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Developed and maintained by the Division of Legislative Automated Systems.
1996 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 32.1-102.3:2 of the Code of Virginia is amended and reenacted as follows:
§ 32.1-102.3:2. Certificates of public need; applications for increases in nursing home bed supplies to be filed in response to Requests For Applications (RFAs).
A. Except for applications for continuing care retirement community nursing
home bed projects filed by continuing care providers registered with the State
Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of
Title 38.2, the Commissioner of Health shall not only
approve, authorize or accept applications for the issuance of any
certificate of public need pursuant to this article for any project which would
result in an increase in the number of beds in which nursing facility or
extended care services are provided through June 30, 1996 when such
applications are filed in response to Requests For Applications (RFAs).
B. The Board of Health shall adopt regulations establishing standards for the approval and issuance of Requests for Applications by the Commissioner of Health. The standards shall include, but shall not be limited to, a requirement that determinations of need take into account any limitations on access to existing nursing home beds in the planning districts. The RFAs, which shall be published at least annually, shall be jointly developed by the Department of Health and the Department of Medical Assistance Services and based on analyses of the need, or lack thereof, for increases in the nursing home bed supply in each of the Commonwealth's planning districts in accordance with standards adopted by the Board of Health by regulation. The Commissioner shall only accept for review applications in response to such RFAs which conform with the geographic and bed need determinations of the specific RFA.
C. Sixty days prior to the Commissioner's approval and issuance of any
Request For Applications, the Board of Health shall publish the proposed RFA in
the Virginia Register for public comment together with an explanation of (i)
the regulatory basis for the planning district bed needs set forth in the RFA
and (ii) the rationale for the RFA's planning district designations. Any
person objecting to the contents of the proposed RFA may notify, within
fourteen days of the publication, the Board and the Commissioner of his
objection and the objection's regulatory basis. The Commissioner shall
prepare, and deliver by registered mail, a written response to each such
objection within two weeks of the date of receiving the objection. The
objector may file a rebuttal to the Commissioner's response in writing within
five days of receiving the Commissioner's response. If objections are
received, the Board shall, after considering the provisions of the RFA, any
objections, the Commissioner's responses, and if filed, any written rebuttals
of the Commissioner's responses, hold a public hearing to receive comments on
the specific RFA. Prior to making a decision on the Request for Applications,
the Commissioner shall consider any recommendations made by the Board.
However, the Commissioner may approve or authorize:
1. The issuance of a certificate of public need for a project for the (i)
renovation or replacement on site of an existing facility or any part thereof
or (ii) replacement off-site of an existing facility at a location within the
same city or county and within reasonable proximity to the current site when
replacement on the current site is proven infeasible, in accordance with the
law, when a capital expenditure is required to comply with life safety codes,
licensure, certification or accreditation standards. Under no circumstances
shall the State Health Commissioner approve, authorize, or accept an
application for the issuance of a certificate for any project which would
result in the continued use of the facility replaced as a nursing facility.
2. The issuance of a certificate of public need for any project for the
conversion on site of existing licensed beds to beds certified for skilled
nursing services (SNF) when (i) the total number of beds to be converted does
not exceed the lesser of twenty beds or ten percent of the beds in the
facility; (ii) the facility has demonstrated that the SNF beds are needed
specifically to serve a specialty heavy care patient population, such as
ventilator-dependent and AIDS patients and that such patients otherwise will
not have reasonable access to such services in existing or approved facilities;
and (iii) the facility further commits to admit such patients on a priority
basis once the SNF unit is certified and operational.
3. The issuance of a certificate of public need for any project for the
conversion on site of existing beds in an adult care residence licensed
pursuant to Chapter 9 (§ 63.1-172 et seq.) of Title 63.1 as of March 1,
1990, to beds certified as nursing facility beds when (i) the total number of
beds to be converted does not exceed the lesser of thirty beds or twenty-five
percent of the beds in the adult care residence; (ii) the adult care residence
has demonstrated that nursing facility beds are needed specifically to serve a
patient population of AIDS, or ventilator-dependent, or head and spinal cord
injured patients, or any combination of the three, and that such patients
otherwise will not have reasonable access to such services in existing or
approved nursing facilities; (iii) the adult care residence further commits to
admit such patients once the nursing facility beds are certified and
operational; and (iv) the licensed adult care residence otherwise meets the
standards for nursing facility beds as set forth in the regulations of the
Board of Health. Notwithstanding the conditions required by this exception
related to serving specific patient populations, an adult care residence which
has obtained by January 1, 1991, a certificate of public need for a project for
conversion on site of existing beds in its facility licensed pursuant to
Chapter 9 of Title 63.1 as of March 1, 1990, to beds certified as nursing
facility beds may use the beds converted to nursing facility beds pursuant to
this exception for patient populations requiring specialized care of at least
the same intensity which meet the criteria for the establishment of a
specialized care nursing facility contract with the Department of Medical
Assistance Services.
