. The
licensee shall be entitled to be represented by legal counsel at the hearing.
If a license is revoked as
herein provided, a new application for a license shall be considered by the
director of health if, when and after, the conditions upon which revocation was
based have been corrected and evidence of this fact has been furnished. A new
license shall then be granted after proper inspection has been made and all
provisions of this article and rules and regulations promulgated hereunder have
been satisfied.
All of the pertinent
provisions of article five, chapter twenty-nine-a of this code shall apply to
and govern any hearing authorized and required by the provisions of this
article and the administrative procedure in connection with and following any
such hearing, with like effect as if the provisions of said article five were
set forth in extenso in this section.
The court shall have the
power to affirm, modify or reverse the decision of the department and either
the applicant or licensee or the department may appeal from the court's
decision to the Supreme Court of Appeals. Pending the final disposition of the
matter the status quo of the applicant or licensee shall be preserved.
Any applicant or licensee
who is dissatisfied with the decision of the State Department of Health as a
result of the hearing provided in this section may, within thirty days after
receiving notice of the decision, appeal to the circuit court, in term or in
vacation, of the county in which the applicant or licensee is located for
judicial review of the decision.
Article 5Y. medication-assisted treatment PROGRAM
licensing act.
§16-5Y-3. Opioid
treatment programs to obtain license; application; fees and inspections.
(a) No person, partnership, association or corporation may
operate an opioid treatment program without first obtaining a license from the
secretary in accordance with the provisions of this article and the rules
lawfully promulgated pursuant to this article.
(b) Any
person, partnership, association or corporation desiring a license to operate
an opioid treatment program in this state shall file with the Office of Health
Facility Licensure and Certification an application in such form and with such
information as the secretary shall prescribe and furnish accompanied by an
application fee.
(c) The
Director of the Office of Health Facility Licensure and Certification or his or
her designee shall inspect each facility and review all documentation submitted
with the application. The director shall
then provide a recommendation to the secretary whether to approve or deny the
application for a license. The secretary shall issue a license if the facility
is in compliance with the provisions of this article and with the rules
lawfully promulgated pursuant to this article.
(d) A license shall be issued in one of three categories:
(1) An initial twelve-month license shall be issued to an
opioid treatment program establishing a new program or service for which there
is insufficient consumer participation to demonstrate substantial compliance
with this article and with all rules promulgated pursuant to this article;
(2) A provisional license shall be issued when an opioid
treatment program seeks a renewal license, or is an existing program as of the
effective date of this article and is seeking an initial license, and the
opioid treatment program is not in substantial compliance with this article and
with all rules promulgated pursuant to this article, but does not pose a
significant risk to the rights, health and safety of a consumer. It shall expire not more than six months from
the date of issuance, and may not be consecutively reissued; or
(3) A renewal license shall be issued when an opioid
treatment program is in substantial compliance with this article and with all
rules promulgated pursuant to this article. A renewal license shall expire not
more than one year from the date of issuance.
(e) At
least sixty days prior to the license expiration date, an application for
renewal shall be submitted by the opioid treatment program to the secretary on
forms furnished by the secretary. A
license shall be renewed if the secretary determines that the applicant is in
compliance with this article and with all rules promulgated pursuant to this
article. A license issued to one program
location pursuant to this article is not transferrable or
assignable. Any change of ownership of a
licensed medication-assisted treatment program requires submission of a new
application. The medication-assisted treatment program shall notify the
secretary of any change in ownership within ten days of the change and must
submit a new application within the time frame prescribed by the secretary.
(f) Any person, partnership, association or corporation that
seeks to obtain or renew a license for an opioid treatment program in this
state must submit to the secretary the following documentation:
(1) Full operating name of the program as advertised;
(2) Legal
name of the program as registered with the West Virginia Secretary of State;
(3)
Physical address of the program;
(4)
Preferred mailing address for the program;
(5) Email
address to be used as the primary contact for the program;
(6)
Federal Employer Identification Number assigned to the program;
(7) All
business licenses issued to the program by this state, the state Tax
Department, the Secretary of State and all other applicable business entities;
(8) Brief
description of all services provided by the program;
(9) Hours
of operation;
(10) Legal
Registered Owner Name – name of the person registered as the legal owner of the
program. If more than one legal owner (i.e., partnership, corporation,
etc.) list each legal owner separately, indicating the percentage of ownership;
(11)
Medical director’s full name, medical license number, Drug Enforcement
Administration registration number, and a list of all current certifications;
(12) For
each employee of the program, provide the following:
(A)
Employee’s role and occupation within the program;
(B) Full
legal name;
(C)
Medical license, if applicable;
(D) Drug
Enforcement Administration registration number, if applicable;
(E) Drug
Enforcement Administration identification number to prescribe buprenorphine for
addiction, if applicable; and
(F) Number
of hours per week worked at program;
(13) Name
and location address of all programs owned or operated by the applicant;
(14)
Notarized signature of applicant;
(15) Check
or money order for licensing fee and inspection fee;
(16)
Verification of education and training for all physicians, counselors and
social workers practicing at or used by referral by the program such as
fellowships, additional education, accreditations, board certifications and
other certifications; and
(17) Board
of Pharmacy Controlled Substance Prescriber Report for each prescriber
practicing at the program for the three months preceding the date of
application. and
(18) If
applicable, a copy of a valid Certificate of Need or a letter of exemption from
the West Virginia Health Care Authority
(g)
Upon satisfaction that an applicant has met all of the requirements of this
article, the secretary shall issue a license to operate an opioid treatment
program. An entity that obtains this
license may possess, have custody or control of, and dispense drugs indicated
and approved by the United States Food and Drug Administration for the
treatment of substance use disorders.
