Washington State Register

EXPEDITED ADOPTION

DEPARTMENT OF HEALTH

[Filed February 13, 1998, 4:29 p.m.]

Title of Rule: Certificate of need program.

Purpose: Regulates health planning services to promote, maintain, and assure accessible, quality, and cost-effective health care to the citizens of Washington state.

Statutory Authority for Adoption: Chapter 70.38 RCW.

Statute Being Implemented: Chapter 70.38 RCW.

Summary: Legislative changes were made to chapter 70.38 RCW during the 1997 session regarding the timeframe for requesting conversion of banked beds under the statute's alternative use provisions. The rule would incorporate these changes. Several housekeeping changes for clarification purposes will also be incorporated in this rule.

Reasons Supporting Proposal: During the 1997 legislative session, the legislature made changes to chapter 70.38 RCW. The department is incorporating these changes in the rule.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Janis Sigman, Manager, 1112 Quince Street S.E., Olympia, WA, (360) 753-3787.

Name of Proponent: Department of Health, Certificate of Need Program, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule will incorporate legislative changes made to chapter 70.38 RCW during the 1997 legislative session which changes the timeframe for requesting conversion of banked nursing home beds under the alternative use provisions of the statute. The rule also incorporates housekeeping changes for clarification and process purposes.

Proposal Changes the Following Existing Rules: Changes the timeframe for notification of conversion of banked beds under the alternative use provisions, from one year to ninety days if no construction is involved. If construction is required, timeframe for notification of conversion of banked beds changes from two years to one year. Housekeeping changes provide for clarification and process purposes. For example, under bed banking provisions, clarified acceptable evidence of notification of building owner; clarified the timelines for concurrent review for noncompeting applications; moved the definition of "interested person" into the definitions section; address change for the adjudicative clerk office for adjudicative proceeding filings; and general housekeeping edits.

NOTICE

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Janis Sigman, Manager, Department of Health, Certificate of Need Program, 1112 Quince Street S.E., Olympia, WA 98504-7851, AND RECEIVED BY April 18, 1998.

February 13, 1998

Bruce Miyahara

Secretary

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-010 Definitions. For the purposes of chapter 246-310 WAC, the following words and phrases shall have the following meanings unless the context clearly indicates otherwise.

"Acute care facilities" means hospitals and ambulatory surgical facilities.

((~~"Affected persons" means:~~

~~The applicant;~~

~~Health care facilities and health maintenance organizations providing services similar to the services under review and located in the health service area;~~

~~Third-party payers reimbursing health care facilities in the health service area;~~

~~Any agency establishing rates for health care facilities and health maintenance organizations in the health service area where the proposed project is to be located;~~

Health care facilities and health maintenance organizations which, in the twelve months prior to receipt of the application, have submitted a letter of intent to provide similar services in the same planning area;

~~Any person residing within the geographic area to be served by the applicant; and~~

~~Any person regularly using health care facilities within the geographic area to be served by the applicant.~~)) "Affected person" means an interested person meeting the following criteria:

Is located or resides in the applicant's health service area;

Testified at a public hearing or submitted written evidence; and

Requested in writing to be informed of the department's decision.

"Alterations," see "construction, renovation, or alteration."

"Ambulatory care facility" means any place, building, institution, or distinct part thereof not a health care facility as defined in this section and operated for the purpose of providing health services to individuals without providing such services with board and room on a continuous twenty-four-hour basis. The term "ambulatory care facility" includes the offices of private physicians, whether for individual or group practice.

"Ambulatory surgical facility" means any free-standing entity, including an ambulatory surgery center, that operates primarily for the purpose of performing surgical procedures to treat patients not requiring hospitalization. This term does not include a facility in the offices of private physicians or dentists, whether for individual or group practice, if the privilege of using such facility is not extended to physicians or dentists outside the individual or group practice.

"Applicant," means:

Any person proposing to engage in any undertaking subject to review under the provisions of chapter 70.38 RCW.

Any person or individual with a ten percent or greater financial interest in a partnership or corporation or other comparable legal entity engaging in any undertaking subject to review under the provisions of chapter 70.38 RCW.

"Base year" as used in the kidney dialysis station methodology means the last full calendar year preceding the first year of dialysis station need projections.

"Bed banking" means the process of retaining the rights to nursing home bed allocations which are not licensed as outlined in WAC 246-310-395.

"Bed supply" means within a geographic area the total number of:

Nursing home beds which are licensed or certificate of need approved but not yet licensed or beds banked under the provisions of RCW 70.38.111 (8)(a) or where the need is deemed met under the provisions of RCW 70.38.115 (13)(b), excluding:

Those nursing home beds certified as intermediate care facility for the mentally retarded (ICF-MR) the operators of which have not signed an agreement on or before July 1, 1990, with the department of social and health services department of social and health services to give appropriate notice prior to termination of the ICF-MR service;

New or existing nursing home beds within a CCRC which are approved under the provisions of WAC 246-310-380(5); or

Nursing home beds within a CCRC which is excluded from the definition of a health care facility per RCW 70.38.025(6); and

Beds banked under the provisions of RCW 70.38.115 (13)(b) where the need is not deemed met.

Licensed hospital beds used for long-term care or certificate of need approved hospital beds to be used for long-term care not yet in use, excluding swing-beds.

"Bed-to-population ratio" means the nursing home bed supply per one thousand persons of the estimated or forecasted resident population age sixty-five and older.

"Capital expenditure" means an expenditure, including a force account expenditure (i.e., an expenditure for a construction project undertaken by a nursing home facility as its own contractor), which, under generally accepted accounting principles, is not properly chargeable as an expense of operation or maintenance. The costs of any studies, surveys, designs, plans, working drawings, specifications, and other activities (including staff effort, consulting and other services which, under generally accepted accounting principles, are not properly chargeable as an expense of operation and maintenance) shall be considered capital expenditures. Where a person makes an acquisition under lease or comparable arrangement, or through donation, which would have required certificate of need review if the acquisition had been made by purchase, such acquisition shall be deemed a capital expenditure. Capital expenditures include donations of equipment or facilities to a nursing home facility, which if acquired directly by such facility, would be subject to review under the provisions of this chapter and transfer of equipment or facilities for less than fair market value if a transfer of the equipment or facilities at fair market value would be subject to such review.

"Certificate of need" means a written authorization by the secretary's designee for a person to implement a proposal for one or more undertakings.

"Certificate of need program" means that organizational program of the department responsible for the management of the certificate of need program.

"Commencement of the project" means whichever of the following occurs first: In the case of a construction project, giving notice to proceed with construction to a contractor for a construction project provided applicable permits have been applied for or obtained within sixty days of such notice; beginning site preparation or development; excavating or starting the foundation for a construction project; or beginning alterations, modification, improvement, extension, or expansion of an existing building. ((~~In the case of major medical equipment, installation.~~)) In the case of other projects, initiating a health service.

