08 LC 33
2657S
The House Special Committee on Certificate of Need offers the
following
substitute
to SB 433:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 31 of the Official Code of Georgia Annotated, relating to health, so
as to provide for extensive revision of the certificate of need program; to
revise and add definitions; to revise the declaration of policy for state health
planning; to revise the composition and duties of the Health Strategies Council;
to revise the duties of the Department of Community Health; to revise provisions
relating to requirements for certificate of need; to provide for destination
cancer hospitals; to allow for set times to accept applications for capital
projects; to provide for the establishment of conditions for approval of a
certificate of need; to change certain provisions relating to perinatal
services; to provide for certain facilities to divide; to change certain
provisions relating to considerations; to provide for a letter of intent for
proposed new clinical health services; to provide for batching and comparative
review of applications for clinical health services; to revise provisions
relating to time frames for review of applications; to provide for the
imposition of a temporary moratorium on the issuance of certificates of need for
new and emerging health care services; to reassign the hearing functions from
the Health Planning Review Board to a Certificate of Need Appeal Panel; to
revise provisions relating to judicial review of a final agency decision; to add
grounds for which a certificate of need may be revoked; to provide that a
portion of a certificate of need may be revoked under certain circumstances; to
increase the penalties for services conducted without a required certificate of
need; to provide for investigating authority of the department; to provide that
applicants for certificates of need may be required to participate as a provider
of medical assistance for purposes of Medicaid; to change certain provisions
relating to an annual report; to add, revise, and delete certain exemptions to
the certificate of need requirements; to authorize the Department of Community
Health to require notice and its certification that an activity is exempt from
the certificate of need requirements; to provide for the transfer of certain
functions relating to the state health plan to the Board of Community Health
from the Health Strategies Council; to abolish the Health Planning Review Board;
to transfer pending matters of the Health Planning Review Board to the
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 other entities to submit annual reports to the Department of
Community Health; to increase the penalties for untimely and incomplete reports;
to transfer licensing of hospitals and other health care facilities from the
Department of Human Resources to the Department of Community Health; to provide
for transition; to provide for licensure standards on a clinical service level
for hospitals and related institutions; to amend various other titles of the
Official Code of Georgia Annotated so as to revise provisions for purposes of
conformity; to provide for related matters; to provide for an effective date; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
Revision of Certificate of Need Program.
Revision of Certificate of Need Program.
SECTION
1-1.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended by
revising Chapter 6, relating to state health planning and development, as
follows:
"ARTICLE
1
31-6-1.
The
policy of this state and the purposes of this chapter are to ensure
access to
quality health care services and to ensure
that
adequate
health care services and facilities are developed in an orderly and economical
manner and are made available to all citizens and that only those health care
services found to be in the public interest shall be provided in this state. To
achieve
this
such
public policy and
purpose
and
purposes, it is essential that appropriate
health planning activities be undertaken and implemented and that a system of
mandatory review of new institutional health services be provided. Health care
services and facilities should be provided in a manner that avoids unnecessary
duplication of services, that is cost effective,
that provides
quality health care services, and that is
compatible with the health care needs of the various areas and populations of
the state.
31-6-2.
As
used in this chapter, the term:
(1)
'Ambulatory surgical
center
or obstetrical facility' means a public or private facility, not a part of a
hospital, which provides surgical or obstetrical treatment performed under
general or regional anesthesia in an operating room environment to patients not
requiring hospitalization.
(2)
'Application' means a written request for a certificate of need made to the
department, containing such documentation and information as the department may
require.
(3)
'Basic perinatal services' means providing basic inpatient care for pregnant
women and newborns without complications; managing perinatal emergencies;
consulting with and referring to specialty and subspecialty hospitals;
identifying high-risk pregnancies; providing follow-up care for new mothers and
infants; and providing public/community education on perinatal
health.
(3)(4)
'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.
(5)
'Board' means the Board of Community Health.
(4)(6)
'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.
(7)
'Certificate of Need Appeal Panel' or 'appeal panel' means the panel of
independent hearing officers created pursuant to Code Section 31-6-44 to conduct
appeal hearings.
(5)(8)
'Clinical health services' means diagnostic, treatment, or rehabilitative
services provided in a health care facility, or parts of the physical plant
where such services are located in a health care facility, and includes, but is
not limited to, the following: radiology and diagnostic imaging, such as
magnetic resonance imaging and positron emission tomography; radiation therapy;
biliary lithotripsy; surgery; intensive care; coronary care; pediatrics;
gynecology; obstetrics; general medical care; medical/surgical care; inpatient
nursing care, whether intermediate, skilled, or extended care; cardiac
catheterization; open-heart surgery; inpatient rehabilitation; and alcohol, drug
abuse, and mental health services.
(9)
'Commissioner' means the Commissioner of the Department of Community
Health.
(6)(10)
'Consumer' means a person who is not employed by any health care facility or
provider and who has no financial or fiduciary interest in any health care
facility or provider.
(6.1)(11)
'Continuing care retirement community' means an organization, whether operated
for profit or not, whose owner or operator undertakes to provide shelter, food,
and either nursing care or personal services, whether such nursing care or
personal services are provided in the facility or in another setting, and other
services, as designated by agreement, to an individual not related by
consanguinity or affinity to such owner or operator providing such care pursuant
to an agreement for a fixed or variable fee, or for any other remuneration of
any type, whether fixed or variable, for the period of care, payable in a lump
sum or lump sum and monthly maintenance charges or in installments. Agreements
to provide continuing care include agreements to provide care for any duration,
including agreements that are terminable by either party.
(12)
'Department' means the Department of Community Health established under Chapter
5A of this title.
(13)
'Destination cancer hospital' means an institution with a licensed bed capacity
of 50 or less which provides diagnostic, therapeutic, treatment, and
rehabilitative care services to cancer inpatients and outpatients, by or under
the supervision of physicians, and whose proposed annual patient base is
composed of a minimum of 65 percent of patients who reside outside of the State
of Georgia.
