07 LC 33
1846
Senate
Bill 164
By:
Senators Balfour of the 9th, Williams of the 19th, Golden of the 8th, Stoner of
the 6th, Bulloch of the 11th and others
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 enact the "Certificate of Need Reformation Act of 2007"; to provide for
extensive revision of the certificate of need program; to revise the declaration
of policy for state health planning; to revise and add definitions; to revise
the composition and duties of the Health Strategies Council; to revise the
duties of the Department of Community Health; to provide for graduated fines for
noncompliance with notice provisions; to revise provisions relating to the scope
and validity of a certificate of need; to provide for specific conditions for
the issuance of a certificate of need; to provide for the establishment of
service-specific need methodologies in certain cases; to provide for favorable
consideration for applicants providing services in service areas of need; to
provide for a letter of intent for proposed projects; to provide for batching
and comparative review of applications; to provide for participation of opposing
parties; to provide for the imposition of a temporary moratorium on the issuance
of certificates of need for new and emerging technologies; to establish a
Certificate of Need Appeal Panel composed of independent hearing officers; to
revise provisions relating to administrative and judicial review; 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; to provide graduated fines for services
conducted without a required certificate of need; to add requirements relating
to the annual report prepared by the Department of Community Health; to revise
provisions relating to exemptions to certificate of need requirements; to
require provision of indigent care, participation as a Medicaid provider, and
annual reporting as a condition of exemption from certificate of need
requirements for certain entities; to require prior notice to the Department of
Community Health that certain activities are exempt from the certificate of need
requirements; to provide for transfer of some duties from the Health Strategies
Council to the Board of Community Health; to abolish the Health Planning Review
Board; to transfer pending matters of the Health Planning Review Board to the
Certificate of Need Appeal Panel; to revise a provision relating to application
of review procedures to expenditures under a federal law; to require health care
facilities and others to submit annual reports to the Department of Community
Health; to provide graduated fines for untimely and incomplete reports; to
revise a provision relating to the applicability of the article regarding the
Office of State Administrative Hearings; 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 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 effective dates; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
Short Title
Short Title
SECTION
1-1.
This
Act shall be known and may be cited as the "Certificate of Need Reformation Act
of 2007."
PART
II
Revisions to Certificate of Need Program
Revisions to Certificate of Need Program
SECTION
2-1.
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
policies
and
purpose
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, 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 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.
(4)
'Board' means the Board of Community Health.'
(4)(5)
'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)(6)
'Clinical health services' means diagnostic, treatment,
therapeutic,
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.
(7)
'Commissioner' means the commissioner of community health.
(6)(8)
'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.
(9)
'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.
(6.1)(10)
'Department' means the Department of Community Health
established
under Chapter 5A of this
title.
(7)(11)
'Develop,' with reference to a project,
means:
(A)
Constructing
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;
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 threshold
specified in subparagraph (B) of paragraph (20) of this Code section; provided,
however, that 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.
(12)
'Diagnostic and other imaging services' means magnetic resonance imaging,
computed tomography (CT) scanning, positron emission tomography (PET) scanning,
positron emission tomography/computed tomography, and other advanced imaging
services as defined by the department by rule, but such term shall not include
X-rays, fluoroscopy, or ultrasound services.
(7.1)(13)
'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;
provided, however, that any such diagnostic, treatment, or rehabilitation center
that offers or proposes to offer surgery in an operating room environment and to
allow patients to remain more than 23 hours shall be considered a hospital for
purposes of this chapter.
(8)(14)
'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 providers of medical assistance for Medicaid
purposes pursuant to Article 7 of Chapter 4 of Title
49; ambulatory surgical or obstetrical
facilities; health maintenance organizations; home health agencies;
and
diagnostic, treatment, or rehabilitation
centers, but only to the extent that subparagraph
(F)(G)
or (H), or both subparagraphs (G) and (H),
of paragraph
(14)(20)
of this Code section
are
is
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)(15)
'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)(16)
'Health Strategies Council' or 'council' means the body created by this chapter
to advise the Department of Community Health
in accordance
with Code Section 31-6-20
and adopt
the state health plan.
(11)(17)
'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)(18)
'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
and also
includes any diagnostic, treatment, or rehabilitation center that offers surgery
in an operating room environment and allows patients to remain more than 23
hours.
(13)(19)
'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.
(14)(20)
'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;
(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;
or
(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. The acquisition of
one
or more
items of functionally related diagnostic or therapeutic equipment shall be
considered as one project;
(G)(F)
Clinical health services which are offered in or through a diagnostic,
treatment, or rehabilitation center which were not offered
to a
substantial number of patients 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
$1,610,823.00;
and
(iv)
Cardiac catheterization;
or
and
(v)
Diagnostic and other imaging services.
(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. 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
subparagraph
(B), (F),
and (H) of this
paragraph,
and
division (iii) of
this
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
2007,
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
subparagraph
(B), (F),
and (H) of this
paragraph,
and
division (iii) of
this
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.
(21)
'New or emerging technology' means diagnostic or therapeutic equipment which has
not previously been utilized in this state and the need for which has not been
addressed in the state health plan or existing department rules.
(15)(22)
'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)(23)
'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)(24)
'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
in
the rules of the Department of Human Resources
in effect
January 1, 2007, for purposes of obtaining a permit or license to operate or any
successor rules adopted by the
department.
(17)(25)
'Person' means any individual, trust or estate, partnership,
limited
liability company or 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.
This term
shall include all related parties, including individuals, business corporations,
general partnerships, limited partnerships, limited liability companies, limited
liability partnerships, joint ventures, nonprofit corporations, or any other for
profit or not for profit entity that owns or controls, is owned or controlled
by, or operates under common ownership or control with a person.
(18)(26)
'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)(27)
'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 by this
chapter.
(22)(28)
'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)(29)
'State health plan' means a comprehensive program
or
subcomponents thereof 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.
(30)
'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
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 Health Strategies Council
that
shall be the successor to the Health
Policy
Strategies
Council in
existence on June 30, 2007. Those members
of the
previously
existing Health
Policy
Strategies
Council who are serving as such on
January 1,
1991, shall continue to serve until July 1, 1991, at which
time
June 30, 2007,
shall have their terms
shall
expire on that
date and that council
as existed on
June 30, 2007, shall be abolished. On and
after that
date
July 1, 2007,
the council shall be composed of
25
15
members.
Of those members, at least one
shall be
appointed from each congressional district. The council shall be
composed as follows:
(1)
One member representing
county
governments
urban
hospitals;
(2)
One member representing
the private
insurance industry
rural
hospitals;
(3)
One member representing proprietary hospitals;
(4)
One member representing the private insurance industry;
(5)
One member who is a primary care physician;
(6)
One member who is a physician in a board certified specialty;
(7)
One member representing freestanding ambulatory surgical centers;
(8)
One member representing the nursing home/long-term care industry;
(9)
One member representing home health agencies;
(10)
One member representing health care needs of women and children;
(11)
One member representing health care needs of the disabled and
elderly;
(12)
One member representing health care needs of the indigent and
uninsured;
(13)
One member who represents populations with mental health care
needs;
(14)
One member representing health care needs as it relates to business;
and
(15)
One at-large member.
(3)
Ten members representing health care providers as follows:
(A)
One member representing rural hospitals;
(B)
One member representing urban hospitals;
(C)
One member who is a primary care physician;
(D)
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)
One member representing nursing homes;
(H)
One member representing home health agencies;
(I)
One member representing 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)
One member representing health care needs of women;
(B)
One member representing health care needs of children;
(C)
One member representing health care needs of the disabled;
(D)
One member representing health care needs of the elderly;
(E)
One member representing health care needs of low-income persons;
(F)
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 additional member
or
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
additional
member representing hospitals and one additional physician member who is a
physician
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
reconstituted
council who
are appointed to succeed those members whose terms expire July 1,
1991, shall take office July 1,
1991
2007,
and
12
eight
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 of such
additional members 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 of such
additional members 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,
at his or her
discretion, with or without cause, or for removal by the chairperson of the
council
or
for failing to attend at least
75
50
percent of the meetings of the council in any
calendar
year or
failing to attend any three consecutive
meetings. 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.
(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 council shall meet no less often than bimonthly, but may meet more
frequently at the call of the chairperson as necessary to perform its
functions.
(g)(h)
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 review;
(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 council 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)
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
consistent
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 or
components thereof 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
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
consistent
with this chapter 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
preparing the record for appeals before the hearing officers and
review
board
Certificate of
Need Appeal Panel of the decisions of the
department, which costs may include reasonable sharing between the department
and the parties to appeal hearings;
(8)
For the purpose of health planning and for the evaluation of certificate of need
applications, to develop and maintain a comprehensive health care data base and
to require the submission of information from health care facilities and
institutions, including ambulatory surgical centers, whether or not exempt or
excluded from obtaining a certificate of need under this chapter, which is
determined by the department, through rule, to be necessary to meet the
department´s responsibilities as established in this chapter.
(9)
To establish, by rule, uniform need methodologies for new institutional health
services and health facilities. In developing such uniform need methodologies,
the department shall, at a minimum, consider the demographic characteristics of
the population, the health status of the population, service use patterns,
standards and trends, financial and geographic accessibility, and market
economics.
(8)(10)
To provide, by rule, for a reasonable and equitable fee schedule for certificate
of need applications
and
administrative appeals;
(9)(11)
To grant, deny, or revoke a certificate of need as applied for or as amended;
and
(10)(12)
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
Social Security Act of 1935, as amended.
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
the
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
such
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
2007,
only such new institutional health services
or
and
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
and
health care facilities which had been found to be needed by
department or
its predecessor, 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
2007,
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 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)(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)(c)
Any person that had formally requested, prior to
February 1,
1991
July 1,
2007, a determination from the
Health
Planning Agency
department
of the applicability of the certificate of need requirements for a specific
project that is subsequently approved by the
Health
Planning Agency
department
or by appeal of the
Health
Planning Agency´s
department´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
up to
$1,000.00 per day for each day that such
notification is late.
The fine
imposed pursuant to this subsection shall increase to $5,000.00 per day upon the
seventy-fifth day following the acquisition for each day thereafter that
notification has not been made. Such fine
or
fines 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;
and
(4)
New and emerging
technologies,
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. 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
July 1,
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. 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.
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)
'Year' means one of the three consecutive 12 month periods in a new perinatal
service´s 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;
provided, however, that a certificate holder may relocate pursuant to paragraph
(17) of subsection (a) of Code Section
31-6-47. 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;
provided, however, that a certificate holder may relocate pursuant to paragraph
(17) of subsection (a) of Code Section
31-6-47.
(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.
The license or
permit of any health care facility or institutional health services provider
subject to the provisions of this chapter shall specify the number of beds and
identify the clinical health services authorized or exempted by the department
pursuant to this chapter.
(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.
31-6-41.1.
