Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Article 3, Chapter 7, Title 44 of the 1976 Code is amended by adding:
"Section 44-7-215. Notwithstanding another provision of law, the department shall have access to data maintained by the Revenue and Fiscal Affairs Office relevant to Certificates of Need, specifically including data that will assist the department in determining the need for additional health care facilities, beds, health services and equipment, all by health service area, and whether or to whom to award a Certificate of Need."
SECTION 2. Section 13-7-10(9) of the 1976 Code, as last amended by Act 552 of 1990, is further amended to read:
"(9) 'Nonionizing
radiation' for the purpose of this section shall mean
only means ultraviolet radiation used for the
purpose of tanning the human body, and shall include
ultraviolet radiation with wavelengths in air between two
hundred and four hundred nanometers or
radiofrequency radiation within a magnetic resonance imaging
device used for the purpose of obtaining images of the human
body."
SECTION 3. Section 13-7-45 of the 1976 Code, as last amended by Act 355 of 2006, is further amended to read:
"Section 13-7-45.
(A)(1) The South Carolina Department
of Health and Environmental Control shall promulgate regulations
and establish a schedule for the collection of annual fees for
the licensing, registration, and certification of users of the
sources of ionizing radiation. The fees collected must be
sufficient, in the judgment of the department, to protect the
public health and safety and the environment and to recover the
costs incurred by the department in regulating the use of
ionizing radiation and in performing emergency corrective
measures intended to protect the public health and safety or the
environment pursuant to the provisions of law.
(2)
Accreditation or certification is a requirement of
application and registration of magnetic resonance imaging
equipment and computed tomography equipment. The department
shall determine the appropriate accreditation or certification
agencies.
(3)
The department shall promulgate regulations
pursuant to the Administrative Procedures Act and
establish a schedule for the collection of an annual fee for the
registration of a source of nonionizing radiation
which that is used in a commercial
establishment for the tanning of human skin or radiofrequency
radiation within a magnetic resonance imaging device used for
the purpose of obtaining images of the human body. The
registration fee must be sufficient in the judgment of the
department to protect the public health and safety and the
environment and to recover the costs incurred by the department
in registering the source of nonionizing radiation and in
performing emergency corrective measures intended to protect the
public health and safety or the environment pursuant to
the provisions of law.
(3)(4) The
department shall have has no duty to
inspect a source of nonionizing radiation unless it has received
credible information indicating a violation of applicable
statutes or regulations or the existence of a public health
emergency. The department may retain up to
thirty fifty thousand dollars from the
fees collected to be used for the administration of this
program.
(B) In determining the
sufficiency of the fees to be charged and collected, the
department shall consider an arrangement existing between South
Carolina and a registrant, a licensee, a certificant, another
state, or a federal agency under which costs incurred by the
department in regulating the use of ionizing and nonionizing
radiation and in performing emergency corrective measures
intended to protect the public health and safety and the
environment are recoverable by this State.
(C) A registrant,
licensee, or certificant who fails to pay the fees required by
regulation of the department within thirty days
after payment is due also shall pay a penalty of fifty dollars.
If failure to pay the required fees continues for more than
sixty days after payment is due, the registrant, licensee, or
certificant must be notified by the department by certified mail
to be sent to his last known address that his registration,
license, or certificate is revoked and that activities permitted
under the authority of the registration, license, or certificate
must end immediately. The registration, license, or certificate
may be reinstated by the department upon payment of the required
fees, the penalty of fifty dollars, and an additional penalty of
one hundred dollars if the registrant, licensee, or certificant
is otherwise in good standing, in the judgment of the
department, and presents to the department a satisfactory
explanation for his failure to pay the required fees.
SECTION 4. Section 44-1-60 (E)(2) and (G) of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"(E)(2) The staff
decision becomes the final agency decision fifteen calendar days
after notice of the staff decision has been mailed to the
applicant, unless a written request for final review accompanied
by a filing fee is filed with the department by the applicant,
permittee, licensee, or affected person. There is no right to
a final review regarding a staff decision on an application or
on a request of exemption or nonapplicability determination
submitted pursuant to the Certificate of Need program.
(G)(1) Except
as otherwise provided in item (2), an applicant, permittee,
licensee, or affected person may file a request with the
Administrative Law Court for a contested case hearing within
thirty calendar days after:
(1)(a) notice
is mailed to the applicant, permittee, licensee, and affected
persons that the board declined to hold a final review
conference; or
(2)(b) the
sixty calendar day deadline to hold the final review conference
lapses and no conference has been held; or
(3)(c) the
final agency decision resulting from the final review conference
is received by the parties.
(2)
In the case of a Certificate of Need decision,
an applicant, a holder of a certificate, and an affected person,
within thirty days after receipt of the department staff
decision, may file a request with the Administrative Law Court
for a contested case hearing. Except in contested cases
involving a challenge to a staff decision by a competing
applicant, an affected person may not file a request for a
contested case pursuant to this section to review a decision on
an application unless the person has provided written notice to
the department during the staff review process that he is an
affected person and specifically states his opposition to the
application under review."