"Construction, renovation, or alteration" means the erection, building, remodeling, modernization, improvement, extension, or expansion of a physical plant of a health care facility, or the conversion of a building or portion thereof to a health care facility.

"Continuing care contract" means a contract providing a person, for the duration of that person's life or for a term in excess of one year, shelter along with nursing, medical, health-related, or personal care services. The contract is conditioned on the transfer of property, the payment of an entrance fee to the provider of such services, or the payment of periodic charges for the care and services involved. A continuing care contract is not excluded from this definition because the contract is mutually terminable or because shelter and services are not provided at the same location.

"Continuing care retirement community (CCRC)" means any of a variety of entities, unless excluded from the definition of health care facility under RCW 70.38.025(6), which provides shelter and services based on continuing care contracts with its residents which:

Maintains for a period in excess of one year a CCRC contract with a resident which provides or arranges for at least the following specific services:

Independent living units;

Nursing home care with no limit on the number of medically needed days;

Assistance with activities of daily living;

Services equivalent in scope to either state chore services or Medicaid home health services;

Continues a contract, if a resident is no longer able to pay for services;

Offers services only to contractual residents with limited exception during a transition period; and

Holds the Medicaid program harmless from liability for costs of care, even if the resident depletes his or her personal resources.

"Days" means calendar days. Days are counted starting the day after the date of the event from which the designated period of time begins to run. If the last day of the period falls on a Saturday, Sunday, or legal holiday observed by the state of Washington, a designated period runs until the end of the first working day following the Saturday, Sunday, or legal holiday.

"Department" means the Washington state department of health.

"Effective date of facility closure" means:

The date on which the facility's license was relinquished, revoked or expired; or

The date the last resident leaves the facility, whichever comes first.

"End-of-the-year incenter patients" means the number of patients receiving incenter kidney dialysis at the end of the calendar year.

"End-stage renal dialysis (ESRD) service areas" means each individual county, designated by the department as the smallest geographic area for which kidney dialysis station need projections are calculated, or other service area documented by patient origin.

"Enhance the quality of life for residents" means, for the purposes of voluntary bed banking, those services or facility modifications which have a direct and immediate benefit to the residents. These shall include, but not be limited to: Resident activity and therapy facilities; family visiting rooms; spiritual rooms and dining areas. These services or facility modifications shall not include those that do not have direct and immediate benefit to the residents, such as: Modifications to staff offices; meeting rooms; and other staff facilities.

"Established ratio" means a bed-to-population ratio of forty-five beds per one thousand persons of the estimated or forecast resident population age sixty-five and older established for planning and policy-making purposes. The department may revise this established ratio using the process outlined in WAC 246-310-370.

"Estimated bed need" means the number of nursing home beds calculated by multiplying the planning area's forecasted resident population by the established ratio for the projection year.

"Estimated bed projection" means the number of nursing home beds calculated by the department state-wide or within a planning area, by the end of the projection period.

"Ex parte contact" means any oral or written communication between any person in the certificate of need program or any other person involved in the decision regarding an application for, or the withdrawal of, a certificate of need and the applicant for, or holder of, a certificate of need, any person acting on behalf of the applicant or holder, or any person with an interest regarding issuance or withdrawal of a certificate of need.

"Expenditure minimum" means one million dollars for the twelve-month period beginning with July 24, 1983, adjusted annually by the department according to the provisions of WAC 246-310-900.

"Health care facility" means hospitals, psychiatric hospitals, nursing homes, kidney disease treatment centers including freestanding dialysis units, ambulatory surgical facilities, continuing care retirement communities, hospices and home health agencies, and includes such facilities when owned and operated by a political subdivision or instrumentality of the state and such other facilities as required by federal law and implementing regulations, but does not include ((~~Christian Science sanatoriums operated or listed and certified by the First Church of Christ Scientist, Boston, Massachusetts~~)) any health facility or institution conducted by and for those who rely exclusively upon treatment by prayer or spiritual means in accordance with the creed or tenets of any well-recognized church or religious denomination, or any health facility or institution operated for the exclusive care of members of a convent as defined in RCW 84.36.800 or rectory, monastery, or other institution operated for the care of members of the clergy. In addition, the term "health care facility" does not include any nonprofit hospital:

Operated exclusively to provide health care services for children;

Which does not charge fees for such services; and

If not contrary to federal law as necessary to the receipt of federal funds by the state.

In addition, the term "health care facility" does not include a continuing care retirement community which:

Offers services only to contractual residents;

Provides its residents a contractually guaranteed range of services from independent living through skilled nursing, including some form of assistance with activities of daily living;

Contractually assumes responsibility for costs of services exceeding the resident's financial responsibility as stated in contract, so that, with the exception of insurance purchased by the retirement community or its residents, no third party, including the Medicaid program, is liable for costs of care even if the resident depletes personal resources;

Offers continuing care contracts and operates a nursing home continuously since January 1, 1988, or obtained a certificate of need to establish a nursing home;

Maintains a binding agreement with the department of social and health services assuring financial liability for services to residents, including nursing home services, shall not fall upon the department of social and health services;

Does not operate, and has not undertaken, a project resulting 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

Has undertaken no increase in the total number of nursing home beds after January 1, 1988, unless a professional review of pricing and long-term solvency was obtained by the retirement community within the prior five years and fully disclosed to residents.

"Health maintenance organization" means a public or private organization, organized under the laws of the state, which:

Is a qualified health maintenance organization under Title XIII, Section 1310(d) of the Public Health Service Act; or

Provides or otherwise makes available to enrolled participants health care services, including at least the following basic health care services: Usual physician services, hospitalization, laboratory, x-ray, emergency and preventive services, and out-of-area coverage;

Is compensated (except for copayments) for the provision of the basic health care services listed in this subsection to enrolled participants by a payment made on a periodic basis without regard to the date the health care services are provided and fixed without regard to the frequency, extent, or kind of health service actually provided; and

Provides physicians' services primarily:

Directly through physicians who are either employees or partners of such organization, or

Through arrangements with individual physicians or one or more groups of physicians (organized on a group practice or individual practice basis).

"Health service area" means a geographic region appropriate for effective health planning including a broad range of health services.

"Health services" means clinically related (i.e., preventive, diagnostic, curative, rehabilitative, or palliative) services and includes alcoholism, drug abuse, and mental health services.

"Home health agency" means an entity which is, or has declared an intent to become, certified as a provider of home health services in the Medicaid or Medicare program.

"Hospice" means an entity which is, or has declared an intent to become, certified as a provider of hospice services in the Medicaid or Medicare program.

"Hospital" means any institution, place, building or agency or distinct part thereof which qualifies or is required to qualify for a license under chapter 70.41 RCW, or as a psychiatric hospital licensed under chapter 71.12 RCW.