(a)
The department may require that an applicant agree to meet certain specified
conditions, either prescribed by applicable rule or based upon representations
of intent by the applicant in the application, in order to obtain a certificate
of need and may issue a certificate of need predicated upon the applicant´s
compliance with those conditions. Such conditions may include requiring a
minimum amount of uncompensated indigent or charity care, requiring
participation as a provider of medical assistance for Medicaid purposes, or any
other condition relating to the considerations in Code Section 31-6-42. Any
such conditions imposed on a certificate of need specified by the department
shall be stated by the department in its decision to grant the certificate and
on the face of the certificate of need issued to the applicant.
(b)
The department may revoke the certificate of need, assess a monetary penalty
against the certificate holders, or both, if the holder of a certificate of need
fails to comply substantially with a condition imposed pursuant to subsection
(a) of this Code section. The maximum amount of the fine imposed shall not
exceed $5,000.00 per failure per day of noncompliance. The department shall
promulgate rules for reporting compliance with conditions imposed on a
certificate of need. Failure by the certificate holder to report compliance
with any condition upon which the issuance of the certificate was granted shall
constitute noncompliance. In assessing the appropriate penalty, the department
shall take into account as mitigation the degree of noncompliance and good cause
demonstrated by the certificate holder.
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)(f)
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)
Any adverse effects of the proposed new institutional health service on existing
providers have been assessed and will not unreasonably impact the quality,
efficiency, or financial viability of such existing providers;
(9)(10)
The proposed new institutional health service encourages more efficient
utilization of the health care facility proposing such service;
(10)(11)
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)(12)
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)(13)
The proposed new institutional health service meets the clinical needs of health
professional training programs which request assistance;
(13)(14)
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
(15)
The applicant for the proposed new institutional health service:
(A)
If an existing health care facility, demonstrates that it provides high quality
care and complies fully with relevant licensure and accreditation standards;
or
(B)
If not an existing provider, demonstrates that it will provide quality care and
will comply fully with relevant licensure and accreditation standards;
and
(14)(16)
The proposed new institutional health service fosters the special needs and
circumstances of health maintenance organizations.
(b)
No later than January 1, 2008, the department shall develop and adopt a
service-specific need methodology for each clinical health service and for all
diagnostic and other imaging services; diagnostic, treatment, or rehabilitation
centers; and diagnostic imaging and therapeutic equipment subject to review
under this chapter.
(b)(c)
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.
(d)
In the case of applications that are joined for comparative review pursuant to
subsection (b) of Code Section 31-6-40.1 or subsection (f) of Code Section
31-6-43, the department may give favorable consideration to projects and
applicants where the applicant agrees to provide a clinical health service that
is needed in the service area of the proposed project, and the department shall
condition the award of a certificate upon the applicant´s providing such
needed clinical health service. Such favorable consideration shall only be
available where each applicant competing in the comparative review may provide
such needed clinical health services.
(c)(e)
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
favorable
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)(f)
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)(g)
The department shall specify in its written findings of fact and decision which
of the considerations contained in this Code section and
in
the department´s applicable rules are applicable to an application and its
reasoning as to
and
any
evidentiary support for its evaluation of each such applicable consideration and
rule.
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
will
be developed that the application has been deemed complete
and shall
publish notice of the application in a department tracking report established
for these purposes. 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.
If the
requested information is not filed with the department within 14 days of the
date of the notice, the application shall be deemed incomplete and deemed
withdrawn from consideration.
The
applicant shall be afforded an opportunity to correct such deficiencies, and
upon such correction
If the
applicant corrects such deficiencies, 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
will
be developed that the application has been so declared
and notice
published in the department tracking
report. 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)
At least 45 days prior to filing an application, the applicant shall file a
letter of intent with the department respecting the development of a project
subject to review. The department shall provide by rule a process for filing
letters of intent and a mechanism by which applications may be filed to compete
with and be reviewed comparatively with proposals described in filed letters of
intent. Letters of intent must describe the proposal; specify the number of
beds sought, if any; identify the services to be provided and the specific
location and service area; and identify the applicant. Within 14 days after
receipt of a letter of intent, the department shall publish notice of the letter
of intent in the department tracking report.
(b)(c)
An
The department
shall specify by rule the time within which
an applicant may amend its
application,
but no amendment shall be allowed at any
time no
later than ten days prior to the end
within 30
days of the end of the review period, and
the department may request an applicant to make
amendments
an
amendment. The department decision shall
be made on an application as amended, if at all, by the applicant.
(c)(d)
Except as
provided in subsection (d) of this Code section, there
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 or, in
the case of applications joined for comparative review, beginning on the day the
department declares the final application
complete.
The
department may adopt rules for determining when it is not practicable to
complete a review in 90 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.
The department
shall adopt rules governing the submission of additional information by the
applicant and for opposing an application.
(e)
To allow the opportunity for comparative review of applications, the department
shall provide by rule for applications for a certificate of need to be submitted
on a timetable or batching cycle basis no less often than two times per calendar
year for each clinical health service. Applications for services, facilities,
or expenditures for which there is no specified batching cycle may be filed at
any time.
(d)(f)
The department
may order
the joinder of
shall
join an application which is
determined to
be complete
by the
department for
comparative
review with one or more
subsequently
filed applications declared complete for
review during
the same batching cycle when
the:
(1)
The first and subsequent applications
involve similar projects in the same
clinical
health service area or overlapping
medical
clinical
health 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
all applicants
whose applications are joined 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)(g)
The department shall review the application and all written information
submitted by the applicant in support of the application
and all
information submitted in opposition to 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)(h)
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
The
department shall provide the applicant an opportunity to meet with the
department to discuss the application and
to
provide 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
within the
time limits adopted by the department. The department shall also provide an
opportunity for any party that is opposed to an application to meet with the
department and to provide additional information to the department.
(g)(i)
The department shall, no later than
90
120
days after an application is
declared
determined to
be complete for review,
or,
in the event
joinder is
ordered pursuant to subsection (d) of this Code
section
of joined
applications,
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 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
Certificate of
Need Appeal Panel in accordance with this
chapter.
Within seven
days of the decision, the department shall publish notice of its decision to
grant or deny an application in the same manner as it publishes notices of the
filing of an application.
(h)(j)
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
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)(f)
of this Code section, is declared 'complete for review.'
(k)
To allow the department adequate time to develop an appropriate need
methodology, the department shall be authorized to issue a six-month moratorium
for consideration of any applications for a certificate of need for a new or
emerging technology. The department shall implement an expedited process to
develop a need methodology and service-specific review criteria for such new or
emerging technology which shall be applied to any applications for such
technology upon the expiration of the moratorium. The department may extend the
moratorium on consideration of such an application for up to three additional
months. If the department is unable to adopt a need methodology and
service-specific rule for the new or emerging technology during the moratorium,
the department shall review the application for certificate of need under the
general review criteria of this chapter.
31-6-44.
(a)
There is created the
Health
Planning Review Board
Certificate of
Need Appeal Panel, which shall be an
agency separate and apart from the department
and shall
consist of a panel of independent hearing officers. The purpose of the appeal
board shall be to serve as a panel of independent hearing officers to review the
department´s initial decision to grant or deny a certificate of need
application.
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.
The Health
Planning Review Board which existed on June 30, 2007, shall cease to exist after
that date and the Certificate of Need Appeal Panel shall be constituted
effective July 1, 2007, pursuant to this Code
section.
Those
The terms of
all 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
June 30, 2007,
shall automatically terminate on such
date.
(b)
On and after July 1,
1994
2007,
the review
board
appeal
panel shall be composed of
11
five
members appointed by the
Governor,
with one from each congressional district
for a term of
up to four years each. The Governor shall
appoint
persons
to the
review
board
appeal panel
attorneys who practice law in this state
and 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.
Each member of
the appeal panel shall be an active member of the State Bar of Georgia in good
standing, and each attorney shall have maintained such active status for the
five years immediately preceding such person´s
appointment. 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
appeal
panel. 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
appeal
panel 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
appeal
panel.
(b)(c)
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
appeal
panel 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,
including an appropriate fee schedule for filing such appeals. Members of the
appeal panel shall serve as hearing officers for appeals that are assigned to
them on a random, rotating basis by the chairperson of the review
board.
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
appeal
panel 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 ;
provided, however, that the chairperson
and vice chairperson
of the appeal
panel shall also be compensated for their
services rendered to the
review
board
appeal
panel outside of attendance at
a review
board
an appeal
panel meeting,
such as for
time spent assigning hearing officers, 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
Appeal panel
members shall receive compensation
for the
administration of the cases assigned to them, including prehearing, hearing, and
posthearing work, in an amount determined
to be appropriate and reasonable by the
review
board
department.
Such compensation to the members of the
review
board and to hearing officers
appeal
panel shall be made by the Department of
Administrative Services.
(c)(d)
Any applicant for a project, or any competing applicant
in the same
batching cycle, 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 an
initial administrative appeal hearing before
a
an appeal
panel hearing officer or to intervene in
such hearing. Such request for hearing or intervention shall be
made
filed with the
chairperson of the appeal panel within 30
days of the date of the decision made pursuant to Code Section 31-6-43.
In the event
an appeal is filed by a competing applicant, or any competing health care
facility, or any county or municipal government, the appeal shall be accompanied
by payment of such fee as is established by the appeal
panel. In the event
that
an appeal is requested, the chairperson of the
review
board
appeal
panel shall appoint a hearing officer for
each such hearing within
50
30
days after the date
of the
decision made pursuant to Code Section
31-6-43
the appeal is
received. Within 14 days after the
appointment of the hearing officer, such hearing officer shall
confer with
the parties and set the date or dates for
the hearing,
provided that no hearing shall be scheduled less than 60 days nor more than 120
days after
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
regularly
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)(e)
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 'Georgia Administrative Procedure
Act,' relating to contested cases, except as otherwise specified in this Code
section. Subject to the provisions of Article 4 of Chapter 18 of Title 50, all
files, working papers, studies, notes, and other writings or information used by
the department in making its decision shall be public records and available to
the parties, and the hearing officer may permit each party to exercise such
reasonable rights of prehearing discovery of such information used by the
parties as will expedite the hearing.
(e)(f)
The appeal hearing conducted by the appeal panel hearing officer shall be a de
novo review of the decision of the
department. The issue for the decision by
the hearing officer shall be whether, and the hearing officer shall order the
issuance of a certificate of need if, in the hearing officer´s
judgment,
the application is consistent with the considerations as set forth in Code
Section 31-6-42 and the department´s rules, as the hearing officer deems
such considerations and rules applicable to the review of the project. The
hearing officer shall also
consider:
(1)
Whether
whether
the department committed prejudicial procedural error in its consideration of
the
application;
(2)
Whether.
The hearing officer shall also consider
whether the appeal lacks substantial
justification;
and
(3)
Whether
whether
such appeal was undertaken solely for the purpose of delay or harassment.
