BILL REQ. #: S-0348.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/27/11. Referred to Committee on Health & Long-Term Care.
AN ACT Relating to exempting public hospital districts from certificate of need requirements; reenacting and amending RCW 70.38.105 and 70.38.111; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that:
(1) Public hospital districts were established to provide hospital
and other health care services for the residents of such districts and
other persons in need of such services under RCW 70.44.003;
(2) Public hospital districts are authorized to own and operate
hospitals, nursing homes, extended care, long-term care, outpatient and
rehabilitative facilities, ambulances, and other facilities as are
appropriate to meet the health needs of the population served under RCW
70.44.007(1);
(3) Public hospital districts are authorized to provide hospital,
nursing home, extended care, long-term care, outpatient,
rehabilitative, health maintenance, ambulance, and such other services
as are appropriate to address the health needs of the population to be
served under RCW 70.44.007(2);
(4) Public hospital districts are given broad powers to survey
existing hospitals and facilities within and without such district; to
construct, condemn, purchase, acquire, lease, add to, maintain,
operate, develop and regulate, sell and convey all lands, property,
property rights, equipment, hospital, and other facilities and systems;
to exercise the right of eminent domain; to lease existing hospital and
other health care facilities and equipment or other property used in
connection therewith; to contract indebtedness or borrow money for
corporate purposes; to raise revenue by the levy of an annual tax; to
contract with other public bodies in order to carry out the powers and
duties authorized by chapter 70.44 RCW;
(5) Public hospital districts are required, at all times, to make
adequate provision for the needs of the district and residents and
other people within the district under RCW 70.44.060;
(6) Public hospital districts are organized as municipal
corporations, and as such, that all essential proceedings and documents
of a public hospital district are open to close public scrutiny through
public records and open public meetings laws;
(7) Public hospital districts are governed by locally elected
commissioners who are charged with the solemn duty and obligation and
are duly authorized to ensure the public hospital district meets its
obligations under RCW 70.44.060;
(8) Changes in the health care market place demand locally elected
public hospital district commissioners timely plan, develop and
construct facilities, and implement services consistent with their
obligations and authority; and
(9) The state certificate of need program is a significant and
growing barrier to the effective and efficient governance and operation
of public hospital districts in the state of Washington.
Sec. 2 RCW 70.38.105 and 2009 c 315 s 1 and 2009 c 242 s 3 are
each reenacted and amended to read as follows:
(1) The department is authorized and directed to implement the
certificate of need program in this state pursuant to the provisions of
this chapter.
(2) There shall be a state certificate of need program which is
administered consistent with the requirements of federal law as
necessary to the receipt of federal funds by the state.
(3) No person shall engage in any undertaking which is subject to
certificate of need review under subsection (4) of this section without
first having received from the department either a certificate of need
or an exception granted in accordance with this chapter.