(h) The opioid treatment program shall display the current
license in a prominent location where services are provided and in clear view
of all patients.
(i) The secretary or his or her designee shall
inspect on a periodic basis all opioid treatment programs that are subject to
this article and all rules adopted pursuant to this article to ensure continued
compliance.
(j) Any license in effect
at the time of the passage of this section in the 2016 regular session of the
Legislature shall remain in effect until such time as new legislative rules
promulgated pursuant to this article become effective. Upon the effective date of the new rules any
licensee shall file for a new license within six months pursuant to the
licensing procedures and requirements of this section and the new rules
promulgated hereunder. The existing license shall remain effective until
receipt of the new license.
§16-5Y-4. Office based
medication-assisted treatment programs to obtain registration; application;
fees and inspections.
(a) No person, partnership, association or corporation may
operate an office based medication-assisted treatment program without first
obtaining a registration from the secretary in accordance with the provisions
of this article and the rules lawfully promulgated pursuant to this article.
(b) Any
person, partnership, association or corporation desiring a registration to
operate an office based medication-assisted treatment program in this state
shall file with the office of Health Facility Licensure and Certification an
application in such form and with such information as the secretary shall
prescribe and furnish accompanied by an application fee.
(c) The
Director of the office of Health Facility Licensure and Certification or his or
her designee shall inspect and review all documentation submitted with the
application. The director shall then
provide a recommendation to the secretary whether to approve or deny the
application for registration. The secretary shall issue a registration if the
facility is in compliance with the provisions of this article and with the
rules lawfully promulgated pursuant to this article.
(d) A registration shall be issued in one of three
categories:
(1) An initial twelve-month registration shall be issued to
an office based medication-assisted treatment program establishing a new
program or service for which there is insufficient consumer participation to
demonstrate substantial compliance with this article and with all rules
promulgated pursuant to this article;
(2) A provisional registration shall be issued when an office
based medication-assisted treatment program seeks a renewal registration, or is
an existing program as of the effective date of this article and is seeking an
initial registration, and the office based medication-assisted treatment
program is not in substantial compliance with this article and with all rules
promulgated pursuant to this article, but does not pose a significant risk to
the rights, health and safety of a consumer.
It shall expire not more than six months from the date of issuance, and
may not be consecutively reissued; or
(3) A renewal registration shall be issued when an office
based medication-assisted treatment program is in substantial compliance with
this article and with all rules promulgated pursuant to this article. A renewal
registration shall expire not more than one year from the date of issuance.
(e) At
least sixty days prior to the registration expiration date, an application for
renewal shall be submitted by the office based medication-assisted treatment
program to the secretary on forms furnished by the secretary. A registration shall be renewed if the
secretary determines that the applicant is in compliance with this article and
with all rules promulgated pursuant to this article. A registration issued to one program location
pursuant to this article is not transferrable or assignable. Any change of ownership of a registered
medication-assisted treatment program requires submission of a new application.
The medication-assisted treatment program shall notify the secretary of any
change in ownership within ten days of the change and must submit a new
application within the time frame prescribed by the secretary.
(f) Any person, partnership, association or corporation
seeking to obtain or renew a registration for an office based medication-assisted
treatment program in this state must submit to the secretary the following
documentation:
(1) Full operating name of the program as advertised;
(2) Legal
name of the program as registered with the West Virginia Secretary of State;
(3)
Physical address of the program;
(4)
Preferred mailing address for the program;
(5) Email
address to be used as the primary contact for the program;
(6)
Federal Employer Identification Number assigned to the program;
(7) All
business licenses issued to the program by this state, the state Tax
Department, the Secretary of State and all other applicable business entities;
(8) Brief
description of all services provided by the program;
(9) Hours
of operation;
(10) Legal
Registered Owner Name – name of the person registered as the legal owner of the
program. If more than one legal owner (i.e., partnership, corporation,
etc.) list each legal owner separately, indicating the percentage of ownership;
(11)
Medical director’s full name, medical license number, Drug Enforcement
Administration registration number, and a listing of all current
certifications;
(12) For
each physician, counselor or social worker of the program, provide the
following:
(A)
Employee’s role and occupation within the program;
(B) Full
legal name;
(C)
Medical license, if applicable;
(D) Drug
Enforcement Administration registration number, if applicable;
(E) Drug
Enforcement Administration identification number to prescribe buprenorphine for
addiction, if applicable; and
(F) Number
of hours worked at program per week;
(13) Name
and location address of all programs owned or operated by the applicant;
(14)
Notarized signature of applicant;
(15) Check
or money order for registration fee;
(16)
Verification of education and training for all physicians, counselors and
social workers practicing at or used by referral by the program such as
fellowships, additional education, accreditations, board certifications and
other certifications; and
(17) Board
of Pharmacy Controlled Substance Prescriber Report for each prescriber
practicing at the program for the three months preceding the date of
application. and
(18) If
applicable, a copy of a valid Certificate of Need or a letter of exemption from
the West Virginia Health Care Authority.
