07 LC 33
2043S
The House Special Committee on Certificate of Need offers the following
substitute
to HB 249:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 6 of Title 31 of the Official Code of Georgia Annotated, relating
to state health planning and development, so as to provide that certain
destination acute care cancer specialty hospitals are subject to certificate of
need requirements; to revise certain definitions; to require certain destination
acute care cancer specialty hospitals to provide indigent care as a condition of
receiving a certificate of need; to provide considerations for certificates of
need relating to certain destination acute care cancer specialty hospitals; to
provide certain exemptions relating to certificates of need for new
institutional health services; 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:
SECTION
1.
Chapter
6 of Title 31 of the Official Code of Georgia Annotated, relating to state
health planning and development, is amended in Code Section 31-6-2, relating to
definitions, by adding new paragraphs (5.1) and (6.2) and revising paragraphs
(6), (8), and (12) as follows:
"(5.1)
'Compliant destination acute care cancer specialty hospital' means a destination
acute care cancer specialty hospital that has been in operation for less than 12
months or a destination acute care cancer specialty hospital whose:
(A)
Certificate of need has not been revoked;
(B)
Annual report for the preceding year demonstrates that its annual patient base
is composed of a minimum of 65 percent of patients who reside outside of the
state of Georgia; and
(C)
Annual report for the preceding year demonstrates that it provided uncompensated
indigent or charity care which met or exceeded 3 percent of its annual adjusted
gross revenues. As used in this paragraph, 'uncompensated indigent or charity
care' shall have the same meaning as in paragraph (6) of subsection (a) of Code
Section 31-6-40.2."
"(6)
'Consumer' means a person who is not employed by any health care facility or
provider or
any destination acute care cancer specialty
hospital and who has no financial or
fiduciary interest in any health care facility or provider
or any
destination acute care cancer specialty
hospital."
"(6.2)
'Destination acute care cancer specialty hospital' means an institution with a
licensed bed capacity of 50 or less which is primarily engaged in providing to
inpatients and outpatients, by or under the supervision of physicians,
diagnostic services and therapeutic service for medical diagnosis, treatment,
and care or rehabilitation services for the rehabilitation from cancer; which is
not owned in whole or in part by physicians; and whose annual patient base is
composed of a minimum of 65 percent of patients who reside outside of the state
of Georgia."
"(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; ambulatory surgical or obstetrical
facilities; health maintenance organizations; home health agencies; 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.
Such term
shall not include destination acute care cancer specialty
hospitals."
"(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.
Such term
shall not include destination acute care cancer specialty
hospitals."
SECTION
2.
Said
chapter is further amended in Code Section 31-6-40, relating to certificate of
need required for offering health care and exemptions from such requirement, by
adding a new subsection as follows:
"(e)(1)
From and after July 1, 2007, only such destination acute care cancer specialty
hospitals and the new health services defined in subparagraphs (B) through (H)
of paragraph (14) of Code Section 31-6-2 the destination acute care cancer
specialty hospital desires to offer initially as are found by the department to
be needed using the considerations set forth in subsection (b.1) of Code Section
31-6-42 shall be offered in this state.
(2)
Any destination acute care cancer specialty hospital that has received a
certificate of need to operate such a facility shall be required to obtain an
additional certificate of need in order to offer new institutional health
services as defined only in subparagraph (A) paragraph (14) of Code Section
31-6-2. Any compliant destination acute care cancer specialty hospital shall
not be required to obtain an additional certificate of need in order to offer
new institutional health services as defined only in subparagraphs (B) through
(H) of paragraph (14) of Code Section 31-6-2; however, such compliant
destination acute care cancer specialty hospital must still provide all
applicable information and all fees to the department required by applicants who
are required under this chapter to seek certificates of need for new
institutional health services as defined in subparagraphs (B) through (H) of
paragraph (14) of Code Section 31-6-2 and must give the department at least 30
days´ notice of each such new institutional health service prior to any
offer, use, purchase, expenditure, lease, acquisition, increase, conversion, or
upgrade of any such new institutional health service."
SECTION
3.
Said
chapter is further amended in Code Section 31-6-40.1, relating to acquisition of
health care facilities, penalty for failure to notify the department, limitation
on applications, agreement to care for indigent patients, and penalties, as
follows:
"31-6-40.1.
(a)
Any person who acquires a health care facility
or a
destination acute care cancer specialty
hospital 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.
(c)
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 each facility licensed by the department as a
destination acute care cancer specialty hospital shall provide uncompensated
indigent or charity care for residents of Georgia which meets or exceeds 3
percent of its annual adjusted gross revenues. As used in this subsection,
'uncompensated indigent or charity care' shall have the same meaning as in
paragraph (6) of subsection (a) of Code Section
31-6-40.2. A grantee or successor in
interest of a certificate of need or an authorization to operate under this
chapter which violates such an agreement, whether made before or after July 1,
1991, 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. Any penalty so recovered shall be paid into the state
treasury.
(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."
SECTION
4.
