07 LC 33
1720
House
Bill 210
By:
Representative Scott of the
153rd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 31 of the Official Code of Georgia Annotated, relating to health, so
as to provide for extensive revision of the certificate of need program; to
revise and add definitions; to revise the declaration of policy for state health
planning; to revise threshold amounts for expenditures; to revise the
composition and duties of the Health Strategies Council; to revise the duties of
the Department of Community Health; to revise provisions relating to existing
exemptions; to provide for set times to accept applications for capital
projects; to require ambulatory surgical centers to provide indigent care; to
provide for the establishment of minimum quality standards as a consideration
for approval of a certificate of need; to provide for a letter of intent for
proposed new clinical health services; to provide for batching and comparative
review of applications for clinical health services; to provide for intermediate
steps during the application review period for the participation of opposing
parties; to provide for the imposition of a temporary moratorium on the issuance
of certificates of need for new and emerging health care services; to reassign
the hearing functions from the Health Planning Review Board to the Commissioner
of the Department of Community Health; to provide for attorney´s fees to
the prevailing party; to revise provisions relating to judicial review of a
final agency decision; to add grounds for which a certificate of need may be
revoked; to provide that a portion of a certificate of need may be revoked under
certain circumstances; to increase the penalties for services conducted without
a required certificate of need; to provide that applicants for certificates of
need may be required to participate as a provider of medical assistance for
purposes of Medicaid; to add and delete certain exemptions to the certificate of
need requirements; to authorize the Department of Community Health to require
notice and its certification that an activity is exempt from the certificate of
need requirements; to provide for the transfer of certain functions relating to
the state health plan to the Board of Community Health from the Health
Strategies Council; to abolish the Health Planning Review Board; to transfer
pending matters of the Health Planning Review Board to the Commissioner of the
Department of Community Health; to revise a provision relating to application of
review procedures to expenditures under a federal law; to require ambulatory
surgical centers to submit annual reports to the Department of Community Health;
to increase the penalties for untimely and incomplete reports; to transfer
licensing of hospitals and other health care facilities from the Department of
Human Resources to the Department of Community Health; to provide for
transition; to provide for licensure standards on a clinical service level for
hospitals and related institutions; to amend various other titles of the
Official Code of Georgia Annotated so as to revise provisions for purposes of
conformity; to provide for related matters; to provide for an effective date; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
Revision of Certificate of Need Program.
Revision of Certificate of Need Program.
SECTION
1-1.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended by
revising Chapter 6, relating to state health planning and development, as
follows:
"ARTICLE
1
31-6-1.
The
policy of this state and the purposes of this chapter are to ensure
access to
quality health care services and to ensure
that
adequate
health care services and facilities are developed in an orderly and economical
manner and are made available to all citizens and that only those health care
services found to be in the public interest shall be provided in this state. To
achieve
this
such
public policy and
purpose
and
purposes, it is essential that appropriate
health planning activities be undertaken and implemented and that a system of
mandatory review of new institutional health services be provided. Health care
services and facilities should be provided in a manner that avoids unnecessary
duplication of services, that is cost effective,
that provides
quality health care services, and that is
compatible with the health care needs of the various areas and populations of
the state.
31-6-2.
As
used in this chapter, the term:
(1)
'Ambulatory surgical
center
or obstetrical facility' means a public or private facility, not a part of a
hospital, which provides surgical or obstetrical treatment performed under
general or regional anesthesia in an operating room environment to patients not
requiring hospitalization.
(2)
'Application' means a written request for a certificate of need made to the
department, containing such documentation and information as the department may
require.
(3)
'Bed capacity' means space used exclusively for inpatient care, including space
designed or remodeled for inpatient beds even though temporarily not used for
such purposes. The number of beds to be counted in any patient room shall be the
maximum number for which adequate square footage is provided as established by
rules of the
Department
of Human Resources
department,
except that single beds in single rooms shall be counted even if the room
contains inadequate square footage.
(3.1)
'Board' means the Board of Community Health.
(4)
'Certificate of need' means an official determination by the department,
evidenced by certification issued pursuant to an application, that the action
proposed in the application satisfies and complies with the criteria contained
in this chapter and rules promulgated pursuant hereto.
(5)
'Clinical health services' means diagnostic, treatment, or rehabilitative
services provided in a health care facility, or parts of the physical plant
where such services are located in a health care facility, and includes, but is
not limited to, the following: radiology and diagnostic imaging, such as
magnetic resonance imaging and positron emission tomography; radiation therapy;
biliary lithotripsy; surgery; intensive care; coronary care; pediatrics;
gynecology; obstetrics; general medical care; medical/surgical care; inpatient
nursing care, whether intermediate, skilled, or extended care; cardiac
catheterization; open-heart surgery; inpatient rehabilitation; and alcohol, drug
abuse, and mental health services.
(5.1)
'Commissioner' means the Commissioner of the Department of Community
Health.
(6)
'Consumer' means a person who is not employed by any health care facility or
provider and who has no financial or fiduciary interest in any health care
facility or provider.
(6.1)
'Continuing
care retirement community' means an organization which offers a contract to
provide an individual of retirement status, other than an individual related by
consanguinity or affinity to the provider furnishing the care, with board and
lodging, licensed nursing facility care, and medical or other health related
services. These services are provided for at least one year and may be for as
long as the lifetime of the resident.
(6.2)
'Department' means the Department of Community Health established under Chapter
5A of this title.
(7)
'Develop,' with reference to a project, means:
(A)
Constructing, remodeling, installing, or proceeding with a project, or any part
of a project, or a capital expenditure project, the cost estimate for which
exceeds
$900,000.00
$1,750,000.00;
provided, however, that this shall not include costs for parking lots, parking
decks, or other parking facilities;
or
(B)
The expenditure or commitment of funds exceeding $500,000.00 for orders,
purchases, leases, or acquisitions through other comparable arrangements of
major medical equipment.
Notwithstanding
subparagraphs (A) and (B) of this paragraph, the expenditure or commitment or
incurring an obligation for the expenditure of funds to develop certificate of
need applications, studies, reports, schematics, preliminary plans and
specifications, or working drawings or to acquire, develop, or prepare sites
shall not be considered to be the developing of a project.
(7.1)
'Diagnostic, treatment, or rehabilitation center' means any professional or
business undertaking, whether for profit or not for profit, which offers or
proposes to offer any clinical health service in a setting which is not part of
a hospital.
(8)
'Health care facility' means hospitals; other special care units, including but
not limited to podiatric facilities; skilled nursing facilities; intermediate
care facilities; personal care
homes, but
only those that are certified as a provider of medical assistance for Medicaid
purposes pursuant to Article 7 of Chapter 4 of Title
49; ambulatory surgical
centers
or obstetrical facilities; health maintenance organizations; home health
agencies;
and
diagnostic, treatment, or rehabilitation centers, but only to the extent that
subparagraph (G) or (H), or both subparagraphs (G) and (H), of paragraph (14) of
this Code section are applicable thereto;
and
facilities which are devoted to the provision of treatment and rehabilitative
care for periods continuing for 24 hours or longer for persons who have
traumatic brain injury, as defined in Code Section
37-3-1.