(7)(14)
'Develop,' with reference to a project, means:
(A)
Constructing, remodeling, installing, or proceeding with a project, or any part
of a project, or a capital expenditure project, the cost estimate for which
exceeds
$900,000.00
$2,500,000.00;
or
(B)
The expenditure or commitment of funds exceeding
$500,000.00
$1,000,000.00
for orders, purchases, leases, or acquisitions through other comparable
arrangements of major medical
equipment;
provided, however, that this shall not include build out costs, as defined by
the department, but shall include all functionally related equipment, software,
and any warranty and services contract costs for the first five
years.
Notwithstanding
subparagraphs (A) and (B) of this paragraph, the expenditure or commitment or
incurring an obligation for the expenditure of funds to develop certificate of
need applications, studies, reports, schematics, preliminary plans and
specifications, or working drawings or to acquire, develop, or prepare sites
shall not be considered to be the developing of a project.
(15)
'Diagnostic imaging' 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)(16)
'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)(17)
'Health care facility' means hospitals;
destination
cancer hospitals; other special care
units, including but not limited to podiatric facilities; skilled nursing
facilities; intermediate care facilities; personal care homes; ambulatory
surgical
centers
or obstetrical facilities; health maintenance organizations; home health
agencies;
and
diagnostic, treatment, or rehabilitation centers, but only to the extent
that
subparagraph (G) or (H), or both subparagraphs (G) and (H), of paragraph (14) of
this Code section
paragraph (3)
or (7), or both paragraphs (3) and (7), of subsection (a) of Code Section
31-6-40 are applicable thereto;
and
facilities which are devoted to the provision of treatment and rehabilitative
care for periods continuing for 24 hours or longer for persons who have
traumatic brain injury, as defined in Code Section
37-3-1.
(9)(18)
'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)(19)
'Health Strategies Council' or 'council' means the body created by this chapter
to advise the Department of Community Health.
(11)(20)
'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)(21)
'Hospital' means an institution which is primarily engaged in providing to
inpatients, by or under the supervision of physicians, diagnostic services and
therapeutic services for medical diagnosis, treatment, and care of injured,
disabled, or sick persons or rehabilitation services for the rehabilitation of
injured, disabled, or sick persons. Such term includes public, private,
psychiatric, rehabilitative, geriatric, osteopathic, and other specialty
hospitals.
(13)(22)
'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.
(23)
'Joint venture ambulatory surgical center' means a freestanding ambulatory
surgical center that is jointly owned by a hospital in the same county as the
center or a hospital in an adjacent county if there is no hospital in the same
county as the center and a single group of physicians practicing in the center
and that provides surgery in a single specialty as defined by the department;
provided, however, that general surgery, a group practice which includes one or
more physiatrists who perform services that are reasonably related to the
surgical procedures performed in the center, and a group practice in orthopedics
which includes plastic hand surgeons with a certificate of added qualifications
in Surgery of the Hand from the American Board of Plastic and Reconstructive
Surgery shall be considered a single specialty. The ownership interest of the
hospital shall be no less than 30 percent and the collective ownership of the
physicians or group of physicians shall be no less than 30 percent.
(24)
'New and emerging health care service' means a health care service or
utilization of medical equipment which has been developed and has become
acceptable or available for implementation or use but which has not yet been
addressed under the rules and regulations promulgated by the department pursuant
to this chapter.
(14)
'New institutional health service' means:
(A)
The construction, development, or other establishment of a new health care
facility;
(B)
Any expenditure by or on behalf of a health care facility in excess of
$900,000.00 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;
(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)
Clinical health services which are offered in or through a diagnostic,
treatment, or rehabilitation center which were not offered on a regular basis in
or through that center within the 12 month period prior to the time such
services would be offered, but only if the clinical health services are any of
the following:
(i)
Radiation therapy;
(ii)
Biliary lithotripsy;
(iii)
Surgery in an operating room environment, including but not limited to
ambulatory surgery; provided, however, this provision shall not apply to surgery
performed in the offices of an individual private physician or single group
practice of private physicians if such surgery is performed in a facility that
is owned, operated, and utilized by such physicians who also are of a single
specialty and the capital
expenditure
associated with the construction, development, or other establishment of the
clinical health service does not exceed the amount of $1 million;
and
(iv)
Cardiac catheterization; or
(H)
The purchase, lease, or other use by or on behalf of a diagnostic, treatment, or
rehabilitation center of diagnostic or therapeutic equipment with a value in
excess of $500,000.00. The acquisition of one or more items of functionally
related diagnostic or therapeutic equipment shall be considered as one
project.
The
dollar amounts specified in subparagraphs (B), (F), and (H) of this paragraph,
division (iii) of subparagraph (G) of this paragraph, and of paragraph (7) of
this Code section shall be adjusted annually by an amount calculated by
multiplying such dollar amounts (as adjusted for the preceding year) by the
annual percentage of change in the composite construction index, or its
successor or appropriate replacement index, if any, published by the Bureau of
the Census of the Department of Commerce of the United States government for the
preceding calendar year, commencing on July 1, 1991, and on each anniversary
thereafter of publication of the index. The department shall immediately
institute rule-making procedures to adopt such adjusted dollar amounts. In
calculating the dollar amounts of a proposed project for purposes of
subparagraphs (B), (F), and (H) of this paragraph, division (iii) of
subparagraph (G) of this paragraph, and of paragraph (7) of this Code section,
the costs of all items subject to review by this chapter and items not subject
to review by this chapter associated with and simultaneously developed or
proposed with the project shall be counted, except for the expenditure or
commitment of or incurring an obligation for the expenditure of funds to develop
certificate of need applications, studies, reports, schematics, preliminary
plans and specifications or working drawings, or to acquire
sites.
(15)(25)
'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)(26)
'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)(27)
'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
department
which shall consider and use the design and construction specifications as set
forth in the
Guidelines
for Design and Construction of Health Care Facilities
published by
the American Institute of
Architects.
(28)
'Pediatric cardiac catheterization' means the performance of angiographic,
physiologic, and as appropriate, therapeutic cardiac catheterization on children
14 years of age or younger.