Said
chapter is further amended in Code Section 31-6-42, relating to qualifications
for the issuance of certificates of need, by revising subsection (a) and adding
a new subsection (b.1) to read as follows:
"(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:
(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.
This
subsection shall not apply to applications for the construction, development, or
other establishment of a destination acute care cancer specialty hospital or to
applications by a compliant destination acute care cancer specialty hospital for
other new institutional health services as defined in paragraph (14) of Code
Section 31-6-2."
"(b.1)
In the case of applications for the construction, development, or establishment
of a destination acute care cancer specialty hospital, the need for such service
shall be determined based solely on the following considerations:
(1)
The proposed new destination acute care cancer specialty hospital demonstrates
that its annual patient base will be composed of a minimum of 65 percent of
patients who reside outside of the state of Georgia;
(2)
The proposed new destination acute care cancer specialty hospital will provide
uncompensated indigent or charity care which meets or exceeds 3 percent of its
annual gross revenues. As used in this paragraph, 'uncompensated indigent or
charity care' shall have the same meaning as in paragraph (6) of subsection (a)
of Code Section 31-6-40.2.
(3)
The proposed new destination acute care cancer specialty hospital will make
available the latest technology in cancer diagnosis and treatment;
(4)
The proposed new destination acute care cancer specialty hospital demonstrates a
whole-person approach to treating patients using state of the art technology and
scientifically based complementary and alternative medicine;
(5)
The proposed new destination acute care cancer specialty hospital can be
adequately financed and is, in the immediate and long term, financially
feasible;
(6)
The proposed new destination acute care cancer specialty hospital is reasonably
financially and physically accessible;
(7)
The proposed new destination acute care cancer specialty hospital will add
economic value to the state;
(8)
The proposed new destination acute care cancer specialty hospital demonstrates a
willingness to contract with appropriate government payors;
(9)
The proposed new destination acute care cancer specialty hospital will conduct
biomedical or behavioral research projects or service development which is
designed to meet a national or regional need;
(10)
The proposed new destination acute care cancer specialty hospital will foster
improvements or innovations in the financing or delivery of health services or
promotes health care quality assurance; and
(11)
The proposed new destination acute care cancer specialty hospital demonstrates
that it will provide high quality care and will comply fully with relevant
licensure and accreditation standards.
The
grant of a certificate of need for the construction, development, or other
establishment of a destination acute care cancer specialty hospital shall
constitute a certificate of need to the hospital to offer, use, purchase,
expend, lease, acquire, increase, convert, or upgrade all new institutional
health services, except for a new institutional health service as defined in
subparagraph (A) of paragraph (14) of Code Section 31-6-2, without the necessity
of applying for a new or additional certificate of need. The destination acute
care cancer specialty hospital shall provide all applicable information and all
fees to the department required by applicants who are required under this
chapter to seek certificates of need for new institutional health services as
defined in subparagraphs (B) through (H) of paragraph (14) of Code Section
31-6-2 and shall give the department at least 30 days´ notice of each new
institutional health service prior to any offer, use, purchase, expenditure,
lease, acquisition, increase, conversion, or upgrade of any such new
institutional health service."
SECTION
5.
Said
chapter is further amended in Code Section 31-6-45, relating to revocation of
certificate of need and enforcement, as follows:
"31-6-45.
(a)
The department may revoke a certificate of need after notice to the holder of
the certificate and a fair hearing pursuant to Chapter 13 of Title 50, the
'Georgia Administrative Procedure Act,' for the following reasons:
(1)
Failure to comply with the provisions of Code Section 31-6-41;
or
(2)
The intentional provision of false information to the department by an applicant
in that applicant´s application;
or
(3)
In the case of a holder of a certificate of need for a destination acute care
cancer specialty hospital, failure to maintain a patient base that is composed
of a minimum of 65 percent of patients who reside outside of the state of
Georgia or failure to provide uncompensated indigent or charity care which meets
or exceeds 3 percent of its adjusted annual gross revenues. As used in this
paragraph, 'uncompensated indigent or charity care' shall have the same meaning
as in paragraph (6) of subsection (a) of Code section
31-6-40.2.
The
department may not, however, revoke a certificate of need if the applicant
changes the defined location of the project within the same county less than
three miles from the location specified in the certificate of need for financial
reasons or other reasons beyond its control,
including,
but not limited to, failure to obtain any required approval from zoning or other
governmental agencies or entities, provided such change in location is otherwise
consistent with the considerations and rules applied in the evaluation of the
project.
(b)
Any health care facility offering a new institutional health service without
having obtained a certificate of need and which has not been previously licensed
as a health care facility shall be denied a license to operate.