"Inpatient" means a person receiving health care services with board and room in a health care facility on a continuous twenty-four-hour-a-day basis.

"Interested persons" means:

The applicant;

Health care facilities and health maintenance organizations providing services similar to the services under review and located in the health service area;

Third-party payers reimbursing health care facilities in the health service area;

Any agency establishing rates for health care facilities and health maintenance organizations in the health service area where the proposed project is to be located;

Any person residing within the geographic area to be served by the applicant; and

Any person regularly using health care facilities within the geographic area to be served by the applicant.

"Justified home training station" means a kidney dialysis station designated for home hemodialysis and/or peritoneal dialysis training. When no dialysis stations have been designated for home training at a given dialysis treatment center, one station for every six patients trained for home hemodialysis, and one station for every twenty patients for peritoneal dialysis, will be considered a justified home training station. In no case shall all stations at a given dialysis treatment center be designated as justified home training stations. To request justified home training stations at a new dialysis treatment center, the applicant must document that at least six patients are projected to be trained for home hemodialysis or twenty patients for peritoneal dialysis for each such station requested for each of the first five years of projected operations.

"Kidney disease treatment center" means any place, institution, building or agency or a distinct part thereof equipped and operated to provide services, including outpatient dialysis and/or kidney transplantation, to persons who have end-stage renal disease (ESRD).

"Licensee" means an entity or individual licensed by the department of health or the department of social and health services. For the purposes of nursing home projects, licensee refers to the operating entity and those persons specifically named in the license application as defined under chapter 388-97 WAC.

"Net estimated bed need" means estimated bed need of a planning area changed by any redistribution as follows:

Adding nursing home beds being redistributed from another nursing home planning area or areas; or

Subtracting nursing home beds being redistributed to another nursing home planning area or areas.

"New nursing home bed" means a nursing home bed never licensed by the state or beds banked under the provisions of RCW 70.38.115(13), where the applicant must demonstrate need for the previously licensed nursing home beds. This term does not include beds banked under the provisions of RCW 70.38.111(8).

"Nursing home" means any entity licensed or required to be licensed under the provisions of chapter 18.51 RCW or distinct part long-term care units located in a hospital and licensed under chapter 70.41 RCW.

"Obligation," when used in relation to a capital expenditure, means the following has been incurred by or on behalf of a health care facility:

An enforceable contract has been entered into by a health care facility or by a person on behalf of the health care facility for the construction, acquisition, lease, or financing of a capital asset; or

A formal internal commitment of funds by a health care facility for a force account expenditure constituting a capital expenditure; or

In the case of donated property, the date on which the gift is completed in accordance with state law.

"Offer," when used in connection with health services, means the health facility provides one or more specific health services.

"Over the established ratio" means the bed-to-population ratio is greater than the state-wide current established ratio.

"Person" means an individual, a trust or estate, a partnership, a corporation (including associations, joint stock companies, and insurance companies), the state, or a political subdivision or instrumentality of the state, including a municipal corporation or a hospital district.

"Planning area" means each individual county designated by the department as the smallest geographic area for which nursing home bed need projections are developed, except as follows:

Clark and Skamania counties shall be one planning area.

Chelan and Douglas counties shall be one planning area.

"Predevelopment expenditures" means capital expenditures, the total of which exceeds the expenditure minimum, made for architectural designs, plans, drawings, or specifications in preparation for the acquisition or construction of physical plant facilities. "Predevelopment expenditures" exclude any obligation of a capital expenditure for the acquisition or construction of physical plant facilities and any activity which the department may consider the "commencement of the project" as this term is defined in this section.

"Professional review of continuing care retirement community pricing and long-term solvency" means prospective financial statements, supported by professional analysis and documentation, which:

Conform to Principles and Practices Board Statement Number 9 of the Healthcare Financial Management Association, "Accounting and Reporting Issues Related to Continuing Care Retirement Communities"; and

Project the financial operations of the continuing care retirement community over a period of ten years or more into the future; and

Are prepared and signed by a qualified actuary as defined under WAC 284-05-060 or an independent certified public accountant, or are prepared by management of the continuing care retirement community and reviewed by a qualified actuary or independent certified public accountant who issues a signed examination or compilation report on the prospective financial statements; and

Include a finding by management that the intended expansion project of the continuing care retirement project is financially feasible.

"Project" means all undertakings proposed in a single certificate of need application or for which a single certificate of need is issued.

"Project completion" for projects requiring construction, means the date the facility is licensed. For projects not requiring construction, project completion means initiating the health service.

"Projection period" means the three-year time interval following the projection year.

"Projection year" for nursing home purposes, means the one-year time interval preceding the projection period. For kidney dialysis station projection purposes, means the base year plus three years.

"Public comment period" means the time interval during which the department shall accept comments regarding a certificate of need application.

"Redistribution" means the shift of nursing home bed allocations between two or more planning areas or the shift of nursing home beds between two or more nursing homes.

"Replacement authorization" means a written authorization by the secretary's designee for a person to implement a proposal to replace existing nursing home beds in accordance with the eligibility requirements in WAC 246-310-044 and notice requirements in WAC 246-310-396.

"Resident population" for purposes of nursing home projects, means the number of residents sixty-five years of age and older living within the same geographic area which:

Excludes contract holders living within a recognized CCRC:

With approval for new nursing home beds under the provisions of WAC 246-310-380(5); or

Excluded from the definition of a health care facility per RCW 70.38.025(6);

Is calculated using demographic data obtained from:

The office of financial management; and

Certificate of need applications and exemption requests previously submitted by a CCRC.

"Secretary" means the secretary of the Washington state department of health or the secretary's designee.

"State Health Planning and Resources Development Act" means chapter 70.38 RCW.

"State-wide current ratio" means a bed-to-population ratio computed from the most recent state-wide nursing home bed supply and the most recent estimate of the state-wide resident population.

"Swing beds" means up to the first five hospital beds designated by an eligible rural hospital which are available to provide either acute care or nursing home services.

"Tertiary health service" means a specialized service meeting complicated medical needs of people and requires sufficient patient volume to optimize provider effectiveness, quality of service, and improved outcomes of care.

"Transition period" means the period of time, not exceeding five years, between the date a CCRC is inhabited by a member, and the date it fully meets the requirements of a CCRC.

"Under the established ratio" means the bed-to-population ratio is less than the state-wide current established ratio.

"Undertaking" means any action subject to the provisions of chapter 246-310 WAC.