(9)
'Health maintenance organization' means a public or private organization
organized under the laws of this state which:
(A)
Provides or otherwise makes available to enrolled participants health care
services, including at least the following basic health care services: usual
physicians´ services, hospitalization, laboratory, X-ray, emergency and
preventive services, and out-of-area coverage;
(B)
Is compensated, except for copayments, for the provision of the basic health
care services listed in subparagraph (A) of this paragraph to enrolled
participants on a predetermined periodic rate basis; and
(C)
Provides physicians´ services primarily:
(i)
Directly through physicians who are either employees or partners of such
organization; or
(ii)
Through arrangements with individual physicians organized on a group practice or
individual practice basis.
(10)
'Health Strategies Council' or 'council' means the body created by this chapter
to advise the Department of Community Health
and adopt
the state health plan
in accordance
with Code Section 31-6-20.
(11)
'Home health agency' means a public agency or private organization, or a
subdivision of such an agency or organization, which is primarily engaged in
providing to individuals who are under a written plan of care of a physician, on
a visiting basis in the places of residence used as such individuals´
homes, part-time or intermittent nursing care provided by or under the
supervision of a registered professional nurse, and one or more of the following
services:
(A)
Physical therapy;
(B)
Occupational therapy;
(C)
Speech therapy;
(D)
Medical social services under the direction of a physician; or
(E)
Part-time or intermittent services of a home health aide.
(12)
'Hospital' means an institution which is primarily engaged in providing to
inpatients, by or under the supervision of physicians, diagnostic services and
therapeutic services for medical diagnosis, treatment, and care of injured,
disabled, or sick persons or rehabilitation services for the rehabilitation of
injured, disabled, or sick persons. Such term includes public, private,
psychiatric, rehabilitative, geriatric, osteopathic, and other specialty
hospitals.
(13)
'Intermediate care facility' means an institution which provides, on a regular
basis, health related care and services to individuals who do not require the
degree of care and treatment which a hospital or skilled nursing facility is
designed to provide but who, because of their mental or physical condition,
require health related care and services beyond the provision of room and
board.
(13.1)
'New and emerging health care service' means a health care service or
utilization of medical equipment which has been developed and has become
acceptable or available for implementation or use and which is not currently
addressed under the rules and regulations promulgated by the department pursuant
to this chapter.
(14)
'New institutional health service' means:
(A)
The construction, development, or other establishment of a new health care
facility;
(B)
Any expenditure by or on behalf of a health care facility in excess of
$900,000.00
$1,750,000.00
which, under generally accepted accounting principles consistently applied, is a
capital expenditure, except expenditures for acquisition of an existing health
care facility not owned or operated by or on behalf of a political subdivision
of this state, or any combination of such political subdivisions, or by or on
behalf of a hospital authority, as defined in Article 4 of Chapter 7 of this
title,
or certificate of need owned by such facility in connection with its
acquisition;
and provided, however, that this shall not include costs for parking lots,
parking decks, or other parking
facilities;
(C)
Any increase in the bed capacity of a health care facility except as provided in
Code Section 31-6-47;
(D)
Clinical health services which are offered in or through a health care facility,
which were not offered on a regular basis in or through such health care
facility within the 12 month period prior to the time such services would be
offered;
(E)
Any conversion or upgrading of a facility such that it is converted from a type
of facility not covered by this chapter to any of the types of health care
facilities which are covered by this chapter;
(F)
The purchase or lease by or on behalf of a health care facility of diagnostic or
therapeutic equipment with a value in excess of
$500,000.00;
provided, however, that this shall also include diagnostic or therapeutic
equipment with a value of $500,000.00 or less unless such health care facility
provides uncompensated indigent or charity care in an amount which meets or
exceeds the department´s minimum requirements established pursuant to Code
Section 31-6-40.1 and unless such health care facility provides reports in
accordance with Code Section 31-6-70. The
acquisition of one or more items of functionally related diagnostic or
therapeutic equipment shall be considered as one project;
(G)
Clinical health services which are offered in or through a diagnostic,
treatment, or rehabilitation center which were not offered on a regular basis in
or through that center within the 12 month period prior to the time such
services would be offered, but only if the clinical health services are any of
the following:
(i)
Radiation therapy;
(ii)
Biliary lithotripsy;
(iii)
Surgery in an operating room environment, including but not limited to
ambulatory surgery; provided, however, this provision shall not apply to surgery
performed in the offices of an individual private physician or single group
practice of private physicians if such surgery is performed in a facility that
is owned, operated, and utilized by such physicians who also are of a single
specialty and the capital expenditure associated with the construction,
development, or other establishment of the clinical health service does not
exceed the amount of $1 million; and
(iv)
Cardiac catheterization; or
(H)
The purchase, lease, or other use by or on behalf of a diagnostic, treatment, or
rehabilitation center of diagnostic or therapeutic equipment with a value in
excess of
$500,000.00;
provided, however, that this shall also include diagnostic or therapeutic
equipment with a value of $500,000.00 or less unless such diagnostic, treatment,
or rehabilitation center provides uncompensated indigent or charity care in an
amount which meets or exceeds the department´s established minimum
requirements established pursuant to Code Section 31-6-40.1 and unless such
health care facility provides reports in accordance with Code Section
31-6-70. The acquisition of one or more
items of functionally related diagnostic or therapeutic equipment shall be
considered as one project.
The
dollar amounts specified in subparagraphs (B), (F), and (H) of this paragraph,
division (iii) of subparagraph (G) of this paragraph, and
of
paragraph (7) of this Code section shall be adjusted annually by an amount
calculated by multiplying such dollar amounts (as adjusted for the preceding
year) by the annual percentage of change in the composite construction index, or
its successor or appropriate replacement index, if any, published by the Bureau
of the Census of the Department of Commerce of the United States government for
the preceding calendar year, commencing on July 1, 1991, and on each anniversary
thereafter of publication of the index. The department shall immediately
institute rule-making procedures to adopt such adjusted dollar amounts. In
calculating the dollar amounts of a proposed project for purposes of
subparagraphs (B), (F), and (H) of this paragraph, division (iii) of
subparagraph (G) of this paragraph, and
of
paragraph (7) of this Code section, the costs of all items subject to review by
this chapter and items not subject to review by this chapter associated with and
simultaneously developed or proposed with the project shall be counted, except
for the expenditure or commitment of or incurring an obligation for the
expenditure of funds to develop certificate of need applications, studies,
reports, schematics, preliminary plans and specifications or working drawings,
or to acquire sites.
(15)
'Nonclinical health services' means services or functions provided or performed
by a health care facility, and the parts of the physical plant where they are
located in a health care facility that are not diagnostic, therapeutic, or
rehabilitative services to patients and are not clinical health services defined
in this chapter.
(16)
'Offer' means that the health care facility is open for the acceptance of
patients or performance of services and has qualified personnel, equipment, and
supplies necessary to provide specified clinical health services.
(16.1)
'Operating room environment' means an environment which meets the minimum
physical plant and operational standards specified on January 1, 1991, for
ambulatory surgical treatment centers in Section 290-5-33-.10 of the rules of
the Department of Human Resources
or any
successor rules of the
department.
(17)
'Person' means any individual, trust or estate, partnership, corporation
(including associations, joint-stock companies, and insurance companies), state,
political subdivision, hospital authority, or instrumentality (including a
municipal corporation) of a state as defined in the laws of this
state.
