07 LC 33
1764
House
Bill 263
By:
Representatives Chambers of the
81st,
Knox of the
24th,
Coan of the
101st,
Ehrhart of the
36th,
Smith of the
131st,
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 repeal the certificate of need program: to provide for legislation
findings; to repeal Chapter 6 regarding State Health Planning and Development;
to eliminate references to the certificate of need program; to remove the
requirement for a certificate of need for certain facilities; to amend Article 7
of Chapter 4 of Title 49 of the Official Code of Georgia Annotated, relating to
medical assistance generally, so as to eliminate reference to interest on
penalties related to certificate of need; to amend Chapter 26 of Title 50 of the
Official Code of Georgia Annotated, relating to housing and finance authority,
so as to remove the requirement for a certificate of need of a project financed
by an authority; to provide for related matters; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly finds and declares that:
(1)
The Georgia Constitution prohibits the General Assembly from authorizing
agreements which defeat or lessen competition or encourage
monopolies;
(2)
The Federal Trade Commission and U.S. Department of Justice have determined that
vigorous competition promotes the delivery of high quality, cost-effective
health care; certificate of need programs pose anticompetitive risks that
outweigh their economic benefits; certificate of need programs foster
anticompetitive barriers to market entry; certificate of need programs prevent
market entry by those that could provide higher quality services and delay
innovation; and states should decrease barriers to health care market entry and
reconsider whether certificate of need programs best serve their citizens´
health care needs;
(3)
The Federal Trade Commission has stated Georgia´s certificate of need
program is contrary to the interests of Georgia´s health care
consumers;
(4)
Georgia´s State Commission on the Efficacy of the Certificate of Need
Program, the Federal Trade Commission, and the U.S. Department of Justice note
the benefits of ambulatory surgery, such as convenience for patients in a less
threatening and noninstitutional environment, specialized staff, and proven cost
efficiencies;
(5)
In addition to the benefits of ambulatory surgery centers, the Federal Trade
Commission and U.S. Department of Justice warn that hospitals use certificate of
need programs to restrict ambulatory surgery centers´ entry into the health
care market, and the Eleventh Circuit of the United States Court of Appeals has
warned that Georgia´s certificate of need program fosters anticompetitive
practices and facilitates illegal cartels among hospitals;
(6)
The data analyst for the State Commission on the Efficacy of the Certificate of
Need Program reported that Georgia has one of the most rigorous certificate of
need programs, states with rigorous certificate of need programs have less
competition, and less competition is associated with higher cost;
(7)
The State Commission on the Efficacy of the Certificate of Need Program reported
certificates of need do not assure quality, and the commission´s data
analyst found no correlation between certificate of need programs and quality;
and
(8)
It is the intent of this Act to repeal Georgia´s certificate of need law so
as to promote the delivery of high quality, cost-effective health care through
free market competition.
SECTION
2.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended by
repealing Chapter 6, relating to state health planning and development, and
designating such chapter as reserved.
SECTION
3.
Said
title is further amended by revising subsection (d) of Code Section 31-5A-5,
relating to transfer of personnel and functions relating to health care to the
Department of Community Health, as follows:
"(d)
The department shall succeed to all rules, regulations, policies, procedures,
and administrative orders of the predecessor agencies which were in effect on
June 30, 1999, or scheduled to go into effect on or after July 1, 1999, and
which relate to the functions transferred to the department by this chapter.
Such rules, regulations, policies, procedures, and administrative orders shall
remain in effect until amended, repealed, superseded, or nullified by proper
authority or as otherwise provided by law. Rules of the department shall be
adopted, promulgated, and implemented as provided in Chapter 13 of Title 50, the
'Georgia Administrative Procedure
Act.','
except that only the Division of Health Planning shall be subject to the
provisions of Code Section
31-6-21.1."
SECTION
4.
Said
title is further amended by revising Code Section 31-7-75.3, relating to home
health agency services operated by hospitals, as follows:
"31-7-75.3.
A
hospital authority which owns or operates a hospital which is qualified to
provide home health agency services
under the
exemption provided in paragraph (14.1) of subsection (a) of Code Section
31-6-47 shall be authorized to exercise
such powers under this article."
SECTION
5.
Said
title is further amended by revising paragraph (1) of subsection (e) of Code
Section 31-7-94.1, the "Rural Hospital Assistance Act," as follows:
"(1)
Infrastructure development, including, without being limited to, facility
renovation or equipment acquisition; provided, however, that
the amount
granted to any qualified hospital may not exceed the expenditure thresholds that
would constitute a new institutional health service requiring a certificate of
need under Chapter 6 of this title and the
grant award may be conditioned upon obtaining local matching
funds;".
SECTION
6.
Said
title is further amended by revising subsection (i) of Code Section 31-7-116,
relating to provisions contained in obligations and security for obligations,
procedures for issuance of bonds and bond anticipation notes, interest rates,
and limitations and conditions, as follows:
"(i)
No bonds or bond anticipation notes except refunding bonds shall be issued by an
authority under this article unless its board of directors shall adopt a
resolution finding that the project for which such bonds or notes are to be
issued will promote the objectives stated in subsection (b) of Code Section
31-7-111 and will increase or maintain employment in the territorial area of
such authority. Nothing contained in this Code section shall be construed as
permitting any authority created under this article or any qualified sponsor to
finance, construct, or operate any project without obtaining any
certificate
of need or other approval, permit, or
license which, under the laws of this state, is required in connection
therewith."