(17)(29)
'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)(30)
'Personal care home' means a residential facility
that is
certified as a provider of medical assistance for Medicaid purposes pursuant to
Article 7 of Chapter 4 of Title 49 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)(31)
'Project' means a proposal to take an action for which a certificate of need is
required under this chapter. A project or proposed project may refer to the
proposal from its earliest planning stages up through the point at which the new
institutional health service is offered.
(21)
'Review board' means the Health Planning Review Board created by this
chapter
(32) 'Rural
county' means a county having a population of less than 35,000 according to the
United States decennial census of 2000 or any future such census.
(33)
'Single specialty ambulatory surgical center' means an ambulatory surgical
center where surgery is 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; provided, however, that general surgery, a
group practice which includes one or more physiatrists who perform services that
are reasonably related to the surgical procedures performed in the center, and a
group practice in orthopedics which includes plastic hand surgeons with a
certificate of added qualifications in Surgery of the Hand from the American
Board of Plastic and Reconstructive Surgery shall be considered a single
specialty.
(22)(34)
'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.
(35)
'Specialty hospital' means a hospital that is primarily or exclusively engaged
in the care and treatment of one of the following: patients with a cardiac
condition, patients with an orthopedic condition, patients receiving a surgical
procedure, or patients receiving any other specialized category of services
defined by the department. A 'specialty hospital' does not include a
destination cancer hospital.
(23)(36)
'State health plan' means a comprehensive program based on recommendations by
the Health Strategies Council and the board, 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.
(37)
'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 Financial Survey and related
instructions.
(38)
'Urban county' means a county having a population equal to or greater than
35,000 according to the United States decennial census of 2000 or any future
such census.
ARTICLE
2
31-6-20.
(a)
There is created a
newly
reconstituted Health Strategies Council to
be appointed by the Governor, subject to confirmation by the Senate. Any
appointment made when the Senate is not in session shall be effective until the
appointment is acted upon by the Senate. The
newly
reconstituted Health Strategies Council
shall be the successor to the
Health
Policy Council
Health
Strategies Council as it existed on June 30,
2008. Those members of the previously
existing
Health
Policy Council
Health
Strategies Council who are serving as such
on January
1, 1991
June 30, 2008,
shall have their terms expire on June 30,
2008,
shall
continue to serve until July 1, 1991, at
which time
their terms
shall expire and that council shall be
abolished. On and after that date the council shall be composed of
25
13
members,
except as otherwise provided for in subsection (b) of this Code
section.
Of those
members, at least one
One
member shall be appointed from each
congressional district. The council shall be composed as follows:
(1)
One member
representing county governments;
(2)
One member representing the private insurance industry;
(3)
Ten members representing health care providers as follows:
(A)(2)
One member representing rural hospitals;
(B)(3)
One member representing urban hospitals;
(C)(4)
One member who is a primary care physician
in the active
practice of medicine;
(D)(5)
One member who is a physician in a board certified specialty
in the active
practice of medicine;
(E)
One member who is a registered professional nurse;
(F)
One member who is a registered professional nurse who is certified as a nurse
practitioner;
(G)(6)
One member representing nursing homes;
(H)(7)
One member representing home health agencies;
(I)(8)
One member representing
freestanding
ambulatory surgical centers
primary
care centers;
and;
(J)
One member who is a primary care dentist;
(4)
Ten consumer representatives who are knowledgeable as to health care needs in
the fields they represent but who have no financial interest in the health care
industry as follows:
(A)(9)
One member representing health care needs of women;
(B)
One member representing health care needs of children;
(C)(10)
One member representing health care needs of the disabled
and
elderly;
(D)
(11)
One member representing
mental
health care needs
of the
elderly;
(E)(12)
One member representing health care needs of
low-income
indigent
persons;
and
(F)(13)
One member representing health care needs of
small
business
personnel;
(G)
One member representing health care needs of large business
personnel;
(H)
One member representing health care needs of labor organization members;
and
(I)
Two members who represent populations with special health care access problems;
and
(5)
Three at-large members.
(b)
If the state obtains
an
one or
more additional
member
members
of the United States House of Representatives as a result of reapportionment,
the Governor shall appoint, subject to confirmation by the Senate, from
the
each
new congressional district thus created one
member
representing local or county governments
health care
provider member who meets the requirements of subparagraph (a)(3)(J) of this
Code section and one consumer member who meets the requirements of subparagraph
(a)(4)(I) of this Code section as to a population specified in those
subparagraphs which is not then represented on the
council.
With the
addition of these two members, the council shall be composed of 27
members.
(c)
The
initial
members of the
newly
reconstituted council
who are
appointed to succeed those members whose terms expire July 1,
1991, shall take office July 1,
1991
2008,
and
12
six
of them shall be designated in such appointment to serve initial terms of office
of two years and
13
seven
of them shall be designated in such appointment to serve initial terms of office
of four years. If
two
additional members are appointed to the council to represent a new congressional
district as provided in subsection (b) of this Code section, one
half
shall be designated to serve an initial term of office which expires when the
above initial two-year terms of office expire and one
half
shall be designated to serve an initial term of office which expires when the
above initial four-year terms of office expire. After the initial terms
provided in this subsection, members of the council shall be appointed to serve
for four-year terms of office. Members of the council shall serve out their
terms of office and until their respective successors are appointed and
qualified.
(d)
Members of the council shall be subject to
removal:
by
(1)
By the Governor
after notice
and opportunity for hearing
for:
incompetence,
neglect of duty, or for failing
(A)
Inability or neglect to perform the duties required of members;
(B)
Incompetence; or
(C)
Dishonest conduct; or
(2)
For failure to attend at least
75
50
percent of the meetings of the council in any
year;
provided, however, that an absence caused by a medical condition or death of a
family member shall constitute an excused absence and shall not provide grounds
for removal.
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
functions
function
of the council shall be to
serve as an
advisory body to the department and
to:
(1)
Review, comment, and make recommendations to the board on components of the
state health plan;
and
(2)
Review and comment on proposed rules for the administration of this chapter,
except emergency rules, as requested 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)(h)
The council at the department´s request shall involve and coordinate
functions with such state entities as necessary.