(g)
Upon satisfaction that an applicant has met all of the requirements of this
article, the secretary shall issue a registration to operate an office based
medication-assisted treatment program. An entity that obtains this registration
may possess, have custody or control of, and dispense drugs indicated and
approved by the United States Food and Drug Administration for the treatment of
substance use disorders.
(h) The office based medication-assisted treatment program
shall display the current registration in a prominent location where services
are provided and in clear view of all patients.
(i) The secretary or his or her designee shall
perform complaint and verification inspections on all office based medication-assisted
treatment programs that are subject to this article and all rules adopted
pursuant to this article to ensure continued compliance.
(j) Any person,
partnership, association or corporation operating a medication-assisted
treatment program shall be permitted to continue operation until the effective
date of the new rules promulgated pursuant to this article. At that time a person, partnership,
association or corporation shall file for registration within six months
pursuant to the licensing procedures and requirements of this section and the
new rules promulgated hereunder. The existing procedures of the person,
partnership, association or corporation shall remain effective until receipt of
the registration.
ARTICLE 29B. HEALTH CARE AUTHORITY.
§16-29B-1. Legislative
findings; purpose.
The Legislature hereby finds that the
health and welfare of the citizens of this state is being threatened by
unreasonable increases in the cost of health care services, a fragmented system
of health care, lack of integration and coordination of health care services,
unequal access to primary and preventative care, lack of a comprehensive and
coordinated health information system to gather and disseminate data to promote
the availability of cost-effective, high-quality services and to permit
effective health planning and analysis of utilization, clinical outcomes and
cost and risk factors. In order to alleviate these threats: (1) Information on
health care costs must be gathered; and (2) an entity of state government must
be given authority to ensure the containment of health care costs, to gather
and disseminate health care information; to analyze and report on changes in
the health care delivery system as a result of evolving market forces, and to assure that the state health plan certificate
of need program and information systems serve to promote cost containment,
access to care, quality of services and prevention. Therefore, the purpose of
this article is to protect the health and well-being of the citizens of this
state by guarding against unreasonable loss of economic resources as well as to
ensure the continuation of appropriate access to cost-effective, high-quality
health care services.
§16-29B-3. Definitions.
Definitions of words and
terms defined in articles two-d and five-f of this chapter are incorporated in
this section unless this section has different definitions.
As used in this article,
unless a different meaning clearly appears from the context:
(a) "Charges"
means the economic value established for accounting purposes of the goods and
services a hospital provides for all classes of purchasers;
(b) "Class of
purchaser" means a group of potential hospital patients with common
characteristics affecting the way in which their hospital care is financed.
Examples of classes of purchasers are Medicare beneficiaries, welfare
recipients, subscribers of corporations established and operated pursuant to
article twenty-four, chapter thirty-three of this code, members of health
maintenance organizations and other groups as defined by the board;
(c) "Board" means
the three-member board of directors of the West Virginia Health Care Authority,
an autonomous division within the State Department of Health and Human
Resources;
(d) "Health care
provider" means a person, partnership, corporation, facility, hospital or
institution licensed, certified or authorized by law to provide professional
health care service in this state to an individual during this individual's
medical, remedial, or behavioral health care, treatment or confinement. For
purposes of this article, "health care provider" shall not include
the private office practice of one or more health care professionals licensed
to practice in this state pursuant to the provisions of chapter thirty of this
code.
(e) "Hospital"
means a facility subject to licensure as such under the provisions of article
five-b of this chapter, and any acute care facility operated by the state
government which is primarily engaged in providing to inpatients, by or under
the supervision of physicians, diagnostic and therapeutic services for medical
diagnosis, treatment and care of injured, disabled or sick persons, and does
not include state mental health facilities or state long-term care facilities;
(f) "Person"
means an individual, trust, estate, partnership, committee, corporation,
association or other organization such as a joint stock company, a state or
political subdivision or instrumentality thereof or any legal entity recognized
by the state;
(g) "Purchaser"
means a consumer of patient care services, a natural person who is directly or
indirectly responsible for payment for such patient care services rendered by a
health care provider, but does not include third-party payers;
(h) "Rates" means
all value given or money payable to health care providers for health care
services, including fees, charges and cost reimbursements;
(i) "Records"
means accounts, books and other data related to health care 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;
(j) “State health plan”
means a document prepared by the authority that sets forth a strategy for
future health service needs in the state.