(c)
In the event that a new institutional health service is knowingly offered or
developed without having obtained a certificate of need as required by this
chapter,
or
the certificate of need for such service is revoked according to the provisions
of this Code section,
or the
requirements of paragraph (2) of subsection (e) of Code Section 31-6-40 have not
been met by the destination acute care cancer specialty
hospital, a facility or applicant may be
fined an amount not to exceed $5,000.00 per day for every day that the violation
of this chapter has existed and knowingly and willingly continues; provided,
however, that the expenditure or commitment of or incurring an obligation for
the expenditure of funds to take or perform actions not subject to this chapter
or to acquire, develop, or prepare a health care facility site for which a
certificate of need application is denied shall not be a violation of this
chapter and shall not be subject to such a fine. The commissioner of the
department shall determine, after notice and a hearing, whether the fines
provided in this Code section shall be levied.
(d)
In addition, for purposes of this Code section, the State of Georgia, acting by
and through the department, or any other interested person, shall have standing
in any court of competent jurisdiction to maintain an action for injunctive
relief to enforce the provisions of this chapter."
SECTION
6.
Said
chapter is further amended in Code Section 31-6-45.1, relating to revocation of
certificate of need and enforcement, by revising subsection (a) as follows:
"(a)
A health care facility
or destination
acute care cancer specialty hospital which
has a certificate of need or is otherwise authorized to operate pursuant to this
chapter shall have such certificate of need or authority to operate
automatically revoked by operation of law without any action by the Department
of Community Health when that facility´s permit to operate pursuant to Code
Section 31-7-4 is finally revoked by order of the Department of Human Resources.
For purposes of this subsection, the date of such final revocation shall be as
follows:
(1)
When there is no appeal of the order pursuant to Chapter 5 of this title, the
one hundred and eightieth day after the date upon which expires the time for
appealing the revocation order without such an appeal being filed;
or
(2)
When there is an appeal of the order pursuant to Chapter 5 of this title, the
date upon which expires the time to appeal the last administrative or judicial
order affirming or approving the revocation or revocation order without such
appeal being filed.
The
Department of Community Health may become a party to any judicial proceeding to
review a decision by the Department of Human Resources to revoke such a
permit."
SECTION
7.
Said
chapter is further amended in Code Section 31-6-45.2, relating to termination by
health care facility of participation as provider of medical assistance and
monetary penalties, by revising subsection (a) as follows:
"(a)
Any proposed or existing health care facility
or destination
acute care cancer specialty hospital which
obtains a certificate of need on or after April 6, 1992, based in part upon
assurances that it will participate as a provider of medical assistance, as
defined in paragraph (6) of Code Section 49-4-141, and which terminates its
participation as a provider of medical assistance, shall be subject to a
monetary penalty in the amount of the difference between the Medicaid covered
services which the facility agreed to provide in its certificate of need
application and the amount actually provided; provided, however, that this Code
section shall not apply if:
(1)
The proposed or existing health care facility´s certificate of need
application was approved by the Health Planning Agency prior to April 6, 1992,
and the Health Planning Agency´s approval of such application was under
appeal on or after April 6, 1992, and the Health Planning Agency´s approval
of such application is ultimately affirmed;
(2)
Such facility´s participation as a provider of medical assistance is
terminated by the state or federal government; or
(3)
Such facility establishes good cause for terminating its participation as a
provider of medical assistance. For purposes of this Code section, 'good cause'
shall mean:
(A)
Changes in the adequacy of medical assistance payments, as defined in paragraph
(5) of Code Section 49-4-141, provided that at least 10 percent of the
facility´s utilization during the preceding 12 month period was
attributable to services to recipients of medical assistance, as defined in
paragraph (7) of Code Section 49-4-141. Medical assistance payments to a
facility shall be presumed adequate unless the revenues received by the facility
from all sources are less than the total costs set forth in the cost report for
the preceding full 12 month period filed by such facility pursuant to the state
plan as defined in paragraph (8) of Code Section 49-4-141 which are allowed
under the state plan for purposes of determining such facility´s
reimbursement rate for medical assistance and the aggregate amount of such
facility´s medical assistance payments (including any amounts received by
the facility from recipients of medical assistance) during the preceding full 12
month cost reporting period is less than 85 percent of such facility´s
Medicaid costs for such period. Medicaid costs shall be determined by
multiplying the allowable costs set forth in the cost report, less any audit
adjustments, by the percentage of the facility´s utilization during the
cost reporting period which was attributable to recipients of medical
assistance;
(B)
Changes in the overall ability of the facility to cover its costs if such
changes are of such a degree as to seriously threaten the continued viability of
the facility; or
(C)
Changes in the state plan, statutes, or rules and regulations governing
providers of medical assistance which impose substantial new obligations upon
the facility which are not reimbursed by Medicaid and which adversely affect the
financial viability of the facility in a substantial manner."
SECTION
8.
Said
chapter is further amended in Code Section 31-6-70, relating to reports to the
department by hospitals, by revising subsection (a) as follows:
"(a)
There shall be required from each hospital
and each
destination acute care cancer specialty
hospital in this state an annual report of
certain health care information to be submitted to the department. The report
shall be due on the last day of January and shall cover the 12 month period
preceding each such calendar year."
SECTION
9.
This
Act shall become effective on July 1, 2007.
SECTION
10.
All
laws and parts of laws in conflict with this Act are repealed.