The
burden of proof shall be on the applicant.
Appellants or applicants shall proceed first with their cases before the hearing
officer in the order determined by the hearing officer, and the department, if a
party, shall proceed last. In the event of a consolidated hearing on
applications which were joined
for
comparative review pursuant to subsection
(d)(f)
of Code Section 31-6-43, the hearing officer shall have the same powers
specified for the department in subsection
(d)
(f)
of Code Section 31-6-43 to order the issuance of no certificate of need or one
or more certificates of need.
(f)(g)
All evidence shall be presented at the initial administrative appeal hearing
conducted by the appointed hearing officer. A party or intervenor may present
any relevant evidence on all issues raised by the hearing officer or any party
to the hearing or revealed during
discovery.
A party or
intervenor shall present all relevant need studies and analysis as early in the
process as is
practicable.,
except that, unless in response to an issue raised by an opponent or the hearing
officer or revealed during discovery, a party or intervenor may not present a
new need study or analysis that is substantially different from any such study
or analysis submitted to the department prior to its decision and that could
reasonably have been available for submission to the department prior to its
decision. Except for such limitation on new studies or analyses, the
The
hearing officer may consider the latest data available, including updates of
studies previously submitted, in deciding whether an application is consistent
with the applicable considerations or rules.
The hearing
officer shall consider the applicable considerations and rules in effect on the
date the application for certificate of need was received by the department,
even if the provisions of those considerations or rules were changed after the
department´s decision. The hearing officer may remand a matter to the
department if the hearing officer determines that it would be beneficial for the
department to consider new data, studies, or analyses that were not available
before the decision or changes to the provisions of the applicable
considerations or rules made after the department´s decision. The hearing
officer shall establish the time deadlines for completion of the remand and
shall retain jurisdiction of the matter throughout the completion of the
remand.
(h)
After the issuance of a decision by the department pursuant to Code Section
31-6-43, no party to an appeal hearing, nor any person on behalf of such party,
including the department, shall make any ex parte contact with the appeal panel
hearing officer appointed to conduct the appeal hearing, any other member of the
appeal panel, or the commissioner in regard to a decision under
appeal.
(g)(i)
Within 30 days after the conclusion of the hearing, the hearing officer shall
make written findings of fact and conclusions of law as to each consideration as
set forth in Code Section 31-6-42 and the department´s rules, including a
detailed statement of the reasons for the decision of the hearing officer. If
any party has alleged that an appeal lacks substantial justification
and
or
was undertaken solely for the purpose of delay or harassment, the decision of
the hearing officer shall make findings of fact addressing the merits of the
allegation.
Immediately
upon rendering a decision, the
The
hearing officer shall file such decision with
the
chairperson of the
review
board
appeal panel
who
shall,
serve such decision upon all parties, and
shall
transmit the administrative record to the
chairperson
of the review board
commissioner.
Any party, including the department, which disputes any finding of fact or
conclusion of law rendered by the hearing officer in such hearing officer´s
decision and which wishes to appeal that decision
may
appeal to the
review
board
commissioner
and shall file
such
party´s
its
specific objections
thereto
with the
review
board
commissioner
or his or her designee within 30 days of
such
party´s receipt
of the
date of the hearing officer´s
decision
pursuant to
rules adopted by the
department.
(h)(j)
The decision of the
appeal
panel hearing officer will become the
final decision of the department upon the sixty-first day following the
receipt
date
of the decision
by the
review board unless an objection thereto
is filed with
the commissioner within the time limit
established in subsection
(g)(i)
of this Code
section.
and within
60 days of the receipt of the hearing officer´s decision by the review
board:
(1)
At least a quorum of the review board meets to review such decision and, by a
majority vote of those members present at the meeting, decides whether to
affirm, reverse, or modify the hearing officer´s decision or to remand the
case to the hearing officer for further consideration; or
(2)
At the request of any party which participated in the initial administrative
hearing before the hearing officer, or upon its own initiative, the chairperson
or the chairperson´s designee extends the time period for review of such
decision. However, the review board may not extend the time period for review of
such decision for longer than 45 days.
The
chairperson or vice chairperson shall set the date for the review board meeting
and provide the parties with written notice mailed at least 14 days prior to
such meeting. Within 30 days after meeting to review such hearing officer´s
decision, either the chairperson or the vice chairperson of the review board
shall, on behalf of the review board members present at such meeting, issue a
written order which memorializes the decision of the review board reached by
such majority vote. In the event the review board reverses or modifies the
hearing officer´s decision, the review board shall issue a written decision
explaining why such changes were made. However, the review board shall not
reverse findings of fact made by the hearing officer unless the review board
specifically finds that the hearing officer´s findings of fact are not
supported by substantial evidence, which shall mean that the record does not
contain such relevant evidence as a reasonable mind might accept as adequate to
support such findings, inferences, conclusions, or decisions, which such
evidentiary standard shall be in excess of the 'any evidence' standard contained
in other statutory provisions.
(k)(1)
In the event an appeal of the appeal panel hearing officer´s decision is
filed, the commissioner may adopt the hearing officer´s order as the final
order of the department or the commissioner may reject or modify the conclusions
of law over which the department has substantive jurisdiction and the
interpretation of administrative rules over which it has substantive
jurisdiction. By rejecting or modifying such conclusion of law or
interpretation of administrative rule, the department must state with
particularity its reasons for rejecting or modifying such conclusion of law or
interpretation of administrative rule and must make a finding that its
substituted conclusion of law or interpretation of administrative rule is as or
more reasonable than that which was rejected or modified. Rejection or
modification of conclusions of law may not form the basis for rejection or
modification of findings of fact. The commissioner may not reject or modify the
findings of fact unless the commissioner first determines from a review of the
entire record, and states with particularity in the order, that the findings of
fact were not based upon any competent substantial evidence or that the
proceedings on which the findings were based did not comply with the essential
requirements of law.
(2)
If, before the date set for the
review
board´s meeting
commissioner´s
decision, application is made to the
chairperson
commissioner
for leave to present additional evidence and it is shown to the satisfaction of
the
chairperson
commissioner
that the additional evidence is material and there were good reasons for failure
to present it in the proceedings before the hearing officer, the
chairperson
commissioner
may order that the additional evidence be taken before the same hearing officer
who rendered the initial decision upon conditions determined by the
chairperson
commissioner.
The hearing officer may modify the initial decision by reason of the additional
evidence and shall file that evidence and any modifications, new findings, or
decision with the
review
board
commissioner.
Unless leave is given by the
chairperson
commissioner
in accordance with the provisions of this subsection, the
review
board
appeal
panel may not consider new evidence under
any circumstances. In all circumstances, the
review
board´s
commissioner´s
decision shall be based upon considerations as set forth in Code Section 31-6-42
and the department´s rules.
(i)
After the issuance of a decision by the department pursuant to Code Section
31-6-43, no party to an appeal hearing, nor any person on behalf of such party,
shall make any ex parte contact with the hearing officer appointed to conduct
the appeal hearing or any member of the review board in regard to a project
under appeal.
(j)
Unless the hearing officer´s decision becomes the department´s
decision by operation of law as provided in subsection (h) of this Code section,
the final decision of the review board shall become the department´s
decision by operation of law. Such final decision shall be the final department
decision for purposes of Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.' The appeals process provided by this Code section shall be the
administrative remedy only for decisions made by the department pursuant to Code
Section 31-6-43 which involve the approval or denial of applications for
certificates of need.
(k)
In the event that the review board or its chairperson or vice chairperson
requires legal counsel, the chairperson or vice chairperson shall make a request
for such advice to the
Attorney
General.
(l)
If, based upon the findings of
fact
by the hearing officer, the
review
board
commissioner
determines that the appeal filed by any party of a decision of the department
lacks substantial justification and was undertaken solely for the purpose of
delay or harassment, the
review
board
commissioner
may enter an award in
its
his or
her written order against such party and
in favor of the successful party or parties, including the department, of all or
any part of their respective reasonable and necessary attorney´s fees and
expenses of litigation, as the
review
board
commissioner
deems just. Such award may be enforced by any court undertaking judicial review
of the final decision. In the absence of any petition for judicial review, then
such award shall be enforced, upon due application, by any court having personal
jurisdiction over the party against whom such an award is made.
(m)
Any party to the initial administrative appeal hearing conducted by the
appointed hearing officer, excluding the department, may seek judicial review of
the final decision in accordance with the method set forth in Chapter 13 of
Title 50, the 'Georgia Administrative Procedure Act'; provided, however, that in
conducting such review, the court may reverse or modify the final decision only
if substantial rights of the appellant have been prejudiced because the
procedures followed by the department, the
hearing
officer, or
the review board or the administrative findings, inferences, and conclusions
contained in the final decision are:
(1)
In violation of constitutional or statutory provisions;
(2)
In excess of the statutory authority of the department;
(3)
Made upon unlawful procedures;
(4)
Affected by other error of law;
(5)
Not supported by substantial evidence, which shall mean that the record does not
contain such relevant evidence as a reasonable mind might accept as adequate to
support such findings, inferences, conclusions, or decisions, which such
evidentiary standard shall be in excess of the 'any evidence' standard contained
in other statutory provisions; or
(6)
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(m)
Unless the hearing officer´s decision becomes the department´s final
decision by operation of law as provided in subsection (j) of this Code section,
the decision of the commissioner shall become the department´s final
decision by operation of law. Such final decision shall be the final department
decision for purposes of Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.' The appeals process provided by this Code section shall be the
administrative remedy only for decisions made by the department pursuant to Code
Section 31-6-43 which involve the approval or denial of applications for
certificates of need.
(n)
In the event that the commissioner requires legal counsel, the commissioner
shall make a request for such advice to the Attorney General.
31-6-44.1
(a)
Any party to the initial administrative appeal hearing conducted by the
appointed appeal panel hearing officer, excluding the department, may seek
judicial review of the final decision in accordance with the method set forth in
Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' except as
otherwise modified by this Code section; provided, however, that in conducting
such review, the court may reverse or modify the final decision only if
substantial rights of the appellant have been prejudiced because the procedures
followed by the department, the hearing officer, or the commissioner or the
administrative findings, inferences, and conclusions contained in the final
decision are:
(1)
In violation of constitutional or statutory provisions;
(2)
In excess of the statutory authority of the department;
(3)
Made upon unlawful procedures;
(4)
Affected by other error of law;
(5)
Not supported by any evidence; or
(6)
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(b)
In the event a party seeks judicial review, the department shall, within 30 days
of the filing of the notice of appeal with the superior court, transmit
certified copies of all documents and papers in its file together with a
transcript of the testimony taken and its findings of fact and decision to the
clerk of the superior court to which the case has been appealed. The case so
appealed may then be brought by either party upon ten days´ written notice
to the other before the superior court for a hearing upon such record, subject
to an
assignment of
the case for hearing by the court; provided, however, if the court does not hear
the case within 120 days of the date of docketing in the superior court, the
decision of the department shall be considered affirmed by operation of law
unless a hearing originally scheduled to be heard within the 120 days has been
continued to a date certain by order of the court. In the event a hearing is
held later than 90 days after the date of docketing in the superior court
because same has been continued to a date certain by order of the court, the
decision of the department shall be considered affirmed by operation of law if
no order of the court disposing of the issues on appeal has been entered within
30 days after the date of the continued hearing. If a case is heard within 120
days from the date of docketing in the superior court, the decision of the
department shall be considered affirmed by operation of law if no order of the
court dispositive of the issues on appeal has been entered within 30 days of the
date of the hearing.