(4) The following shall be subject to certificate of need review
under this chapter:
(a) The construction, development, or other establishment of a new
health care facility including, but not limited to, a hospital
constructed, developed, or established by a health maintenance
organization or by a combination of health maintenance organizations
except as provided in subsection (7)(a) of this section;
(b) The sale, purchase, or lease of part or all of any existing
hospital as defined in RCW 70.38.025 including, but not limited to, a
hospital sold, purchased, or leased by a health maintenance
organization or by a combination of health maintenance organizations
except as provided in subsection (7)(b) of this section;
(c) Any capital expenditure for the construction, renovation, or
alteration of a nursing home which substantially changes the services
of the facility after January 1, 1981, provided that the substantial
changes in services are specified by the department in rule;
(d) Any capital expenditure for the construction, renovation, or
alteration of a nursing home which exceeds the expenditure minimum as
defined by RCW 70.38.025. However, a capital expenditure which is not
subject to certificate of need review under (a), (b), (c), or (e) of
this subsection and which is solely for any one or more of the
following is not subject to certificate of need review:
(i) Communications and parking facilities;
(ii) Mechanical, electrical, ventilation, heating, and air
conditioning systems;
(iii) Energy conservation systems;
(iv) Repairs to, or the correction of, deficiencies in existing
physical plant facilities which are necessary to maintain state
licensure, however, other additional repairs, remodeling, or
replacement projects that are not related to one or more deficiency
citations and are not necessary to maintain state licensure are not
exempt from certificate of need review except as otherwise permitted by
(d)(vi) of this subsection or RCW 70.38.115(13);
(v) Acquisition of equipment, including data processing equipment,
which is not or will not be used in the direct provision of health
services;
(vi) Construction or renovation at an existing nursing home which
involves physical plant facilities, including administrative, dining
areas, kitchen, laundry, therapy areas, and support facilities, by an
existing licensee who has operated the beds for at least one year;
(vii) Acquisition of land; and
(viii) Refinancing of existing debt;
(e) A change in bed capacity of a health care facility which
increases the total number of licensed beds or redistributes beds among
acute care, nursing home care, and boarding home care if the bed
redistribution is to be effective for a period in excess of six months,
or a change in bed capacity of a rural health care facility licensed
under RCW 70.175.100 that increases the total number of nursing home
beds or redistributes beds from acute care or boarding home care to
nursing home care if the bed redistribution is to be effective for a
period in excess of six months. A health care facility certified as a
critical access hospital under 42 U.S.C. 1395i-4 may increase its total
number of licensed beds to the total number of beds permitted under 42
U.S.C. 1395i-4 for acute care and may redistribute beds permitted under
42 U.S.C. 1395i-4 among acute care and nursing home care without being
subject to certificate of need review. If there is a nursing home
licensed under chapter 18.51 RCW within twenty-seven miles of the
critical access hospital, the critical access hospital is subject to
certificate of need review except for:
(i) Critical access hospitals which had designated beds to provide
nursing home care, in excess of five swing beds, prior to December 31,
2003;
(ii) Up to five swing beds; or
(iii) Up to twenty-five swing beds for critical access hospitals
which do not have a nursing home licensed under chapter 18.51 RCW
within the same city or town limits. Up to one-half of the additional
beds designated for swing bed services under this subsection
(4)(e)(iii) may be so designated before July 1, 2010, with the balance
designated on or after July 1, 2010.
Critical access hospital beds not subject to certificate of need
review under this subsection (4)(e) will not be counted as either acute
care or nursing home care for certificate of need review purposes. If
a health care facility ceases to be certified as a critical access
hospital under 42 U.S.C. 1395i-4, the hospital may revert back to the
type and number of licensed hospital beds as it had when it requested
critical access hospital designation;
(f) Any new tertiary health services which are offered in or
through a health care facility or rural health care facility licensed
under RCW 70.175.100, and which were not offered on a regular basis by,
in, or through such health care facility or rural health care facility
within the twelve-month period prior to the time such services would be
offered;
(g) Any expenditure for the construction, renovation, or alteration
of a nursing home or change in nursing home services in excess of the
expenditure minimum made in preparation for any undertaking under this
subsection (4) ((of this section)) and any arrangement or commitment
made for financing such undertaking. Expenditures of preparation shall
include expenditures for architectural designs, plans, working
drawings, and specifications. The department may issue certificates of
need permitting predevelopment expenditures, only, without authorizing
any subsequent undertaking with respect to which such predevelopment
expenditures are made; and
(h) Any increase in the number of dialysis stations in a kidney
disease center.
(5) The department is authorized to charge fees for the review of
certificate of need applications and requests for exemptions from
certificate of need review. The fees shall be sufficient to cover the
full cost of review and exemption, which may include the development of
standards, criteria, and policies.
(6) No person may divide a project in order to avoid review
requirements under any of the thresholds specified in this section.