4. The issuance of a certificate of public need for a project in an existing
nursing facility owned and operated by the governing body of a county when (i)
the total number of new beds to be added by construction does not exceed the
lesser of thirty beds or twenty-five percent of the existing nursing facility
beds in the facility; (ii) the facility has demonstrated that the nursing
facility beds are needed specifically to serve a specialty heavy care patient
population, such as dementia, ventilator-dependent, and AIDS patients; and
(iii) the facility has executed an agreement with a state-supported medical
college to provide training in geriatric nursing.
5. The issuance of a certificate of public need for a nursing facility
project located in the City of Staunton when (i) the total number of new beds
to be constructed does not exceed thirty beds; (ii) the facility is owned by
and will be operated as a nonprofit entity; and (iii) the project is proposed
as part of a retirement community that is a continuing care provider registered
with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900
et seq.) of Title 38.2.
6. The issuance of a certificate of public need for any project for an
increase in the number of beds in which nursing home or extended care services
are provided, or the creation of new beds in which such services are to be
provided, by any continuing care provider registered with the State Corporation
Commission pursuant to Chapter 49 of Title 38.2, if (i) the total number of new
or additional nursing home beds plus any existing nursing home beds operated by
the provider does not exceed twenty percent of the continuing care provider's
total existing or planned independent living and adult care residence
population when the beds are to be added by new construction, or twenty-five
beds when the beds are to be added by conversion on site of existing beds in an
adult care residence licensed pursuant to Chapter 9 of Title 63.1; (ii) such
beds are necessary to meet existing or reasonably anticipated obligations to
provide care to present or prospective residents of the continuing care
facility pursuant to continuing care contracts meeting the requirements of
§ 38.2-4905; (iii) the provider agrees in writing not to seek
certification for the use of such new or additional beds by persons eligible to
receive medical assistance services pursuant to Title XIX of the United States
Social Security Act; (iv) the provider agrees in writing to obtain, prior to
admission of every resident of the continuing care facility, the resident's
written acknowledgement that the provider does not serve recipients of medical
assistance services and that, in the event such resident becomes a medical
assistance services recipient who is eligible for nursing facility placement,
such resident shall not be eligible for placement in the provider's nursing
facility unit; and (v) the provider agrees in writing that only continuing care
contract holders will be admitted to the nursing home beds after the first
three years of operation.
Further, if a certificate is approved pursuant to this subdivision,
admissions to such new or additional beds shall be restricted for the first
three years of operation to patients for whose care, pursuant to an agreement
between the facility and the individual financially responsible for the
patient, private payment will be made or persons who have entered into an
agreement with the facility for continuing care contracts meeting the
requirements of § 38.2-4905.
7. The issuance of a certificate of public need for a nursing facility
project associated with a continuing care provider which did not operate a
nursing home on January 1, 1993, and was registered as of January 1, 1993, with
the State Corporation Commission pursuant to Chapter 49 of Title 38.2, if (i)
the total number of new beds to be constructed does not exceed sixty beds; (ii)
the facility is owned by and will be operated as a nonprofit entity; (iii)
after the first three years of operation, the facility will admit only retired
officers of the United States uniformed forces and their surviving spouses;
(iv) the provider agrees in writing not to seek certification for the use of
such beds by persons eligible to receive medical assistance services pursuant
to Title XIX of the United States Social Security Act; and (v) the provider
agrees in writing to obtain, prior to admission of every resident of the
continuing care facility, the written acknowledgement that the provider does
not serve recipients of medical assistance services and that, in the event such
resident becomes a medical assistance services recipient who is eligible for
nursing facility placement, such resident shall not be eligible for placement
in the provider's nursing facility unit. Further, if a certificate is approved,
pursuant to this subdivision, admissions to such beds shall be restricted to
persons for whose care, pursuant to an agreement with the facility, private
payment will be made or persons who have entered into an agreement with the
facility for continuing care contracts meeting the requirements of §
38.2-4905.