31-6-45.
(a)
The department may revoke a certificate of
need, in whole
or in part, 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;
(3)
Failure to comply substantially with conditions imposed on the certificate of
need by the department when the certificate was granted; or
(4)
Failure to fully implement the approved project with conditions specified by the
department and in a time frame specified in the rules of the
department.
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, 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;
It shall be
unlawful for any person to offer or develop a new institutional health service
that is subject to review under this chapter without first obtaining a valid
certificate of need. Any person violating this subsection may be fined for each
day that such violation occurs. The amount of the maximum fine shall be as
follows: (1) $5,000.00 per day of violation up to 30 days, (2) $10,000.00 per
day of violation for the thirty-first day through the sixtieth day, and (3)
$25,000.00 per day of violation from the sixty-first day and each day
thereafter; 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
in accordance
with procedures adopted by the department,
whether the fines provided in this Code section shall be levied
and shall
provide for an expedited review of such
fine.
A person fined
pursuant to this subsection shall have the right to judicial review of such fine
in accordance with Code Section 50-13-19. The department shall not levy any
fines pursuant to this Code section against any person who, in good faith,
relies on a written notice from the department, including a letter of
nonreviewability or a letter of determination prior to beginning the project,
that the project is not reviewable or subject to certificate of need
requirements under this chapter where the person has provided full and accurate
information to the department regarding his or her proposal and has implemented
the proposal in strict compliance with the description of such proposal provided
to the department.
(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.
31-6-45.1.
(a)
A health care facility 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
further
action by the
Department
of Community Health
department
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
department.
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.
(b)
The services which had been authorized to be offered by a health care facility
for which a certificate of need has been revoked pursuant to subsection (a) of
this Code section may continue to be offered in the service area in which that
facility was located under such conditions as specified by the department
notwithstanding that some or all of such services could not otherwise be offered
as new institutional health services.
31-6-45.2.
(a)
Any proposed or existing health care facility which obtains a certificate of
need on or after April 6, 1992, based in part upon assurances
or
conditions 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.
(b)
A facility seeking to terminate its enrollment as a provider of medical
assistance shall submit a written request to the Department of Community Health
documenting good cause for termination. The
Department
of Community Health, after consultation with
the
department,
shall grant or deny the facility´s request within 30 days. If the
Department
of Community Health
department
denies the facility´s request, the facility shall be entitled to a hearing
conducted in the same manner as an evidentiary hearing conducted by the
Department
of Community Health
department
pursuant to the provisions of Code Section 49-4-153 within 30 days of the
Department
of Community Health´s
department´s
decision.
(c)
The imposition of the monetary penalty provided in this Code section shall
commence upon
notification
to the commissioner of the department by the commissioner of community health
that said facility has terminated its
termination of
a facility´s participation as a
provider of medical assistance. The monetary penalty shall be levied and
collected by the department on an annual basis for every year in which the
facility fails to participate as a provider of medical assistance. Penalties
authorized under this Code section shall be subject to the same notices and
hearings as provided for levy of fines under Code Section 31-6-45.
31-6-46.
The
department shall prepare and submit an annual report to the Health and Human
Services Committee of the Senate and the Health and Human Services Committee of
the House of Representatives about its operations and decisions for the
preceding 12 month period, not later than 30 days prior to each convening of the
General Assembly in regular session. Either committee may request any additional
reports or information, including decisions, from the department at any time,
including a period in which the General Assembly is not in regular session.
The annual
report of the department shall include the department´s assessment of the
adequacy of the department´s rules in meeting the policy and purposes of
this chapter and the adequacy of all existing need methodologies in promoting
access to health care and the appropriate distribution of health care services.
The annual report shall also identify new and emerging technologies for which
the department anticipates the development of a new need methodology and
service-specific rules in the upcoming year.
31-6-47.
(a)
Notwithstanding the other provisions of this chapter, this chapter shall not
apply to:
(1)
Infirmaries operated by educational institutions for the sole and exclusive
benefit of students, faculty members, officers, or employees
thereof;
(2)
Infirmaries or facilities operated by businesses for the sole and exclusive
benefit of officers or employees thereof, provided that such infirmaries or
facilities make no provision for overnight stay by persons receiving their
services;
(3)
Institutions operated exclusively by the federal government or by any of its
agencies;
(4)
Offices of private physicians or dentists whether for individual or group
practice, except as otherwise provided in
subparagraphs
(G) and (H)
subparagraph
(F) of paragraph
(14)(20)
of Code Section 31-6-2;
(5)
Christian Science sanatoriums operated or listed and certified by the First
Church of Christ Scientist, Boston,
Massachusetts;
(6)(5)
Site acquisitions for health care facilities or preparation or development costs
for such sites prior to the decision to file a certificate of need
application;
(7)(6)
Expenditures related to adequate preparation and development of an application
for a certificate of need;
(8)(7)
The commitment of funds conditioned upon the obtaining of a certificate of
need;
(9)(8)
Expenditures for the acquisition of existing health care facilities by stock or
asset purchase, merger, consolidation, or other lawful means unless the
facilities are owned or operated by or on behalf of a:
(A)
Political subdivision of this state;
(B)
Combination of such political subdivisions; or
(C)
Hospital authority, as defined in Article 4 of Chapter 7 of this
title;
(9.1)(9)
Expenditures for the restructuring of or for the acquisition by stock or asset
purchase, merger, consolidation, or other lawful means of an existing health
care facility which is owned or operated by or on behalf of any entity described
in subparagraph (A), (B), or (C) of paragraph
(9)(8)
of this subsection only if such restructuring or acquisition is made by any
entity described in subparagraph (A), (B), or (C) of paragraph
(9)(8)
of this subsection;
(10)
Expenditures for
the minor
repair
nonclinical
projects, including parking decks, medical office buildings, repairs to the
physical plant of a health care facility,
or parts thereof or
nonclinical
services provided or equipment used therein, or replacement of
equipment,
including, but not limited to, CT scanners
previously
approved under a certificate of
need;
(11)
Capital expenditures otherwise covered by this chapter required solely to
eliminate or prevent safety hazards as defined by federal, state, or local fire,
building, environmental, occupational health, or life safety codes or
regulations, to comply with licensing requirements of the
Department
of Human Resources
department,
or to comply with accreditation standards of the Joint Commission on
Accreditation of Hospitals;
(12)
Cost overruns whose percentage of the cost of a project is equal to or less than
the cumulative annual rate of increase in the composite construction index,
published by the Bureau of the Census of the Department of Commerce, of the
United States government, calculated from the date of approval of the
project;
(13)
Transfers from one health care facility to another such facility of major
medical equipment previously approved under or exempted from certificate of need
review, except where such transfer results in the institution of a new clinical
health service for which a certificate of need is required in the facility
acquiring said equipment, provided that such transfers are recorded at net book
value of the medical equipment as recorded on the books of the transferring
facility;
(14)
New institutional health services provided by or on behalf of health maintenance
organizations or related health care facilities in circumstances defined by the
department pursuant to federal law;
(15)
Increases in the bed capacity of a hospital up to ten beds or 10 percent of
capacity, whichever is less, in any consecutive two-year period, in a hospital
that has maintained an overall occupancy rate greater than 85 percent for the
previous 12 month period;
and
(16)
Capital expenditures for a project otherwise requiring a certificate of need if
those expenditures are for a project to remodel, renovate, replace, or any
combination thereof, a medical-surgical hospital and:
(A)
That hospital:
(i)
Has a bed capacity of not more than 50 beds;
(ii)
Is located in a county in which no other medical-surgical hospital is
located;
(iii)
Has at any time been designated as a disproportionate share hospital by the
Department
of Community Health
department;
and
(iv)
Has at least 45 percent of its patient revenues derived from medicare, Medicaid,
or any combination thereof, for the immediately preceding three years;
and
(B)
That project:
(i)
Does not result in any of the following:
(I)
The offering of any new clinical health services;
(II)
Any increase in bed capacity;
(III)
Any redistribution of existing beds among existing clinical health services;
or
(IV)
Any increase in capacity of existing clinical health services;
(ii)
Has at least 80 percent of its capital expenditures financed by the proceeds of
a special purpose county sales and use tax imposed pursuant to Article 3 of
Chapter 8 of Title 48; and
(iii)
Is located within a three-mile radius of and within the same county as the
hospital´s existing
facility;
(17)
The relocation of a nursing home within a five-mile radius of and within the
same county as the existing facility; of a hospital within a three-mile radius
of and within the same county as the existing facility; and of a diagnostic,
treatment, or rehabilitation center or other health care facility subject to
certificate of need requirements pursuant to this chapter within a one-mile
radius of and within the same county as the existing facility; and
(18)
Continuing care retirement communities which contain sheltered nursing beds, as
defined by the department.
(b)
The department shall establish, by rule, procedures whereby requirements for the
process of review and issuance of a certificate of need may be modified and
expedited as a result of emergency situations.
(c)
By rule,
the
The
department shall establish
by
rule a procedure for expediting
or
waiving reviews of certain projects
the
nonreview of which
where
it deems such
expedited review compatible with the
purposes of this
chapter, in
addition to expenditures exempted from review by this Code
section.
31-6-47.1
(a)
The department shall require prior notification of activities that are excluded
from certificate of need requirements pursuant to division (20)(F)(iii) of Code
Section 31-6-2 and may require prior notification of activities exempt from
certificate of need requirements pursuant to paragraphs (8) through (18) of
subsection (a) of Code Section 31-6-47 for purposes of determining whether such
activity is compatible with the purposes of this chapter.
(b)
On and after July 1, 2007, any diagnostic, treatment, or rehabilitation center
offering diagnostic or other imaging services or offering ambulatory surgery
pursuant to the exclusion provided in division (20)(F)(iii) of Code Section
31-6-2 or as formerly designated as division (14)(F)(iii) of Code Section 31-6-2
and any diagnostic treatment or rehabilitation centers offering such services
prior to July 1, 2007, shall be required to:
(1)
Provide uncompensated indigent and charity care in minimum amounts as
established by the department;
(2)
Participate as a provider of medical assistance for Medicaid purposes pursuant
to Article 7 of Chapter 4 of Title 49 and provide care to Medicaid beneficiaries
in a minimum amount determined by the department to be the proportion of
services provided to Medicaid or PeachCare beneficiaries by the general acute
care hospital located closet to the DTRC in the most recent year for which the
department has collected data; and
(3)
Provide annual reports in the same manner and in accordance with Code Section
31-6-70
to
be excluded from the certificate of need requirements contained in this chapter.