"Working days" excludes Saturdays, Sundays, and legal holidays observed by the state of Washington. Working days are counted in the same way as calendar days.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-010, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-010, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-010, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.38 RCW. 90-17-086 (Order 081), 248-19-220, filed 8/17/90, effective 9/17/90; 90-02-093 (Order 023), 248-19-220, filed 1/3/90, effective 2/3/90. Statutory Authority: RCW 70.38.135. 88-15-021 (Order 2639), 248-19-220, filed 7/11/88; 86-06-030 (Order 2344), 248-19-220, filed 2/28/86; 84-07-014 (Order 2082), 248-19-220, filed 3/14/84; 81-09-012 (Order 210), 248-19-220, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-220, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-044 Exemption from requirements for a certificate of need for nursing home bed replacements. (1) Provisions for exemptions.

The secretary's designee shall grant a replacement authorization exempting a facility from the requirements for a certificate of need for the replacement of existing nursing home beds under the provisions of RCW 70.38.115 (13)(a) by a nursing home meeting the eligibility requirements of this section and submitting an application, following the notice requirements in WAC ((~~246-310-396~~)) 246-310-397, which demonstrates the eligibility requirements have been met.

(2) Nursing home construction or renovation projects for the purpose of replacing nursing home beds within the same planning area, and which meet the eligibility requirements in subsection (3) of this section and the notification requirements in WAC ((~~246-310-396~~)) 246-310-397, shall not be subject to certificate of need review. Projects meeting the above requirements would include, but are not limited to:

(a) Replacement of an existing facility at the same location;

(b) Construction of a new nursing home or facilities for the purpose of replacing beds in the same planning area;

(d) Redistribution of all or a portion of existing beds to an existing or new nursing home or facilities in the same planning area.

(3) Eligibility requirements. To be eligible for an exemption under this section, an applicant shall demonstrate that:

(a) The applicant is the existing licensee (as defined in WAC 246-310-010) of all affected facilities and has operated the beds at all affected facilities for at least one year immediately preceding the replacement exemption request fulfilling the requirements as specified in WAC ((~~246-310-396~~)) 246-310-397;

(b) The applicant will be the licensee at all affected facilities at the completion of the project except as allowed under the provisions of RCW 70.38.115(14);

(d) The nursing home beds being replaced will not provide nursing home services once the replacement beds are licensed.

(4) Projects must be commenced within two years following replacement authorization with a possibility of one six-month extension provided that substantial and continuing progress had been made toward commencement of the project as referenced in WAC 246-310-580.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-044, filed 11/27/96, effective 12/28/96.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-050 Applicability determination. (1) Any person wanting to know whether an action the person is considering is subject to certificate of need requirements (chapter 246-310 WAC) may submit a written request to the certificate of need ((~~unit~~)) program requesting a formal determination of applicability of the certificate of need requirements to the action.

(a) The written request shall include the nature and extent of any construction, changes in services, and the estimated total costs of the action.

(2) The department may request any additional written information that is reasonably necessary to make an applicability determination on the action.

(3) The department shall respond in writing to a request for an applicability determination within thirty days of receipt of the complete information needed for such determination. In the written response, the department shall state the reasons for its determination that the action is or is not subject to certificate of need requirements.

(4) Information or advice given by the department as to whether an action is subject to certificate of need requirements shall not be considered an applicability determination unless it is in written form in response to a written request submitted in accordance with provisions of this section.

(5) A written applicability determination on an action in response to a written request and based on written information shall be binding upon the department: Provided, The nature, extent, or cost of the action does not significantly change.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-050, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-050, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-050, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-240, filed 2/28/86; 81-09-012 (Order 210), 248-19-240, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-240, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-080 Letter of intent. Any person planning to propose an undertaking subject to certificate of need review shall submit a letter of intent as follows:

(1) The letter of intent shall include the following information:

(a) A description of the services proposed;

(b) The estimated cost of the proposed project;

(2) A letter of intent shall be valid for six months after the receipt of the letter by the department. If the applicant does not submit an application for the project as described in the letter within this time frame, a new letter of intent shall be required before the department accepts an application.

(3) In the event that the application proposes a project that is significantly different than that proposed in the letter of intent, the department shall consider the application the letter of intent and no further action shall be taken until the end of the thirty-day letter of intent period.

(4) Expedited or regular review. Any person proposing an undertaking subject to an expedited or regular review shall submit a letter of intent at least thirty days prior to the submission of the application.

(5) Concurrent review.

(a) Any person proposing undertakings subject to concurrent review shall submit a letter of intent according to the applicable schedule.

(b) Within thirty days following the last day of the letter of intent submittal period, the department shall determine which of the proposed undertakings compete with other proposed undertakings. Two or more undertakings within the same concurrent review cycle may be competing when the proposed undertaking would be located in the same county or planning area and/or the undertakings propose nursing home beds to be allocated from the same statewide continuing care retirement community (CCRC) bed pool as defined in WAC 246-310-380. The department shall notify applicants of competing undertakings.

(c) In the event the department determines an application submitted under concurrent review is not competing, the department may convert the review to a regular review.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-080, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-080, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-080, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.115. 87-10-023 (Order 2487), 248-19-270, filed 5/1/87. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-270, filed 2/28/86; 81-09-012 (Order 210), 248-19-270, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-270, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-090 Submission and withdrawal of applications. (1) General.

(a) A person proposing an undertaking subject to review shall submit a certificate of need application in such form and manner and containing such information as the department has prescribed and published as necessary to such a certificate of need application.

(i) The information, which the department prescribes and publishes as required for a certificate of need application, shall be limited to the information necessary for the department to perform a certificate of need review and shall vary in accordance with and be appropriate to the category of review or the type of proposed project: Provided however, That the required information shall include what is necessary to determine whether the proposed project meets applicable criteria and standards.

(ii) Information regarding a certificate of need application submitted by an applicant after the department has given "notification of the beginning of review" in the manner prescribed by WAC 246-310-170 shall be submitted in writing to the department.

(iii) Except as provided in WAC 246-310-190, no information regarding a certificate of need application submitted by an applicant after the conclusion of the public comment period shall be considered by the department in reviewing and taking action on a certificate of need application. An exception to this rule shall be made when, during its final review period, the department finds an unresolved pivotal issue requires submission of further information by an applicant and the applicant agrees to an extension of the review period in order to resolve this issue as provided for in WAC 246-310-160 (2)(b), 246-310-150 (2)(c), and 246-310-140(4). ((~~The department shall furnish copies of its request to the applicant for such additional information to the appropriate advisory review agencies.~~)) The department shall give public notice of such request for additional information through the same newspaper in which the "notification of beginning of review" for the project was published. The notice shall identify the project, the nature of the unresolved issue and the information requested of the applicant, and shall state the period of time allowed for receipt of written comments from interested persons.

(b) A person submitting a certificate of need application shall submit one original and one copy of the application to the certificate of need program of the department.

(c) On or before the last day of the applicable screening period for a certificate of need application, as prescribed in subsections (2) and (3) of this section, the department shall send a written notice to the person submitting the application stating whether or not the application has been declared complete. If an application has been found to be incomplete, the notice from the department shall specifically identify the portions of the application where the information provided has been found to be insufficient or indefinite and request supplemental information needed to complete the application.

