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2012 SESSION
12100557DBe it enacted by the General Assembly of Virginia:
1. That §§ 32.1-102.3:2 and 32.1-102.3:5 of the Code of Virginia are amended and reenacted as follows:
§ 32.1-102.3:2. Certificates of public need; applications 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 which comply with the requirements established in this section, the Commissioner shall approve, authorize or accept applications for the issuance of any certificate of public need pursuant to this article only in response to Requests for Applications (RFAs) for any project which would result in (i) an increase in the number of beds in a planning district in which nursing facility, extended care, psychiatric, or substance abuse treatment services are provided, or (ii) the establishment of new psychiatric or substance abuse treatment services.
B. The Board shall adopt regulations establishing standards for the approval and issuance of Requests for Applications by the Commissioner. 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, psychiatric, or substance abuse treatment beds, or psychiatric or substance abuse services in the planning districts. The RFAs, which shall be published at least annually, shall be jointly developed by the Department and (i) in the case of nursing home beds, the Department of Medical Assistance Services, or (ii) in the case of psychiatric or substance abuse treatment beds or services, the Department of Behavioral Health and Developmental Services. RFAs shall be based on analyses of the need, or lack thereof, for increases in the nursing home psychiatric, or substance abuse treatment bed supply or psychiatric or substance abuse treatment services in each of the Commonwealth's planning districts in accordance with standards adopted by the Board 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. Any conversion of psychiatric or substance abuse treatment beds approved pursuant to this section to nonpsychiatric or non-substance abuse treatment inpatient beds shall constitute a project and shall be reviewable pursuant to this article.
C. Sixty days prior to the Commissioner's approval and
issuance of any RFA, the Board 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 14
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 may, 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 RFA, the Commissioner shall consider any recommendations made
by the Board.
D. Except for a continuing care retirement community applying
for a certificate of public need pursuant to provisions of subsections A, B,
and C above, applications for
continuing care retirement community nursing home bed projects shall be
accepted by the Commissioner only if the following criteria are met: (i) the
facility is registered with the State Corporation Commission as a continuing
care provider pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2, (ii)
the number of new nursing home beds requested in the initial application does
not exceed the lesser of twenty 20 percent of the continuing
care retirement community's total number of beds that are not nursing home beds
or sixty 60
beds, (iii) the number of new nursing home beds requested in any subsequent application
does not cause the continuing care retirement community's total number of
nursing home beds to exceed twenty 20 percent of its total number
of beds that are not nursing home beds, and (iv) the continuing care retirement
community has established a qualified resident assistance policy.
E. The Commissioner may approve an initial certificate of
public need for nursing home beds in a continuing care retirement community not
to exceed the lesser of sixty 60 beds or twenty 20 percent of the total number
of beds that are not nursing home beds which authorizes an initial one-time,
three-year open admission period during which the continuing care retirement
community may accept direct admissions into its nursing home beds. The Commissioner may
extend this one-time open admissions period for one year only
upon showing that the facility's occupancy rate for
the year prior to the requested extension did not average 75 percent of its
authorized nursing beds. The Commissioner may approve a
certificate of public need for nursing home beds in a continuing care
retirement community in addition to those nursing home beds requested for the
initial one-time, three-year open admission period if (i) the number of new nursing
home beds requested in any subsequent application does not cause the continuing
care retirement community's total number of nursing home beds to exceed twenty 20
percent of its total number of beds that are not nursing beds, (ii) the number
of licensed nursing home beds within the continuing care retirement community
does not and will not exceed twenty 20 percent of the number of
occupied beds that are not nursing beds, and (iii) no open-admission period is
allowed for these nursing home beds. Upon the expiration of any initial
one-time, three-year open admission
period, a continuing care retirement community which has obtained a certificate
of public need for a nursing facility project pursuant to subsection D may
admit into its nursing home beds (ia) a standard contract holder
who has been a bona fide resident of the non-nursing home portion of the
continuing care retirement community for at least thirty 30 days, or (iib)
a person who is a standard contract holder who has lived in the non-nursing
home portion of the continuing care retirement community for less than thirty
days but who requires nursing home care due to change in health status since
admission to the continuing care retirement community, or (iiic) a person who is a family
member of a standard contract holder residing in a non-nursing home portion of
the continuing care retirement community.