(7)(a) The requirement that a health maintenance organization
obtain a certificate of need under subsection (4)(a) of this section
for the construction, development, or other establishment of a hospital
does not apply to a health maintenance organization operating a group
practice that has been continuously licensed as a health maintenance
organization since January 1, 2009;
(b) The requirement that a health maintenance organization obtain
a certificate of need under subsection (4)(b) of this section to sell,
purchase, or lease a hospital does not apply to a health maintenance
organization operating a group practice that has been continuously
licensed as a health maintenance organization since January 1, 2009.
(8) Any facility operated or service provided by a public hospital
district authorized under chapter 70.44 RCW is exempt from the
provisions of this chapter.
Sec. 3 RCW 70.38.111 and 2009 c 315 s 2 and 2009 c 89 s 1 are
each reenacted and amended to read as follows:
(1) The department shall not require a certificate of need for the
offering of an inpatient tertiary health service by:
(a) A health maintenance organization or a combination of health
maintenance organizations if (i) the organization or combination of
organizations has, in the service area of the organization or the
service areas of the organizations in the combination, an enrollment of
at least fifty thousand individuals, (ii) the facility in which the
service will be provided is or will be geographically located so that
the service will be reasonably accessible to such enrolled individuals,
and (iii) at least seventy-five percent of the patients who can
reasonably be expected to receive the tertiary health service will be
individuals enrolled with such organization or organizations in the
combination;
(b) A health care facility if (i) the facility primarily provides
or will provide inpatient health services, (ii) the facility is or will
be controlled, directly or indirectly, by a health maintenance
organization or a combination of health maintenance organizations which
has, in the service area of the organization or service areas of the
organizations in the combination, an enrollment of at least fifty
thousand individuals, (iii) the facility is or will be geographically
located so that the service will be reasonably accessible to such
enrolled individuals, and (iv) at least seventy-five percent of the
patients who can reasonably be expected to receive the tertiary health
service will be individuals enrolled with such organization or
organizations in the combination; ((or))
(c) A health care facility (or portion thereof) if (i) the facility
is or will be leased by a health maintenance organization or
combination of health maintenance organizations which has, in the
service area of the organization or the service areas of the
organizations in the combination, an enrollment of at least fifty
thousand individuals and, on the date the application is submitted
under subsection (2) of this section, at least fifteen years remain in
the term of the lease, (ii) the facility is or will be geographically
located so that the service will be reasonably accessible to such
enrolled individuals, and (iii) at least seventy-five percent of the
patients who can reasonably be expected to receive the tertiary health
service will be individuals enrolled with such organization;
if, with respect to such offering or obligation by a nursing home, the
department has, upon application under subsection (2) of this section,
granted an exemption from such requirement to the organization,
combination of organizations, or facility; or
(d) A health care facility operated or service provided by a public
hospital district authorized under chapter 70.44 RCW.
(2) A health maintenance organization, combination of health
maintenance organizations, or health care facility shall not be exempt
under subsection (1) of this section from obtaining a certificate of
need before offering a tertiary health service unless:
(a) It has submitted at least thirty days prior to the offering of
services reviewable under RCW 70.38.105(4)(d) an application for such
exemption; and
(b) The application contains such information respecting the
organization, combination, or facility and the proposed offering or
obligation by a nursing home as the department may require to determine
if the organization or combination meets the requirements of subsection
(1) of this section or the facility meets or will meet such
requirements; and
(c) The department approves such application. The department shall
approve or disapprove an application for exemption within thirty days
of receipt of a completed application. In the case of a proposed
health care facility (or portion thereof) which has not begun to
provide tertiary health services on the date an application is
submitted under this subsection with respect to such facility (or
portion), the facility (or portion) shall meet the applicable
requirements of subsection (1) of this section when the facility first
provides such services. The department shall approve an application
submitted under this subsection if it determines that the applicable
requirements of subsection (1) of this section are met.