Any person or entity not complying with this subsection shall be subject to the
sanctions in the same manner as provided in subsection (c) of Code Section
31-6-45.2 or subsection (g) of Code Section 31-6-70, as appropriate; and for
indigent and charity care, the department shall fine the person or entity in an
amount equal to three times the difference between the minimum requirement
established by the department and the amount of indigent and charity care
actually provided.
31-6-48.
The
State Health Planning and Development Agency, the State-wide Health Coordinating
Council, and the State Health Planning Review Board existing immediately prior
to July 1, 1983, are abolished, and their respective successors on and after
July 1, 1983, shall be the Health Planning Agency, the Health Policy Council,
and the Health Planning Review Board, as established in this chapter, except
that on and after July 1, 1991, the Health Strategies Council shall be the
successor to the Health Policy Council and except that on and after July 1,
1999, the Department of Community Health shall be the successor to the Health
Planning
Agency, and
except that on and after July 1, 2007, the Board of Community Health shall be
the successor to the duties of the Health Strategies Council with respect to
adoption of the state health plan, and except that on and after July 1, 2007,
the Certificate of Need Appeal Panel shall be the successor to the duties of the
Health Planning Review Board. For
purposes of any existing contract with the federal government, or federal law
referring to such abolished agency, council, or board, the successor department,
council, or board established in this chapter or in Chapter 5A of this title
shall be deemed to be the abolished agency, council, or board and shall succeed
to the abolished agency´s, council´s, or board´s functions. The
State Health Planning and Development Commission is abolished.
31-6-49.
All
matters transferred to the Health Strategies Council and the Health Planning
Review Board by the previously existing provisions of this Code section and that
are in effect on June 30,
1999
2007,
shall automatically remain in such council or board on and after July 1,
1999
2007,
until otherwise disposed of. All matters transferred to the Health Planning
Agency by the previously existing provisions of this Code section and that are
in effect on June 30, 1999, shall automatically be transferred to the Department
of Community Health on July 1, 1999.
All matters of
the Health Planning Review Board that are pending on June 30, 2007, shall
automatically be transferred to the Certificate of Need Appeal Panel established
pursuant to Code Section 31-6-44 on July 1, 2007.
31-6-50.
From
and after July 1, 1983, the
The
review and appeal considerations and procedures set forth in Code Sections
31-6-42 through 31-6-44, respectively, shall apply to and govern the review of
capital expenditures under the Section 1122 program of the
federal
Social Security Act of 1935, as amended, including, but not limited to, any
application for approval under Section 1122 which is under consideration by the
Health Planning Agency or on appeal before the
review
board
Certificate of
Need Appeal Panel, successor to the former Health Planning Review
Board as of July 1,
1983
2007.
ARTICLE
4
31-6-70.
(a)
There shall be required from each
hospital in
this state
health care
facility and each diagnostic, treatment, and rehabilitation center in this
state, including all ambulatory surgical centers and imaging centers in this
state, whether or not exempt from obtaining a certificate of need under this
chapter, 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.
(b)
The report required under subsection (a) of this Code section shall contain the
following information:
(1)
Total gross revenues
and
expenses;
(2)
Bad debts;
(3)
Amounts of free care extended, excluding bad debts;
(4)
Contractual adjustments
for
governmental and private
payors;
(5)
Amounts of care provided under a Hill-Burton commitment;
(6)
Amounts of charity care provided to indigent persons
or persons
eligible for charity care;
(7)
Amounts of outside sources of funding from governmental entities, philanthropic
groups, or any other source, including the proportion of any such funding
dedicated to the care of indigent persons;
and
(8)
For cases involving indigent
or
charity persons:
(A)
The number of persons treated;
(B)
The number of inpatients and outpatients;
(C)
Total patient days;
(D)
The number of patients categorized by county of residence; and
(E)
The indigent
and
charity care costs incurred by the
hospital
health care
facility by county of
residence;
(9)
Utilization data relating to numbers of procedures or services, numbers and
origin of patients, charges, and other similar data; and
(10)
Other financial, demographic, or utilization data as specified by the department
by rule.
(c)
As used in subsection (b) of this Code section,
the
term:
(1)
'Indigent
'indigent
persons' means persons having as a maximum
allowable income level an amount corresponding to 125 percent of the federal
poverty guideline.
(2)
'Persons eligible for charity care' means persons having an income level
corresponding to the upper percentage of the federal poverty guidelines
specified in policies of the health care facility filed with the department but
who have no other governmental or private health insurance support.
(d)
The department shall provide a form for the report required by subsection (a) of
this Code section and may provide in said form for further categorical divisions
of the information listed in subsection (b) of this Code section.
(e)
In the event that the department does not receive an annual report from a
hospital
health care
facility within 30 days following the date
such report was due or receives a timely but incomplete report, the department
shall notify the hospital regarding the deficiencies.
(f)
No application for a certificate of need under Article 3 of this chapter shall
be considered as complete if the applicant has not submitted the annual report
required by subsection (a) of this Code section.
(g)
The department may assess an administrative fine against the health care
facility for failure to submit the data required by this Code section in an
amount not to exceed $500.00 per day for the first through the thirtieth day of
noncompliance and up to $1,000.00 per day for the thirty-first day of
noncompliance and each day thereafter. The department may revoke a certificate
of need or exemption if the facility, having been notified pursuant to
subsection (e) of this Code section, fails to submit such data within 180 days
of the date due."
SECTION
2-2.
Code
Section 50-13-42 of the Official Code of Georgia Annotated, relating to the
applicability of the article regarding the Office of State Administrative
Hearings, is amended by revising subsection (a) as follows:
"(a)
In addition to those agencies expressly exempted from the operation of this
chapter under paragraph (1) of Code Section 50-13-2, this article shall not
apply to the Commissioner of Agriculture, the Public Service Commission, the
Health
Planning Review Board
Certificate of
Need Appeal Panel, or the Department of
Community Health or to the Department of Labor with respect to unemployment
insurance benefit hearings conducted under the authority of Chapter 8 of Title
34. Such exclusion does not prohibit such office or agencies from contracting
with the Office of State Administrative Hearings on a case-by-case
basis."
PART
III
Transfer of Licensing Functions from the Department of Human Resources to the Department of Community Health.
Transfer of Licensing Functions from the Department of Human Resources to the Department of Community Health.
SECTION
3-1.
Code
Section 19-10A-2, relating to the definition of "medical facility" for purposes
of the "Safe Place for Newborns Act of 2002," is amended as
follows:
"19-10A-2.
As
used in this chapter, the term 'medical facility' shall mean any licensed
general or specialized hospital, institutional infirmary, health center operated
by a county board of health, or facility where human births occur on a regular
and ongoing basis which is classified by the Department of
Human
Resources
Community
Health as a birthing center, but shall not
mean physicians´ or dentists´ private offices."
SECTION
3-2.
Code
Section 20-3-476, relating to the authorization and administration of a loan
program for attendance at colleges of osteopathic medicine, is amended by
revising subsection (e) as follows:
"(e)
Loans made pursuant to this subpart shall be conditioned upon the
recipients´ agreements in writing to repay the loans in services to the
public through the practice of primary care medicine in an area of the state
that is approved by the authority for purposes of this subpart as being a
medically underserved area or in a hospital or facility operated by or under the
jurisdiction of the Department of
Human
Resources
Community
Health or the Department of Corrections.
Loans shall bear interest at the rate of 12 percent per annum from each date of
disbursement of loan proceeds by the authority. For each year of practice by a
loan recipient of primary care medicine in an authority approved area, hospital,
or facility, the loan recipient shall be given credit for repayment of loan
amounts received by the recipient under this subpart for one academic year of
study or its equivalent as a full-time student. To the extent that loans made
under this subpart are repaid in approved services rendered, all interest due
the authority on such loans shall likewise be canceled. Loans made under this
subpart that are not repaid in approved services rendered shall, together with
interest thereon, be repaid to the authority in cash at times prescribed by the
authority. Each applicant shall, before receiving the proceeds of a loan, enter
into a written agreement with the authority, execute a promissory note, or sign
such other documents as may be required by the authority, the terms and
conditions of which shall be in accordance with and designed to accomplish the
purposes of this subpart."
SECTION
3-3.
Code
Section 20-3-513, relating to determination of amount of medical scholarships by
the State Medical Education Board, is amended as follows:
"20-3-513.
Students
whose applications are approved shall receive a loan or scholarship in an amount
to be determined by the State Medical Education Board to defray the tuition and
other expenses of the applicant in an accredited four-year medical school in the
United States which has received accreditation or provisional accreditation by
the Liaison Committee on Medical Education of the American Medical Association
or the Bureau of Professional Education of the American Osteopathic Association
for a program in medical education designed to qualify the graduate for
licensure by the Composite State Board of Medical Examiners of Georgia. The
loans and scholarships shall be paid in such manner as the State Medical
Education Board shall determine and may be prorated so as to pay to the medical
college or school to which any applicant is admitted such funds as are required
by that college or school with the balance being paid directly to the applicant;
all of which shall be under such terms and conditions as may be provided under
rules and regulations of the State Medical Education Board. The loans or
scholarships to be granted to each applicant shall be based upon the condition
that the full amount of the loans or scholarships shall be repaid to the State
of Georgia in services to be rendered by the applicant by practicing his or her
profession in a State Medical Education Board approved rural county in Georgia
of 35,000 population or less according to the United States decennial census of
1990 or any future such census or at any hospital or facility operated by or
under the jurisdiction of the Department of
Human
Resources
Community
Health or at any facility operated by or
under the jurisdiction of the Department of Corrections or at any facility
operated by or under the jurisdiction of the Department of Juvenile Justice. For
each year of practicing his or her profession in such State Medical Education
Board approved location, the applicant shall receive credit for the amount of
the scholarship received during any one year in medical school, with the
interest due on such amount."
SECTION
3-4.
Code
Section 24-9-47, relating to disclosure of AIDS confidential information as
evidence, is amended by revising paragraph (1) of subsection (h) as
follows:
"(h)(1)
An administrator of an institution licensed as a hospital by the Department of
Human
Resources
Community
Health or a physician having a patient who
has been determined to be infected with HIV may disclose to the Department of
Human Resources:
(A)
The name and address of that patient;
(B)
That such patient has been determined to be infected with HIV; and
(C)
The name and address of any other person whom the disclosing physician or
administrator reasonably believes to be a person at risk of being infected with
HIV by that patient."
SECTION
3-5.