(j) (k) "Third-party payor" means any
natural person, person, corporation or government entity responsible for
payment for patient care services rendered by health care providers; and
(k) (l) "Related organization" means an
organization, whether publicly owned, nonprofit, tax-exempt or for profit, related
to a health care provider 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 subsection family
members shall mean brothers and sisters, whether by the whole or half blood,
spouse, ancestors and lineal descendants.
§16-29B-8. Powers
generally; budget expenses of the board.
(a) In addition to the
powers granted to the board elsewhere in this article, the board may:
(1) Adopt, amend and repeal
necessary, appropriate and lawful policy guidelines and rules in accordance
with article three, chapter twenty-nine-a of this code: Provided, That
subsequent amendments and modifications to any rule promulgated pursuant to
this article and not exempt from the provisions of article three, chapter
twenty-nine-a of this code may be implemented by emergency rule;
(2) Hold public hearings,
conduct investigations and require the filing of information relating to
matters affecting the costs of health care services subject to the provisions
of this article and may subpoena witnesses, papers, records, documents and all
other data in connection therewith. The board may administer oaths or
affirmations in any hearing or investigation;
(3) Apply for, receive and
accept gifts, payments and other funds and advances from the United States, the
state or any other governmental body, agency or agencies or from any other
private or public corporation or person (with the exception of hospitals
subject to the provisions of this article, or associations representing them,
doing business in the State of West Virginia, except in accordance with
subsection (c) of this section), and enter into agreements with respect
thereto, including the undertaking of studies, plans, demonstrations or
projects. Any such gifts or payments that may be received or any such
agreements that may be entered into shall be used or formulated only so as to
pursue legitimate, lawful purposes of the board, and shall in no respect inure
to the private benefit of a board member, staff member, donor or contracting
party;
(4) Lease, rent, acquire,
purchase, own, hold, construct, equip, maintain, operate, sell, encumber and
assign rights or dispose of any property, real or personal, consistent with the
objectives of the board as set forth in this article: Provided, That
such acquisition or purchase of real property or construction of facilities
shall be consistent with planning by the State Building Commissioner and
subject to the approval of the Legislature;
(5) Contract and be
contracted with and execute all instruments necessary or convenient in carrying
out the board's functions and duties; and
(6) Exercise, subject to limitations
or restrictions herein imposed, all other powers which are reasonably necessary
or essential to effect the express objectives and purposes of this article.
(b) The board shall
annually prepare a budget for the next fiscal year for submission to the Governor
and the Legislature which shall include all sums necessary to support the
activities of the board and its staff.
(c) Each hospital subject
to the provisions of this article shall be assessed by the board on a pro rata
basis using the net patient revenue, as defined under generally accepted
accounting principles, of each hospital as reported under the authority of
section eighteen of this article as the measure of the hospital's obligation.
The amount of such fee shall be determined by the board except that in no case
shall the hospital's obligation exceed one tenth of one percent of its net
patient revenue. Such fees shall be paid on or before July 1 in each year and shall be paid into the State
Treasury and kept as a special revolving fund designated "health care cost
review fund", with the moneys in such fund being expendable after
appropriation by the Legislature for purposes consistent with this article. Any
balance remaining in said fund at the end of any fiscal year shall not revert
to the treasury, but shall remain in said fund and such moneys shall be
expendable after appropriation by the Legislature in ensuing fiscal years.
(d) Each hospital's
assessment shall be treated as an allowable expense by the board.
(e) The board is empowered
to withhold rate approvals, certificates of need and rural health system
loans and grants if any such fees remain unpaid. unless exempted under
subsection (g), section four, article two-d of this chapter
§16-29B-11. Related programs.
(a) In addition to carrying out its duties under
this article, the board shall carry out its information disclosure functions
has the following powers and duties:
(1) The board may issue
grants and loans to financially vulnerable health care facilities located in
underserved areas that the authority and the office of Community and Rural
Health Services determine are collaborating with other providers in the service
area to provide cost effective health services.
(2) The
board shall review the state health plan and make any amendments and
modifications to each that it may deem necessary, no later than September 1,
2017, and biennially thereafter.
(3) The
board may create a standing advisory committee to advise and assist in amending
the state health plan and performing the state agencies’ responsibilities.
(4) The board shall
perform its information disclosure functions
set forth in article five-f of this chapter. and its functions set forth in
article two-d of this chapter, including health planning, issuing grants and
loans to financially vulnerable health care entities located in underserved
areas, and the review and approval or disapproval of capital expenditures for
health care facilities or services. In making decisions in the certificate of
need review process, the board shall be guided by the state health plan
approved by the Governor
(b) The authority is authorized to propose rules for
legislative approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code, to implement the powers and duties
described in this section.