8. The issuance of a certificate of public need for a nursing facility
project located in the City of Norfolk if (i) the total number of beds to be
constructed does not exceed 120 beds; (ii) the facility will replace an
existing facility in the City of Chesapeake; (iii) the construction of the
facility has been delayed by environmental contamination caused by leaking
underground storage tanks; and (iv) the total capital costs of the facility
will not exceed $4,387,000.
9. The issuance of a certificate of public need for a project in an existing
nonprofit nursing facility located in the City of Lynchburg if (i) the current
facility consists of four nursing units, with the two nursing units constructed
in 1969 to be retained; (ii) forty of the newly constructed beds will replace
existing eighteen two-bed and twenty two-bed units, built before 1915; (iii)
the total number of beds to be constructed does not exceed sixty beds,
including forty existing and twenty new beds; (iv) the area around the
construction site has been identified by the local governing body for major
renovation and revitalization; and (v) the project is the subject of a
memorandum of agreement between the local governing body and the applicant,
pursuant to which, the local governing body agrees to make certain improvements
to the area of the project's location.
10. The issuance of a certificate of public need for an increase in the
number of beds in which nursing facility or extended care services are provided
or the creation of new beds in which such services are to be provided in the
City of Virginia Beach by an association described in § 55-458 created in
connection with a real estate cooperative for which an application for
registration was filed as required by § 55-497 prior to January 1, 1994,
which offers a level of nursing services to its residents consistent with the
definition of continuing care in § 38.2-4900 if (i) the total number of
new or additional nursing care beds plus any existing nursing care beds
operated by the association does not exceed twenty percent of the number of
total existing or planned cooperative units when beds are to be added by new
construction or by conversion on site of existing beds in a licensed adult care
residence; (ii) such beds are necessary to meet existing or reasonably
anticipated obligations to provide nursing care to present or prospective
residents of the cooperative units pursuant to a written agreement with the
association; (iii) the association agrees in writing not to seek certification
for the use of any such beds by persons eligible to receive medical assistance
services pursuant to Title XIX of the United States Social Security Act; (iv)
the association agrees in writing to obtain, prior to each resident's occupancy
of a cooperative unit, the resident's written acknowledgment that the
association does not serve recipients of medical assistance services and that
in the event such resident becomes a medical assistance services recipient who
is eligible for nursing facility placement such resident shall not be eligible
for placement in the association's nursing facility unit; (v) the association
agrees in writing that only residents of cooperative units will be admitted to
the nursing care beds after the first three years of operation as a nursing
care facility; and (vi) the association complies with the disclosure
requirements for continuing care providers pursuant to Chapter 49 of Title
38.2.
11. The issuance of a certificate of public need for a nursing facility
project located in the City of Charlottesville if (i) the total number of beds
to be converted from hospital to nursing facility use does not exceed thirty
beds; (ii) the facility will provide nursing services to patients committed to,
transferred to, or discharged from facilities owned by the Department of Mental
Health, Mental Retardation and Substance Abuse Services and from any
psychiatric hospital located in the City of Charlottesville or Albemarle
County; and (iii) the facility has executed an agreement with the Department of
Mental Health, Mental Retardation and Substance Abuse Services to provide such
services.
12. The issuance of a certificate of public need for a nursing facility
project located in Montgomery County if (i) the total number of beds to be
constructed does not exceed sixty beds; (ii) the facility has entered into a
partnership with several public institutions of higher education to establish a
gerontology center for the conduct of research and the education of
professionals; and (iii) the nursing facility beds will be an integral part of
an existing health care institution which has a mission of providing a
continuum of care as recorded in its 100-year plan.
13. The issuance of a certificate of public need for a nursing facility
project located in the Town of Colonial Beach if (i) the total number of beds
to be converted from adult care residence to nursing facility use does not
exceed seven; (ii) the facility is owned by a nonprofit health care center
located in Fredericksburg; and (iii) the total number of new or additional beds
plus existing nursing facility beds operated by the facility will not exceed
sixty.