(j)
As used in subsections (g), (h), and (i) of this Code section, the
term:
(1)
'Board' means the Board of Community Health established under Chapter 5A of this
title.
(2)
'Department' means the Department of Community Health established under Chapter
5A of this title.
31-6-21.
(a)
The Department of Community Health, established under Chapter 5A of this title,
is authorized to administer the certificate of need program established under
this chapter and, within the appropriations made available to the department by
the General Assembly of Georgia and consistently with the laws of the State of
Georgia, a state health plan adopted by the
Health
Strategies Council and approved by the
board
Board of
Community Health. The department shall
provide, by rule, for procedures to administer its functions until otherwise
provided by the Board of Community Health.
(b)
The functions of the department shall be:
(1)
To conduct the health planning activities of the state and to implement those
parts of the state health plan which relate to the government of the
state;
(2)
To prepare and revise a draft state health plan;
(3)
To assist
the
seek advice,
at its discretion, from the Health
Strategies Council in the performance
by the
department of its functions
pursuant to
this chapter;
(4)
With the
prior advice, comment, and recommendations of the Health Strategies Council,
except with respect to emergency rules and regulations, to
To
adopt, promulgate, and implement rules and regulations sufficient to administer
the provisions of this chapter including the certificate of need
program;
(5)
To define, by rule, the form, content, schedules, and procedures for submission
of applications for certificates of need and periodic reports;
(6)
To establish time periods and procedures consistent with this chapter to hold
hearings and to obtain the viewpoints of interested persons prior to issuance or
denial of a certificate of need;
(7)
To provide, by rule, for such fees as may be necessary to cover the costs of
hearing
officers, preparing the record for appeals
before
the
such
hearing officers and
review
board
the
Certificate of Need Appeal Panel of the
decisions of the department,
and other
related administrative costs, which costs
may include reasonable sharing between the department and the parties to appeal
hearings;
(8)
To establish, by rule, need methodologies for new institutional health services
and health facilities. In developing such 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. The department
shall establish service-specific need methodologies and criteria for at least
the following clinical health services: short stay hospital beds, adult
therapeutic cardiac catheterization, adult open heart surgery, pediatric cardiac
catheterization and open heart surgery, Level II and III perinatal services,
freestanding birthing centers, psychiatric and substance abuse inpatient
programs, skilled nursing and intermediate care facilities, home health
agencies, and continuing care retirement community sheltered
facilities;
(8)(9)
To provide, by rule, for a reasonable and equitable fee schedule for certificate
of need applications;
(9)(10)
To grant, deny, or revoke a certificate of need as applied for or as amended;
and
(10)(11)
To perform powers and functions delegated by the Governor, which delegation may
include the powers to carry out the duties and powers which have been delegated
to the department under Section 1122 of the
federal
Social Security Act of 1935, as amended.
31-6-21.1.
(a)
Rules of the department shall be adopted, promulgated, and implemented as
provided in this Code section and in Chapter 13 of Title 50, the 'Georgia
Administrative Procedure Act,' except that the department shall not be required
to comply with subsections (c) through (g) of Code Section 50-13-4.
(b)
The department shall transmit three copies of the notice provided for in
paragraph (1) of subsection (a) of Code Section 50-13-4 to the legislative
counsel. The copies shall be transmitted at least 30 days prior to that
department´s intended action. Within five days after receipt of the copies,
if possible, the legislative counsel shall furnish the presiding officer of each
house with a copy of the notice and mail a copy of the notice to each member of
the Health and Human Services Committee of the Senate and each member of the
Health and Human Services Committee of the House of Representatives. Each such
rule and any part thereof shall be subject to the making of an objection by
either such committee
within 30 days
of transmission of the rule to the members of such
committee. Any rule or part thereof to
which no objection is made by both such committees may become adopted by the
department at the end of such 30 day period. The department may not adopt any
such rule or part thereof which has been changed since having been submitted to
those committees unless:
(1)
That change is to correct only typographical errors;
(2)
That change is approved in writing by both committees and that approval
expressly exempts that change from being subject to the public notice and
hearing requirements of subsection (a) of Code Section 50-13-4;
(3)
That change is approved in writing by both committees and is again subject to
the public notice and hearing requirements of subsection (a) of Code Section
50-13-4; or
(4)
That change is again subject to the public notice and hearing requirements of
subsection (a) of Code Section 50-13-4 and the change is submitted and again
subject to committee objection as provided in this subsection.
Nothing
in this subsection shall prohibit the department from adopting any rule or part
thereof without adopting all of the rules submitted to the committees if the
rule or part so adopted has not been changed since having been submitted to the
committees and objection thereto was not made by both committees.
(c)
Any rule or part thereof to which an objection is made by both committees within
the 30 day objection period under subsection (b) of this Code section shall not
be adopted by the department and shall be invalid if so adopted. A rule or part
thereof thus prohibited from being adopted shall be deemed to have been
withdrawn by the department unless the department, within the first 15 days of
the next regular session of the General Assembly, transmits written notification
to each member of the objecting committees that the department does not intend
to withdraw that rule or part thereof but intends to adopt the specified rule or
part effective the day following adjournment sine die of that regular session.
A resolution objecting to such intended adoption may be introduced in either
branch of the General Assembly after the fifteenth day but before the thirtieth
day of the session in which occurs the notification of intent not to withdraw a
rule or part thereof. In the event the resolution is adopted by the branch of
the General Assembly in which the resolution was introduced, it shall be
immediately transmitted to the other branch of the General Assembly. It shall
be the duty of the presiding officer of the other branch to have that branch,
within five days after receipt of the resolution, consider the resolution for
purposes of objecting to the intended adoption of the rule or part thereof.
Upon such resolution being adopted by two-thirds of the vote of each branch of
the General Assembly, the rule or part thereof objected to in that resolution
shall be disapproved and not adopted by the department. If the resolution is
adopted by a majority but by less than two-thirds of the vote of each such
branch, the resolution shall be submitted to the Governor for his
or
her
approval or veto. In the event of
his
a
veto, or if no resolution is introduced objecting to the rule, or if the
resolution introduced is not approved by at least a majority of the vote of each
such branch, the rule shall automatically become adopted the day following
adjournment sine die of that regular session. In the event of the
Governor´s approval of the resolution, the rule shall be disapproved and
not adopted by the department.