(18)
'Personal care home' means a residential facility having at least 25 beds and
providing, for compensation, protective care and oversight of ambulatory,
nonrelated persons who need a monitored environment but who do not have injuries
or disabilities which require chronic or convalescent care, including medical,
nursing, or intermediate care. Personal care homes include those facilities
which monitor daily residents´ functioning and location, have the
capability for crisis intervention, and provide supervision in areas of
nutrition, medication, and provision of transient medical care. Such term does
not include:
(A)
Old age residences which are devoted to independent living units with kitchen
facilities in which residents have the option of preparing and serving some or
all of their own meals; or
(B)
Boarding facilities which do not provide personal care.
(19)
Reserved.
(20)
'Project' means a proposal to take an action for which a certificate of need is
required under this chapter. A project or proposed project may refer to the
proposal from its earliest planning stages up through the point at which the new
institutional health service is offered.
(21)
'Review
board' means the Health Planning Review Board created by this
chapter
Reserved.
(22)
'Skilled nursing facility' means a public or private institution or a distinct
part of an institution which is primarily engaged in providing inpatient skilled
nursing care and related services for patients who require medical or nursing
care or rehabilitation services for the rehabilitation of injured, disabled, or
sick persons.
(23)
'State health plan' means a comprehensive program adopted by the Health
Strategies Council
or by the
board as its successor for this purpose,
approved by the Governor, and implemented by the State of Georgia for the
purpose of providing adequate health care services and facilities throughout the
state.
(24)
'Uncompensated indigent or charity care' means the dollar amount of 'net
uncompensated indigent or charity care after direct and indirect (all)
compensation' as defined by, and calculated in accordance with, the
department´s Hospital Indigent Care Survey and related
instructions.
ARTICLE
2
31-6-20.
(a)
There is created a
newly
reconstituted Health Strategies Council to
be appointed by the Governor, subject to confirmation by the Senate. Any
appointment made when the Senate is not in session shall be effective until the
appointment is acted upon by the Senate. The
newly
reconstituted Health Strategies Council
shall be the successor to the
Health
Policy Council
Health
Strategies Council as it existed on June 30,
2007. Those members of the previously
existing
Health
Policy Council
Health
Strategies Council who are serving as such
on January
1, 1991
June 30, 2007,
shall have their terms expire on June 30,
2007,
shall
continue to serve until July 1, 1991, at
which time
their terms
shall expire and that council shall be
abolished. On and after that date the council shall be composed of
25
13
members,
except as otherwise provided for in subsection (b) of this Code
section.
Of those
members, at least one
One
member shall be appointed from each
congressional district. The council shall be composed as follows:
(1)
One member
representing county governments;
(2)
One member representing the private insurance industry;
(3)
Ten members representing health care providers as follows:
(A)(2)
One member representing rural hospitals;
(B)(3)
One member representing urban hospitals;
(C)(4)
One member who is a primary care physician;
(D)(5)
One member who is a physician in a board certified specialty;
(E)
One member who is a registered professional nurse;
(F)
One member who is a registered professional nurse who is certified as a nurse
practitioner;
(G)(6)
One member representing nursing homes;
(H)(7)
One member representing home health agencies;
(I)(8)
One member representing
freestanding
ambulatory surgical centers
primary
care centers; and
(J)
One member who is a primary care dentist;
(4)
Ten consumer representatives who are knowledgeable as to health care needs in
the fields they represent but who have no financial interest in the health care
industry as follows:
(A)(9)
One member representing health care needs of women;
(B)
One member representing health care needs of children;
(C)(10)
One member representing health care needs of the disabled
and
elderly;
(D)
(11)
One member representing
mental
health care needs
of the
elderly;
(E)(12)
One member representing health care needs of
low-income
indigent
persons;
and
(F)(13)
One member representing health care needs of
small
business
personnel;
(G)
One member representing health care needs of large business
personnel;
(H)
One member representing health care needs of labor organization members;
and
(I)
Two members who represent populations with special health care access problems;
and
(5)
Three at-large members.
(b)
If the state obtains
an
one or
more additional
member
members
of the United States House of Representatives as a result of reapportionment,
the Governor shall appoint, subject to confirmation by the Senate, from
the
each
new congressional district thus created one
member
representing local or county governments
health care
provider member who meets the requirements of subparagraph (a)(3)(J) of this
Code section and one consumer member who meets the requirements of subparagraph
(a)(4)(I) of this Code section as to a population specified in those
subparagraphs which is not then represented on the
council.
With the
addition of these two members, the council shall be composed of 27
members.
(c)
The
initial
members of the
newly
reconstituted council
who are
appointed to succeed those members whose terms expire July 1,
1991, shall take office July 1,
1991
2007,
and
12
six
of them shall be designated in such appointment to serve initial terms of office
of two years and
13
seven
of them shall be designated in such appointment to serve initial terms of office
of four years. If
two
additional members are appointed to the council to represent a new congressional
district as provided in subsection (b) of this Code section, one
half
shall be designated to serve an initial term of office which expires when the
above initial two-year terms of office expire and one
half
shall be designated to serve an initial term of office which expires when the
above initial four-year terms of office expire. After the initial terms
provided in this subsection, members of the council shall be appointed to serve
for four-year terms of office. Members of the council shall serve out their
terms of office and until their respective successors are appointed and
qualified.
(d)
Members of the council shall be subject to removal by the Governor for
incompetence,
neglect of duty,
any reason or
for no reason, at his or her discretion,
or for failing to attend at least 75 percent of the meetings of the council in
any
calendar
year. Vacancies on the council shall be filled by appointment by the Governor,
subject to confirmation by the Senate.
(e)
The Governor shall appoint the
chairman
chairperson
of the council. A majority of the members of the council shall constitute a
quorum. The
council shall meet no less often than bimonthly, but may meet more often, at the
call of the chairperson.
(f)
The members of the council attending meetings of such council, or attending a
subcommittee meeting thereof authorized by such council, shall receive no salary
but shall be reimbursed for their expenses in attending meetings and for
transportation costs as authorized by Code Section 45-7-21, which provides for
the compensation and allowances of certain state officials.
(g)
The
functions
function
of the council shall be to
serve as an
advisory body to the department. The department shall be authorized to seek
input from the council on proposed changes to rules and regulations relative to
this chapter and to the state health
plan.:
(1)
Adopt the state health plan and submit it to the board for approval which shall
include all of the components of the council´s functions and be regularly
updated;
(2)
Review, comment on, and make recommendations to the department on proposed rules
for the administration of this chapter, except emergency rules, prior to their
adoption by the department;
(3)
Conduct an ongoing evaluation of Georgia´s existing health care resources
for accessibility, including but not limited to financial, geographic, cultural,
and administrative accessibility, quality, comprehensiveness, and
cost;
(4)
Study long-term comprehensive approaches to providing health insurance coverage
to the entire population; and
(5)
Perform such other functions as may be specified for the council by the
department or its board.
(h)
The council shall prepare an annual report to the board and the General Assembly
which presents information and updates on the functions outlined in subsection
(g) of this Code section. The annual report shall include information for
Georgia´s congressional delegation which highlights issues regarding
federal laws and regulations influencing Medicaid and medicare, insurance and
related tax laws, and long-term health care. The department shall not be
required to distribute copies of the annual report to the members of the General
Assembly but shall notify the members of the availability of the annual report
in the manner which it deems to be most effective and efficient.
(i)(h)
The council at the department´s request shall involve and coordinate
functions with such state entities as necessary.
(j)
As used in subsections (g), (h), and (i) of this Code section, the
term:
(1)
'Board' means the Board of Community Health established under Chapter 5A of this
title.