SECTION 5. A. Section 44-7-130(1), (5), (20), and (21) of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"(1) 'Affected
person' means the applicant, a person with standing
residing within the geographic area served or to be served by
the applicant, persons located in the
health service area in which the project is to be located
and who provide similar services to the proposed
project in the health service area in which the project is to
be located persons who before receipt by the department of
the proposal being reviewed have formally indicated an intention
to provide in the future similar services in the
future to the proposed project in the health service
area in which the project is to be located, persons who pay
for health services in the health service area in which the
project is to be located and who have notified the department of
their interest in Certificate of Need applications, the State
Consumer Advocate, and the State Ombudsman. Persons from
another state who would otherwise be considered 'affected
persons' are not included unless that state provides for similar
involvement of persons from South Carolina in its certificate of
need process. A person operating a health
care facility or providing a health service in a state other
than South Carolina who does not operate a health care facility
in the proposed service area which provides similar services or
provides a health service similar to that being sought by the
applicant is not considered an affected person.
(5) 'Competing
applicants' means two or more persons or health care facilities
as defined in this article who apply for Certificates of Need to
provide similar services or facilities in the same service area
within a time frame as established by departmental
regulations thirty days of the publication on the
department's website of the notice of the filing of the first
application and whose applications, if approved, would
exceed the need for services or facilities.
(20) 'Freestanding or
mobile technology' means medical equipment owned or operated by
a person other than a health care facility for which the
total cost is in excess of that prescribed by
regulation and for which specific standards or
criteria are prescribed in the State Health Plan for
which the total cost is in excess of that prescribed by
regulation and for which specific standards or criteria are
prescribed in the State Health Plan.
(21) 'Like equipment
with similar capabilities' means medical equipment that has
substantially similar technology as the equipment current in
use, although it may possess expanded capabilities due to
technological improvements; in which functional and
technological capabilities are identical to the equipment to be
replaced; and the replacement equipment is to be used
for the same or similar diagnostic, therapeutic, or treatment
purposes as currently in use; and does not constitute a material
change in service or a new service."
B. Section 44-7-130 of the 1976 Code is amended by adding an appropriately numbered item to read:
"( ) 'Similar services' means services that are comparable to those contemplated in the application and for which there are standards in the State Health Plan."
SECTION 6. Section 44-7-150(5) of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"(5) The
department may as it determines necessary charge
and collect fees to cover the cost of operating the Certificate
of Need program, including application fees, filing fees,
issuance fees, and nonapplicability/exemption determination
fees. The department shall develop regulations which set fees as
authorized by this article. The level of these fees must be
determined after careful consideration of the direct and
indirect costs incurred by the department in performing its
various functions and services in the Certificate of Need
program. All fees and procedures for collecting fees must be
adopted pursuant to procedures set forth in the Administrative
Procedures Act. Any fee collected pursuant to this section
in excess of seven hundred fifty thousand
dollars must be retained by the department and
designated for the administrative costs of the Certificate of
Need program. The first seven hundred fifty thousand
dollars collected pursuant to this section must be deposited
into the general fund of the State. Until fees are promulgated
through regulation, all fees established as of January 1, 2009,
remain in effect."
SECTION 7. A. Section 44-7-160 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-7-160.
A person or health care facility, as defined in
this article, is required to obtain a Certificate of Need
from the department before undertaking any of the following:
(1) the construction or
other establishment of a new health care facility;
(2) a change in the
existing bed complement of a health care facility
through the addition of one or more beds or
change in the classification of licensure of one or
more beds that is not otherwise exempt from review
pursuant to Section 44-7-170; (3) an
expenditure by or on behalf of a health care facility in excess
of
an amount to be prescribed by regulation
five million dollars which, under generally acceptable
accounting principles consistently applied, is considered a
capital expenditure, except for those expenditures
otherwise exempted in Section
44-7-170(B)(1). The cost of any studies,
surveys, designs, plans, working drawings, specifications, and
other activities essential to the development, acquisition,
improvement, expansion, or replacement of any plant or equipment
must be included in determining if the expenditure exceeds the
prescribed amount. The department shall make an annual
adjustment to this capital expenditure amount to reflect changes
in the Consumer Price Index for All Urban Consumers, Medical
Care Services as published by the United States Department of
Labor, Bureau of Labor Statistics;
(4) a capital
expenditure by or on behalf of a health care
facility which is associated with the addition or
substantial expansion of a health service for which specific
standards or criteria are prescribed in the South Carolina
Health Plan that is not otherwise exempt from review pursuant
to Section 44-7-170;
(5) the offering of a
health service by or on behalf of a health care
facility which has not been offered by the facility in
the preceding twelve months and for which specific
standards or criteria are prescribed in the South Carolina
Health Plan unless otherwise exempt pursuant to
Section 44-7-170;
(6) the acquisition of
medical equipment which is to be new and
emerging technology used for diagnosis or treatment
if the total project cost is in excess of that
prescribed by regulation."
B. This SECTION takes effect upon approval by the Governor, and the expenditure threshold set forth in Section 44-7-160(3) first applies to Certificate of Need applications submitted thereafter.