(d)
Any rule or part thereof which is objected to by only one committee under
subsection (b) of this Code section and which is adopted by the department may
be considered by the branch of the General Assembly whose committee objected to
its adoption by the introduction of a resolution for the purpose of overriding
the rule at any time within the first 30 days of the next regular session of the
General Assembly. It shall be the duty of the department in adopting a proposed
rule over such objection so to notify the
chairmen
chairpersons
of the Health and Human Services Committee of the Senate and the Health and
Human Services Committee of the House within ten days after the adoption of the
rule. In the event the resolution is adopted by such branch of the General
Assembly, it shall be immediately transmitted to the other branch of the General
Assembly. It shall be the duty of the presiding officer of the other branch of
the General Assembly to have such branch, within five days after the receipt of
the resolution, consider the resolution for the purpose of overriding the rule.
In the event the resolution is adopted by two-thirds of the votes of each branch
of the General Assembly, the rule shall be void on the day after the adoption of
the resolution by the second branch of the General Assembly. In the event the
resolution is ratified by a majority but by less than two-thirds of the votes of
either branch, the resolution shall be submitted to the Governor for his
or
her approval or veto. In the event of
his
a
veto, the rule shall remain in effect. In the event of
his
the
Governor´s approval, the rule shall
be void on the day after the date of
his
approval.
(e)
Except for emergency rules, no rule or part thereof adopted by the department
after April 3, 1985, shall be valid unless adopted in compliance with
subsections (b), (c), and (d) of this Code section and subsection (a) of Code
Section 50-13-4.
(f)
Emergency rules shall not be subject to the requirements of subsection (b), (c),
or (d) of this Code section but shall be subject to the requirements of
subsection (b) of Code Section 50-13-4. Upon the first expiration of any
department emergency rules, where those emergency rules are intended to cover
matters which had been dealt with by the department´s nonemergency rules
but such nonemergency rules have been objected to by both legislative committees
under this Code section, the emergency rules concerning those matters may not
again be adopted except for one 120 day period. No emergency rule or part
thereof which is adopted by the department shall be valid unless adopted in
compliance with this subsection.
(g)
Any proceeding to contest any rule on the ground of noncompliance with this Code
section must be commenced within two years from the effective date of the
rule.
(h)
For purposes of this Code section, 'rules' shall mean rules and
regulations.
(i)
The state health plan or the rules establishing considerations, standards, or
similar criteria for the grant or denial of a certificate of need pursuant to
Code Section 31-6-42 shall not apply to any application for a certificate of
need as to which, prior to the effective date of such plan or rules,
respectively, the evidence has been closed following a full evidentiary hearing
before a hearing officer.
31-6-22.
The
department shall be directed by the commissioner of community
health.
ARTICLE
3
31-6-40.
(a)
From and
after July 1, 1999, only such new institutional health services or health care
facilities as are found by the department to be needed shall be offered in the
state. Prior to that date, only such new institutional health services or
health care facilities which had been found to be needed by the Health Planning
Agency under any prior provisions of this chapter and the regulations issued
thereunder shall have been offered in the state, unless otherwise exempt from
the requirements of the law or unless that law was not applicable. It is the
intent of this provision to assure that no new institutional health services or
health care facilities, as defined prior to July 1, 1999, are allowed to avoid
the requirements of any prior provisions of this chapter, and applicable
regulations, if those laws and regulations were applicable to
them.
On and after
July 1, 2008, any new institutional health service shall be required to obtain a
certificate of need pursuant to this chapter. New institutional health services
include:
(1)
The construction, development, or other establishment of a new health care
facility;
(2)
Any expenditure by or on behalf of a health care facility in excess of
$2,500,000.00 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. The dollar amounts specified in this paragraph
and in subparagraph (A) of paragraph (14) of Code Section 31-6-2 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 index of construction material prices, or its successor or appropriate
replacement index, if any, published by the United States Department of Commerce
for the preceding calendar year, commencing on July 1, 2009, 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
this paragraph and subparagraph (A) of paragraph (14) of Code Section 31-6-2,
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;
(3)
The purchase or lease by or on behalf of a health care facility or a diagnostic,
treatment, or rehabilitation center of diagnostic or therapeutic equipment with
a value in excess of $1,000,000.00; provided, however, that diagnostic or other
imaging services that are not offered in a hospital or in the offices of an
individual private physician or single group practice of physicians exclusively
for use on patients of that physician or group practice shall be deemed to be a
new institutional health service regardless of the cost of equipment; and
provided, further, that this shall not include build out costs, as defined by
the department, but shall include all functionally related equipment, software,
and any warranty and services contract costs for the first five years. The
acquisition of one or more items of functionally related diagnostic or
therapeutic equipment shall be considered as one project. The dollar amount
specified in this paragraph, in subparagraph (B) of paragraph (14) of Code
Section 31-6-2, and in paragraph (10) of subsection (a) of Code Section 31-6-47
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 consumer price index, or its successor or appropriate replacement index,
if any, published by the United States Department of Labor for the preceding
calendar year, commencing on July 1, 2010;
(4)
Any increase in the bed capacity of a health care facility except as provided in
Code Section 31-6-47;
(5)
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;
(6)
Any conversion or upgrading of any general acute care hospital to a specialty
hospital or 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; and
(7)
Clinical health services which are offered in or through a diagnostic,
treatment, or rehabilitation center which were not offered on a regular basis in
or through that center within the 12 month period prior to the time such
services would be offered, but only if the clinical health services are any of
the following:
(A)
Radiation therapy;
(B)
Biliary lithotripsy;
(C)
Surgery in an operating room environment, including but not limited to
ambulatory surgery; and
(D)
Cardiac catheterization.
(b)
Any person proposing to develop or offer a new institutional health service or
health care facility shall, before commencing such activity, submit
a letter of
intent and an application to the
department and obtain a certificate of need in the manner provided in this
chapter unless such activity is excluded from the scope of this
chapter.