(2)
'Department' means the Department of Community Health established under Chapter
5A of this title.
31-6-21.
(a)
The Department of Community Health, established under Chapter 5A of this title,
is authorized to administer the certificate of need program established under
this chapter and, within the appropriations made available to the department by
the General Assembly of Georgia and consistently with the laws of the State of
Georgia, a state health plan adopted by the
Health
Strategies Council and approved by the
board
Board of
Community Health. The department shall
provide, by rule, for procedures to administer its functions until otherwise
provided by the Board of Community Health.
(b)
The functions of the department shall be:
(1)
To conduct the health planning activities of the state and to implement those
parts of the state health plan which relate to the government of the
state;
(2)
To prepare and revise a
draft
state health plan
for
submission to the Health Strategies
Council for adoption
by the
board and submission to the
Governor;
(3)
To assist
the
seek advice,
at its discretion, from the Health
Strategies Council in the performance
by the
department of its functions
pursuant to
this chapter;
(4)
With the
prior advice, comment, and recommendations of the Health Strategies Council,
except with respect to emergency rules and regulations, to
To
adopt, promulgate, and implement rules and regulations sufficient to administer
the provisions of this chapter including the certificate of need
program;
(5)
To define, by rule, the form, content, schedules, and procedures for submission
of applications for certificates of need and periodic reports;
(6)
To establish time periods and procedures consistent with this chapter to hold
hearings and to obtain the viewpoints of interested persons prior to issuance or
denial of a certificate of need;
(7)
To provide, by rule, for such fees as may be necessary to cover the costs of
hearing
officers, preparing the record for appeals
before the
such
hearing officers and review board of the decisions of the department,
and other
related administrative costs, which costs
may include reasonable sharing between the department and the parties to appeal
hearings;
(8)
To provide, by rule, for a reasonable and equitable fee schedule for certificate
of need applications;
(9)
To grant, deny, or revoke a certificate of need as applied for or as amended;
and
(10)
To provide sufficient staffing to perform its duties under this chapter and to
periodically review and determine its budgeting and staffing needs;
(10)(11)
To perform powers and functions delegated by the Governor, which delegation may
include the powers to carry out the duties and powers which have been delegated
to the department under Section 1122 of the
federal
Social Security Act of 1935, as
amended;
and
(12)
To prepare an annual report to the board and the General Assembly which includes
information and updates relating to the state health plan and the certificate of
need program. This report shall also include an annual analysis of proactive
and prospective approaches to need methodologies and access to health care
services. The annual report shall include information for Georgia´s
congressional delegation which highlights issues regarding federal laws and
regulations influencing Medicaid and medicare, insurance and related tax laws,
and long-term health care. The department shall not be required to distribute
copies of the annual report to the members of the General Assembly but shall
notify the members of the availability of the annual report in the manner which
it deems to be most effective and
efficient.
31-6-21.1.
(a)
Rules of the department shall be adopted, promulgated, and implemented as
provided in this Code section and in Chapter 13 of Title 50, the 'Georgia
Administrative Procedure Act,' except that the department shall not be required
to comply with subsections (c) through (g) of Code Section 50-13-4.
(b)
The department shall transmit three copies of the notice provided for in
paragraph (1) of subsection (a) of Code Section 50-13-4 to the legislative
counsel. The copies shall be transmitted at least 30 days prior to that
department´s intended action. Within five days after receipt of the copies,
if possible, the legislative counsel shall furnish the presiding officer of each
house with a copy of the notice and mail a copy of the notice to each member of
the Health and Human Services Committee of the Senate and each member of the
Health and Human Services Committee of the House of Representatives. Each such
rule and any part thereof shall be subject to the making of an objection by
either such committee. Any rule or part thereof to which no objection is made by
both such committees may become adopted by the department at the end of such 30
day period. The department may not adopt any such rule or part thereof which has
been changed since having been submitted to those committees
unless:
(1)
That change is to correct only typographical errors;
(2)
That change is approved in writing by both committees and that approval
expressly exempts that change from being subject to the public notice and
hearing requirements of subsection (a) of Code Section 50-13-4;
(3)
That change is approved in writing by both committees and is again subject to
the public notice and hearing requirements of subsection (a) of Code Section
50-13-4; or
(4)
That change is again subject to the public notice and hearing requirements of
subsection (a) of Code Section 50-13-4 and the change is submitted and again
subject to committee objection as provided in this subsection.
Nothing
in this subsection shall prohibit the department from adopting any rule or part
thereof without adopting all of the rules submitted to the committees if the
rule or part so adopted has not been changed since having been submitted to the
committees and objection thereto was not made by both committees.
(c)
Any rule or part thereof to which an objection is made by both committees within
the 30 day objection period under subsection (b) of this Code section shall not
be adopted by the department and shall be invalid if so adopted. A rule or part
thereof thus prohibited from being adopted shall be deemed to have been
withdrawn by the department unless the department, within the first 15 days of
the next regular session of the General Assembly, transmits written notification
to each member of the objecting committees that the department does not intend
to withdraw that rule or part thereof but intends to adopt the specified rule or
part effective the day following adjournment sine die of that regular session.
A resolution objecting to such intended adoption may be introduced in either
branch of the General Assembly after the fifteenth day but before the thirtieth
day of the session in which occurs the notification of intent not to withdraw a
rule or part thereof. In the event the resolution is adopted by the branch of
the General Assembly in which the resolution was introduced, it shall be
immediately transmitted to the other branch of the General Assembly. It shall
be the duty of the presiding officer of the other branch to have that branch,
within five days after receipt of the resolution, consider the resolution for
purposes of objecting to the intended adoption of the rule or part thereof.
Upon such resolution being adopted by two-thirds of the vote of each branch of
the General Assembly, the rule or part thereof objected to in that resolution
shall be disapproved and not adopted by the department. If the resolution is
adopted by a majority but by less than two-thirds of the vote of each such
branch, the resolution shall be submitted to the Governor for his
or
her
approval or veto. In the event of
his
a
veto, or if no resolution is introduced objecting to the rule, or if the
resolution introduced is not approved by at least a majority of the vote of each
such branch, the rule shall automatically become adopted the day following
adjournment sine die of that regular session. In the event of the
Governor´s approval of the resolution, the rule shall be disapproved and
not adopted by the department.
(d)
Any rule or part thereof which is objected to by only one committee under
subsection (b) of this Code section and which is adopted by the department may
be considered by the branch of the General Assembly whose committee objected to
its adoption by the introduction of a resolution for the purpose of overriding
the rule at any time within the first 30 days of the next regular session of the
General Assembly. It shall be the duty of the department in adopting a proposed
rule over such objection so to notify the
chairmen
chairpersons
of the Health and Human Services Committee of the Senate and the Health and
Human Services Committee of the House within ten days after the adoption of the
rule. In the event the resolution is adopted by such branch of the General
Assembly, it shall be immediately transmitted to the other branch of the General
Assembly. It shall be the duty of the presiding officer of the other branch of
the General Assembly to have such branch, within five days after the receipt of
the resolution, consider the resolution for the purpose of overriding the rule.
In the event the resolution is adopted by two-thirds of the votes of each branch
of the General Assembly, the rule shall be void on the day after the adoption of
the resolution by the second branch of the General Assembly. In the event the
resolution is ratified by a majority but by less than two-thirds of the votes of
either branch, the resolution shall be submitted to the Governor for his
or
her approval or veto. In the event of
his
a
veto, the rule shall remain in effect. In the event of
his
the
Governor´s approval, the rule shall
be void on the day after the date of
his
approval.