SECTION 8. Section 44-7-170(A) of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"(A) The following
are exempt from Certificate of Need review:
(1)
the acquisition by a person of medical equipment to be
used solely for research, the offering of an institutional
health service by a person solely for research, or the
obligation of a capital expenditure by a person to be made
solely for research if it does not:
(a)
affect the charges imposed by the person for the provision
of medical or other patient care services other than the
services that are included in the research;
(b)
change the bed capacity of a health care facility; or
(c)
substantially change the medical or other patient care
services provided by the person.
A written description of the proposed
research project must be submitted to the department in order
for the department to determine if these conditions are met. A
Certificate of Need is required in order to continue use of the
equipment or service after the equipment or service is no longer
being used solely for research;
(2)
the offices of a licensed private practitioner whether for
individual or group practice except as provided for in Section
44-7-160(1) and (5);
(3)
the replacement of like equipment with similar
capabilities for which a Certificate of Need has been issued
which does not constitute a material change in service or a new
service;
(4)
the addition of one or more beds in the bed
capacity of an existing freestanding licensed acute care
hospital, nursing home, rehabilitation facility, or psychiatric
hospital;
(5)
a capital expenditure by or on behalf of a
health care facility to expand existing health services and
associated equipment other than to expand beds or those services
described in this Section 44-7-170(A) for which a Certificate of
Need previously has been awarded within a one-mile radius for
the same site where such services are located."
SECTION 9. Section 44-7-180 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-7-180.
(A) There is created a health
planning committee comprised of fourteen members. The Governor
shall appoint twelve members, which must include at least one
member from each congressional district. In addition, each of
the following groups must be represented among the Governor's
appointees: health care consumers, health care financiers,
including business and insurance, and health care providers,
including an administrator of a licensed for-profit nursing
home. The chairman of the board shall appoint one member. The
South Carolina Consumer Advocate or the Consumer Advocate's
designee is an ex officio nonvoting member. Members appointed by
the Governor are appointed for four-year terms, and may serve
only two consecutive terms. Members of the health planning
committee are allowed the usual mileage and subsistence as
provided for members of boards, committees, and commissions. The
committee shall elect from among its members a chairman, vice
chairman, and such other officers as the committee considers
necessary to serve a two-year term in that office.
(B)
With the advice of the health planning
committee, The department shall prepare, and publish
electronically, a South Carolina Health Plan for use in the
administration of the Certificate of Need program provided in
this article. The plan at a minimum must include:
(1)
an inventory of existing health care facilities, beds,
specified health services, and equipment;
(2)
projections of need for additional health care facilities,
beds, health services, and equipment;
(3)
standards for distribution of health care facilities,
beds, specified health services, and equipment including scope
of services to be provided, utilization, and occupancy rates,
travel time, regionalization, other factors relating to proper
placement of services, and proper planning of health care
facilities; and
(4)
a general statement as to the project review criteria
considered most important in evaluating Certificate of Need
applications for each type of facility, service, and equipment,
including a finding as to whether the benefits of improved
accessibility to each such type of facility, service, and
equipment may outweigh the adverse affects caused by the
duplication of any existing facility, service, or
equipment.
The South Carolina Health Plan must
address and include projections and standards for specified
health services and equipment which have a potential to
substantially impact health care cost and accessibility. Nothing
in this provision shall be construed as requiring the department
to approve any project which is inconsistent with the South
Carolina Health Plan.
(C)
Upon approval by the health planning committee,
the South Carolina Health Plan must be submitted at least once
every two years to the board for final revision and adoption.
Once adopted by the board, the plan may later be revised through
the same planning and approval process. The department shall
adopt by regulation a procedure to allow public review and
comment, including regional public hearings, before adoption or
revision of the plan.
(B)(1)
The department must review and update the State Health
Plan annually, including standards by which need is determined
for health services and health care facilities. The updated
State Health Plan must be submitted to the chairmen of the House
Ways and Means Committee and the Senate Finance Committee before
July 1 each year.
(2)
No later than March 1, 2016, the General
Assembly may require the department to resubmit the State Health
Plan by the enactment of a joint resolution. The department has
sixty days to resubmit the State Health Plan."
SECTION 10. Section 44-7-200 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-7-200.
(A) An application for a Certificate
of Need must be submitted to the department in a form
established by regulation utilizing a web-based
application available on the department's website. The
application must address all applicable standards and
requirements set forth in departmental
regulations, and project review criteria
of the department, and the South Carolina Health
Plan.
(B) Within
twenty days before submission of an application, the applicant
shall publish notification that an application is to be
submitted to the department in a newspaper serving the area
where the project is to be located for three consecutive days.
The notification must contain a brief description of the scope
and nature of the project. No application may be accepted for
filing by the department unless accompanied by proof that
publication has been made for three consecutive days within the
prior twenty-day period and payment of the initial application
fee has been received.
Within twenty days before submission of
an application, the applicant shall file a letter of intent to
submit an application with the department. The letter of intent
must contain a brief description of the scope and nature of the
project. The department must not accept an application for a
Certificate of Need unless the application is accompanied by a
copy of the letter of intent filed by the applicant with the
department within the prior twenty-day period and payment of the
initial application fee has been received.