§16-29B-28. Review of
Cooperative agreements.
(a) Definitions. — As used in this section
the following terms have the following meanings:
(1)
“Academic medical center” means an accredited medical school, one or more
faculty practice plans affiliated with the medical school or one or more
affiliated hospitals which meet the requirements set forth in 42 C. F. R.
411.355(e).
(2)
“Cooperative agreement” means an agreement between a qualified hospital which
is a member of an academic medical center and one or more other hospitals or
other health care providers. The
agreement shall provide for the sharing, allocation, consolidation by merger or
other combination of assets, or referral of patients, personnel, instructional
programs, support services and facilities or medical, diagnostic, or laboratory
facilities or procedures or other services traditionally offered by hospitals
or other health care providers.
(3)
“Commercial health plan” means a plan offered by any third party payor that
negotiates with a party to a cooperative agreement with respect to patient care
services rendered by health care providers.
(4)
“Health care provider” means the same as that term is defined in section three
of this article.
(5)
“Teaching hospital” means a hospital or medical center
that provides clinical education and training to future and current health
professionals whose main building or campus is located in the same county as
the main campus of a medical school operated by a state university.
(6)
“Qualified hospital” means a teaching hospital, which meets the requirements of
42 C. F. R. 411.355(e) and which has entered into a cooperative agreement with
one or more hospitals or other health care providers but is not a critical
access hospital for purposes of this section.
(b) Findings. —
(1) The
Legislature finds that the state’s schools of medicine, affiliated universities
and teaching hospitals are critically important in the training of physicians
and other healthcare providers who practice health care in this state. They provide access to healthcare and enhance
quality healthcare for the citizens of this state.
(2) A
medical education is enhanced when medical students, residents and fellows have
access to modern facilities, state of the art equipment and a full range of
clinical services and that, in many instances, the accessibility to facilities,
equipment and clinical services can be achieved more economically and
efficiently through a cooperative agreement among a teaching hospital and one
or more hospitals or other health care providers.
(c) Legislative purpose. — The Legislature
encourages cooperative agreements if the likely benefits of such agreements
outweigh any disadvantages attributable to a reduction in competition. When a cooperative agreement, and the
planning and negotiations of cooperative agreements, might be anticompetitive
within the meaning and intent of state and federal antitrust laws the
Legislature believes it is in the state’s best interest to supplant such laws
with regulatory approval and oversight by the Health Care Authority as set out
in this article. The authority has the
power to review, approve or deny cooperative agreements, ascertain that they
are beneficial to citizens of the state and to medical education, to ensure
compliance with the provisions of the cooperative agreements relative to the commitments
made by the qualified hospital and conditions imposed by the Health Care
Authority.
(d) Cooperative Agreements. —
(1) A
hospital which is a member of an academic medical center may negotiate and
enter into a cooperative agreement with other hospitals or health care
providers in the state:
(A) In
order to enhance or preserve medical education opportunities through
collaborative efforts and to ensure and maintain the economic viability of
medical education in this state and to achieve the goals hereinafter set forth;
and
(B) When
the likely benefits outweigh any disadvantages attributable to a reduction in
competition that may result from the proposed cooperative agreement.
(2) The
goal of any cooperative agreement would be to:
(A)
Improve access to care;
(B)
Advance health status;
(C) Target
regional health issues;
(D)
Promote technological advancement;
(E) Ensure
accountability of the cost of care;
(F)
Enhance academic engagement in regional health;
(G)
Preserve and improve medical education opportunities;
(H)
Strengthen the workforce for health-related careers; and
(I)
Improve health entity collaboration and regional integration, where
appropriate.
(3) A
qualified hospital located in this state may submit an application for approval
of a proposed cooperative agreement to the authority. The application shall state in detail the
nature of the proposed arrangement including the goals and methods for
achieving:
(A)
Population health improvement;
(B)
Improved access to health care services;
(C)
Improved quality;
(D) Cost
efficiencies;
(E)
Ensuring affordability of care;
(F)
Enhancing and preserving medical education programs; and
(G)
Supporting the authority’s goals and strategic mission, as applicable.
(4) (A)
If the cooperative agreement involves a combination of hospitals through
merger, consolidation or acquisition, the qualified hospital must have been
awarded a certificate of need for the project by the authority, as set forth in
article two-d of this chapter prior to submitting an application for review of
a cooperative agreement
(B) In
addition to a certificate of need The authority may also require that an application
for review of a cooperative agreement as provided in this section be submitted
and approved prior to the finalization of the cooperative agreement, if the
cooperative agreement involves the merger, consolidation or acquisition of a
hospital located within a distance of twenty highway miles of the main campus
of the qualified hospital, and the authority shall have determined that
combination is likely to produce anti-competitive effects due to a reduction of
competition. Any such determination shall be communicated to the parties to the
cooperative agreement within seven days from approval of a certificate of need
for the project.