(e)
Except for emergency rules, no rule or part thereof adopted by the department
after April 3, 1985, shall be valid unless adopted in compliance with
subsections (b), (c), and (d) of this Code section and subsection (a) of Code
Section 50-13-4.
(f)
Emergency rules shall not be subject to the requirements of subsection (b), (c),
or (d) of this Code section but shall be subject to the requirements of
subsection (b) of Code Section 50-13-4. Upon the first expiration of any
department emergency rules, where those emergency rules are intended to cover
matters which had been dealt with by the department´s nonemergency rules
but such nonemergency rules have been objected to by both legislative committees
under this Code section, the emergency rules concerning those matters may not
again be adopted except for one 120 day period. No emergency rule or part
thereof which is adopted by the department shall be valid unless adopted in
compliance with this subsection.
(g)
Any proceeding to contest any rule on the ground of noncompliance with this Code
section must be commenced within two years from the effective date of the
rule.
(h)
For purposes of this Code section, 'rules' shall mean rules and
regulations.
(i)
The state health plan or the rules establishing considerations, standards, or
similar criteria for the grant or denial of a certificate of need pursuant to
Code Section 31-6-42 shall not apply to any application for a certificate of
need as to which, prior to the effective date of such plan or rules,
respectively, the evidence has been closed following a full evidentiary hearing
before a hearing officer.
31-6-22.
The
department shall be directed by the commissioner of community
health.
ARTICLE
3
31-6-40.
(a)
From and after July 1, 1999, only such new institutional health services or
health care facilities as are found by the department to be needed shall be
offered in the state. Prior to that date, only such new institutional health
services or health care facilities which had been found to be needed by the
Health Planning Agency under any prior provisions of this chapter and the
regulations issued thereunder shall have been offered in the state, unless
otherwise exempt from the requirements of the law or unless that law was not
applicable. It is the intent of this provision to assure that no new
institutional health services or health care facilities, as defined prior to
July 1, 1999, are allowed to avoid the requirements of any prior provisions of
this chapter, and applicable regulations, if those laws and regulations were
applicable to them.
(b)
Any person proposing to develop or offer a new institutional health service or
health care facility shall, before commencing such activity, submit
a letter of
intent and an application to the
department and obtain a certificate of need in the manner provided in this
chapter unless such activity is excluded from the scope of this
chapter.
(c)
Any person who had a valid exemption granted or approved by the former Health
Planning Agency or the Department of Community Health prior to July 1, 2007,
shall not be required to obtain a certificate of need in order to continue to
offer those previously offered services.
(c)(1)
Any person who offered new institutional health services, as defined only in
subparagraphs (G) and (H) of paragraph (14) of Code Section 31-6-2, within the
12 month period prior to July 1, 1999, and for which services a certificate of
need was not required under the provisions of this chapter as they existed prior
to July 1, 1999, shall not be required to obtain a certificate of need in order
to continue to offer those previously offered services after that date if that
person obtains an exemption therefor as provided in this
subsection.
(1.1)
Any person who, on July 1, 1999:
(A)
Has in place a valid written contract of purchase, construction, or assembly for
purposes of offering new institutional health services, as defined only in
subparagraphs (G) and (H) of paragraph (14) of Code Section 31-6-2;
(B)
Has prior to said date paid in cash or made an irrevocable and secured
commitment or obligation of a minimum of 30 percent of the price called for
under said contract;
(C)
Has taken delivery and has in operation such new institutional health services
on or before January 1, 1992; and
(D)
Has notified the Health Planning Agency no later than July 1, 1991, of that
person´s intent to apply for an exemption under this paragraph
shall
not be required to obtain a certificate of need in order to offer those services
if that person obtains an exemption therefor as provided in this
subsection.
(2)
A person claiming an exemption under paragraph (1) or (1.1) of this subsection
shall apply to the Health Planning Agency for that exemption no later than July
1, 1992. The application shall be in such form and manner as established by the
Health Planning Agency to provide sufficient proof that the applicant qualifies
for the exemption claimed. The Health Planning Agency shall notify the applicant
within 90 days after the required application and proof have been properly
submitted that the application for exemption is denied; otherwise, the
application shall be deemed granted by operation of law upon the ninety-first
day. Such a grant of the exemption shall be final and no appeal therefrom shall
be authorized. A denial of such application for exemption shall constitute a
contested case under Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.' Any person having a certificate of need or authorization to
offer the services for which an application for exemption has been denied may
intervene in the contested case if such person offers those services within the
same service area as the service area in which were to be offered the services
for which the application for exemption was denied.
(3)
A person who claims an exemption pursuant to this subsection may continue to
offer the services for which the exemption may be claimed without applying for
the exemption, but those services may not be offered after October 1, 1992, or
any date prior thereto upon which a decision denying the exemption has become
final unless:
(A)
The person applied for the exemption as provided in paragraph (2) of this
subsection but on October 1, 1992, there has either been no decision made
denying the exemption or a decision denying the exemption has not become final,
in either of which events the services for which the application for exemption
was made may be offered until there is a final decision denying the
exemption;
(B)
The person is granted the exemption; or
(C)
The person obtains a certificate of need for the services.
For
purposes of this subsection, a decision denying an application for an exemption
shall become final when the time for appealing that decision expires without an
appeal of such decision having been properly made.
(4)
An exemption obtained pursuant to this subsection may be transferred to another
person if the department is notified thereof within 45 days after the transfer
occurs.
(5)
The Health Planning Agency shall establish procedures for obtaining exemptions
under this subsection and shall publish a list not later than October 1, 1992,
of all such applications granted or pending on that date.
(d)
Any person that had formally requested, prior to February 1, 1991, a
determination from the Health Planning Agency of the applicability of the
certificate of need requirements for a specific project that is subsequently
approved by the Health Planning Agency or by appeal of the Health Planning
Agency´s denial shall be exempt under the provisions of this chapter from
the requirement of obtaining a certificate of need for that
project.
31-6-40.1.
(a)
Any person who acquires a health care facility by stock or asset purchase,
merger, consolidation, or other lawful means shall notify the department of such
acquisition, the date thereof, and the name and address of the acquiring person.
Such notification shall be made in writing to the department within 45 days
following the acquisition and the acquiring person may be fined by the
department in the amount of $500.00 for each day that such notification is late.
Such fine shall be paid into the state treasury.
(b)
The department may limit the time periods during which it will accept
applications for the following health care facilities:
(1)
Skilled nursing facilities;
(2)
Intermediate care facilities; and
(3)
Home health agencies,
to
only such times after the department has determined there is an unmet need for
such facilities. The department shall make a determination as to whether or not
there is an unmet need for each type of facility at least every six months and
shall notify those requesting such notification of that
determination.
(b.1)
The department shall establish, by rule, set times during the year in which
applications for capital projects exceeding the threshold amounts
in:
(1)
Paragraph (7) of Code Section 31-6-2; and
(2)
Subparagraphs (B),(F),(G), and (H) of paragraph (14) of Code Section
31-6-2
shall
be accepted.