Code
Section 24-10-70, relating to definitions relative to production of medical
records as evidence, is amended by revising paragraph (1) as
follows:
"(1)
'Institution' shall have the meaning set forth in paragraph
(1)(4)
of Code Section 31-7-1 and shall also include a psychiatric hospital as defined
in paragraph (7) of Code Section 37-3-1."
SECTION
3-6.
Code
Section 25-2-13, relating to buildings presenting special hazards to persons or
property, is amended by revising subparagraph (b)(1)(J) as follows:
"(J)
Personal care homes required to be licensed as such by the Department of
Human
Resources
Community
Health and having at least seven beds for
nonfamily adults, and the Commissioner shall, pursuant to Code Section 25-2-4,
by rule adopt state minimum fire safety standards for those homes, and any
structure constructed as or converted to a personal care home on or after April
15, 1986, shall be deemed to be a proposed building pursuant to subsection (d)
of Code Section 25-2-14 and that structure may be required to be furnished with
a sprinkler system meeting the standards established by the Commissioner if he
deems this necessary for proper fire safety."
SECTION
3-7.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended in
Code Section 31-1-1, relating to definitions relative to general health
provisions, as follows:
"31-1-1.
Except
as specifically provided otherwise, as
As
used in this title, the term:
(1)
'Board' means the Board of Human Resources.
(2)
'Commissioner' means the commissioner of human resources.
(3)
'Department' means the Department of Human Resources."
SECTION
3-8.
Said
title is further amended in Code Section 31-7-1, relating to definitions
relative to the regulation of hospitals and related institutions, as
follows:
"31-7-1.
As
used in this chapter, the term:
(1)
'Board' means
the Board of Community Health.
(2)
'Commissioner' means the commissioner of community health.
(3)
'Department' means the Department of Community Health.
(4)
'Institution' means:
(A)
Reserved;
(B)
Any building, facility, or place in which are provided two or more beds and
other facilities and services that are used for persons received for
examination, diagnosis, treatment, surgery, maternity care, nursing care, or
personal care for periods continuing for 24 hours or longer and which is
classified by the department, as provided for in this chapter, as either a
hospital, nursing home, or personal care home;
(C)(B)
Any health facility wherein abortion procedures under subsections (b) and (c) of
Code Section 16-12-141 are performed or are to be performed;
(D)(C)
Any building or facility, not under the operation or control of a hospital,
which is primarily devoted to the provision of surgical treatment to patients
not requiring hospitalization and which is classified by the department as an
ambulatory surgical treatment center;
(E)(D)
Any fixed or mobile specimen collection center or health testing facility where
specimens are taken from the human body for delivery to and examination in a
licensed clinical laboratory or where certain measurements such as height and
weight determination, limited audio and visual tests, and electrocardiograms are
made, excluding public health services operated by the state, its counties, or
municipalities;
(F)(E)
Any building or facility where human births occur on a regular and ongoing basis
and which is classified by the
Department
of Human Resources
department
as a birthing center; or
(G)(F)
Any building or facility which is 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.
The
term 'institution' shall exclude all physicians´ and dentists´ private
offices and treatment rooms in which such
dentists
or physicians
or
dentists primarily see, consult with, and
treat patients.
(2)(5)
'Medical facility' means any licensed general or specialized hospital,
institutional infirmary, public health center, or diagnostic and treatment
center.
(3)(6)
'Permit' means a permit issued by the department upon compliance with the rules
and regulations of the department.
(4)(7)
'Provisional permit' means a permit issued on a conditional basis for one of the
following reasons:
(A)
To allow a newly established institution a reasonable but limited period of time
to demonstrate that its operational procedures equal standards specified by the
rules and regulations of the department; or
(B)
To allow an existing institution a reasonable length of time to comply with
rules and regulations, provided the institution shall present a plan of
improvement acceptable to the department."
SECTION
3-9.
Said
title is further amended by revising subsection (c) in Code Section 31-7-2.1,
relating to rules and regulations relative to the regulation of hospitals and
related institutions, as follows:
"(c)
Except as provided in Code Sections 31-8-86 and 31-5-5, all worksheets or
documents prepared or compiled by
Department
of Human Resources
department
surveyors in the course of nursing home surveys shall be provided upon written
request to a nursing home which has received notice of intent to impose a remedy
or sanction pursuant to 42 U.S.C. Section 1396r or Code Section 31-2-6;
provided, however, that the names of residents and any other information that
would reveal the identities of residents and the content of resident interviews
shall not be disclosed except as provided in survey protocols of the federal
Centers for Medicare and Medicaid Services. The department may charge a
reasonable reproduction fee as provided in Code Section 50-18-70 et
seq."
SECTION
3-10.
Said
title is further amended by revising Code Section 31-7-5, relating to exemptions
from permit requirements to operate a health care institution, as
follows:
"31-7-5.
Code
Section 31-7-3 shall not apply to the offices of physicians or others practicing
the healing arts unless the facilities and services described in paragraph
(1)(4)
of Code Section 31-7-1 are provided therein; nor shall this chapter apply to
institutions operated exclusively by the federal government or by any of its
agencies."
SECTION
3-11.
Said
title is further amended by revising subsection (a) of Code Section 31-7-9,
relating to reports by physicians and other personnel of nonaccidental injuries
to patients, as follows:
"(a)
As used in this Code section, the term 'medical facility' includes, without
being limited to, an ambulatory surgical treatment center defined in
subparagraph
(D)(C)
of
paragraph
(1)
(4)
of Code Section 31-7-1."
SECTION
3-12.
Said
title is further amended by inserting new Code Sections to read as
follows:
"31-7-17.
The
department shall provide for and issue regulations that require the license or
permit of any institution that is subject to the certificate of need provisions
of Chapter 6 of this title to include a specification of the clinical health
services authorized to be provided by such institution pursuant to such chapter
and that provide for the revocation of the license or permit of such institution
for failure to substantially comply with any provisions of such chapter,
notwithstanding any other provision of this chapter.
31-7-18.
(a)
Effective July 1, 2007, all matters relating to the licensure and regulation of
hospitals and related institutions pursuant to this article shall be transferred
from the Department of Human Resources to the Department of Community
Health.
(b)
The Department of Community Health shall succeed to all rules, regulations,
policies, procedures, and administrative orders of the Department of Human
Resources that are in effect on June 30, 2007, or scheduled to go into effect on
or after July 1, 2007, and which relate to the functions transferred to the
Department of Community Health pursuant to this Code section and shall further
succeed to any rights, privileges, entitlements, obligations, and duties of the
Department of Human Resources that are in effect on June 30, 2007, which relate
to the functions transferred to the Department of Community Health pursuant to
this Code section. Such rules, regulations, policies, procedures, and
administrative orders shall remain in effect until amended, repealed,
superseded, or nullified by the Department of Community Health by proper
authority or as otherwise provided by law.
(c)
The rights, privileges, entitlements, and duties of parties to contracts,
leases, agreements, and other transactions entered into before July 1, 2007, by
the Department of Human Resources which relate to the functions transferred to
the Department of Community Health pursuant to this Code section shall continue
to exist; and none of these rights, privileges, entitlements, and duties are
impaired or diminished by reason of the transfer of the functions to the
Department of Community Health. In all such instances, the Department of
Community Health shall be substituted for the Department of Human Resources, and
the Department of Community Health shall succeed to the rights and duties under
such contracts, leases, agreements, and other transactions.
(d)
All persons employed by the Department of Human Resources in capacities which
relate to the functions transferred to the Department of Community Health
pursuant to this Code section on June 30, 2007, shall, on July 1, 2007, become
employees of the Department of Community Health in similar capacities, as
determined by the commissioner of community health. Such employees shall be
subject to the employment practices and policies of the Department of Community
Health on and after July 1, 2007, but the compensation and benefits of such
transferred employees shall not be reduced as a result of such transfer.
Employees who are subject to the rules of the State Personnel Board and thereby
under the State Merit System of Personnel Administration and who are transferred
to the department shall retain all existing rights under the State Merit System
of Personnel Administration. Retirement rights of such transferred employees
existing under the Employees´ Retirement System of Georgia or other public
retirement systems on June 30, 2007, shall not be impaired or interrupted by the
transfer of such employees and membership in any such retirement system shall
continue in the same status possessed by the transferred employees on June 30,
2007. Accrued annual and sick leave possessed by said employees on June 30,
2007, shall be retained by said employees as employees of the Department of
Community Health."
SECTION
3-13.
Said
title is further amended in Code Section 31-7-150, relating to definitions
relative to home health agencies, by adding a new paragraph to read as
follows:
"(1.1)
'Department' means the Department of Community Health."
SECTION
3-14.
Said
title is further amended in Code Section 31-7-155, relating to certificates of
need for new service or extending service area, as follows:
"31-7-155.
(a)
No home health agency initiating service or extending the range of its service
area shall be licensed unless the
Department
of Community Health
department
determines, in accordance with Article 3 of Chapter 6 of this title and
regulations pursuant thereto, that there is a need for said services within the
area to be served. All home health agencies which were delivering services
prior to July 1, 1979, and were certified for participation in either Title
XVIII or Title XIX of the federal Social Security Act prior to such date shall
be exempt from a certificate of need, except in those instances where expansion
of services or service areas is requested by such home health agencies. Such
exemption from a certificate of need shall extend to all areas in which a home
health agency was licensed by the department to provide services on or before
December 31, 1989, except as provided in subsection (b) of this Code
section.
(b)
Concerning an exemption from a certificate of need pursuant to subsection (a) of
this Code section, service areas which were the subject of litigation pending in
any court of competent jurisdiction, whether by way of appeal, remand, stay, or
otherwise, as of December 31, 1989, shall not be so exempt except as set forth
in the final unappealed administrative or judicial decision rendered in such
litigation.
(c)
Except with respect to a home health agency´s service areas which were the
subject of litigation pending in any court of competent jurisdiction as of
December 31, 1989, the
Department
of Community Health
department
shall not consider any request for or issue a determination of an exemption from
a certificate of need pursuant to this Code section after December 31,
1989."
SECTION
3-15.
Said
title is further amended by inserting a new Code Section to read as
follows:
"31-7-159.
(a)
Effective July 1, 2007, all matters relating to the licensure and regulation of
home health agencies pursuant to this article shall be transferred from the
Department of Human Resources to the Department of Community
Health.
(b)
The Department of Community Health shall succeed to all rules, regulations,
policies, procedures, and administrative orders of the Department of Human
Resources that are in effect on June 30, 2007, or scheduled to go into effect on
or after July 1, 2007, and which relate to the functions transferred to the
Department of Community Health pursuant to this Code section and shall further
succeed to any rights, privileges, entitlements, obligations, and duties of the
Department of Human Resources that are in effect on June 30, 2007, which relate
to the functions transferred to the Department of Community Health pursuant to
this Code section. Such rules, regulations, policies, procedures, and
administrative orders shall remain in effect until amended, repealed,
superseded, or nullified by the Department of Community Health by proper
authority or as otherwise provided by law.