(d) The department shall not request any supplemental information of a type not prescribed and published as being necessary to a certificate of need application for the type of project being proposed. The department may request clarification of information provided in the application.

(e) A response to the department's request for information to supplement an incomplete application shall be written.

(2) Screening and prereview activities.

(a) The department shall, within a fifteen working-day period for emergency, expedited, and regular reviews, screen the application to determine whether the information provided in the application is complete and as explicit as is necessary for a certificate of need review. This screening period shall begin on the first day after the department has received the application. In the event that the application is lacking significant information relating to the review criteria, the department may, upon notification, reserve the right to screen the application again upon receipt of the applicant's original response unless the applicant exercises option (c)(iii) of this subsection.

(b) The department shall return an incomplete certificate of need application to the person submitting the application if the department has not received a response to a request for the supplemental information sent in accordance with subsection (1)(c) of this section within forty-five days for emergency, expedited, and regular reviews unless extended by mutual agreement, and within one month for concurrent review after such request was sent.

(c) For emergency, expedited, and regular reviews, a person submitting a response to the department's request for supplemental information to complete a certificate of need application within forty-five days after the request was sent by the department, in accordance with subsection (1)(c) of this section, shall have the right to exercise one of the following options:

(i) Submission of written supplemental information and a written request that the information be screened and the applicant be given opportunity to submit further supplemental information if the department determines that the application is still incomplete;

(ii) Submission of written supplemental information with a written request that review of the certificate of need application begin without the department notifying the applicant as to whether the supplemental information is adequate to complete the application; or

(iii) Submission of a written request that the application be reviewed without supplemental information.

(d) The department shall not accept responses to the department's screening letters later than ten days after the department has given "notification of beginning of review."

(e) For concurrent review a person submitting a response to the department's request for supplemental information to complete a certificate of need application within one month after the request was sent by the department, in accordance with subsection (1)(c) of this section, shall submit written supplemental information or a written request that the incomplete application be reviewed. The review shall begin in accordance with the published schedule.

(f) After receipt of a request for review of a certificate of need application, submitted in accordance with subsection (2)(c)(ii) or (iii) of this section, the department shall give notification of the beginning of review in the manner prescribed for a complete application in WAC 246-310-170.

(g) If a person requests the screening of supplemental information in accordance with subsection (2)(c)(i) of this section, such screening shall be carried out in the same number of days and in the same manner as required for an application in accordance with the provisions of subsection (1)(c) and (2)(a) of this section. The process of submitting and screening supplemental information may be repeated until the department declares the certificate of need application complete, the applicant requests that review of the incomplete application begin, or the one hundred twentieth day after the beginning of the first screening period for the application, whichever occurs first. The department shall return an application to the applicant if it is still incomplete on the one hundred twentieth day after the beginning of the first screening period and the applicant has not requested review of such incomplete application.

(3) Withdrawal of applications.

A certificate of need application shall be withdrawn from the certificate of need process if the department receives a written request for withdrawal of the application from the person submitting the application at any time before final action on such application has been taken by the secretary's designee.

(4) Resubmission of applications withdrawn or returned as incomplete.

A submission of a new certificate of need application shall be required for a certificate of need review of any undertaking for which the department has returned an incomplete application in accordance with subsection (2)(b) of this section, or for which a certificate of need application has been withdrawn in accordance with subsection (3) of this section. The content of the application should be updated as necessary before resubmission.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-090, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-090, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-090, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-280, filed 2/28/86; 81-09-012 (Order 210), 248-19-280, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-280, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-120 Concurrent review process. (1) Projects for which the department may establish concurrent review schedules are identified in RCW 70.38.115(7). An annual concurrent review has been scheduled for competing projects proposing:

(a) New nursing homes, not using bed allocations banked under the provisions of RCW 70.38.115(13);

(b) Nursing home bed additions, not using bed allocations banked under the provisions of RCW 70.38.115(13);

(i) Acute care,

(ii) Boarding home, or

(iii) Intermediate care for the mentally retarded.

(2) Procedures for the concurrent review process shall be as follows:

(a) Submittal of initial applications.

(i) Each applicant shall submit one original and one copy of the application to the department.

(ii) Each applicant if requested in writing shall provide a copy of his or her application to the applicant of each other competing application.

(b) Screening of the initial applications.

(i) The department shall screen each initial application during the screening period of the applicable concurrent review cycle schedule.

(ii) The screening period shall begin on the first working day following the last day of the initial application submittal period for the applicable concurrent review cycle schedule.

(iii) The department by, the end of the screening period of the applicable concurrent review cycle schedule, shall send a written request for supplemental information to each applicant.

(iv) Each applicant, by the end of the final application submittal period, shall respond to the department's written request for supplemental information in one of the following ways:

(A) Submitting the requested written supplemental information, or

(B) Submitting a written request that the incomplete application be reviewed without supplemental information.

(i) The department shall commence the review of competing applications on the date prescribed for the applicable concurrent review cycle schedule.

(ii) The total number of days in the public comment and final review periods shall not exceed one hundred and thirty-five, unless extended in accordance with subsection (2)(d) of this section.

(iii) The public comment period shall be a maximum of ninety days from the beginning of the review period, unless the public comment period is extended in accordance with subsection (2)(d) of this section. The first sixty days of the public comment period is reserved for receiving public comment and conducting a public hearing, if requested. The remaining thirty days shall be reserved for the applicant or applicants to provide rebuttal statements to written or oral statements submitted during the first sixty-day period. Any ((~~interested party that:~~

~~(A) Is located or resides within the applicant's health service area;~~

~~(B) Testified or submitted evidence at a public hearing; and~~

~~(C) Requested in writing to be informed of the department's decision,~~)) affected person shall also be provided the opportunity to provide rebuttal statements to written or oral statements submitted during the first sixty-day period.

(iv) The department shall conclude its final review and the secretary's designee shall take action on a certificate of need application within forty-five days after the end of the public comment period, unless extended in accordance with subsection (2)(d) of this section.

(d) Extending review of final applications.

(i) The public comment period shall be extended in accordance with the provisions of WAC 246-310-100.

(ii) The final review period may be extended by the department under the following provisions:

(A) The department informs each applicant of the competing applications of the existence of an unresolved pivotal issue.

(B) The department may make a written request for additional information from one or more of the applicants of the competing applications.

(D) Each applicant receiving such written request may provide a written response within the specified deadline.

(E) The department may extend the final review period for all competing applications up to thirty days after the receipt of the last response to the department's request for additional information or after the specified deadline, whichever occurs first.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-120, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-120, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-120, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.115. 87-10-023 (Order 2487), 248-19-327, filed 5/1/87. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-327, filed 2/28/86.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-132 Open heart surgery concurrent review cycle. (1) The department shall review new open heart surgery services using the concurrent review cycle in this section.