(c)(1)
The department may require that any applicant for a certificate of need agree to
provide a specified amount of clinical health services to indigent patients as a
condition for the grant of a certificate of
need;
provided, however, that the department shall require that any applicant for a
certificate of need for an ambulatory surgical center provide uncompensated
indigent or charity care in an amount which meets or exceeds the
department´s established minimum as a condition of certificate of need
approval. The department shall be authorized to establish, by rule, minimum
volumes of services, quality standards, limitations on services, and any other
conditions relating to required clinical health services to indigent
patients. A grantee or successor in
interest of a certificate of need or an authorization to operate under this
chapter which violates such an agreement
or violates
any conditions imposed by the department relating to such
services, whether made before or after
July 1,
1991
2007,
shall be liable to the department for a monetary penalty in the amount of the
difference between the amount of services so agreed to be provided and the
amount actually provided
and may be
subject to revocation of its certificate of need by the department pursuant to
Code Section 31-6-45. Any penalty so
recovered shall be paid into the state treasury.
(2)
The department shall establish minimum amounts of uncompensated indigent or
charity care which shall be required of a health care facility and diagnostics,
treatment, or rehabilitation center in order to be excluded from the certificate
of need requirements of this chapter for the purchase of diagnostic or
therapeutic equipment with a value that exceeds the threshold amount contained
in subparagraphs (F) and (H) of paragraph (14) of Code Section 31-6-2.
(d)
Penalties authorized under this Code section shall be subject to the same
notices and hearing for the levy of fines under Code Section
31-6-45.
31-6-40.2.
(a)
As used in this Code section only, the term:
(1)
'Certificate of need application' means an application for a certificate of need
filed with the department, any amendments thereto, and any other written
material relating to the application and filed by the applicant with the
department.
(2)
'First three years of operation' means the first three consecutive 12 month
periods beginning on the first day of a new perinatal service´s first full
calendar month of operation.
(3)
'First year of operation' means the first consecutive 12 month period beginning
on the first day of a new perinatal service´s first full calendar month of
operation.
(4)
'New perinatal service' means a perinatal service whose first year of operation
ends after April 6, 1992.
(5)
'Perinatal service' means obstetric and neonatal services.
(6)
'Uncompensated indigent or charity care' means the dollar amount of 'net
uncompensated indigent or charity care after direct and indirect (all)
compensation' as defined by, and calculated in accordance with, the
department´s Hospital Indigent Care Survey and related
instructions.
(7)(6)
'Year' means one of the three consecutive 12 month periods in a new perinatal
service first 36 months of operation.
(b)(1)
A new perinatal service shall provide uncompensated indigent or charity care in
an amount which meets or exceeds the department´s established minimum at
the time the department issued the certificate of need approval for such service
for each of the service´s first three years of operation; provided,
however, that if the certificate of need application under which a new perinatal
service was approved included a commitment that uncompensated indigent or
charity care would be provided in an amount greater than the established minimum
for any time period described in the certificate of need application that falls
completely within such new perinatal service´s first three years of
operation, such new perinatal service shall provide indigent or charity care in
an amount which meets or exceeds the amount committed in the certificate of need
application for each time period described in the certificate of need
application that falls completely within the service´s first three years of
operation.
(2)
The department shall revoke the certificate of need and authority to operate of
a new perinatal service if after notice to the grantee of the certificate or
such grantee´s successors, and after opportunity for a fair hearing
pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,'
the department determines that such new perinatal service has failed to provide
indigent or charity care in accordance with the requirements of paragraph (1) of
this subsection and such failure is determined by the department to be for
reasons substantially within the perinatal service provider´s control. The
department shall provide the requisite notice, conduct the fair hearing, if
requested, and render its determination within 90 days after the end of the
first year, or, if applicable, the first time period described in paragraph (1)
of this subsection during which the new perinatal service fails to provide
indigent or charity care in accordance with the requirements of paragraph (1) of
this subsection. Revocation shall be effective 30 days after the date of the
determination by the department that the requirements of paragraph (1) of this
subsection have not been met.
(c)(1)
A new perinatal service shall achieve the standard number of births specified in
the state health plan in effect at the time of the issuance of the certificate
of need approval by the department in at least one year during its first three
years of operation.
(2)
The department shall revoke the certificate of need and authority to operate of
a new perinatal service if after notice to the grantee of the certificate of
need or such grantee´s successors, and after opportunity for a fair hearing
pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,'
the department determines that such new perinatal service has failed to comply
with the applicable requirements of paragraph (1) of this subsection and such
failure is determined by the department to be for reasons substantially within
the perinatal service provider´s control. The department shall provide the
requisite notice, conduct the fair hearing, if requested, and render its
determination within 90 days after the end of the new perinatal service´s
first three years of operation. Revocation shall be effective 30 days after the
date of the determination by the department that the requirements of this
paragraph or paragraph (1) of this subsection have not been met.
(d)
Nothing contained in this Code section shall limit the department´s
authority to regulate perinatal services in ways or for time periods not
addressed by the provisions of this Code section.
31-6-41.
(a)
A certificate of need shall be valid only for the defined scope, location, cost,
service area, and person named in an application, as it may be amended, and as
such scope, location, area, cost, and person are approved by the department,
unless such certificate of need owned by an existing health care facility is
transferred to a person who acquires such existing facility. In such case, the
certificate of need shall be valid for the person who acquires such a facility
and for the scope, location, cost, and service area approved by the
department.
(b)
A certificate of need shall be valid and effective for a period of 12 months
after it is issued, or such greater period of time as may be specified by the
department at the time the certificate of need is issued. Within the effective
period after the grant of a certificate of need, the applicant of a proposed
project shall fulfill reasonable performance and scheduling requirements
specified by the department, by rule, to assure reasonable progress toward
timely completion of a project.
(c)
By rule, the department may provide for extension of the effective period of a
certificate of need when an applicant, by petition, makes a good faith showing
that the conditions to be specified according to subsection (b) of this Code
section will be performed within the extended period and that the reasons for
the extension are beyond the control of the applicant.
31-6-42.
(a)
The written findings of fact and decision, with respect to the department´s
grant or denial of a certificate of need, shall be based on the applicable
considerations specified in this Code section and reasonable rules promulgated
by the department interpretive thereof. The department shall issue a certificate
of need to each applicant whose application is consistent with the following
considerations and such rules deemed applicable to a project, except as
specified in subsection (d) of Code Section 31-6-43
and Code
Section 31-6-42.1:
(1)
The proposed new institutional health services are reasonably consistent with
the relevant general goals and objectives of the state health plan;
(2)
The population residing in the area served, or to be served, by the new
institutional health service has a need for such services;
(3)
Existing alternatives for providing services in the service area the same as the
new institutional health service proposed are neither currently available,
implemented, similarly utilized, nor capable of providing a less costly
alternative, or no certificate of need to provide such alternative services has
been issued by the department and is currently valid;
(4)
The project can be adequately financed and is, in the immediate and long term,
financially feasible;
(5)
The effects of new institutional health service on payors for health services,
including governmental payors, are not unreasonable;
(6)
The costs and methods of a proposed construction project, including the costs
and methods of energy provision and conservation, are reasonable and adequate
for quality health care;
(7)
The new institutional health service proposed is reasonably financially and
physically accessible to the residents of the proposed service
area;
(8)
The proposed new institutional health service has a positive relationship to the
existing health care delivery system in the service area;
(9)
The proposed new institutional health service encourages more efficient
utilization of the health care facility proposing such service;
(10)
The proposed new institutional health service provides, or would provide, a
substantial portion of its services to individuals not residing in its defined
service area or the adjacent service area;
(11)
The proposed new institutional health service conducts biomedical or behavioral
research projects or new service development which is designed to meet a
national, regional, or state-wide need;
(12)
The proposed new institutional health service meets the clinical needs of health
professional training programs which request assistance;
(13)
The proposed new institutional health service fosters improvements or
innovations in the financing or delivery of health services, promotes health
care quality assurance or cost effectiveness, or fosters competition that is
shown to result in lower patient costs without a loss of the quality of care;
and
(14)
The proposed new institutional health service fosters the special needs and
circumstances of health maintenance
organizations;
(15)
The proposed new institutional health service meets the department´s
minimum quality standards, including, but not limited to, relating to
accreditation, minimum volumes, quality improvements, assurance practices, and
utilization review procedures; and
(16)
The proposed new institutional health service is an underrepresented health
service, as determined annually by the department. The department shall, by
rule, provide for an advantage to equally qualified applicants that agree to
provide an underreprseented service in addition to the services for which the
application was originally
submitted.
