H. B. 3155
(By Delegates Sobonya, Westfall, Border,
Raines, Arvon, Ashley, R. Smith, Sumner,
Rowan and Householder)
[Introduced
March 25, 2013
; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §16-2D-6 of the Code of West Virginia,
1931, as amended, relating to certificate of need; and
establishing a definition of "no significant additional fiscal
burden" in the minimum criteria for certificate of need
reviews when an application is made by a hospital, nursing
home or other health care facility to provide ventilator
services which have not previously been provided for a nursing
facility bed.
Be it enacted by the Legislature of West Virginia:
That §16-2D-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-6. Minimum criteria for certificate of need reviews.
(a) Except as provided in subsection (f), section nine of this
article, in making its determination as to whether a certificate of
need shall be issued, the state agency shall, at a minimum, consider all of the following criteria that are applicable:
Provided, That the criteria set forth in subsection (f) of this
section apply to all hospitals, nursing homes and health care
facilities when ventilator services are to be provided for any
nursing facility bed:
(1) The relationship of the health services being reviewed to
the state health plan;
(2) The relationship of services reviewed to the long-range
development plan of the person providing or proposing the services;
(3) The need that the population served or to be served by the
services has for the services proposed to be offered or expanded,
and the extent to which all residents of the area, and in
particular low income persons, racial and ethnic minorities, women,
handicapped persons other medically underserved population and the
elderly, are likely to have access to those services;
(4) The availability of less costly or more effective
alternative methods of providing the services to be offered,
expanded, reduced, relocated or eliminated;
(5) The immediate and long-term financial feasibility of the
proposal as well as the probable impact of the proposal on the
costs of and charges for providing health services by the person
proposing the new institutional health service;
(6) The relationship of the services proposed to the existing
health care system of the area in which the services are proposed to be provided;
(7) In the case of When health services are proposed to be
provided, the availability of resources, including health care
providers, management personnel and funds for capital and operating
needs, for the provision of the services proposed to be provided
and the need for alternative uses of these resources as identified
by the state health plan and other applicable plans;
(8) The appropriate and nondiscriminatory utilization of
existing and available health care providers;
(9) The relationship, including the organizational
relationship, of the health services proposed to be provided to
ancillary or support services;
(10) Special needs and circumstances of those entities which
provide a substantial portion of their services or resources, or
both, to individuals not residing in the health service areas in
which the entities are located or in adjacent health service areas.
The entities may include medical and other health professional
schools, multidisciplinary clinics and specialty centers;
(11) In the case of If there is a reduction or elimination of
a service, including the relocation of a facility or a service, the
need that the population presently served has for the service, the
extent to which that need will be met adequately by the proposed
relocation or by alternative arrangements, and the effect of the
reduction, elimination or relocation of the service on the ability of low income persons, racial and ethnic minorities, women,
handicapped persons other medically underserved population and the
elderly, to obtain needed health care;
(12) In the case of When there is a construction project: (A)
The cost and methods of the proposed construction, including the
costs and methods of energy provision; and (B) the probable impact
of the construction project reviewed on the costs of providing
health services by the person proposing the construction project
and on the costs and charges to the public of providing health
services by other persons;
(13) In the case of When health services are proposed to be
provided, the effect of the means proposed for the delivery of
proposed health services on the clinical needs of health
professional training programs in the area in which the services
are to be provided;
(14) In the case of When health services are proposed to be
provided, if the services are to be available in a limited number
of facilities, the extent to which the schools in the area for
health professions will have access to the services for training
purposes;
(15) In the case of When health services are proposed to be
provided, the extent to which the proposed services will be
accessible to all the residents of the area to be served by the
services;
(16) In accordance with section five of this article, the
factors influencing the effect of competition on the supply of the
health services being reviewed;
(17) Improvements or innovations in the financing and delivery
of health services which foster competition, in accordance with
section five of this article, and serve to promote quality
assurance and cost effectiveness;
(18) In the case of When health services or facilities are
proposed to be provided, the efficiency and appropriateness of the
use of existing services and facilities similar to those proposed;
(19) In the case of If existing services or facilities, the
quality of care provided by the services or facilities in the past;
(20) In the case where If an application is made by an
osteopathic or allopathic facility for a certificate of need to
construct, expand or modernize a health care facility, acquire
major medical equipment or add services, the need for that
construction, expansion, modernization, acquisition of equipment or
addition of services shall be considered on the basis of the need
for and the availability in the community of services and
facilities for osteopathic and allopathic physicians and their
patients. The state agency shall consider the application in terms
of its impact on existing and proposed institutional training
programs for doctors of osteopathy and medicine at the student,
internship and residency training levels;
(21) The special circumstances of health care facilities with
respect to the need for conserving energy;
(22) The contribution of the proposed service in meeting the
health-related needs of members of medically underserved
populations which have traditionally experienced difficulties in
obtaining equal access to health services, particularly those needs
identified in the state health plan as deserving of priority. For
the purpose of determining the extent to which the proposed service
will be accessible, the state agency shall consider:
(A) The extent to which medically underserved populations
currently use the applicant's services in comparison to the
percentage of the population in the applicant's service area which
is medically underserved, and the extent to which medically
underserved populations are expected to use the proposed services
if approved;
(B) The performance of the applicant in meeting its
obligation, if any, under any applicable federal regulations
requiring provision of uncompensated care, community service or
access by minorities and handicapped persons to programs receiving
federal financial assistance, including the existence of any civil
rights access complaints against the applicant;
(C) The extent to which Medicare, Medicaid and medically
indigent patients are served by the applicant; and
(D) The extent to which the applicant offers a range of means by which a person will have access to its services, including, but
not limited to, outpatient services, admission by a house staff and
admission by personal physician;
(23) The existence of a mechanism for soliciting consumer
input into the health care facility's decision-making process.