(2) Certificate of need applications shall be submitted and reviewed according to the following schedule and procedures.

(a) Letters of intent shall be submitted between the first working day and last working day of July of each year.

(b) Initial applications shall be submitted between the first working day and last working day of August of each year.

(d) Responses to screening questions shall be submitted by the last working day of October of each year.

(e) The public review and comment period for applications shall begin on November 16 of each year. In the event that November 16 is not a working day in any year, then the public review and comment period shall begin on the first working day after November 16.

(f) The public comment period shall be limited to ninety days, unless extended according to the provisions of WAC 246-310-120 (2)(d). The first sixty days of the public comment period shall be reserved for receiving public comments and conducting a public hearing, if requested. The remaining thirty days shall be for the applicant or applicants to provide rebuttal statements to written or oral statements submitted during the first sixty-day period. Any ((~~interested party that:~~

~~(i) Is located or resides within the applicant's health service area;~~

~~(ii) Testified or submitted evidence at a public hearing; and~~

~~(iii) Requested in writing to be informed of the department's decision,~~)) affected person shall also be provided the opportunity to provide rebuttal statements to written or oral statements submitted during the first sixty-day period.

(g) The final review period shall be limited to sixty days, unless extended according to the provisions of WAC 246-310-120 (2)(d).

(3) Any letter of intent or certificate of need application submitted for review in advance of this schedule, or certificate of need application under review as of the effective date of this section, shall be held by the department for review according to the schedule in this section.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-132, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135. 92-16-081 (Order 293) 246-310-132, filed 8/4/92 effective 9/4/92; 91-17-011 (Order 188), 246-310-132, filed 8/12/91, effective 8/28/91.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-150 Expedited review process. (1) The expedited review process shall not exceed fifty days from the beginning of the review period unless extended in accordance with the provisions of subsection (2) of this section.

(a) The public comment period shall be limited to thirty days. The first twenty days of the public comment period shall be reserved for receiving public comments. The remaining ten days shall be for the applicant or applicants to provide rebuttal statements to written or oral statements submitted during the first twenty-day period. Any ((~~interested party that:~~

~~(i) Is located or resides within the applicant's health service area;~~

~~(ii) Testified or submitted evidence at a public hearing; and~~

(b) The department shall complete its final review and the secretary's designee shall make his or her decision on a certificate of need application under an expedited review within twenty days of the end of the public comment period.

(2) The review period for an expedited review may be extended according to the following provisions:

(a) The review period may be extended an additional forty-five days in accordance with WAC 246-310-100. The department may grant further extensions to this review period: Provided, The person submitting the certificate of need application gives written consent to further extension.

(b) If an issue, which is pivotal to the decision of the secretary's designee remains unresolved, the department may make one request for additional information from the person submitting the application. The department may extend its final expedited review period up to but not exceeding thirty days after receipt of the applicant's written response to the department's request for information.

(c) The department may extend its final review period upon receipt of a written request of the person submitting the application: Provided however, That such an extension shall not exceed sixty days.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-150, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-150, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-150, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-340, filed 2/28/86; 82-19-055 (Order 244), 248-19-340, filed 9/15/82; 81-09-012 (Order 210), 248-19-340, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-340, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-160 Regular review process. (1) The regular review process shall not exceed ninety days from the beginning of the review period and shall be conducted in accordance with this section unless the review period is extended in accordance with the provisions of subsection (2) of this section.

(a) The public comment period shall be limited to forty-five days. The first thirty-five days of the public comment period shall be reserved for receiving public comments and conducting a public hearing, if requested. The remaining ten days shall be reserved for the applicant to provide rebuttal statements to written or oral statements submitted during the first thirty-five day period. Any ((~~interested party that:~~

~~(i) Is located or resides within the applicant's health service area;~~

~~(ii) Testified or submitted evidence at a public hearing; and~~

(b) The department shall complete its final review and the secretary's designee shall make a decision on a certificate of need application within forty-five days of the end of the public comment period.

(2) The review period for a regular review may be extended according to the following provisions:

(a) The public comment period may be extended for up to an additional forty-five days in accordance with WAC 246-310-100. The department may grant further extensions to this review period: Provided, The person submitting the certificate of need application gives written consent to such further extensions.

(b) If an issue, which is pivotal to the decision of the secretary's designee remains unresolved, the department may make one request for additional information from the person submitting the application. The department may extend its final review period up to but not exceeding thirty days after receipt of the applicant's written response to the department's request for information.

(c) The department may extend either the public comment period or the department's final review period upon receipt of a written request of the person submitting the application: Provided however, That such an extension shall not exceed ninety days.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-160, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-160, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-160, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-330, filed 2/28/86; 82-19-055 (Order 244), 248-19-330, filed 9/15/82; 81-09-012 (Order 210), 248-19-330, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-330, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-170 Notification of beginning of review. (1) Notice required.

The department shall provide written notification of the beginning of the review of a certificate of need application and notification of the beginning of the review of a proposed withdrawal of a certificate of need to ((~~affected~~)) interested persons and any other person submitting a written request that the person's name be on the mailing list for such notice. Notification of the beginning of the review of a certificate of need application shall be provided through a newspaper of general circulation in the health service area of the project.

(2) Specific notice requirements.

(a) The department shall give "notification of the beginning of review" of an application after the department has received an application or the applicant's request, submitted in accordance with WAC 246-310-090 (2)(c), that review of the application begin. Such notice shall be given according to the following requirements:

(i) Emergency review.

When an application is being reviewed under the emergency review process, required notices shall be given within five working days following the receipt of a complete application or the applicant's written request that review of the application begin.

(ii) Expedited and regular review.

When an application is being reviewed under the expedited or regular review process, required notices shall be given within five working days of a declaration that the application is complete or the applicant's request that review of the application begin.

(b) The department shall give notification of the beginning of the review of a proposed withdrawal of a certificate of need when the department determines there may be good cause to withdraw a certificate of need.

(i) The procedures for receiving copies of applications, supplemental information and department decisions;

(ii) A general description of the project;

(iii) In the case of a proposed withdrawal of a certificate of need, the reasons for the proposed withdrawal;

(iv) The proposed review schedule;

(v) The period within which one or more ((~~affected~~)) interested persons may request a public hearing;

(vi) The name and address of the agency to which a request for a public hearing should be sent;

(vii) The manner in which notification will be provided of the time and place of any hearing so requested;

(viii) Notice that any ((~~affected~~)) interested person wishing to receive notification of a meeting on the application called by the department after the end of the public comment period shall submit a written request to the department to receive notification of such meetings; and

(ix) The period within which any ((~~affected~~)) interested person may request notification of the meetings referenced in subsection (2)(c)(viii) of this section.