(c)(1)
Any person who had a valid exemption granted or approved by the former Health
Planning Agency or the Department of Community Health prior to July 1, 2008,
shall not be required to obtain a certificate of need in order to continue to
offer those previously offered services.
(2)
Any facility offering ambulatory surgery pursuant to the exclusion designated on
June 30, 2008, as division (14)(G)(iii) of Code Section 31-6-2; any diagnostic,
treatment, or rehabilitation center offering diagnostic imaging or other imaging
services in operation and exempt prior to July 1, 2008; or any facility
operating pursuant to a letter of nonreviewability and offering diagnostic
imaging services prior to July 1, 2008, shall:
(A)
Provide notice to the department of the name, ownership, location, single
specialty, and services provided in the exempt facility;
(B)
Beginning on January 1, 2009, provide annual reports in the same manner and in
accordance with Code Section 31-6-70; and
(C)(i)
Provide care to Medicaid beneficiaries and, if the facility provides medical
care and treatment to children, to PeachCare for Kids beneficiaries and provide
uncompensated indigent and charity care in an amount equal to or greater than 2
percent of its adjusted gross revenue; or
(ii)
If the facility is not a participant in Medicaid or the PeachCare for Kids
Program, provide uncompensated care for Medicaid beneficiaries and, if the
facility provides medical care and treatment to children, for PeachCare for Kids
beneficiaries, uncompensated indigent and charity care, or both in an amount
equal to or greater than 4 percent of its adjusted gross revenue if
it:
(I)
Makes a capital expenditure associated with the construction, development,
expansion, or other establishment of a clinical health service or the
acquisition or replacement of diagnostic or therapeutic equipment with a value
in excess of $800,000.00 over a two-year period;
(II)
Builds a new operating room; or
(III)
Chooses to relocate in accordance with Code Section 31-6-47.
Noncompliance
with any condition of this paragraph shall result in a monetary penalty in the
amount of the difference between the services which the center is required to
provide and the amount actually provided and may be subject to revocation of its
exemption status by the department for repeated failure to pay any fees or
monies due to the department or for repeated failure to produce data as required
by Code Section 31-6-70 after notice to the exemption holder and a fair hearing
pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'
The dollar amount specified in this paragraph shall be adjusted annually by an
amount calculated by multiplying such dollar amount (as adjusted for the
preceding year) by the annual percentage of change in the consumer price index,
or its successor or appropriate replacement index, if any, published by the
United States Department of Labor for the preceding calendar year, commencing on
July 1, 2009. In calculating the dollar amounts of a proposed project for the
purposes of this paragraph, 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. Paragraphs (1) and (2) of this subsection shall not apply
to facilities offering ophthalmic ambulatory surgery pursuant to the exclusion
designated on June 30, 2008, as division (14)(G)(iii) of Code Section 31-6-2
that are owned by physicians in the practice of ophthalmology.
(d)
A certificate of need issued to a destination cancer hospital shall authorize
the beds and all new institutional health services of such destination cancer
hospital. As used in this subsection, the term 'new institutional health
service' shall have the same meaning provided for in subsection (a) of this Code
section. A certificate of need shall only be issued to a destination cancer
hospital that locates itself and all affiliated facilities within 50 miles of a
commercial airport in this state with five or more runways. Such destination
cancer hospital shall not be required to apply for or obtain additional
certificates of need for new institutional health services related to the
treatment of cancer patients, and such new institutional health services related
to the treatment of cancer patients offered by the destination cancer hospital
shall not be reviewed under any service specific need methodology or rules
except for those promulgated by the department for destination cancer hospitals.
After commencing operations, in order to add an additional new institutional
health service, a destination cancer hospital shall apply for and obtain an
additional certificate of need under the applicable statutory provisions and any
rules promulgated by the department for destination cancer hospitals, and such
applications shall only be granted if the patient base of such destination
cancer hospital is composed of at least 65 percent of out-of-state patients for
two consecutive years. The department may apply rules for a destination cancer
hospital only for those services that the department determines are to be used
by the destination cancer hospital in connection with the treatment of cancer.
In no case shall a destination cancer hospital specific rules be used in the
case of an application for open heart surgery, perinatal services, cardiac
catheterization, and other services deemed by the department to be not
reasonably related to the diagnosis and treatment of cancer; provided, however,
that the department shall apply the destination cancer hospital specific rules
if a destination cancer hospital applies for services and equipment required for
it to meet federal or state laws applicable to a hospital. If such destination
cancer hospital cannot show a patient base of a minimum of 65 percent from
outside of this state, then its application for any new institutional health
service shall be evaluated under the specific statutes and rules applicable to
that particular service. If such destination cancer hospital applies for a
certificate of need to add an additional new institutional health service before
commencing operations or completing two consecutive years of operation, such
applicant may rely on historical data from its affiliated entities, as set forth
in paragraph (2) of subsection (b.1) of Code Section 31-6-42. Because
destination cancer hospitals provide services primarily to out-of-state
residents, the number of beds, services, and equipment destination cancer
hospitals use shall not be counted as part of the department´s inventory
when determining the need for those items by other providers. No person shall
be issued more than one certificate of need for a destination cancer hospital.
Nothing in this Code section shall in any way require a destination cancer
hospital to obtain a certificate of need for any purpose that is otherwise
exempt from the certificate of need requirement. Beginning January 1, 2010, the
department shall not accept any application for a certificate of need for a new
destination cancer hospital; provided, however, all other provisions regarding
the upgrading, replacing, or purchasing of diagnostic or therapeutic equipment
shall be applicable to an existing destination cancer hospital.
(e)
The commissioner shall be authorized, with the approval of the board, to place a
temporary moratorium of up to six months on the issuance of certificates of need
for new and emerging health care services. Any such moratorium placed shall be
for the purpose of promulgating rules and regulations regarding such new and
emerging health care services. A moratorium may be extended one time for an
additional three months if circumstances warrant, as approved by the board. In
the event that final rules and regulations are not promulgated within the time
period allowed by the moratorium, any applications received by the department
for a new and emerging health care service shall be reviewed under existing
general statutes and regulations relating to certificates of need.