14. The issuance of a certificate of public need to a nursing facility in
Ashland, Virginia, currently operating at ninety-nine percent occupancy to
convert ten private rooms to semiprivate, thereby adding ten beds to an
existing fifty-bed wing to promote efficiency of operations and improve access
for area residents if the total capital expenditures will not exceed
$15,000.
15. The issuance of a certificate of public need for a nursing facility
project located in an existing facility which currently contains 325
"independent living" units with home health services available, seventy-five
assisted living units, and thirty-one nursing facility beds, only five of which
are certified for use by persons eligible to receive medical assistance
services pursuant to Title XIX of the United States Social Security Act if (i)
the total number of beds to be constructed does not exceed thirty beds, (ii)
the facility agrees in writing not to seek certification for the use of any
such beds by persons eligible to receive medical assistance services pursuant
to Title XIX of the United States Social Security Act, (iii) such beds are
necessary to meet existing or reasonably anticipated obligations to provide
nursing care to present or prospective residents of this retirement community,
and (iv) the retirement community agrees in writing that only residents of the
retirement community will be admitted to such nursing facility beds after the
first three years of operation.
16. The issuance of a certificate of public need for a project in an
existing facility located in Scott County for the conversion on site of
existing beds in an adult care residence licensed pursuant to Chapter 9 (§
63.1-172 et seq.) of Title 63.1 as of October 1, 1994, to beds certified as
nursing facility beds when (i) the total number of beds to be converted does
not exceed the lesser of thirty beds or twenty-five percent of the beds in the
adult care residence; (ii) the adult care residence has demonstrated that
nursing facility beds are needed specifically to serve a population of patients
having Alzheimer's Disease or related disorders and that such patients will not
otherwise have reasonable access to such services in existing or approved
nursing facilities; (iii) the adult care residence will restrict admissions to
such patients once the nursing facility beds are certified and operational; and
(iv) the licensed adult care residence otherwise meets the standards for
nursing facility beds as set forth in the regulations of the Board of
Health.
17. The issuance of a certificate of public need in an existing nursing
facility project if (i) the facility's total number of beds will not exceed
sixty beds, including existing beds and those proposed; (ii) the space in the
existing nursing facility in which the proposed additional beds will be located
has never been occupied by any licensed beds; and (iii) the total direct
capital costs associated with the proposed project will not exceed $10,000.
18. The issuance of a certificate of public need to a nonprofit nursing
facility project located in Henrico County that is designed to provide a
continuum of care for patients with Alzheimer's Disease and related disorders
if (i) the project was under construction January 1, 1995, and will be ready
for occupancy no later than June 1, 1996; (ii) not less than thirty of the
newly constructed beds will be designated and retained as private-pay beds; and
(iii) the total number of beds to be constructed does not exceed sixty
beds.
Notwithstanding the foregoing and other provisions of Article 1.1 (§
32.1-102.1 et seq.) of Chapter 4 of this title, the state home for aged and
infirm veterans authorized by Chapter 668, 1989 Acts of Assembly, shall be
exempt from all the 1993 certificates of public need review requirements as a
medical care facility.
2. That the Commissioner of Health, in cooperation with the Director of the Department of Medical Assistance Services and other affected public and private stakeholders, shall evaluate the need for and appropriateness of requiring adult care residences providing assisted living and intensive assisted living levels of care to be subject to the Commonwealth's Certificate of Public Need regulations and the requirements established pursuant to this article or a similar and parallel program for determining need and preventing redundant capitalization. The Commissioner shall provide to the Secretary of Health and Human Resources and the Joint Commission on Health Care an interim report by October 1, 1996, and a final report of his findings and recommendations by June 1, 1997.
3. That the Joint Commission on Health Care shall study the appropriateness of the Commonwealth's Certificate of Public Need regulations and requirements, including, but not limited to, the need for and appropriateness of requiring outpatient or ambulatory surgical centers to be subject to the Commonwealth's Certificate of Public Need regulations and requirements pursuant to this act. The Department of Health and the health-system agencies shall provide staff support and technical assistance for the study. The Joint Commission on Health Care shall complete its work in time to submit its findings and recommendations to the 1997 Session of the General Assembly.