(c)
The rights, privileges, entitlements, and duties of parties to contracts,
leases, agreements, and other transactions entered into before July 1, 2007, by
the Department of Human Resources which relate to the functions transferred to
the Department of Community Health pursuant to this Code section shall continue
to exist; and none of these rights, privileges, entitlements, and duties are
impaired or diminished by reason of the transfer of the functions to the
Department of Community Health. In all such instances, the Department of
Community Health shall be substituted for the Department of Human Resources, and
the Department of Community Health shall succeed to the rights and duties under
such contracts, leases, agreements, and other transactions.
(d)
All persons employed by the Department of Human Resources in capacities which
relate to the functions transferred to the Department of Community Health
pursuant to this Code section on June 30, 2007, shall, on July 1, 2007, become
employees of the Department of Community Health in similar capacities, as
determined by the commissioner of community health. Such employees shall be
subject to the employment practices and policies of the Department of Community
Health on and after July 1, 2007, but the compensation and benefits of such
transferred employees shall not be reduced as a result of such transfer.
Employees who are subject to the rules of the State Personnel Board and thereby
under the State Merit System of Personnel Administration and who are transferred
to the department shall retain all existing rights under the State Merit System
of Personnel Administration. Retirement rights of such transferred employees
existing under the Employees´ Retirement System of Georgia or other public
retirement systems on June 30, 2007, shall not be impaired or interrupted by the
transfer of such employees and membership in any such retirement system shall
continue in the same status possessed by the transferred employees on June 30,
2007. Accrued annual and sick leave possessed by said employees on June 30,
2007, shall be retained by said employees as employees of the Department of
Community Health."
SECTION
3-16.
Said
title is further amended by revising paragraph (3) of Code Section 31-7-172,
relating to definitions relative to hospice care, as follows:
"(3)
'Department' means the Department of
Human
Resources
Community
Health."
SECTION
3-17.
Said
title is further amended by revising Code Section 31-7-175, relating to the
administration of the "Georgia Hospice Law," as follows:
"31-7-175.
(a)
The administration of this article is vested in the Department of
Human
Resources
Community
Health which shall:
(1)
Prepare and furnish all forms necessary under the provisions of this article in
relation to the application for licensure or renewals thereof;
(2)
After consultation with appropriate public interest groups, adopt rules within
the standards of this article necessary to effect the purposes of this article;
and
(3)
Establish rules and regulations for the licensure of hospices.
(b)
Rules promulgated by the department shall include but not be limited to the
following:
(1)
The qualifications of professional and ancillary personnel in order to furnish
adequate hospice care;
(2)
Standards for the organization and quality of patient care;
(3)
Procedures for maintaining records;
(4)
Standards for inpatient facilities, to include specifications that the hospice
retain primary responsibility for the coordination of inpatient hospice
care;
(5)
Provision for contractual arrangements for professional and ancillary hospice
services; and
(6)
Provisions for the imposition of administrative fines for any violations of any
provisions of this article or of department rules or regulations.
(c)
The department is directed to have in place regulations by March 1,
1984."
SECTION
3-18.
Said
title is further amended by inserting a new Code section to read as
follows:
"31-7-175.1.
(a)
Effective July 1, 2007, all matters relating to the licensure and regulation of
hospices pursuant to this article shall be transferred from the Department of
Human Resources to the Department of Community Health.
(b)
The Department of Community Health shall succeed to all rules, regulations,
policies, procedures, and administrative orders of the Department of Human
Resources that are in effect on June 30, 2007, or scheduled to go into effect on
or after July 1, 2007, and which relate to the functions transferred to the
Department of Community Health pursuant to this Code section and shall further
succeed to any rights, privileges, entitlements, obligations, and duties of the
Department of Human Resources that are in effect on June 30, 2007, which relate
to the functions transferred to the Department of Community Health pursuant to
this Code section. Such rules, regulations, policies, procedures, and
administrative orders shall remain in effect until amended, repealed,
superseded, or nullified by the Department of Community Health by proper
authority or as otherwise provided by law.
(c)
The rights, privileges, entitlements, and duties of parties to contracts,
leases, agreements, and other transactions entered into before July 1, 2007, by
the Department of Human Resources which relate to the functions transferred to
the Department of Community Health pursuant to this Code section shall continue
to exist; and none of these rights, privileges, entitlements, and duties are
impaired or diminished by reason of the transfer of the functions to the
Department of Community Health. In all such instances, the Department of
Community Health shall be substituted for the Department of Human Resources, and
the Department of Community Health shall succeed to the rights and duties under
such contracts, leases, agreements, and other transactions.
(d)
All persons employed by the Department of Human Resources in capacities which
relate to the functions transferred to the Department of Community Health
pursuant to this Code section on June 30, 2007, shall, on July 1, 2007, become
employees of the Department of Community Health in similar capacities, as
determined by the commissioner of community health. Such employees shall be
subject to the employment practices and policies of the Department of Community
Health on and after July 1, 2007, but the compensation and benefits of such
transferred employees shall not be reduced as a result of such transfer.
Employees who are subject to the rules of the State Personnel Board and thereby
under the State Merit System of Personnel Administration and who are transferred
to the department shall retain all existing rights under the State Merit System
of Personnel Administration. Retirement rights of such transferred employees
existing under the Employees´ Retirement System of Georgia or other public
retirement systems on June 30, 2007, shall not be impaired or interrupted by the
transfer of such employees and membership in any such retirement system shall
continue in the same status possessed by the transferred employees on June 30,
2007. Accrued annual and sick leave possessed by said employees on June 30,
2007, shall be retained by said employees as employees of the Department of
Community Health."
SECTION
3-19.
Said
title is further amended in Code Section 31-7-250, relating to definitions
relative to facility licensing and employee records checks for personal care
homes, by adding a new paragraph to read as follows:
"(3.1)
'Department' means the Department of Community Health."
SECTION
3-20.
Said
title is further amended by inserting a new Code section to read as
follows:
"31-7-265.
(a)
Effective July 1, 2007, all matters relating to facility licensing and employee
records checks for personal care homes pursuant to this article shall be
transferred from the Department of Human Resources to the Department of
Community Health.
(b)
The Department of Community Health shall succeed to all rules, regulations,
policies, procedures, and administrative orders of the Department of Human
Resources that are in effect on June 30, 2007, or scheduled to go into effect on
or after July 1, 2007, and which relate to the functions transferred to the
Department of Community Health pursuant to this Code section and shall further
succeed to any rights, privileges, entitlements, obligations, and duties of the
Department of Human Resources that are in effect on June 30, 2007, which relate
to the functions transferred to the Department of Community Health pursuant to
this Code section. Such rules, regulations, policies, procedures, and
administrative orders shall remain in effect until amended, repealed,
superseded, or nullified by the Department of Community Health by proper
authority or as otherwise provided by law.
(c)
The rights, privileges, entitlements, and duties of parties to contracts,
leases, agreements, and other transactions entered into before July 1, 2007, by
the Department of Human Resources which relate to the functions transferred to
the Department of Community Health pursuant to this Code section shall continue
to exist; and none of these rights, privileges, entitlements, and duties are
impaired or diminished by reason of the transfer of the functions to the
Department of Community Health. In all such instances, the Department of
Community Health shall be substituted for the Department of Human Resources, and
the Department of Community Health shall succeed to the rights and duties under
such contracts, leases, agreements, and other transactions.
(d)
All persons employed by the Department of Human Resources in capacities which
relate to the functions transferred to the Department of Community Health
pursuant to this Code section on June 30, 2007, shall, on July 1, 2007, become
employees of the Department of Community Health in similar capacities, as
determined by the commissioner of community health. Such employees shall be
subject to the employment practices and policies of the Department of Community
Health on and after July 1, 2007, but the compensation and benefits of such
transferred employees shall not be reduced as a result of such transfer.
Employees who are subject to the rules of the State Personnel Board and thereby
under the State Merit System of Personnel Administration and who are transferred
to the department shall retain all existing rights under the State Merit System
of Personnel Administration. Retirement rights of such transferred employees
existing under the Employees´ Retirement System of Georgia or other public
retirement systems on June 30, 2007, shall not be impaired or interrupted by the
transfer of such employees and membership in any such retirement system shall
continue in the same status possessed by the transferred employees on June 30,
2007. Accrued annual and sick leave possessed by said employees on June 30,
2007, shall be retained by said employees as employees of the Department of
Community Health."
SECTION
3-21.
Said
title is further amended in Code Section 31-7-280, relating to health care
provider annual reports, by revising subsection (a) as follows:
"(a)
As used in this article, the term:
(1)
'Department' means the Department of Community Health.
(1)(2)
'Health care provider' means any hospital or ambulatory surgical or obstetrical
facility having a license or permit issued by the department under Article 1 of
this chapter.
(2)(3)
'Indigent person' means any person having as a maximum allowable income level an
amount corresponding to 125 percent of the federal poverty
guideline.
(3)(4)
'Third-party payor' means any entity which provides health care insurance or a
health care service plan, including but not limited to providers of major
medical or comprehensive accident or health insurance, whether or not through a
self-insurance plan, Medicaid, hospital service nonprofit corporation plans,
health care plans, or nonprofit medical service corporation plans, but does not
mean a specified disease or supplemental hospital indemnity
payor."
SECTION
3-22.
Said
title is further amended by revising Code Section 31-7-282, relating to
collection and submission of health care data, as follows:
"31-7-282.
The
department shall be authorized to request, collect, or receive the collection
and submission of data listed in subsection (c) of Code Section 31-7-280
from:
(1)
Health care providers;
(2)
The Department of
Community
Health
Human
Resources;
(3)
The Commissioner of Insurance;
(4)
Reserved;
(5)
Third-party payors;
(6)
The Joint Commission on the Accreditation of Healthcare Organizations;
and
(7)
Other appropriate sources as determined by the department.
Any
entity specified in paragraphs (1) through (4) of this Code section which has in
its custody or control data requested by the department pursuant to this Code
section shall provide the department with such data, but any data regarding a
health care provider which is already available in the records of any state
officer, department, or agency specified in paragraph (2), (3), or (4) of this
Code section shall not be required to be provided to the department by that
health care provider."
SECTION
3-23.
Said
title is further amended in Code Section 31-7-300, relating to definitions
relative to private home care providers, by revising paragraph (2) as
follows:
"(2)
'Department' means the Department of
Human
Resources
Community
Health."
SECTION
3-24.
Said
title is further amended by inserting a new Code section to read as
follows:
"31-7-308.
(a)
Effective July 1, 2007, all matters relating to the licensure and regulation of
private home care providers pursuant to this article shall be transferred from
the Department of Human Resources to the Department of Community
Health.