(C) Upon publication of
this notice and until a contested case hearing is requested
pursuant to Section 44-1-60(G):
(1)
members of the board and persons appointed by the
board to hold a final review conference on staff
decisions may not communicate directly or indirectly
with any person in connection with the application; and
(2)
no person shall communicate, or cause another to
communicate, as to the merits of the application with members of
the board and persons appointed by the board to hold a
final review conference on staff decisions.
A person who violates this subsection is
subject to the penalties provided in Section 1-23-360.
(D) After receipt of an
application with proof of publication a copy
of the letter of intent and payment of the initial
application fee, the department shall publish in the State
Register a notice that an application has been accepted for
filing. Within thirty days of acceptance of the application,
the department may request additional information as may be
necessary to complete the application. The applicant has thirty
days from the date of the request to submit the additional
information. If the applicant fails to submit the requested
information within the thirty-day period, the application is
considered withdrawn.
(E) After a Certificate
of Need application has been filed with the department, state
and federal elected officials are prohibited from communicating
with the department with regard to the Certificate of Need
application at any time. This prohibition does not include
written communication of support or opposition to an
application. Such Written communication must be
included in the administrative record."
SECTION 11. Section 44-7-210 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-7-210.
(A) After the department has
determined that an application is complete, affected persons
must be notified in accordance with departmental regulations.
The notification to affected persons that the application is
complete begins the review period; however, in the case of
competing applications, the review period begins on the date of
notice to affected persons that the last of the competing
applications is complete and notice is published in the State
Register. The staff shall issue its decision to approve or deny
the application no earlier than thirty calendar days, but no
later than one hundred twenty calendar days, from the date
affected persons are notified that the application is
complete, unless a public hearing is timely requested as
may be provided for by department regulation. If a public
hearing is properly requested, the staff's decision must not be
made until after the public hearing, but in no event shall the
decision be issued more than one hundred fifty calendar days
from the date affected persons are notified that the application
is complete. The staff may reorder the relative
importance of the project review criteria no more than one time
during the review period. The staff's reordering of the relative
importance of the project review criteria does not extend the
review period provided for in this section. Other than in
the review of competing applications, if the department fails to
deny or approve an application within one hundred twenty days of
the date notice was published on the department's website, the
application is deemed to be approved and a Certificate of Need
shall be issued within seven days. The executive director may
grant the staff one thirty-day extension per certificate of need
application to render a decision. If the department does not
act within one hundred twenty days and the application is deemed
approved, the department's administrative record is considered
part of any request for contested case and must be furnished to
the parties to any contested case and the department staff will
be made available to the parties for the purposes of depositions
and testimony during any contested case hearing. If an affected
person requests a contested case before the Administrative Law
Court concerning an application deemed to have been approved
under this section, the failure of the department to act on the
application within the applicable review period shall not be
used as a basis by the Administrative Law Court to remand the
case to the department.
(B) The department may
not issue a Certificate of Need unless an application complies
with the South Carolina State Health
Plan, project review criteria,
and other regulations. Based on project review criteria and
other regulations, which must be identified by the department,
the department may refuse to issue a Certificate of Need even if
an application complies with the South Carolina
State Health Plan. In the case of competing applications,
the department shall award a Certificate of Need, if
appropriate, on the basis of which, if any, most fully complies
with the requirements, goals, and purposes of this article and
the State Health Plan, project review
criteria, and the regulations
adopted promulgated by the
department.
(C) On the basis of
staff review of the application, the staff shall make a staff
decision to grant or deny the Certificate of Need and
the staff shall issue a decision in accordance
with Section 44-1-60(D). Notice of the decision must be sent to
the applicant and affected persons who have asked to be
notified. The decision becomes is the
final agency decision unless a timely written request
for a final review is filed with the department as provided for
in Section 44-1-60(E).
However, a person may not file a
request for final review in opposition to the staff decision on
a Certificate of Need unless the person provided written notice
to the department during the staff review that he is an affected
person and specifically states his opposition to the application
under review. (D)
The staff's decision is not the final agency
decision until the completion of the final review process
provided for in Section 44-1-60(F).
(E)
A contested case hearing of the final agency decision must
be requested in accordance with Section 44-1-60(G). The issues
considered at the contested case hearing considering a
Certificate of Need are limited to those presented or considered
during the staff review.