(3) A health care facility (or any part thereof) with respect to
which an exemption was granted under subsection (1) of this section may
not be sold or leased and a controlling interest in such facility or in
a lease of such facility may not be acquired and a health care facility
described in (1)(c) which was granted an exemption under subsection (1)
of this section may not be used by any person other than the lessee
described in (1)(c) unless:
(a) The department issues a certificate of need approving the sale,
lease, acquisition, or use; or
(b) The department determines, upon application, that (i) the
entity to which the facility is proposed to be sold or leased, which
intends to acquire the controlling interest, or which intends to use
the facility is a health maintenance organization or a combination of
health maintenance organizations which meets the requirements of
(1)(a)(i), and (ii) with respect to such facility, meets the
requirements of (1)(a)(ii) or (iii) or the requirements of (1)(b)(i)
and (ii).
(4) In the case of a health maintenance organization, an ambulatory
care facility, or a health care facility, which ambulatory or health
care facility is controlled, directly or indirectly, by a health
maintenance organization or a combination of health maintenance
organizations, the department may under the program apply its
certificate of need requirements to the offering of inpatient tertiary
health services to the extent that such offering is not exempt under
the provisions of this section or RCW 70.38.105(7).
(5)(a) The department shall not require a certificate of need for
the construction, development, or other establishment of a nursing
home, or the addition of beds to an existing nursing home, that is
owned and operated by a continuing care retirement community that:
(i) Offers services only to contractual members;
(ii) Provides its members a contractually guaranteed range of
services from independent living through skilled nursing, including
some assistance with daily living activities;
(iii) Contractually assumes responsibility for the cost of services
exceeding the member's financial responsibility under the contract, so
that no third party, with the exception of insurance purchased by the
retirement community or its members, but including the medicaid
program, is liable for costs of care even if the member depletes his or
her personal resources;
(iv) Has offered continuing care contracts and operated a nursing
home continuously since January 1, 1988, or has obtained a certificate
of need to establish a nursing home;
(v) Maintains a binding agreement with the state assuring that
financial liability for services to members, including nursing home
services, will not fall upon the state;
(vi) Does not operate, and has not undertaken a project that would
result in a number of nursing home beds in excess of one for every four
living units operated by the continuing care retirement community,
exclusive of nursing home beds; and
(vii) Has obtained a professional review of pricing and long-term
solvency within the prior five years which was fully disclosed to
members.
(b) A continuing care retirement community shall not be exempt
under this subsection from obtaining a certificate of need unless:
(i) It has submitted an application for exemption at least thirty
days prior to commencing construction of, is submitting an application
for the licensure of, or is commencing operation of a nursing home,
whichever comes first; and
(ii) The application documents to the department that the
continuing care retirement community qualifies for exemption.
(c) The sale, lease, acquisition, or use of part or all of a
continuing care retirement community nursing home that qualifies for
exemption under this subsection shall require prior certificate of need
approval to qualify for licensure as a nursing home unless the
department determines such sale, lease, acquisition, or use is by a
continuing care retirement community that meets the conditions of (a)
of this subsection.
(6) A rural hospital, as defined by the department, reducing the
number of licensed beds to become a rural primary care hospital under
the provisions of Part A Title XVIII of the Social Security Act Section
1820, 42 U.S.C., 1395c et seq. may, within three years of the reduction
of beds licensed under chapter 70.41 RCW, increase the number of
licensed beds to no more than the previously licensed number without
being subject to the provisions of this chapter.
(7) A rural health care facility licensed under RCW 70.175.100
formerly licensed as a hospital under chapter 70.41 RCW may, within
three years of the effective date of the rural health care facility
license, apply to the department for a hospital license and not be
subject to the requirements of RCW 70.38.105(4)(a) as the construction,
development, or other establishment of a new hospital, provided there
is no increase in the number of beds previously licensed under chapter
70.41 RCW and there is no redistribution in the number of beds used for
acute care or long-term care, the rural health care facility has been
in continuous operation, and the rural health care facility has not
been purchased or leased.