(d) The notices to other ((~~affected~~)) interested persons shall be mailed on the same date the notice to the public is mailed to the newspaper for publication.

(3) Beginning of review.

(a) Review of a certificate of need application under the expedited or regular review process shall begin on the day the department sends notification of the beginning of review to the general public and other ((~~affected~~)) interested persons unless the department has received a written request from the applicant pursuant to WAC 246-310-090 (2)(c)(iii), in which case review shall begin upon receipt of such request.

(b) Review of certificate of need applications under the concurrent review process shall begin fifteen days after the conclusion of the published time period for the submission of final applications subject to concurrent review.

(c) Review of a certificate of need application under emergency review shall begin on the first day after the date on which the department has determined the application is complete, or has received a written request to begin review submitted by the applicant in accordance with WAC 246-310-090 (2)(c).

(d) Review of a proposed withdrawal of a certificate of need shall begin on the day the department sends notification of the beginning of review to the general public and to other ((~~affected~~)) interested persons.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-170, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-170, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-170, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-310, filed 2/28/86; 81-09-012 (Order 210), 248-19-310, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-310, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-180 Public hearings. (1) "Opportunity for a public hearing," as used in this section, shall mean a public hearing will be conducted if a valid request for such a hearing has been submitted by one or more ((~~affected~~)) interested persons.

(2) The department shall provide opportunity to ((~~affected~~)) interested persons for a public hearing on:

(a) A certificate of need application under review, unless the application is being reviewed according to the emergency or expedited review processes; and

(b) The proposed withdrawal of a certificate of need.

(3) To be valid, a request for a public hearing on a certificate of need application or on the proposed withdrawal of a certificate of need shall:

(a) Be submitted in writing;

(b) Be received by the department within fifteen days after the date on which the department's "notification of beginning of review" for the particular certificate of need application or proposed withdrawal of a certificate of need was published in a newspaper of general circulation; and

(c) Include identification of the particular certificate of need application or proposed certificate of need withdrawal for which the public hearing is requested and the full name, complete address, and signature of the person making the request.

(4) The department shall give written notice of a public hearing conducted pursuant to this section.

(a) Written notice shall be given to ((~~affected~~)) interested persons and the public at least fifteen days prior to the beginning of the public hearing.

(b) The notices shall include: Identification of the certificate of need application or certificate of need on which the public hearing is to be conducted and the date, time, and location of the public hearing.

(c) Notice to the general public to be served by the proposed project to which the certificate of need application or certificate of need pertains shall be through a newspaper of general circulation in the health service area of the proposed project. The notices to other ((~~affected~~)) interested persons shall be mailed on the same date the notice to the public is mailed to the newspaper for publication.

(5) In a public hearing on a certificate of need application or on a proposed withdrawal of a certificate of need, any person shall have the right to be represented by counsel and to present oral or written arguments and evidence relevant to the subject matter of the hearing. Any person affected by the matter may conduct reasonable questioning of persons who make relevant factual allegations.

(6) The department shall maintain a verbatim record of a public hearing and shall not impose fees for the hearing.

(7) The department shall not be required to conduct a public hearing on a certificate of need application being reviewed according to the emergency or expedited review procedures.

(8) The department may conduct a public hearing in the absence of a request as identified in subsection (3) of this section, if the department determines it is in the best interest of the public.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-180, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-180, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-180, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-320, filed 2/28/86; 81-09-012 (Order 210), 248-19-320, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-320, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-395 Nursing home bed banking for alternative use notice requirements. In the case of a nursing home licensee, requesting to convert some of the nursing home beds to an alternative use, as defined in RCW 70.38.111(8), or reduce the number of beds per room to two or one, or otherwise enhance the quality of life for residents and preserve the right to later convert the original portion of the facility back to skilled nursing care, the nursing home shall give notice of intent to preserve its conversion options to the department of health.

(1) Notice of the nursing homes intent to preserve conversion options shall be given to the department of health no later than thirty days after the effective date of the license modification made by the nursing home licensing authority. Such notices shall be signed by the licensee and include the following:

(a) A description of the alternative service to be provided or a description of how the proposed bed banking will have a direct and immediate benefit to the quality of life of the residents and a listing of the number of beds, by room number;

(b) A projected timeline for implementation; and

(c) In the event the nursing home licensee, as defined by WAC 246-310-010, is not the nursing home owner, the licensee shall ((~~provide a written statement indicating~~)) document whether the building owner((~~'s approval of the bed reduction~~)) has a secured interest in the beds.

If the building owner does have a secured interest in the beds, the licensee shall provide a written statement, signed by the building owner, indicating approval of the bed reduction.

If the building owner does not have a secured interest in the beds, the licensee shall provide documentation showing that the building owner has been notified of the bed reduction.

(2) The department shall notify the nursing home, as to whether the proposal meets the requirements of RCW 70.38.111 (8)(a) and if conversion rights are recognized. The nursing home does not forfeit its right to bank beds under this section if the department does not respond within this thirty-day time frame, nor does the nursing home obtain rights that it otherwise would not have under applicable statutes or rules if the department does not respond within the thirty-day time frame.

(3) The licensee shall notify the department of health at the time the alternative service or services commences.

(4) Notice of intent to convert beds back to nursing home bed use shall be given to the department of health and the department of social and health services ((~~no later than one year~~)) a minimum of ninety days prior to the effective date of the licensure modification made by the nursing home licensing authority reflecting the restored beds unless construction is required to convert the beds back. In the event the beds are not converted back to nursing home beds within sixty days of the date stated in the notice of intent, a notice of intent will need to be resubmitted ((~~no later than one year~~)) a minimum of ninety days prior to the effective date of the licensure modification.

(5) In the event construction is required to convert beds back to nursing home bed use, notice shall be given to the department of health and department of social and health services ((~~no later than two~~)) a minimum of one year((s)) prior to the effective date of licensure modification made by the nursing home licensing authority reflecting the restored beds. The same life and safety code requirements as existed at the time the nursing home voluntarily reduced its licensed beds shall be complied with 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. In the event the beds are not converted back to nursing home beds within sixty days of the date stated in the notice of intent, a notice of intent will need to be resubmitted ((~~no later than two~~)) a minimum of one year((s)) prior to the effective date of the licensure modification. The term "construction," as used in this section, is limited to those projects that are expected to equal or exceed the expenditure minimum amount, as determined under chapter 70.38 RCW.

(6) 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 under WAC 246-310-043.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-395, filed 11/27/96, effective 12/28/96.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-396 Nursing home bed banking requirements for full facility closure. In the case of a nursing home licensee, as defined in WAC 246-310-010 ceasing operation as a nursing home or any other party who has secured an interest in the beds and requesting to retain the nursing home bed allocation, pursuant to RCW 70.38.115 (13)(b), the licensee or other party who has secured an interest in the beds shall give notice to the department of health.