(F)(E)
Notwithstanding any other provision of law,
including Section 1-23-650(C) in a contested case arising from
the department's decision to grant or deny a Certificate of Need
application, to grant or deny a request for exemption
under Section 44-7-170, or the issuance of a
determination regarding to determine the
applicability of Section 44-7-160, the following
apply each party:
(1)
each party may name no more than ten
witnesses who may testify at the contested case hearing;
(2)
each party is permitted to take only the
deposition of a person listed as a witness who may testify at
the contested case hearing, unless otherwise provided
for by the Administrative Law Court agreed to by the
parties or ordered by the court. A deposition is limited to
seven hours of questioning per party. The court may allow
additional time if needed to fairly examine the deponent or if
the deponent, another person, or any other circumstance impedes
or delays the examination;
(3)
each party is permitted to serve only ten
interrogatories pursuant to Rule 33 of the South Carolina Rules
of Civil Procedure;
(4)
each party is permitted to serve only ten
requests for admission, including subparts; and
(5)
for the express purpose of limiting costly and
unnecessary discovery regarding electronically stored
information, each party is permitted to serve only thirty
requests for production, including subparts which requests
are limited to data, analyses, reports, projections, and such
other information directly related to the criteria set forth in
the State Health Plan and to the standards set forth in
regulations that are relevant to the application, request or
determination being contested. Unless ordered by the
administrative law court upon a showing of extraordinary
circumstances by the party seeking production, no party shall be
required to preserve, search for, or produce electronic
communications, in any format or medium, including emails,
voicemails, or text messages, except to the extent that such
communications contain responsive data, projections, reports or
analyses or except to the extent that a party intends to rely
upon its own such communications as part of it case before the
administrative law court.
The limitations provided for in this
subsection are intended to make the contested case process more
efficient, less burdensome, and less costly to the parties in
Certificate of Need cases. Therefore, the Administrative Law
Court may, by court order, lift these limitations beyond the
parameters set forth in this subsection only in exceptional
circumstances when failure to do so would cause substantial
prejudice to the party seeking additional discovery.
(G) Notwithstanding any
other provision of law, in a contested case arising from the
department's decision to grant or deny a Certificate of Need
application, grant or deny a request for exemption under Section
44-7-170, or the issuance of a determination regarding the
applicability of Section 44-7-160, the Administrative Law Court
shall file a final decision no later than
eighteen twelve months after the
contested case is filed with the Clerk of the Administrative Law
Court, unless all parties to the contested case consent to an
extension or the court finds substantial cause otherwise to
extend the deadline."
SECTION 12. Section 44-7-220 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-7-220.
(A) A party who is aggrieved by the
Administrative Law Court's final decision may seek judicial
review of the final decision in accordance with Section
1-23-380.
(B)(1) If a
party does not prevail in a contested case at the Administrative
Law Court when requesting the reversal of the department's
decision to approve a Certificate of Need application, when
claiming an exemption under Section 44-7-170, or when claiming
that the article is not applicable pursuant to Section 44-7-160,
the Administrative Law Court shall award the party whose project
is the subject of the appeal reasonable attorney's fees and
costs incurred in the contested case.
(2)
If a party does not prevail in an appeal to the
Court of Appeals when requesting the reversal of the
Administrative Law Court's decision to approve a Certificate of
Need application, when claiming an exemption under Section
44-7-170, or when claiming that the article is not applicable
pursuant to Section 44-7-160, the Court of Appeals shall award
the party whose project is the subject of the contested case
reasonable attorney's fees and costs incurred in the appeal.
(C) If the
relief requested in the an appeal is the
reversal of the Administrative Law Court's decision to approve
the Certificate of Need application or,
approve the request for exemption under Section
44-7-170, or approve the determination
that Section 44-7-160 is not applicable, the party filing the
appeal shall deposit a bond with the Clerk of the Court of
Appeals within five calendar days after filing the petition to
appeal. The bond must be secured by cash or a surety authorized
to do business in this State in an amount equal to five percent
of the total cost of the project or one hundred thousand
dollars, whichever is greater, up to a maximum of one million
five hundred thousand dollars. If the Court of Appeals affirms
the Administrative Law Court's decision or dismisses the appeal,
the Court of Appeals shall award to the party
whose project is the subject of the appeal all of the bond
and also may award reasonable attorney's fees and costs
incurred in the appeal. If a party appeals the denial
of its own Certificate of Need application or
of, the denial of an exemption request
under Section 44-7-170, or appeals the
a determination that the article applies under
Section 44-7-160 is applicable and there is no
competing application involved in the appeal, the party filing
the appeal is not required to deposit a bond with the Court of
Appeals.
(C)(D)(1)
Furthermore, If at the conclusion
of the contested case or judicial review the Administrative Law
Court or the Court of Appeals finds that the contested case or a
subsequent appeal was frivolous, the Administrative Law Court or
the Court of Appeals may shall award
damages incurred as a result of the delay, as well as reasonable
attorney's fees and costs, to the party whose project is the
subject of the contested case or judicial review.
(2)
As used in this subsection, 'frivolous appeal' means
any one of the following a reasonable person
in the same circumstances would believe that:
(a)
taken solely for purposes of delay or
harassment the contested case or subsequent appeal
was clearly not warranted under existing law and that a good
faith or reasonable argument did not exist for the extension,
modification, or reversal of existing law;
(b)
where no question of law is involved
the procurement, initiation, or continuation of the contested
case or subsequent appeal was intended merely to harass or
injure the other party; or
(c)
where the contested case or judicial review is
without merit the contested case or subsequent
appeal was not reasonably founded in fact or was interposed
merely for delay or was merely brought for a purpose other than
securing proper discovery or adjudication of the claim upon
which the proceedings are based.