(b)
In the case of applications for the development or offering of a new
institutional health service or health care facility for osteopathic medicine,
the need for such service or facility shall be determined on the basis of the
need and availability in the community for osteopathic services and facilities
in addition to the considerations in subsection (a) of this Code section.
Nothing in this chapter shall, however, be construed as otherwise recognizing
any distinction between allopathic and osteopathic medicine.
(c)
If the denial of an application for a certificate of need for a new
institutional health service proposed to be offered or developed by
a:
(1)
Minority administered hospital facility serving a socially and economically
disadvantaged minority population in an urban setting; or
(2)
Minority administered hospital facility utilized for the training of minority
medical practitioners
would
adversely impact upon the facility and population served by said facility, the
special needs of such hospital facility and the population served by said
facility for the new institutional health service shall be given extraordinary
consideration by the department in making its determination of need as required
by this Code section. The department shall have the authority to vary or modify
strict adherence to the provisions of this chapter and the rules enacted
pursuant hereto in considering the special needs of such facility and its
population served and to avoid an adverse impact on the facility and the
population served thereby. For purposes of this subsection, the term 'minority
administered hospital facility' means a hospital controlled or operated by a
governing body or administrative staff composed predominantly of members of a
minority race.
(d)
For the purposes of the considerations contained in this Code section and in the
department´s applicable rules, relevant data which were unavailable or
omitted when the state health plan or rules were prepared or revised may be
considered in the evaluation of a project.
(e)
The department shall specify in its written findings of fact and decision which
of the considerations contained in this Code section and the department´s
applicable rules are applicable to an application and its reasoning as to and
evidentiary support for its evaluation of each such applicable consideration and
rule.
31-6-42.1.
(a)
Prior to submitting an application for a certificate of need for clinical health
services, a person shall submit a letter of intent to the
department.
(b)
Upon receipt of a letter of intent, the department shall notify a newspaper of
general circulation in the county in which the clinical health services are
proposed to be offered and shall also notify the appropriate regional
development center and the chief elected official of the county and municipal
governments, if any, in whose boundaries the clinical health services are
proposed to be located.
(c)
The department shall be authorized to provide by rule for the batching of
applications for clinical health services two times per year for purposes of
comparative review. The department shall review all applications received to
determine which application should be approved, if any, based on quality of and
distribution and access to the clinical health services and which are consistent
with the considerations contained in Code Section 31-6-42.
31-6-43.
(a)
Each application for a certificate of need shall be reviewed by the department
and within ten working days after the date of its receipt a determination shall
be made as to whether the application complies with the rules governing the
preparation and submission of applications. If the application complies with
the rules governing the preparation and submission of applications, the
department shall declare the application complete for review, shall accept and
date the application, and shall notify the applicant of the timetable for its
review. The department shall also notify a newspaper of general circulation in
the county in which the project shall be developed that the application has been
deemed complete. The department shall also notify the appropriate regional
development center and the chief elected official of the county and municipal
governments, if any, in whose boundaries the proposed project will be located
that the application is complete for review. If the application does not comply
with the rules governing the preparation and submission of applications, the
department shall notify the applicant in writing and provide a list of all
deficiencies. The applicant shall be afforded an opportunity to correct such
deficiencies, and upon such correction, the application shall then be declared
complete for review within ten days of the correction of such deficiencies, and
notice given to a newspaper of general circulation in the county in which the
project shall be developed that the application has been so declared. The
department shall also notify the appropriate regional development center and the
chief elected official of the county and municipal governments, if any, in whose
boundaries the proposed project will be located that the application is complete
for review or when in the determination of the department a significant
amendment is filed.
(b)
An applicant may amend its application at any time no later than ten days prior
to the end of the review period, and the department may request an applicant to
make amendments. The department decision shall be made on an application as
amended, if at all, by the applicant.
(c)
Except as provided in subsection (d) of this Code section
and subsection
(c) of Code Section 31-6-42.1, there shall
be a time limit of
90
120
days for review of a project, beginning on the day the department declares the
application complete for review. The department may adopt rules for determining
when it is not practicable to complete a review in
90
120
days and may extend the review period upon written notice to the applicant but
only for an extended period of not longer than an additional 30 days.
During the 120
day review period, the department shall provide for the following intermediate
steps: submission of written opposition, applicant review meeting, submission
of supplemental information, submission of supplemental written opposition, and
an opposition meeting. The opposition meeting shall provide for opposing
parties to formally present their opposition arguments to the department in a
public forum. In order for an opposing party to have standing to appeal an
adverse decision pursuant to Code Section 31-6-44, such party must attend and
participate in the opposition meeting. The department shall, by rule, establish
appropriate time frames and procedures for each intermediate step provided for
in this subsection.
(d)
The department may order the joinder of an application which is complete for
review with one or more subsequently filed applications declared complete for
review when:
(1)
The first and subsequent applications involve similar projects in the same
service area or overlapping medical service areas; and
(2)
The subsequent applications are filed and are declared complete for review
within 30 days of the date the first application was declared complete for
review.
Following
joinder of the first application with subsequent applications, none of the
subsequent applications so joined may be considered as a first application for
the purposes of future joinder. The department shall notify the applicant to
whose application a joinder is ordered and all other applicants previously
joined to such application of the fact of each joinder pursuant to this
subsection. In the event one or more applications have been joined pursuant to
this subsection, the time limits for department action for all of the applicants
shall run from the latest date that any one of the joined applications was
declared complete for review. In the event of the consideration of one or more
applications joined pursuant to this subsection, the department may award no
certificate of need or one or more certificates of need to the application or
applications, if any, which are consistent with the considerations contained in
Code Section 31-6-42, the department´s applicable rules, and the award of
which will best satisfy the purposes of this chapter.
(e)
The department shall review the application and all written information
submitted by the applicant in support of the application to determine the extent
to which the proposed project is consistent with the applicable considerations
stated in Code Section 31-6-42 and in the department´s applicable rules.
During the course of the review, the department staff may request additional
information from the applicant as deemed appropriate. Pursuant to rules adopted
by the department, a public hearing on applications covered by those regulations
may be held prior to the date of the department´s decision thereon. Such
rules shall provide that when good cause has been shown, a public hearing shall
be held by the department. Any interested person may submit information to the
department concerning an application, and an applicant shall be entitled to
notice of and to respond to any such submission.