(b)
The Department of Community Health shall succeed to all rules, regulations,
policies, procedures, and administrative orders of the Department of Human
Resources that are in effect on June 30, 2007, or scheduled to go into effect on
or after July 1, 2007, and which relate to the functions transferred to the
Department of Community Health pursuant to this Code section and shall further
succeed to any rights, privileges, entitlements, obligations, and duties of the
Department of Human Resources that are in effect on June 30, 2007, which relate
to the functions transferred to the Department of Community Health pursuant to
this Code section. Such rules, regulations, policies, procedures, and
administrative orders shall remain in effect until amended, repealed,
superseded, or nullified by the Department of Community Health by proper
authority or as otherwise provided by law.
(c)
The rights, privileges, entitlements, and duties of parties to contracts,
leases, agreements, and other transactions entered into before July 1, 2007, by
the Department of Human Resources which relate to the functions transferred to
the Department of Community Health pursuant to this Code section shall continue
to exist; and none of these rights, privileges, entitlements, and duties are
impaired or diminished by reason of the transfer of the functions to the
Department of Community Health. In all such instances, the Department of
Community Health shall be substituted for the Department of Human Resources, and
the Department of Community Health shall succeed to the rights and duties under
such contracts, leases, agreements, and other transactions.
(d)
All persons employed by the Department of Human Resources in capacities which
relate to the functions transferred to the Department of Community Health
pursuant to this Code section on June 30, 2007, shall, on July 1, 2007, become
employees of the Department of Community Health in similar capacities, as
determined by the commissioner of community health. Such employees shall be
subject to the employment practices and policies of the Department of Community
Health on and after July 1, 2007, but the compensation and benefits of such
transferred employees shall not be reduced as a result of such transfer.
Employees who are subject to the rules of the State Personnel Board and thereby
under the State Merit System of Personnel Administration and who are transferred
to the department shall retain all existing rights under the State Merit System
of Personnel Administration. Retirement rights of such transferred employees
existing under the Employees´ Retirement System of Georgia or other public
retirement systems on June 30, 2007, shall not be impaired or interrupted by the
transfer of such employees and membership in any such retirement system shall
continue in the same status possessed by the transferred employees on June 30,
2007. Accrued annual and sick leave possessed by said employees on June 30,
2007, shall be retained by said employees as employees of the Department of
Community Health."
SECTION
3-25.
Said
title is further amended by inserting a new Code section to read as
follows:
"31-7-354.
The
Department of Community Health shall be authorized to enforce this article and
to promulgate rules and regulations related to the requirements of this
article."
SECTION
3-26.
Said
title is further amended in Code Section 31-7-400, relating to definitions
relative to hospital acquisitions, by revising paragraph (8) as
follows:
"(8)
'Hospital' means any institution classified and having a permit as a hospital
from the
department
Department of
Community Health pursuant to this chapter
and
the
such
department´s rules and
regulations."
SECTION
3-27.
Said
title is further amended in Code Section 31-8-46, relating to investigation of
alleged violation of requirement of hospitals with emergency services to provide
care to pregnant women in labor, is amended by revising subsection (c) as
follows:
"(c)
Any hospital held to be in violation of Code Section 31-8-42 more than three
times within any 12 month period shall be subject to suspension or revocation of
license by the Department of
Human
Resources
Community
Health."
SECTION
3-28.
Said
title is further amended in Code Section 31-11-81, relating to definitions
relative to emergency services, is amended by revising paragraph (2) as
follows:
"(2)
'Emergency medical provider' means any provider of emergency medical
transportation licensed or permitted by the
Georgia
Department of Human Resources, any hospital licensed or permitted by the
Georgia
Department of
Human
Resources
Community
Health, any hospital based service, or any
physician licensed by the Composite State Board of Medical Examiners who
provides emergency services."
SECTION
3-29.
Said
title is further amended in Code Section 31-18-3, relating to reporting
procedures for the registry for traumatic brain and spinal cord injuries, is
amended as follows:
"31-18-3.
Every
public and private health and social agency, every hospital or facility that has
a valid permit or provisional permit issued by the Department of
Human
Resources
Community
Health under Chapter 7 of this title, and
every physician licensed to practice medicine in this state, if such physician
has not otherwise reported such information to another agency, hospital, and
facility, shall report to the Brain and Spinal Injury Trust Fund Commission such
information concerning the identity of the person such agency, hospital,
facility, or physician has identified as having a traumatic brain or spinal cord
injury as defined in this chapter. The report shall be made within 45 days
after identification of the person with the traumatic brain or spinal cord
injury. The report shall contain the name, age, address, type and extent of
disability
injury,
and such other information concerning the person with the
disability
injury
as the Brain and Spinal Injury Trust Fund Commission, which is administratively
assigned to the department, may require."
SECTION
3-30.
Said
title is further amended in Code Section 31-20-1, relating to definitions
relative to performance of sterilization procedures, is amended by revising
paragraph (1) as follows:
"(1)
'Accredited hospital' means a hospital licensed by the Department of
Human
Resources
Community
Health and accredited by the Joint
Commission on the Accreditation of Hospitals."
SECTION
3-31.
Said
title is further amended in Code Section 31-21-5, relating to incineration or
cremation of dead body or parts thereof, is amended by revising subsection (a)
as follows:
"(a)
It shall be unlawful for any person to incinerate or cremate a dead body or
parts thereof; provided, however, that the provisions of this subsection shall
not apply to a crematory licensed by the State Board of Funeral Service pursuant
to Chapter 18 of Title 43 or to a hospital, clinic, laboratory, or other
facility authorized by the Department of
Human
Resources
Community
Health and in a manner approved by the
commissioner of
human
resources
community
health."
SECTION
3-32.
Said
title is further amended by revising paragraph (1) of subsection (a) of Code
Section 31-33-2, relating to furnishing copies of health records to patients,
providers, or other authorized persons, as follows:
"(a)(1)(A)
A provider having custody and control of any evaluation, diagnosis, prognosis,
laboratory report, or biopsy slide in a patient´s record shall retain such
item for a period of not less than ten years from the date such item was
created.
(B)
The requirements of subparagraph (A) of this paragraph shall not apply
to:
(i)
An individual provider who has retired from or sold his or her professional
practice if such provider has notified the patient of such retirement or sale
and offered to provide such items in the patient´s record or copies thereof
to another provider of the patient´s choice and, if the patient so
requests, to the patient; or
(ii)
A hospital which is an institution as defined in subparagraph
(B)(A)
of
paragraph
(1)(4)
of Code Section 31-7-1, which shall retain patient records in accordance with
rules and regulations for hospitals as issued by the department pursuant to Code
Section 31-7-2."
SECTION
3-33.
Code
Section 33-19-10, relating to limitation as to hospitals with which corporations
authorized to contract, is amended as follows:
"33-19-10.
The
corporations shall have authority to contract only with hospitals licensed by
the Department of
Human
Resources
Community
Health."
SECTION
3-34.
Code
Section 36-42-3, relating to definitions relative to downtown development
authorities, is amended by revising paragraph (6) as follows:
"(6)
'Project' means the acquisition, construction, installation, modification,
renovation, or rehabilitation of land, interests in land, buildings, structures,
facilities, or other improvements located or to be located within the downtown
development area, and the acquisition, installation, modification, renovation,
rehabilitation, or furnishing of fixtures, machinery, equipment, furniture, or
other property of any nature whatsoever used on, in, or in connection with any
such land, interest in land, building, structure, facility, or other
improvement, any undertaking authorized by Chapter 43 of this title as part of a
city business improvement district, any undertaking authorized in Chapter 44 of
this title, the 'Redevelopment Powers Law,' when the downtown development
authority has been designated as a redevelopment agency, or any undertaking
authorized in Chapter 61 of this title, the 'Urban Redevelopment Law,' when the
downtown development authority has been designated as an urban redevelopment
agency, all for the essential public purpose of the development of trade,
commerce, industry, and employment opportunities in its authorized area of
operation. A project may be for any industrial, commercial, business, office,
parking, public, or other use, provided that a majority of the members of the
authority determine, by a duly adopted resolution, that the project and such use
thereof would further the public purpose of this chapter. Such term shall
include any one or more buildings or structures used or to be used as a not for
profit hospital, not for profit skilled nursing home, or not for profit
intermediate care home subject to regulation and licensure by the Department of
Human
Resources
Community
Health and all necessary, convenient, or
related interests in land, machinery, apparatus, appliances, equipment,
furnishings, appurtenances, site preparation, landscaping, and physical
amenities."
SECTION
3-35.
Code
Section 43-34-26.3, relating to delegation of certain medical acts to advanced
practice registered nurse, is amended by revising paragraph (2) of subsection
(a) as follows:
"(2)
'Birthing center' means a facility or building where human births occur on a
regular or ongoing basis and which is classified by the Department of
Human
Resources
Community
Health as a birthing
center."
SECTION
3-36.
Code
Section 44-14-470, relating to liens on causes of action accruing to injured
person for costs of care and treatment of injuries arising out of such causes of
action, is amended by revising paragraph (1) of subsection (a) as
follows:
"(1)
'Hospital' means any hospital or nursing home subject to regulation and
licensure by the Department of
Human
Resources
Community
Health."
SECTION
3-37.
Code
Section 51-1-29.3, relating to immunity for operators of external
defibrillators, is amended by revising paragraph (3) of subsection (a) as
follows:
"(3)
Any physician or other medical professional who authorizes, directs, or
supervises the installation or provision of automated external defibrillator
equipment in or on any premises or conveyance other than any medical facility as
defined in paragraph
(2)(5)
of Code Section 31-7-1; and"
SECTION
3-38.
Code
Section 51-2-5.1, relating to the relationship between hospital and health care
provider as a prerequisite to liability, is amended by revising paragraph (2) of
subsection (a) as follows:
"(2)
'Hospital' means a facility that has a valid permit or provisional permit issued
by the Department of
Human
Resources
Community
Health under Chapter 7 of Title
31."
SECTION
3-39.
Code
Section 52-7-14, relating to collisions, accidents, and casualties relative to
watercraft, is amended by revising subparagraph (c)(4)(A) as
follows:
"(A)
As used in this paragraph, the term 'medical facility' means any licensed
general or specialized hospital, institutional infirmary, public health center,
or diagnostic and treatment center. The term also includes, without being
limited to, any building or facility, not under the operation or control of a
hospital, which is primarily devoted to the provision of surgical treatment to
patients not requiring hospitalization and which is classified by the Department
of Human
Resources
Community
Health as an ambulatory surgical treatment
center."
PART
IV
Effective Dates and Repealer.
Effective Dates and Repealer.
SECTION
4-1.
This
Act shall become effective on July 1, 2007; provided, however, that for purposes
of requiring a certificate of need for diagnostic and other imaging services,
such provisions shall become effective upon signature of the Governor or upon
the Act becoming law without such approval.
SECTION
4-2.
All
laws and parts of laws in conflict with this Act are repealed.