Senator TALLEY proposed the following amendment (290R003.SP.SFT):

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. Section 1-23-380 of the 1976 Code is amended to read:

"Section 1-23-380. A party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review pursuant to this article and Article 1, except for a party aggrieved by a final decision in a contested case filed with the Administrative Law Court relating to subject matter contained in Article 3, Chapter 7, Title 44. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy. Except as otherwise provided by law, an appeal is to the court of appeals.

(1) Proceedings for review are instituted by serving and filing notice of appeal as provided in the South Carolina Appellate Court Rules within thirty days after the final decision of the agency or, if a rehearing is requested, within thirty days after the decision is rendered. Copies of the notice of appeal must be served upon the agency and all parties of record.

(2) Except as otherwise provided in this chapter, the serving and filing of the notice of appeal does not itself stay enforcement of the agency decision. The serving and filing of a notice of appeal by a licensee for review of a fine or penalty or of its license stays only those provisions for which review is sought and matters not affected by the notice of appeal are not stayed. The serving or filing of a notice of appeal does not automatically stay the suspension or revocation of a permit or license authorizing the sale of beer, wine, or alcoholic liquor. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, upon the filing of a petition under Rule 65 of the South Carolina Rules of Civil Procedure.

(3) If a timely application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file the evidence and modifications, new findings, or decisions with the reviewing court.

(4) The review must be conducted by the court and must be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, and established by proof satisfactory to the court, the case may be remanded to the agency for action as the court considers appropriate.

(5) The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

SECTION2. Section 44-7-160 of the 1976 Code is 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 except as provided for in Section 44-7-170(A)(5) or change in the classification of licensure of one or more beds;

(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 those expenditures exempted in Section 44-7-170(A)(5), Section 44-7-170(A)(6), and 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;

(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;

(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;

(6) the acquisition of medical equipment which is to be used for diagnosis or treatment if the total project equipment cost is in excess of that prescribed by regulation two million dollars."

SECTION3. Section 44-7-170(A) of the 1976 Code is amended to read:

"Section 44-7-170.(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 (6);

(3) the replacement of like equipment including, but not limited to, CT scanners, magnetic resonance imaging, positron emission tomography (PET), and positron emission tomography/computed tomography for which a Certificate of Need has been issued which does not constitute a material change in service or a new service;

(4) crisis stabilization unit facilities. Notwithstanding subsection (C), crisis stabilization unit facilities will not require a written exemption from the department.;

(5) a change in the existing bed complement of a health care facility through the addition of one or more beds if:

(a) in the immediately prior calendar year, the average occupancy of the total number of the beds in the same license category at the health care facility where the beds will be added exceeded seventy-five percent capacity, including beds considered as observational status; and

(b) for licensed general acute care hospital beds, the number of beds exempt from review under this section does not exceed fifty beds or ten percent of the total number of licensed general acute care hospital beds, whichever is greater, at the health care facility where the beds will be added;

(c) for beds in license categories other than general acute care hospital beds, the number of beds exempt from review under this section does not exceed ten percent of the total number of beds in the same license category, at the health care facility where the beds will be added.

(6) the addition of up to a fifty-bed acute care hospital in a county that does not have an acute care hospital. The exemption provided for in this subsection shall no longer apply in a county where an acute care hospital is opened pursuant to this subsection. All other provisions of this article shall apply to the construction or addition of health facilities or health services in a county without an acute care hospital. For purposes of this subsection, 'acute care hospital' shall mean a facility with a dedicated emergency department, organized and administered to provide short-term overnight medical or surgical care or nursing care of illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care is administered by or under the direction of persons currently licensed to practice medicine, surgery, or osteopathy."

SECTION4. Section 44-7-210(F)-(G) of the 1976 Code is amended to read:

" Section 44-7-210.(F) 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, 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 following apply:

(1) each party may name no more than ten three witnesses who may testify at the contested case hearing;

(2) each party is permitted to take only the deposition of a person listed by an opposing party as a witness who may testify at the contested case hearing, unless otherwise provided for by the Administrative Law Court and each party is prohibited from taking a deposition pursuant to the provisions of the South Carolina Rules of Civil Procedure, Rule 30(b)(6);

(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) each party is permitted to serve only thirty requests for production, including subparts.

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. There shall be no judicial review of final decisions issued by the Administrative Law Court for 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, the issuance of a determination regarding the applicability of Section 44-7-160, or any other department decisions relating to Article 3, Chapter 7, Title 44."

SECTION5. Section 44-69-30 of the 1976 Code is amended to read:

"Section 44-69-30. No person, private or public organization, political subdivision, or other governmental agency shall establish, conduct, or maintain a home health agency or represent itself as providing home health services without first obtaining a license from the Department of Health and Environmental Control. This license is effective for a twelve-month period following the date of issue. A license issued under this chapter is not assignable or transferable and is subject to suspension or revocation at any time for failure to comply with this act. Subunits of parent home health agencies must be separately licensed.

The department may enter into public and private joint partnerships or enter into other appropriate cooperative agreements or arrangements or negotiate and effect these partnerships and agreements to include the sale of the entity and/or the transfer of licenses held by the department or its subdivisions to other qualified providers, if appropriate, when doing so would result in continued high quality patient care, continued provision of services to indigent patients, assurance of the employment of the department's home health employees, and provision of home care services adequate to meet the needs of the State. The department may facilitate the negotiation, contracting, or transfer of these activities through licensure and without requirement of a Certificate of Need as set out in Section 44-69-75 and without regard to the Procurement Code, Section 11-35-10, et. seq. However, a sale of the entity is subject to the provisions of the Procurement Code.

At least thirty days before entering any negotiations regarding a contractual agreement or a public/private partnership concerning the provision of home health services, the department shall place a public notice in a newspaper of general circulation for a period of no less than three consecutive days within the area where the services will be performed.

The department may establish requirements and conditions upon those entities joined in partnership or receiving transfer of the home care services, and licensing, and Certificate of Need including, but not limited to, transfer of employees, coverage of indigent patients, and payments or contributions to the department to continue the provision of basic public health services as determined by the department. All agreements must be reviewed and approved by the board of the department. The department may monitor and enforce the contract or partnership provisions and/or conditions of transfer or any other conditions or requirements of agreements entered into pursuant to this section.

All funds paid to or received by the department pursuant to this section must be deposited in an account separate and distinct from the general fund entitled the Public Health Fund (PHF). The funds deposited in this fund must be used solely by the department to support basic public health services determined to be necessary by the department. The appropriation of the funds must be through the General Appropriations Act.

Notwithstanding any of the provisions of this section, the department may continue to provide public health services in the clinic, the home, and the community necessary to ensure the protection and promotion of the public's health."

SECTION6. Sections 44-7-220 of the 1976 Code and 44-69-75(A) are repealed.

SECTION7. 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.

SECTION8. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, then such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION9. This act takes effect upon approval of by the Governor. /