(f)
In the event that the department´s initial review of an application
indicates that an application is not consistent with the applicable
considerations contained in Code Section 31-6-42 and in the department´s
applicable rules, on or before the sixtieth day after an application, or the
last application joined pursuant to subsection (d) of this Code section, is
declared complete for review, the department shall provide the applicant an
opportunity to meet with the department to discuss the application and an
opportunity to submit additional information. Such additional information shall
be submitted prior to the seventy-fifth day after the application, or the last
application joined pursuant to subsection (d) of this Code section, is declared
complete for review.
(g)
The department shall, no later than
90
120
days after an application is declared complete for review, or in the event
joinder is ordered pursuant to subsection (d) of this Code section, then
90
120
days after the last joined application is declared complete for review, provide
written notification to an applicant of the department´s decision to issue
or to deny issuance of a certificate of need for the proposed project. In the
event the department has extended the review period pursuant to subsection (c)
of this Code section, then the department shall provide such written
notification within
120
150
days after the application, or the last application joined pursuant to
subsection (d) of this Code section, was declared complete for review. Such
notice shall contain the department´s written findings of fact and decision
as to each applicable consideration or rule and a detailed statement of the
reasons and evidentiary support for issuing or denying a certificate of need for
the action proposed by each applicant. The department shall also mail such
notification to the appropriate regional development center and the chief
elected official of the county and municipal governments, if any, in whose
boundaries the proposed project will be located. In the event such decision is
to issue a certificate of need, the certificate of need shall be effective on
the day of the decision unless the decision is appealed to the
review
board
commissioner
in accordance with this chapter.
(h)
Should the department fail to provide written notification of the decision
within the time limitations set forth in this Code section, an application shall
be deemed to have been approved as of the
ninety-first
day, or the one hundred twenty-first day
or the one
hundred fifty-first day if the review
period was extended pursuant to subsection (c) of this Code section, following
notice from the department that an application, or the last of any applications
joined pursuant to subsection (d) of this Code section, is declared
'complete
for review.'
complete for
review.
31-6-43.1.
The
commissioner shall be authorized, with the approval of the board, to place a
temporary moratorium of up to six months on the issuance of certificates of need
for new and emerging health care services. Any such moratorium placed shall be
for the purpose of promulgating rules and regulations regarding such new and
emerging health care services. A moratorium may be extended one time for an
additional three months if circumstances warrant, as approved by the board. In
the event that final rules and regulations are not promulgated within the time
period allowed by the moratorium, any applications received by the department
for a new and emerging health care service shall be reviewed under existing
general statutes and regulations relating to certificates of need.
31-6-44.
(a)
There is
created the Health Planning Review Board, which shall be an agency separate and
apart from the department. That review board which existed on June 30, 1994, is
continued in existence after that date but on and after July 1, 1994, shall be
constituted as provided in this subsection. Those members of the Health Planning
Review Board serving as such on January 1, 1994, or any person selected to fill
a vacancy in such membership shall continue to serve as such members until July
1, 1994, at which time the terms of office of such members shall expire. On and
after July 1, 1994, the review board shall be composed of 11 members appointed
by the Governor, with one from each congressional district. The Governor shall
appoint persons to the review board who are familiar with the health care
industry but who do not have a financial interest in or represent or have any
compensation arrangement with any health care facility. The Governor shall also
name from among such members a chairperson and a vice chairperson of the review
board, both of whom shall be attorneys licensed to practice law in this state.
The vice chairperson shall have the same authority as the chairperson; provided,
however, the vice chairperson shall not exercise such authority unless expressly
delegated by the chairperson or in the event the chairperson becomes
incapacitated, as determined by the Governor. Vacancies on the board caused by
resignation, death, or any other cause shall be filled for the unexpired term in
the same manner as the original appointment. No person required to register with
the Secretary of State as a lobbyist or registered agent shall be eligible for
appointment by the Governor to the board.
(b)
The purpose of the review board shall be to review decisions made by hearing
officers as provided in subsection (h) of this Code section. At least a quorum
of the review board shall meet at least once every month to review hearing
officer decisions unless there are not any decisions for it to review. For
purposes of this subsection, a quorum shall consist of five members of the
review board, including either the chairperson or the
vice
chairperson.
The review board shall promulgate reasonable rules for its operation and rules
of procedure for the conduct of review board meetings and initial administrative
appeal hearings held by the appointed hearing officers. Subject to the
limitations stated in this subsection and in subsection (c) of this Code
section, the review board shall formulate and approve a list of at least five
and not more than ten attorneys who shall serve as hearing officers for appeals
which are assigned to them by the chairperson of the review board. Each such
attorney approved to be included on the list of hearing officers shall be an
active member of the State Bar of Georgia in good standing, and each such
attorney must have maintained such active status for the five years immediately
preceding such person´s respective approval. The members of the review
board shall receive no salary but shall be reimbursed for their expenses in
attending meetings and for transportation costs as authorized by Code Section
45-7-21, which provides for compensation and allowances of certain state
officials, and the chairperson and vice chairperson shall also be compensated
for their services rendered to the review board outside of attendance at a
review board meeting, the amount of which compensation shall be determined
according to regulations of the Department of Administrative Services. Hearing
officers to whom a case has been assigned shall receive compensation determined
to be appropriate and reasonable by the review board. Such compensation to the
members of the review board and to hearing officers shall be made by the
Department of Administrative Services.
(c)
Any applicant for a project, or any competing applicant, or any competing health
care facility that has notified the department prior to its decision that such
facility is opposed to the application before the department, or any county or
municipal government in whose boundaries the proposed project will be located,
who is aggrieved by a decision of the department shall have the right to
appeal such
decision to the commissioner in an initial
administrative appeal hearing before a hearing officer
assigned by
the commissioner or to intervene in such
hearing if
such applicant, facility, or government attended and participated in the
opposition meeting pursuant to subsection (c) of Code Section
31-6-43. Such request for hearing or
intervention shall be made within 30 days of the date of the decision made
pursuant to Code Section 31-6-43. In the event that an appeal is requested, the
chairperson
commissioner
of the
review board shall appoint a hearing
officer for each such hearing within 50 days after the date of the decision made
pursuant to Code Section 31-6-43.
The department
shall promulgate reasonable rules for initial administrative appeal hearings
held by the appointed hearing officers. Each hearing officer shall be an active
member of the State Bar of Georgia in good standing, and each such attorney must
have maintained such active status for the five years immediately preceding such
person´s respective approval. Hearing officers to whom a case has been
assigned shall receive compensation determined to be appropriate and reasonable
by the department. Within 14 days after
the appointment of the hearing officer, such hearing officer shall set the date
or dates for the hearing and shall provide the parties with written notice
mailed at least 14 days before the date of commencement of such hearing. The
hearing shall be commenced within 120 days of the filing of the request for a
hearing, unless the applicant consents or, in the case of competing applicants,
all applicants consent to an extension of this time period to a specified date.
Unless the applicant consents or, in the case of competing applicants, all
applicants consent to an extension of said 120 day period, any hearing officer
who fails to commence a hearing within the required time period shall not be
eligible for continued service as a hearing officer for the purposes of this
Code section. The hearing officer shall have the authority to dispose of all
motions made by any party before the issuance of the hearing officer´s
decision and shall make such rulings as may be required for the conduct of the
hearing.
(d)(b)
In fulfilling the functions and duties of this chapter, the hearing officer
shall act, and the hearing shall be conducted as a full evidentiary hearing, in
accordance with Chapter 13 of Title 50, the 'Ge