This subsection must not be construed to
prohibit any party from seeking sanctions pursuant to the South
Carolina Frivolous Civil Proceedings Sanctions Act pursuant to
Section 15-36-10, et seq.
(E) The
court must not assess attorney's fees or costs awarded against
or to the department in any contested case or appeal involving a
Certificate of Need application or an exemption request pursuant
to Section 44-7-170 or a request for a determination as to the
applicability of Section 44-7-160.
(F)(1)
Any party may, at any time more than twenty days before
the actual contested case hearing date, file with the clerk of
the Administrative Law Court a written offer of judgment signed
by the offeror or his attorney, directed to the opposing party,
offering to take judgment in the offeror's favor, or as the case
may be, to allow judgment to be taken against the offeror as
specified in the offer. The offeror shall give notice of the
offer of judgment to the offeree's attorney, or if the offeree
is not represented by an attorney, to the offeree himself, in
accordance with the service rules for motions and other
pleadings set forth in the South Carolina Administrative Law
Court Rules of Procedure. Within twenty days after
notification, or at least ten days prior to the hearing date,
whichever date is earlier, the offeree or his attorney may file
with the clerk of the court a written acceptance of the offer of
judgment. Upon the filing, the clerk shall enter immediately
judgment of the stipulation. If the offer of judgment is not
accepted within twenty days after notification or prior to or on
the tenth day before the actual hearing date, whichever date
occurs first, the offer shall be considered rejected and
evidence thereof is not to be admissible except in a proceeding
after the hearing to fix costs, interests, attorney's fees, and
other recoverable monies. Any offeror may withdraw an offer of
judgment prior to its acceptance or prior to the date on which
it would be considered rejected by giving notice to the offeree
or his attorney in accordance with the service rules for motions
and other pleadings outlined in the South Carolina
Administrative Law Court Rules of Procedure. Any offeror may
file a subsequent offer of judgment in any amount provided that
the subsequent offer supersedes any earlier offer that was
rejected by the offeree or withdrawn by the offeror, and, on
filing, terminates any rights of interest or costs that may have
been applicable to the superseded offer. Notwithstanding this
provision, an offer is not considered rejected upon the making
of a counteroffer by the offeree, but shall remain effective
until accepted, rejected, or withdrawn as provided in this
subsection. Any and all offers of judgment and any acceptance
of offers of judgment must be included by the clerk in the
record of the case.
(2)
If an offer of judgment is not accepted and the
offeror obtains a determination at least as favorable as the
rejected offer, the offeror is entitled to recover from the
offeree any administrative, discovery costs, and attorney's
fees.
(3)
This subsection must not be interpreted to
abrogate the contractual rights of any party concerning the
recovery of attorney's fees or other monies in accordance with
the provisions of any written contract between the parties to
the action."
SECTION 13. Section 44-7-230(D) of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"(D) A Certificate
of Need is valid for one year from the date of issuance. A
Certificate of Need must be issued with a timetable submitted by
the applicant and approved by the department to be followed for
completion of the project. The holder of the Certificate of Need
shall submit periodic progress reports on meeting the timetable
as may be required by the department. Failure to meet the
timetable results in the revocation of the Certificate of Need
by the department unless the department determines that
extenuating circumstances beyond the control of the holder of
the Certificate of Need are the cause of the delay. The
department may grant two extensions of up to nine months each
upon evidence that substantial progress has been made in
accordance with procedures set forth in regulations. The
board department may grant further
extensions of up to nine months each only if it determines that
substantial progress has been made in accordance with the
procedures set forth in regulations."
SECTION 14. Section 44-7-1590(C) of the 1976 Code is amended to read:
"(C) Any
interested party, within twenty days after the date of the
publication of the notice, but not afterwards,
may challenge the action so taken by the state
board, or the county board, or
the Department of Health and Environmental Control, by
action de novo in the court of common pleas in any county where
the hospital facilities are to be located."
SECTION 15. Section 44-7-180 and Section 44-7-225 of the 1976 Code are repealed.
SECTION 16. A. Section 44-7-120 of the 1976 Code is amended to read:
"Section 44-7-120.
The purpose of this article is to promote cost
containment, prevent unnecessary duplication of health care
facilities and services, guide the establishment of health
facilities and services which will best serve public needs,
and ensure that high quality services are provided in
health facilities in this State. To achieve these purposes, this
article requires:
(1) the
issuance of a Certificate of Need before undertaking a project
prescribed by this article;
(2) adoption
of procedures and criteria for submittal of an application and
appropriate review before issuance of a Certificate of Need;
(3)
preparation and publication of a State Health
Plan;
(4) the licensure of
facilities rendering medical, nursing, and other health
care."
B. Article 3, Chapter 7, Title 44 of the 1976 Code is amended by adding:
"Section 44-7-131.
As used in this article:
(1) 'Ambulatory
surgical facility' means a facility organized and administered
for the purpose of performing surgical procedures for which
patients are scheduled to arrive, receive surgery, and be
discharged on the same day and which the owner or operator makes
available to other providers who comprise an organized
professional staff.
(2) 'Board' means the
State Board of Health and Environmental Control.
(3) 'Community
residential care facility' means a facility which offers room
and board and provides a degree of personal assistance for two
or more persons eighteen years old or older.