SECTION
7.
Said
title is further amended by revising Code Section 31-7-155, relating to
certificates of need for new service or extending service area and exemption
from certificate, 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 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 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.
Reserved."
SECTION
8.
Said
title is further amended by repealing in its entirety Code Section 31-7-179,
relating to certificate of need not required, which reads as
follows:
"31-7-179.
Where
a hospice has obtained a license from the department, there shall be no
requirement that the hospice obtain a certificate of need in order to provide
any hospice care."
SECTION
9.
Said
title is further amended by revising Code Section 31-7-307, relating to
certificate of need not required of licensees and operation of home health
agency not authorized, as follows:
"31-7-307.
(a)
A certificate of need issued pursuant to Chapter 6 of this title is not required
for any person, business entity, corporation, or association, whether operated
for profit or not for profit, which is operating as a private home care provider
as long as such operation does not also constitute such person, entity, or
organization operating as a home health agency or personal care home under this
chapter.
(b)
A license issued under this article shall not entitle the licensee to operate as
a home health agency, as defined in Code Section 31-7-150, under medicare or
Medicaid guidelines."
SECTION
10.
Said
title is further amended by revising Code Section 31-8-153.1, relating to
irrevocable transfer of funds to trust fund and provision for indigent patients,
as follows:
"31-8-153.1.
After
June 30, 1993, any hospital authority, county, municipality, or other state or
local public or governmental entity is authorized to transfer moneys to the
trust fund. Transfer of funds under the control of a hospital authority, county,
municipality, or other state or local public or governmental entity shall be a
valid public purpose for which those funds may be expended.
The
department is authorized to transfer to the trust fund moneys paid to the state
by a health care facility as a monetary penalty for the violation of an
agreement to provide a specified amount of clinical health services to indigent
patients pursuant to a certificate of need held by such
facility. Such transfers shall be
irrevocable and shall be used only for the purposes contained in Code Section
31-8-154."
SECTION
11.
Said
title is further amended by revising Code Section 31-8-181, relating to
individuals and hospitals excluded from application of article, as
follows:
"31-8-181.
This
article shall not apply to the following:
(1)
An individual licensed to practice medicine under the provisions of Chapter 34
of Title 43, and persons employed by such an individual, provided that any
nursing home, personal care home as defined by Code Section
31-6-2
31-7-12,
hospice as defined by Code Section 31-7-172, respite care service as defined by
Code Section 49-6-72, adult day program, or home health agency owned, operated,
managed, or controlled by a person licensed to practice medicine under the
provisions of Chapter 34 of Title 43 shall be subject to the provisions of this
article; or
(2)
A hospital. However, to the extent that a hospital´s nursing home, personal
care home as defined by Code Section
31-6-2
31-7-12,
hospice as defined by Code Section 31-7-172, respite care service as defined by
Code Section 49-6-72, adult day program, or home health agency holds itself out
as providing care, treatment, or therapeutic activities for persons with
Alzheimer´s disease or Alzheimer´s related dementia as part of a
specialty unit, such nursing home, personal care home, hospice, respite care
service, adult day program, or home health agency shall be subject to the
provisions of this article."
SECTION
12.
Article
7 of Chapter 4 of Title 49 of the Official Code of Georgia Annotated, relating
to medical assistance generally, is amended by revising subsection (b) of Code
Section 49-4-147.2, relating to noneligibility of the Department of Community
Health to obtain nor be liable for interest on orders, judgments, and liquidated
or nonliquidated amounts, and exemptions, as follows:
"(b)
Notwithstanding the provisions of Code Section 7-4-12, 7-4-15, 7-4-16, or
13-6-13, or any other statute or judicial construction thereof authorizing
interest, the department shall not be eligible to obtain nor be liable for
interest on orders, judgments, liquidated amounts, or unliquidated amounts
unless such interest is:
(1)
Required by federal law or regulations;
(2)
Interest on penalties as required by Code Section 49-4-146.1;
or
(3)
Interest as required by Code Section
49-4-148;
or
(4)
Incurred by a failure to pay the penalty which may be transferred to the
Indigent Care Trust Fund under Code Section 31-8-153.1 within 30 days after the
penalty is imposed, in which event interest shall be paid from the thirty-first
day following such imposition at the same rate as interest on penalties under
Code Section
49-4-146.1."
SECTION
13.
Chapter
26 of Title 50 of the Official Code of Georgia Annotated, relating to housing
and finance authority, is amended by striking in its entirety subsection (c) of
Code Section 50-26-19, relating to financing acquisition, construction, and
equipping of health care facilities, which reads as follows:
"(c)
The authority may not finance a project for any participating provider unless
the Department of Community Health, or any successor thereof, has issued a
certificate of need or comparable certification of approval to the participating
provider for the project to be financed by the authority if the acquisition of
such project by the participating provider would require a certificate of need
or comparable certification of approval under Chapter 6 of Title
31."
SECTION
14.
All
laws and parts of laws in conflict with this Act are repealed.