(b) The state agency may include additional criteria which it
prescribes by rules adopted pursuant to section eight of this
article.
(c) Criteria for reviews may vary according to the purpose for
which a particular review is being conducted or the types of health
services being reviewed.
(d) An application for a certificate of need may not be made
subject to any criterion not contained in this article, in rules
adopted pursuant to section eight of this article or in the
certificate of need standards approved pursuant to section five of
this article.
(e) In the case of For any proposed new institutional health
service, the state agency may not grant a certificate of need under
its certificate of need program unless, after consideration of the
appropriateness of the use of existing facilities providing
services similar to those being proposed, the state agency makes,
in addition to findings required in section nine of this article,
each of the following findings in writing: (1) That superior
alternatives to the services in terms of cost, efficiency and appropriateness do not exist and the development of alternatives is
not practicable; (2) that existing facilities providing services
similar to those proposed are being used in an appropriate and
efficient manner; (3) that in the case of new construction,
alternatives to new construction, such as modernization or sharing
arrangements, have been considered and have been implemented to the
maximum extent practicable; (4) that patients will experience
serious problems in obtaining care of the type proposed in the
absence of the proposed new service; and (5) that in the case of a
proposal for the addition of beds for the provision of skilled
nursing or intermediate care services, the addition will be
consistent with the plans of other agencies of the state
responsible for the provision and financing of long-term care
facilities or services including home health services.
(f) In the case where When an application is made by a
hospital, nursing home or other health care facility to provide
ventilator services which have not previously been provided for a
nursing facility bed, the state agency shall consider the
application in terms of the need for the service and whether the
cost exceeds the level of current Medicaid services. No facility
may, by providing ventilator services, provide a higher level of
service for a nursing facility bed without demonstrating that the
change in level of service by provision of the additional
ventilator services will result in no additional fiscal burden to the state.
(g) In the case where When application is made by any person
or entity to provide personal care services which are to be billed
for Medicaid reimbursement, the state agency shall consider the
application in terms of the need for the service and whether the
cost exceeds the level of the cost of current Medicaid services.
No person or entity may provide personal care services to be billed
for Medicaid reimbursement without demonstrating that the provision
of the personal care service will result in no significant
additional fiscal burden to the state: Provided, That a
certificate of need is not required for a person providing
specialized foster care personal care services to one individual
and those services are delivered in the provider's home. The state
agency shall also consider the total fiscal liability to the state
for all applications which have been submitted.
(h) For purposes of subsection (f), "no significant
additional fiscal burden" means cost increase above normal annual
increases in trend for utilization or cost for the state as well as
any projected increase in need due to the aging of the state's
population. In determining significant fiscal burden the bureau
shall consider cost reductions by virtue of avoiding institutional
care. The Bureau of Medical Services may not include administrative
or monitoring expenses when determining significant additional
fiscal burden to the state. If the Bureau for Medical Services believes the applicant's project will result in a significant
additional fiscal burden to the state, then the Bureau for Medical
Services shall submit the findings in writing within thirty days of
the filing of the Certificate of Need applicant and the findings
shall be considered by the agency. If the Bureau for Medical
Services submits findings that the applicant's application will
result in a significant additional fiscal burden, then the Bureau
for Medical Services shall develop and submit the findings without
respect to the type of entity submitting the application.
Notwithstanding any statute, rule or regulation to the contrary,
the agency shall make the determination of need without respect to
the type of entity making such application and shall make the final
of whether the project places no significant additional fiscal
burden on the state based on the evidence presented in the
applicant's filing and other findings presented by the Bureau of
Medical Services and other interested parties and the evidence
gathered during the certificate of need process within the time
frames established by this code.
NOTE: The purpose of this bill is to establish a definition
of "no significant additional fiscal burden" in the minimum
criteria for certificate of need reviews when an application is
made by a hospital, nursing home or other health care facility to
provide ventilator services which have not previously been provided
for a nursing facility bed.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.