(4) Daycare facility
for adults' means a facility for adults eighteen years or older
which:
(a)
offers in a group setting a program of individual and
group activities and therapies;
(b)
is directed toward providing community-based care for
those in need of a supportive setting for less than twenty-four
hours a day to prevent unnecessary institutionalization; and
(c)
provides a minimum of four and a maximum of fourteen hours
of operation a day.
(5) 'Department' means
the Department of Health and Environmental Control.
(6) 'Health care
facility' means, at a minimum, acute care hospitals, psychiatric
hospitals, alcohol and substance abuse hospitals, nursing homes,
ambulatory surgical facilities, hospice facilities, radiation
therapy facilities, rehabilitation facilities, residential
treatment facilities for children and adolescents, intermediate
care facilities for persons with intellectual disability, and
narcotic treatment programs.
(7) 'Health service'
means clinically related, diagnostic, treatment, or
rehabilitative services and includes alcohol, drug abuse, and
mental health.
(8) 'Hospital' means a
facility organized and administered to provide overnight medical
or surgical care or nursing care of illness, injury, or
infirmity in which all diagnoses, treatment, or care is
administered by or under the direction of persons currently
licensed to practice medicine, surgery, or osteopathyand which
may provide obstetrical care and include residential treatment
facilities for children and adolescents in need of mental health
treatment which are physically a part of a licensed psychiatric
hospital, not including facilities which are licensed by the
Department of Social Services.
(9) 'Nursing home'
means a facility with an organized nursing staff to maintain and
operate organized facilities and services to accommodate two or
more unrelated persons over a period exceeding twenty-four hours
which is operated either in connection with a hospital or as a
freestanding facility for the express or implied purpose of
providing intermediate or skilled nursing care for persons who
are not in need of hospital care.
(10) 'Facility for
chemically dependent or addicted persons' means a facility
organized to provide outpatient or residential services to
chemically dependent or addicted persons and their families
based on an individual treatment plan including diagnostic
treatment, individual and group counseling, family therapy,
vocational and educational development counseling, and referral
services.
(11) 'Person' means an
individual, a trust or estate, a partnership, a corporation
including an association, joint stock company, insurance
company, and a health maintenance organization, a health care
facility, a state, a political subdivision, or an
instrumentality including a municipal corporation of a state, or
any legal entity recognized by the State.
(12) 'Residential
treatment facility for children and adolescents' means a
facility operated for the assessment, diagnosis, treatment, and
care of two or more 'children and adolescents in need of mental
health treatment' which provides:
(a)
a special education program with a minimum program defined
by the South Carolina Department of Education;
(b)
recreational facilities with an organized youth
development program; and
(c)
residential treatment for a child or adolescent in need of
mental health treatment.
(13) 'Children,
adolescents, and young adults in need of mental health
treatment' in a residential treatment facility means a child,
adolescent, or young adult under age twenty-one who manifests a
substantial disorder of cognitive or emotional process, which
lessens or impairs to a marked degree that child's,
adolescent's, or young adult's capacity either to develop or to
exercise age-appropriate or age-adequate behavior
including, but not limited to, marked disorders of mood
or thought processes, severe difficulties with self-control and
judgment including behavior dangerous to self or others, and
serious disturbances in the ability to care for and relate to
others.
(14) 'Intermediate care
facility for persons with intellectual disability' means a
facility that serves four or more persons with intellectual
disability or persons with related conditions and provides
health or rehabilitative services on a regular basis to
individuals whose mental and physical conditions require
services including room, board, and active treatment for their
intellectual disability or related conditions.
(15) 'Facilities
wherein abortions are performed' means a facility, other than a
hospital, in which any second trimester or five or more first
trimester abortions are performed in a month.
(16) 'Radiation therapy
facility' means a person or a health care facility which
provides or seeks to provide mega-voltage therapeutic services
to patients through the use of high energy radiation.
(17) 'Birthing center'
means a facility or other place where human births are planned
to occur but does not include the usual
residence of the mother or a facility that is licensed as a
hospital or the private practice of a physician who attends the
birth.
(18) 'Freestanding
emergency service', also referred to as an off-campus emergency
service, means an extension to an existing emergency department
of a licensed hospital that supports an off-campus emergency
service, which is intended to provide comprehensive emergency
service, but does not include a service that does not provide
twenty-four hour, seven day per week operation or that is not
capable of providing basic services as defined for hospital
emergency departments. A service that does not qualify as a
freestanding emergency service must not be classified as a
freestanding emergency service and must not advertise or display
or exhibit any signs or symbols that would identify the service
as a freestanding emergency service."
C. Article 3, Chapter 7, Title 44 of the 1976 Code is amended by adding:
"Section 44-7-151.