F. Any continuing care retirement community applicant for a certificate of public need to increase the number of nursing home beds shall authorize the State Corporation Commission to disclose such information to the Commissioner as may be in the State Corporation Commission's possession concerning such continuing care retirement community in order to allow the Commissioner to enforce the provisions of this section. The State Corporation Commission shall provide the Commissioner with the requested information when so authorized.
G. For the purposes of this section:
"Family member" means spouse, mother, father, son, daughter, brother, sister, aunt, uncle or cousin by blood, marriage or adoption.
"One-time, three-year
open admission period" means the three yearsperiod after the initial
licensure of nursing home beds during which the continuing care retirement
community may take admissions directly into its nursing home beds without the
signing of a standard contract. The facility or a related facility on the same
campus shall not be granted any open admissions period for any subsequent
application or authorization for nursing home beds.
"Qualified resident assistance policy" means a procedure, consistently followed by a facility, pursuant to which the facility endeavors to avoid requiring a resident to leave the facility because of inability to pay regular charges and which complies with the requirements of the Internal Revenue Service for maintenance of status as a tax exempt charitable organization under § 501(c) (3) of the Internal Revenue Code. This policy shall be (i) generally made known to residents through the resident contract and (ii) supported by reasonable and consistent efforts to promote the availability of funds, either through a special fund, separate foundation or access to other available funds, to assist residents who are unable to pay regular charges in whole or in part.
This policy may (ia) take into account the sound
financial management of the facility, including existing reserves, and the
reasonable requirements of lenders and (iib) include requirements that
residents seeking such assistance provide all requested financial information
and abide by reasonable conditions, including seeking to qualify for other
assistance and restrictions on the transfer of assets to third parties.
A qualified resident assistance policy shall not constitute the business of insurance as defined in Chapter 1 (§ 38.2-100 et seq.) of Title 38.2.
"Standard contract" means a contract requiring the same entrance fee, terms, and conditions as contracts executed with residents of the non-nursing home portion of the facility, if the entrance fee is no less than the amount defined in § 38.2-4900.
H. This section shall not be construed to prohibit or prevent a continuing care retirement community from discharging a resident (i) for breach of nonfinancial contract provisions, (ii) if medically appropriate care can no longer be provided to the resident, or (iii) if the resident is a danger to himself or others while in the facility.
I. The provisions of subsections D, E, and H of this section shall not
affect any certificate of public need issued prior to July 1, 1998; however,
any certificate of public need application for additional nursing home beds
shall be subject to the provisions of this act.
§ 32.1-102.3:5. Relocation of certain nursing home beds under limited circumstances.
A. Notwithstanding (i) the provisions of §§ 32.1-102.3 and
32.1-102.3:2, (ii) any regulations of the Board establishing standards for the
approval and issuance of Requests for Applications, and (iii) the provisions of
any current Requests for Applications issued by the Commissioner pursuant to §
32.1-102.3:2, the Commissioner shall accept applications and may issue
certificates of public need for nursing home beds when such beds are a
relocation from one facility to another facility under common ownership or control, regardless of whether they are in the same
planning district, if, as of December 31 of the year
preceding the year in which relocation is proposed, the following criteria are
met:
1. The occupancy rate of the facility seeking to relocate
beds, based upon the total number of beds for which the facility is licensed,
was less than 67 90
percent; and
2. Greater
than 25 percent of the residents of the facility from which beds are to be
relocated, immediately prior to moving to the facility, resided outside the
planning district in which the facility is located; and
3.
Any facility to which beds are to be relocated has experienced an average
occupancy rate that meets or exceeds 90 93
percent.
B. A
relocation of nursing home beds under the circumstances described herein shall
not constitute a "project" as defined in § 32.1-102.1. An
entity may not relocate more than two-thirds of the total number of beds for
which the facility was licensed prior to any relocation A relocation of beds pursuant
to this section shall not be
authorized if it would result in the elimination of all nursing home beds in a
facility that is the sole provider of nursing services in the locality in
which it is located. In
addition, any entity that has relocated beds pursuant to this section and
thereafter given the Commissioner notice of its intention to close the facility
may, within 36 months of such closure, relocate the remaining beds to another
facility, either existing or new, under common ownership or control, without
regard to the criteria set forth in this section, and the Commissioner shall accept
the application and may issue a certificate of public need for such relocation.
Any restrictions that apply to the certificate at the time of the relocation
shall remain in effect following the relocation.
C. In considering applications pursuant to this section, the Commissioner may consider any other criteria he deems relevant.
2. That § 32.1-102.3:6 of the Code of Virginia is repealed.