(C) In
reviewing an application for cooperative agreement, the authority shall give
deference to the policy statements of the Federal Trade Commission.
(D) If an
application for a review of a cooperative agreement is not required by the
authority, the parties to the agreement may then complete the transaction.
following a final order by the authority on the certificate of need as
set forth in article two-d of this code. The qualified hospital may apply
to the authority for approval of the cooperative agreement either before or
after the finalization of the cooperative agreement.
(E) A party who has received a certificate of
need prior to the enactment of this provision during the 2016 regular session
of the Legislature may apply for approval of a cooperative agreement whether or
not the transaction contemplated thereby has been completed.
(F) The complete record in the certificate of
need proceeding shall be part of the record in the proceedings under this
section and information submitted by an applicant in the certificate of need
proceeding need not be duplicated in proceedings under this section
(e) Procedure for review of cooperative
agreements. —
(1) Upon
receipt of an application, the authority shall determine whether the
application is complete. If the authority determines the application is
incomplete, it shall notify the applicant in writing of additional items
required to complete the application. A copy of the complete application shall
be provided by the parties to the office of the Attorney General simultaneous
with the submission to the authority. If
an applicant believes the materials submitted contain proprietary information
that is required to remain confidential, such information must be clearly
identified and the applicant shall submit duplicate applications, one with full
information for the authority’s use and one redacted application available for
release to the public.
(2) The
authority shall upon receipt of a completed application, publish notification
of the application on its website as well as provide notice of such application
placed in the State Register. The public may submit written comments regarding
the application within ten days following publication. Following the close of
the written comment period, the authority shall review the application as set
forth in this section. Within thirty
days of the receipt of a complete application the authority may:
(i) Issue
a certificate of approval which shall contain any conditions the authority
finds necessary for the approval;
(ii) Deny the application; or
(iii)
Order a public hearing if the authority finds it necessary to make an informed
decision on the application.
(3) The
authority shall issue a written decision within seventy-five days from receipt
of the completed application. The authority may request additional information
in which case they shall have an additional fifteen days following receipt of
the supplemental information to approve or deny the proposed cooperative
agreement.
(4) Notice
of any hearing shall be sent by certified mail to the applicants and all
persons, groups or organizations who have submitted written comments on the
proposed cooperative agreement. as well as to all persons, groups or
organizations designated as affected parties in the certificate of need
proceeding Any individual, group or organization who submitted written
comments regarding the application and wishes to present evidence at the public
hearing shall request to be recognized as an affected party as set forth in
article two-d of this chapter. The hearing shall be held no later than forty-five
days after receipt of the application. The authority shall publish notice of
the hearing on the authority’s website fifteen days prior to the hearing. The
authority shall additionally provide timely notice of such hearing in the State
Register.
(5) Parties may file a motion for an expedited
decision.
(f) Standards
for review of cooperative agreements. —
(1) In its
review of an application for approval of a cooperative agreement submitted
pursuant to this section, the authority may consider the proposed cooperative
agreement and any supporting documents submitted by the applicant, any written
comments submitted by any person and any written or oral comments submitted, or
evidence presented, at any public hearing.
(2) The
authority shall consult with the Attorney General of this state regarding his
or her assessment of whether or not to approve the proposed cooperative
agreement.
(3) The
authority shall approve a proposed cooperative agreement and issue a
certificate of approval if it determines, with the written concurrence of the
Attorney General, that the benefits likely to result from the proposed cooperative
agreement outweigh the disadvantages likely to result from a reduction in
competition from the proposed cooperative agreement.
(4) In
evaluating the potential benefits of a proposed cooperative agreement, the
authority shall consider whether one or more of the following benefits may
result from the proposed cooperative agreement:
(A)
Enhancement and preservation of existing academic and clinical educational
programs;
(B)
Enhancement of the quality of hospital and hospital-related care, including
mental health services and treatment of substance abuse provided to citizens
served by the authority;
(C)
Enhancement of population health status consistent with the health goals
established by the authority;
(D)
Preservation of hospital facilities in geographical proximity to the
communities traditionally served by those facilities to ensure access to care;
(E) Gains in the cost-efficiency of services
provided by the hospitals involved;
(F) Improvements in the utilization of hospital
resources and equipment;
(G) Avoidance of duplication of hospital
resources;
(H)
Participation in the state Medicaid program; and
(I)
Constraints on increases in the total cost of care.
(5) The
authority’s evaluation of any disadvantages attributable to any reduction in
competition likely to result from the proposed cooperative agreement shall
include, but need not be limited to, the following factors:
(A) The
extent of any likely adverse impact of the proposed cooperative agreement on
the ability of health maintenance organizations, preferred provider
organizations, managed health care organizations or other health care payors to
negotiate reasonable payment and service arrangements with hospitals,
physicians, allied health care professionals or other health care providers;
(B) The
extent of any reduction in competition among physicians, allied health
professionals, other health care providers or other persons furnishing goods or
services to, or in competition with, hospitals that is likely to result
directly or indirectly from the proposed cooperative agreement;
(C) The
extent of any likely adverse impact on patients in the quality, availability
and price of health care services; and
(D) The
availability of arrangements that are less restrictive to competition and
achieve the same benefits or a more favorable balance of benefits over
disadvantages attributable to any reduction in competition likely to result
from the proposed cooperative agreement.