(c)(1)
Any person who offered new institutional health services, as defined only in
subparagraphs (G) and (H) of paragraph (14) of Code Section 31-6-2, within the
12 month period prior to July 1, 1999, and for which services a certificate of
need was not required under the provisions of this chapter as they existed prior
to July 1, 1999, shall not be required to obtain a certificate of need in order
to continue to offer those previously offered services after that date if that
person obtains an exemption therefor as provided in this
subsection.
(1.1)
Any person who, on July 1, 1999:
(A)
Has in place a valid written contract of purchase, construction, or assembly for
purposes of offering new institutional health services, as defined only in
subparagraphs (G) and (H) of paragraph (14) of Code Section 31-6-2;
(B)
Has prior to said date paid in cash or made an irrevocable and secured
commitment or obligation of a minimum of 30 percent of the price called for
under said contract;
(C)
Has taken delivery and has in operation such new institutional health services
on or before January 1, 1992; and
(D)
Has notified the Health Planning Agency no later than July 1, 1991, of that
person´s intent to apply for an exemption under this paragraph
shall
not be required to obtain a certificate of need in order to offer those services
if that person obtains an exemption therefor as provided in this
subsection.
(2)
A person claiming an exemption under paragraph (1) or (1.1) of this subsection
shall apply to the Health Planning Agency for that exemption no later than July
1, 1992. The application shall be in such form and manner as established by the
Health Planning Agency to provide sufficient proof that the applicant qualifies
for the exemption claimed. The Health Planning Agency shall notify the applicant
within 90 days after the required application and proof have been properly
submitted that the application for exemption is denied; otherwise, the
application shall be deemed granted by operation of law upon the ninety-first
day. Such a grant of the exemption shall be final and no appeal therefrom shall
be authorized. A denial of such application for exemption shall constitute a
contested case under Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.' Any person having a certificate of need or authorization to
offer the services for which an application for exemption has been denied may
intervene in the contested case if such person offers those services within the
same service area as the service area in which were to be offered the services
for which the application for exemption was denied.
(3)
A person who claims an exemption pursuant to this subsection may continue to
offer the services for which the exemption may be claimed without applying for
the exemption, but those services may not be offered after October 1, 1992, or
any date prior thereto upon which a decision denying the exemption has become
final unless:
(A)
The person applied for the exemption as provided in paragraph (2) of this
subsection but on October 1, 1992, there has either been no decision made
denying the exemption or a decision denying the exemption has not become final,
in either of which events the services for which the application for exemption
was made may be offered until there is a final decision denying the
exemption;
(B)
The person is granted the exemption; or
(C)
The person obtains a certificate of need for the services.
For
purposes of this subsection, a decision denying an application for an exemption
shall become final when the time for appealing that decision expires without an
appeal of such decision having been properly made.
(4)
An exemption obtained pursuant to this subsection may be transferred to another
person if the department is notified thereof within 45 days after the transfer
occurs.
(5)
The Health Planning Agency shall establish procedures for obtaining exemptions
under this subsection and shall publish a list not later than October 1, 1992,
of all such applications granted or pending on that date.
(d)
Any person that had formally requested, prior to February 1, 1991, a
determination from the Health Planning Agency of the applicability of the
certificate of need requirements for a specific project that is subsequently
approved by the Health Planning Agency or by appeal of the Health Planning
Agency´s denial shall be exempt under the provisions of this chapter from
the requirement of obtaining a certificate of need for that
project.
31-6-40.1.
(a)
Any person who acquires a health care facility by stock or asset purchase,
merger, consolidation, or other lawful means shall notify the department of such
acquisition, the date thereof, and the name and address of the acquiring person.
Such notification shall be made in writing to the department within 45 days
following the acquisition and the acquiring person may be fined by the
department in the amount of $500.00 for each day that such notification is late.
Such fine shall be paid into the state treasury.
(b)
The department may limit the time periods during which it will accept
applications for the following health care facilities:
(1)
Skilled nursing facilities;
(2)
Intermediate care facilities; and
(3)
Home health agencies,
to
only such times after the department has determined there is an unmet need for
such facilities. The department shall make a determination as to whether or not
there is an unmet need for each type of facility at least every six months and
shall notify those requesting such notification of that
determination.
(b.1)
The department may establish, by rule, set times during the year in which
applications for capital projects exceeding the threshold amounts
in:
(1)
Paragraph (14) of Code Section 31-6-2; and
(2)
Paragraph (2) or (3) of subsection (a) of Code Section 31-6-40
shall
be accepted.
(c)
The department may require that any applicant for a certificate of need agree to
provide a specified amount of clinical health services to indigent patients as a
condition for the grant of a certificate of
need;
provided, however, that each facility granted a certificate of need by the
department as a destination cancer hospital shall be required to provide
uncompensated indigent or charity care for residents of Georgia which meets or
exceeds 3 percent of such destination cancer hospital´s adjusted gross
revenues and provide care to Medicaid
beneficiaries. A grantee or successor in
interest of a certificate of need or an authorization to operate under this
chapter which violates such an agreement
or violates
any conditions imposed by the department relating to such
services, whether made before or after
July 1,
1991
2008,
shall be liable to the department for a monetary penalty in the amount of the
difference between the amount of services so agreed to be provided and the
amount actually provided
and may be
subject to revocation of its certificate of need, in whole or in part, by the
department pursuant to Code Section
31-6-45. Any penalty so recovered shall
be paid into the state treasury.
(c.1)(1)
A destination cancer hospital that does not meet an annual patient base composed
of a minimum of 65 percent of patients who reside outside this state in a
calendar year shall be fined $2,000,000.00 for the first year of noncompliance,
$4,000,000.00 for the second consecutive year of noncompliance, and
$6,000,000.00 for the third consecutive year of noncompliance. Such fine amount
shall reset to $2,000,000.00 after any year of compliance. In the event that a
destination cancer hospital does not meet an annual patient base composed of a
minimum of 65 percent of patients who reside outside this state for three
calendar years in any five-year period, such hospital shall be fined an
additional amount of $8,000,000.00. It is the intent of the General Assembly
that all revenues collected from any such fine shall be dedicated and deposited
by the department into the Indigent Care Trust Fund created pursuant to Code
Section 31-8-152.