In carrying out the purposes of this
article, the department shall:
(1)
require reports and make inspections and investigations as
considered necessary;
(2)
to the extent that is necessary to effectuate the purposes
of this article, enter into agreements with other departments,
commissions, agencies, and institutions, public or private;
(3)
adopt in accordance with Article I of the Administrative
Procedures Act substantive and procedural regulations considered
necessary by the department and approved by the board to carry
out the department's licensure duties under this article;
(4)
accept on behalf of the State and deposit with the State
Treasurer, any grant, gift, or contribution made to assist in
meeting the cost of carrying out the purpose of this article and
expend it for that purpose;
(5)
promulgate regulations, in accordance with the
Administrative Procedures Act, which establish fees as
authorized by this article, leaving fees promulgated as of
January 1, 2009, in effect until regulations are promulgated
pursuant to this item."
D. Section 44-7-320 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-7-320.
(A)(1) The department may deny,
suspend, or revoke licenses or assess a monetary penalty, or
both, against a person or facility for:
(a)
violating a provision of this article or departmental
regulations;
(b)
permitting, aiding, or abetting the
commission of an unlawful act relating to the securing of a
Certificate of Need or the establishment, maintenance, or
operation of a facility requiring certification of need or
licensure under this article;
(c)(b)
engaging in conduct or practices detrimental to the health
or safety of patients, residents, clients, or employees of a
facility or service. This provision does not refer to health
practices authorized by law;
(d)(c)
refusing to admit and treat alcoholic and substance
abusers, the mentally ill, or persons with intellectual
disability, whose admission or treatment has been prescribed by
a physician who is a member of the facility's medical
staff;, or discriminating against
alcoholics, the mentally ill, or persons with intellectual
disability solely because of the alcoholism, mental illness, or
intellectual disability; and
(e)(d) failing
to allow a team advocacy inspection of a community residential
care facility by the South Carolina Protection and Advocacy
System for the Handicapped, Inc., as allowed by law.
(2)
Consideration to deny, suspend, or revoke licenses or
assess monetary penalties, or both, is not limited to
information relating to the current licensing period but
includes consideration of all pertinent information regarding
the facility and the applicant.
(3)
If in the department's judgment conditions or practices
exist in a facility that pose an immediate threat to the health,
safety, and welfare of the residents, the department immediately
may suspend the facility's license and shall contact the
appropriate agencies for placement of the residents. Within five
calendar days of the suspension a preliminary hearing must be
held to determine if the immediate threatening conditions or
practices continue to exist. If they do not, the license must be
immediately reinstated. Whether the license is reinstated or
suspension remains due to the immediate threatening conditions
or practices, the department may proceed with the process for
permanent revocation pursuant to this section.
(B) Should the
department determine to assess a penalty, deny, suspend, or
revoke a license, it shall send to the appropriate person or
facility, by certified mail, a notice setting forth the
particular reasons for the determination. The determination
becomes final thirty days after the mailing of the notice,
unless the person or facility, within such thirty-day period,
requests in writing a contested case hearing before the board,
or its designee, pursuant to the Administrative Procedures Act.
On the basis of the contested case hearing, the determination
involved must be affirmed, modified, or set aside. Judicial
review may be sought in accordance with the Administrative
Procedures Act.
(C) The penalty imposed
by the department for violation of this article or its
regulations must be not less than one hundred nor more than five
thousand dollars for each violation of any of the provisions of
this article. Each day's violation is considered a subsequent
offense.
(D) Failure to pay a
penalty within thirty days is grounds for suspension,
revocation, or denial of a renewal of a license.
No A license may
must not be issued, reissued, or renewed until all
penalties finally assessed against a person or facility have
been paid.
(E)
No Certificate of Need may be issued to any person
or facility until a final penalty assessed against a person or a
facility has been paid.
(F)(E)
All penalties collected pursuant to this
article must be deposited in the state treasury and credited to
the general fund of the State."
E. Sections 44-7-130, 44-7-150, 44-7-160, 44-7-170, 44-7-190, 44-7-200, 44-7-210, 44-7-220, and 44-7-230 of the 1976 Code are repealed effective January 1, 2020.
F. Article 3, Chapter 7, Title 44 of the 1976 Code is renamed the State Health Facility Licensure Act.
G. This SECTION takes effect January 1, 2020.
SECTION 17. (A)
The South Carolina Board of Health and
Environmental Control shall review the projects of persons and
health care facilities whose total projects costs are less than
seven million dollars and that were initiated between July 1,
2013, and April 14, 2014, for which a Certificate of Need is
required pursuant to Article 3, Chapter 7, Title 44 of the Code
of Laws of South Carolina, 1976. In its review, the board shall
determine if the projects merit a Certificate of Need. If the
board determines a project merits a Certificate of Need, the
board shall stand in the place of the Department of Health and
Environmental Control and may issue the Certificate of Need nunc
pro tunc. Any certificate issued by the board is deemed to have
been issued by the Department of Health and Environmental
Control. All requirements governing Certificates of Need apply
to those persons or health care facilities issued a Certificate
of Need pursuant to this section.
(B) The board shall
establish procedures for the submission of an application,
public notice of the filing of applications, and a process for
notification of its decision to all affected person, who during
the board's review process, have notified the board of the
person's desire to be an affected person. In order to
participate in any contested case review, an affected person has
to notify the board of the specific reasons it objects to an
application.
SECTION 18. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 19. Except as otherwise provided, this act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.