(6) (A)
After a complete review of the record, including, but not limited to, the factors
set out in subsection (e) of this section, any commitments made by the
applicant or applicants and any conditions imposed by the authority, if the
authority determines that the benefits likely to result from the proposed
cooperative agreement outweigh the disadvantages likely to result from a
reduction in competition from the proposed cooperative agreement, the authority
shall approve the proposed cooperative agreement.
(B) The
authority may reasonably condition approval upon the parties’ commitments to:
(i)
Achieving improvements in population health;
(ii)
Access to health care services;
(iii)
Quality and cost efficiencies identified by the parties in support of their
application for approval of the proposed cooperative agreement; and
(iv) Any additional commitments made by the
parties to the cooperative agreement.
Any
conditions set by the authority shall be fully enforceable by the
authority. No condition imposed by the
authority, however, shall limit or interfere with the right of a hospital to adhere
to religious or ethical directives established by its governing board.
(7) The
authority’s decision to approve or deny an application shall constitute a final
order or decision pursuant to the West Virginia Administrative Procedure Act (§29A-1-1, et seq.). The authority may enforce commitments and
conditions imposed by the authority in the circuit court of Kanawha County or
the circuit court where the principal place of business of a party to the
cooperative agreement is located.
(g) Enforcement and supervision of cooperative agreements. — The
authority shall enforce and supervise any approved cooperative agreement for
compliance.
(1) The
authority is authorized to promulgate legislative rules in furtherance of this
section. Additionally, the authority
shall promulgate emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code to accomplish the goals of
this section. These rules shall include, at a minimum:
(A) An
annual report by the parties to a cooperative agreement. This report is required to include:
(i)
Information about the extent of the benefits realized and compliance with other
terms and conditions of the approval;
(ii) A
description of the activities conducted pursuant to the cooperative agreement,
including any actions taken in furtherance of commitments made by the parties
or terms imposed by the authority as a condition for approval of the
cooperative agreement;
(iii)
Information relating to price, cost, quality, access to care and population
health improvement;
(iv)
Disclosure of any reimbursement contract between a party to a cooperative
agreement approved pursuant to this section and a commercial health plan or
insurer entered into subsequent to the finalization of the cooperative
agreement. This shall include the
amount, if any, by which an increase in the average rate of reimbursement
exceeds, with respect to inpatient services for such year, the increase in the
Consumer Price Index for all Urban Consumers for hospital inpatient services as
published by the Bureau of Labor Statistics for such year and, with respect to
outpatient services, the increase in the Consumer Price Index for all Urban
Consumers for hospital outpatient services for such year; and
(v) Any
additional information required by the authority to ensure compliance with the
cooperative agreement.
(B) If an
approved application involves the combination of hospitals, disclosure of the
performance of each hospital with respect to a representative sample of quality
metrics selected annually by the authority from the most recent quality metrics
published by the Centers for Medicare and Medicaid Services. The representative
sample shall be published by the authority on its website.
(C) A
procedure for a corrective action plan where the average performance score of
the parties to the cooperative agreement in any calendar year is below the
fiftieth percentile for all United States hospitals with respect to the quality
metrics as set forth in (B) of this subsection. The corrective action plan is
required to:
(i) Be submitted one hundred twenty days from the
commencement of the next calendar year; and
(ii)
Provide for a rebate to each commercial health plan or insurer with which they
have contracted an amount not in excess of one percent of the amount paid to
them by such commercial health plan or insurer for hospital services during
such two-year period if in any two consecutive-year period the average
performance score is below the fiftieth percentile for all United States
hospitals. The amount to be rebated shall be reduced by the amount of any
reduction in reimbursement which may be imposed by a commercial health plan or
insurer under a quality incentive or awards program in which the hospital is a
participant.
(D) A procedure where if the excess above the
increase in the Consumer Price Index for all Urban Consumers for hospital
inpatient services or hospital outpatient services is two percent or greater
the authority may order the rebate of the amount which exceeds the respective
indices by two percent or more to all health plans or insurers which paid such
excess unless the party provides written justification of such increase
satisfactory to the authority taking into account case mix index, outliers and
extraordinarily high cost outpatient procedure utilizations.
(E) The
ability of the authority to investigate, as needed, to ensure compliance with
the cooperative agreement.