(2)
In the event a certificate of need for a destination cancer hospital is revoked
pursuant to this subsection, such hospital shall be subject to fines pursuant to
subsection (c) of Code Section 31-6-45 for operating without a certificate of
need.
(3)
In addition to the annual report required pursuant to Code Section 31-6-70, a
destination cancer hospital shall submit an annual statement, in accordance with
timeframes and a format specified by the department, affirming that the hospital
has met an annual patient base composed of a minimum of 65 percent of patients
who reside outside this state. The chief executive officer of the destination
cancer hospital shall certify under penalties of perjury that the statement as
prepared accurately reflects the composition of the annual patient base. The
department shall have the authority to inspect any books, records, papers, or
other information pursuant to subsection (e) of Code Section 31-6-45 of the
destination cancer hospital to confirm the information provided on such
statement or any other information required of the destination cancer hospital.
Nothing in this paragraph shall be construed to require the release of any
information which would violate the Health Insurance Portability and
Accountability Act of 1996, P.L. 104-191.
(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
relating to
managing high-risk pregnancies, care for moderately ill newborns, care for all
maternal and fetal complications either on site or by referral, and operation of
neonatal intensive care units equipped to treat critically ill newborns;
provided however, this shall not include basic perinatal services as defined in
Code Section 31-6-2.
(6)
'Uncompensated indigent or charity care' means the dollar amount of 'net
uncompensated indigent or charity care after direct and indirect (all)
compensation' as defined by, and calculated in accordance with, the
department´s Hospital Indigent Care Survey and related
instructions.
(7)(6)
'Year' means one of the three consecutive 12 month periods in a new perinatal
service first 36 months of operation.
(b)(1)
A new perinatal service shall provide uncompensated indigent or charity care in
an amount which meets or exceeds the department´s established minimum at
the time the department issued the certificate of need approval for such service
for each of the service´s first three years of operation; provided,
however, that if the certificate of need application under which a new perinatal
service was approved included a commitment that uncompensated indigent or
charity care would be provided in an amount greater than the established minimum
for any time period described in the certificate of need application that falls
completely within such new perinatal service´s first three years of
operation, such new perinatal service shall provide indigent or charity care in
an amount which meets or exceeds the amount committed in the certificate of need
application for each time period described in the certificate of need
application that falls completely within the service´s first three years of
operation.
(2)
The department shall revoke the certificate of need and authority to operate of
a new perinatal service if after notice to the grantee of the certificate or
such grantee´s successors, and after opportunity for a fair hearing
pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,'
the department determines that such new perinatal service has failed to provide
indigent or charity care in accordance with the requirements of paragraph (1) of
this subsection and such failure is determined by the department to be for
reasons substantially within the perinatal service provider´s control. The
department shall provide the requisite notice, conduct the fair hearing, if
requested, and render its determination within 90 days after the end of the
first year, or, if applicable, the first time period described in paragraph (1)
of this subsection during which the new perinatal service fails to provide
indigent or charity care in accordance with the requirements of paragraph (1) of
this subsection. Revocation shall be effective 30 days after the date of the
determination by the department that the requirements of paragraph (1) of this
subsection have not been met.
(c)(1)
A new perinatal service shall achieve the standard number of births specified in
the state health plan in effect at the time of the issuance of the certificate
of need approval by the department in at least one year during its first three
years of operation.
(2)
The department shall revoke the certificate of need and authority to operate of
a new perinatal service if after notice to the grantee of the certificate of
need or such grantee´s successors, and after opportunity for a fair hearing
pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,'
the department determines that such new perinatal service has failed to comply
with the applicable requirements of paragraph (1) of this subsection and such
failure is determined by the department to be for reasons substantially within
the perinatal service provider´s control. The department shall provide the
requisite notice, conduct the fair hearing, if requested, and render its
determination within 90 days after the end of the new perinatal service´s
first three years of operation. Revocation shall be effective 30 days after the
date of the determination by the department that the requirements of this
paragraph or paragraph (1) of this subsection have not been met.
(d)
Nothing contained in this Code section shall limit the department´s
authority to regulate perinatal services in ways or for time periods not
addressed by the provisions of this Code section.
31-6-41.
(a)
A certificate of need shall be valid only for the defined scope, location, cost,
service area, and person named in an application, as it may be amended, and as
such scope, location, area, cost, and person are approved by the department,
unless such certificate of need owned by an existing health care facility is
transferred to a person who acquires such existing facility. In such case, the
certificate of need shall be valid for the person who acquires such a facility
and for the scope, location, cost, and service area approved by the department.
However, in
reviewing an application to relocate all or a portion of an existing skilled
nursing facility, intermediate care facility, or intermingled nursing facility,
the department may allow such facility to divide into two or more such
facilities if the department determines that the proposed division is
financially feasible and would be consistent with quality patient
care.
(b)
A certificate of need shall be valid and effective for a period of 12 months
after it is issued, or such greater period of time as may be specified by the
department at the time the certificate of need is issued. Within the effective
period after the grant of a certificate of need, the applicant of a proposed
project shall fulfill reasonable performance and scheduling requirements
specified by the department, by rule, to assure reasonable progress toward
timely completion of a project.
(c)
By rule, the department may provide for extension of the effective period of a
certificate of need when an applicant, by petition, makes a good faith showing
that the conditions to be specified according to subsection (b) of this Code
section will be performed within the extended period and that the reasons for
the extension are beyond the control of the applicant.
31-6-42.
(a)
The written findings of fact and decision, with respect to the department´s
grant or denial of a certificate of need, shall be based on the applicable
considerations specified in this Code section and reasonable rules promulgated
by the department interpretive thereof. The department shall issue a certificate
of need to each applicant whose application is consistent with the following
considerations and such rules deemed applicable to a project, except as
specified in subsection
(d)(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;