(1) Notice of the nursing homes intent to retain the nursing home bed allocation shall be given to the department of health no later than thirty days after the effective date of the homes closure. Such notices shall be signed by the licensee and include the following:

(a) The name of the facility ceasing operation;

(b) The number of beds in the bed allocation to be retained;

(d) The name, address, and telephone number of a contact person;

(e) Documentation as to whether the applicant is the licensee who has operated the beds for at least one year immediately preceding the reservation of the beds; and

(f) In the event the nursing home licensee, as defined by WAC 246-310-010, is not the nursing home owner, the licensee shall ((~~provide a written statement indicating~~)) document whether the building owner((~~s approval of the facilitys closure~~)) or other party has a secured interest in the beds.

If the building owner or other party does have a secured interest in the beds, the licensee shall provide a written statement, signed by the building owner or other party, indicating approval of the facility's closure.

If the building owner or other party does not have a secured interest in the beds, the licensee shall provide documentation showing that the building owner or other party has been notified of the facility's closure.

(2) Notice shall be in written form addressed to the certificate of need program and signed by an authorized representative of the nursing home or other party who has secured an interest in the beds.

(3) The department shall respond within thirty days of the notice confirming that the rights to the bed allocation have been retained and the date the retained bed right will expire, provided no certificate of need is issued to replace the beds. The nursing home does not forfeit its right to bank beds under this section if the department does not respond within the thirty-day time frame, nor does the nursing home obtain rights that it otherwise would not have under applicable statutes or rules if the department does not respond within the given time frame.

(4) Certificate of need review shall be required for any party who has reserved the nursing home beds except that the need criteria shall be deemed met when the applicant is the licensee who has operated the beds for at least one year immediately preceding the reservation of the beds, and who is replacing the beds in the same planning area.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-396, filed 11/27/96, effective 12/28/96.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-560 Provision for reconsideration decision. (1) Any ((~~person~~)) interested or affected person may, for good cause shown, request a public hearing for the purpose of reconsideration of the decision of the secretary's designee on a certificate of need application or withdrawal of a certificate of need.¹

(2) The department shall conduct a reconsideration hearing if it finds the request is in accord with the following requirements:

(a) The request for a reconsideration hearing shall be written, be received by the department within twenty-eight days of the department's decision on the certificate of need application or withdrawal of the certificate of need, state in detail the grounds which the person requesting the hearing believes to show good cause, and be signed by the person making the request.

(b) Grounds which the department may deem to show good cause for a reconsideration hearing shall include but not be limited to the following:

(i) Significant relevant information not previously considered by the department which, with reasonable diligence, could not have been presented before the department made its decision;

(ii) Information on significant changes in factors or circumstances relied upon by the department in making its findings and decision; or

(iii) Evidence the department materially failed to follow adopted procedures in reaching a decision.

(3) Scheduling of a reconsideration hearing shall ((~~commence~~)) occur within thirty days after receipt of ((~~the~~)) an approved request for ((~~the~~)) a hearing.

(4) Notification of a public reconsideration hearing on a certificate of need application or withdrawal of a certificate of need shall be sent prior to the date of such hearing by the department to the following:

(a) The person requesting the reconsideration hearing;

(b) The person submitting the certificate of need application which is under reconsideration or the holder of the certificate of need;

(c) Health care facilities and health maintenance organizations located in the health service area where the project is proposed to be located providing services similar to the services under review;

(d) In the case of a concurrent review, other applicants competing as described in WAC 246-310-080; and to

(e) Other persons requesting the department to send them such notification.

(5) The department shall, within forty-five days after the conclusion of a reconsideration hearing, make written findings stating the basis of the decision made after such hearing.

(6) The secretary's designee may, upon the basis of the department's findings on a reconsideration hearing, issue or reissue, amend, revoke, or withdraw a certificate of need or impose or modify conditions on a certificate of need for the project about which the reconsideration hearing was conducted.

(7) An applicant requesting a reconsideration hearing under the provisions of this section does not forfeit his or her rights to an adjudicative appeal under the provisions of WAC 246-310-610.

Note: ¹No fee will be charged for a reconsideration hearing.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-560, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-560, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-560, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-430, filed 2/28/86; 81-09-012 (Order 210), 248-19-430, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-430, filed 11/30/79.]

AMENDATORY SECTION (Amending WSR 96-24-052, filed 11/27/96, effective 12/28/96)

WAC 246-310-610 Adjudicative proceeding. (1) An applicant denied a certificate of need or a certificate holder whose certificate was suspended or revoked has the right to an adjudicative proceeding.

(2) A certificate applicant or holder contesting a department certificate decision shall within twenty-eight days of receipt of the department's decision or reconsidered decision:

(a) File a written application for an adjudicative proceeding by a method showing proof of receipt with the ((~~Office of Professional Standards~~)) Adjudicative Clerk Office, Department of Health, 2413 Pacific Avenue, P.O. Box ((~~47872~~)) 47879, Olympia, WA 98504-((~~7872~~)) 7879; and

(b) Include in or with the application:

(i) A specific statement of the issue or issues and law involved;

(ii) The grounds for contesting the department decision; and

(iii) A copy of the contested department decision.

(3) The proceeding is governed by the Administrative Procedure Act (chapter 34.05 RCW), this chapter, and chapter 246-08 WAC. If a provision in this chapter conflicts with chapter 246-08 WAC, the provision in this chapter governs.

(4) Any health care facility or health maintenance organization that:

(a) Provides services similar to the services provided by the applicant and under review pursuant to this subsection;

(b) Is located within the applicant's health service area; and

(c) Testified or submitted evidence at a public hearing held pursuant to RCW 70.38.115(9), shall be provided an opportunity to present oral or written testimony and argument in a proceeding under RCW 70.38.115 (10)(a) provided that the health care facility or health maintenance organization had, in writing, requested to be informed of the department's decision. If the department desires to settle with the applicant prior to the conclusion of the adjudicative proceeding, the department shall so inform the health care facility or health maintenance organization and afford them the opportunity to comment, in advance, on the proposed settlement.

[Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-610, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135 and 70.38.919. 92-02-018 (Order 224), 246-310-610, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-610, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 34.05 RCW, RCW 34.05.220 (1)(a), 70.38.135 and 1989 1st ex.s. c 9 607. 90-06-019 (Order 039), 248-19-480, filed 2/28/90, effective 3/1/90. Statutory Authority: RCW 70.38.135. 86-06-030 (Order 2344), 248-19-480, filed 2/28/86; 82-19-055 (Order 244), 248-19-480, filed 9/15/82; 81-09-012 (Order 210), 248-19-480, filed 4/9/81, effective 5/20/81. Statutory Authority: Chapter 70.38 RCW. 79-12-079 (Order 188), 248-19-480, filed 11/30/79.]

Legislature

Code Reviser

Register

� Washington State Code Reviser's Office