(F) The
ability of the authority to take appropriate action, including revocation of a
certificate of approval, if it determines that:
(i) The
parties to the agreement are not complying with the terms of the agreement or
the terms and conditions of approval;
(ii) The
authority’s approval was obtained as a result of an intentional material
misrepresentation;
(iii) The
parties to the agreement have failed to pay any required fee; or
(iv) The
benefits resulting from the approved agreement no longer outweigh the
disadvantages attributable to the reduction in competition resulting from the
agreement.
(G) If the
authority determines the parties to an approved cooperative agreement have
engaged in conduct that is contrary to state policy or the public interest,
including the failure to take action required by state policy or the public
interest, the authority may initiate a proceeding to determine whether to
require the parties to refrain from taking such action or requiring the parties
to take such action, regardless of whether or not the benefits of the
cooperative agreement continue to outweigh its disadvantages. Any determination
by the authority shall be final. The
authority is specifically authorized to enforce its determination in the
circuit court of Kanawha County or the circuit court where the principal place
of business of a party to the cooperative agreement is located.
(H) Fees
as set forth in subsection (h).
(2) Until
the promulgation of the emergency rules, the authority shall monitor and
regulate cooperative agreements to ensure that their conduct is in the public
interest and shall have the powers set forth in subdivision (1) of this
subsection, including the power of enforcement set forth in paragraph (G),
subdivision (1) of this subsection.
(h) Fees. — The authority may set fees for
the approval of a cooperative agreement. These fees shall be for all reasonable
and actual costs incurred by the authority in its review and approval of any
cooperative agreement pursuant to this section. These fees shall not exceed
$75,000. Additionally, the authority may
assess an annual fee not to exceed $75,000 for the supervision of any
cooperative agreement approved pursuant to this section and to support the
implementation and administration of the provisions of this section.
(i) Miscellaneous provisions. —
(1) (A) An
agreement entered into by a hospital party to a cooperative agreement and any
state official or state agency imposing certain restrictions on rate increases
shall be enforceable in accordance with its terms and may be considered by the
authority in determining whether to approve or deny the application. Nothing in this chapter shall undermine the
validity of any such agreement between a hospital party and the Attorney
General entered before the effective date of this legislation.
(B) At
least ninety days prior to the implementation of any increase in rates for
inpatient and outpatient hospital services and at least sixty days prior to the
execution of any reimbursement agreement with a third party payor, a hospital
party to a cooperative agreement involving the combination of two or more
hospitals through merger, consolidation or acquisition which has been approved
by the authority shall submit any proposed increase in rates for inpatient and
outpatient hospital services and any such reimbursement agreement to the Office
of the West Virginia Attorney General together with such information concerning
costs, patient volume, acuity, payor mix and other data as the Attorney General
may request. Should the Attorney General
determine that the proposed rates may inappropriately exceed competitive rates
for comparable services in the hospital’s market area which would result in
unwarranted consumer harm or impair consumer access to health care, the
Attorney General may request the authority to evaluate the proposed rate
increase and to provide its recommendations to the Office of the Attorney
General. The Attorney General may
approve, reject or modify the proposed rate increase and shall communicate his
or her decision to the hospital no later than thirty days prior to the proposed
implementation date. The hospital may then only implement the increase approved
by the Attorney General. Should the
Attorney General determine that a reimbursement agreement with a third party
payor includes pricing terms at anti-competitive levels, the Attorney General
may reject the reimbursement agreement and communicate such rejection to the
parties thereto together with the rationale therefor in a timely manner.
(2) The
authority shall maintain on file all cooperative agreements the authority has
approved, including any conditions imposed by the authority.
(3) Any
party to a cooperative agreement that terminates its participation in such
cooperative agreement shall file a notice of termination with the authority
thirty days after termination.
(4) No
hospital which is a party to a cooperative agreement for which approval is
required pursuant to this section may knowingly bill or charge for health
services resulting from, or associated with, such cooperative agreement until
approved by the authority. Additionally,
no hospital which is a party to a cooperative agreement may knowingly bill or
charge for health services resulting from, or associated with, such cooperative
agreement for which approval has been revoked or terminated.
(5) By
submitting an application for review of a cooperative agreement pursuant to
this section, the hospitals or health care providers shall be deemed to have
agreed to submit to the regulation and supervision of the authority as provided
in this section.
chapter33. insurance.
ARTICLE 15B. UNIFORM HEALTH CARE ADMINISTRATION ACT.
§33-15B-5. Penalties for violation.
Any person, partnership,
corporation, limited liability company, professional corporation, health care
provider, insurer or other payer, or other entity violating any provision of
this article shall be subject to a fine imposed by the commissioner of not more
than $1000 for each violation. and, in addition to or in lieu of any fine
imposed, the West Virginia Health Care AuthorityHealth Care Authority is
empowered to withhold rate approval or a certificate of need for any health
care provider violating any provision of this article
NOTE: The purpose of this bill is
to terminate the certificate of need program for healthcare facilities and
delete references to the certificate of need program throughout the code.
§16-2D-1 has been completely
rewritten; therefore, it has been completely underscored..
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.