(8)(a) A nursing home that voluntarily reduces the number of its
licensed beds to provide assisted living, licensed boarding home care,
adult day care, adult day health, respite care, hospice, outpatient
therapy services, congregate meals, home health, or senior wellness
clinic, or to reduce to one or two the number of beds per room or to
otherwise enhance the quality of life for residents in the nursing
home, may convert the original facility or portion of the facility
back, and thereby increase the number of nursing home beds to no more
than the previously licensed number of nursing home beds without
obtaining a certificate of need under this chapter, provided the
facility has been in continuous operation and has not been purchased or
leased. Any conversion to the original licensed bed capacity, or to
any portion thereof, shall comply with the same life and safety code
requirements as existed at the time the nursing home voluntarily
reduced its licensed beds; unless waivers from such requirements were
issued, in which case the converted beds shall reflect the conditions
or standards that then existed pursuant to the approved waivers.
(b) To convert beds back to nursing home beds under this
subsection, the nursing home must:
(i) Give notice of its intent to preserve conversion options to the
department of health no later than thirty days after the effective date
of the license reduction; and
(ii) Give notice to the department of health and to the department
of social and health services of the intent to convert beds back. If
construction is required for the conversion of beds back, the notice of
intent to convert beds back must be given, at a minimum, one year prior
to the effective date of license modification reflecting the restored
beds; otherwise, the notice must be given a minimum of ninety days
prior to the effective date of license modification reflecting the
restored beds. Prior to any license modification to convert beds back
to nursing home beds under this section, the licensee must demonstrate
that the nursing home meets the certificate of need exemption
requirements of this section.
The term "construction," as used in (b)(ii) of this subsection, is
limited to those projects that are expected to equal or exceed the
expenditure minimum amount, as determined under this chapter.
(c) Conversion of beds back under this subsection must be completed
no later than four years after the effective date of the license
reduction. However, for good cause shown, the four-year period for
conversion may be extended by the department of health for one
additional four-year period.
(d) Nursing home beds that have been voluntarily reduced under this
section shall be counted as available nursing home beds for the purpose
of evaluating need under RCW 70.38.115(2) (a) and (k) so long as the
facility retains the ability to convert them back to nursing home use
under the terms of this section.
(e) When a building owner has secured an interest in the nursing
home beds, which are intended to be voluntarily reduced by the licensee
under (a) of this subsection, the applicant shall provide the
department with a written statement indicating the building owner's
approval of the bed reduction.
(9)(a) The department shall not require a certificate of need for
a hospice agency if:
(i) The hospice agency is designed to serve the unique religious or
cultural needs of a religious group or an ethnic minority and commits
to furnishing hospice services in a manner specifically aimed at
meeting the unique religious or cultural needs of the religious group
or ethnic minority;
(ii) The hospice agency is operated by an organization that:
(A) Operates a facility, or group of facilities, that offers a
comprehensive continuum of long-term care services, including, at a
minimum, a licensed, medicare-certified nursing home, assisted living,
independent living, day health, and various community-based support
services, designed to meet the unique social, cultural, and religious
needs of a specific cultural and ethnic minority group;
(B) Has operated the facility or group of facilities for at least
ten continuous years prior to the establishment of the hospice agency;
(iii) The hospice agency commits to coordinating with existing
hospice programs in its community when appropriate;
(iv) The hospice agency has a census of no more than forty
patients;
(v) The hospice agency commits to obtaining and maintaining
medicare certification;
(vi) The hospice agency only serves patients located in the same
county as the majority of the long-term care services offered by the
organization that operates the agency; and
(vii) The hospice agency is not sold or transferred to another
agency.
(b) The department shall include the patient census for an agency
exempted under this subsection (9) in its calculations for future
certificate of need applications.