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S. 887
STATUS INFORMATION
General Bill
Sponsors: Senators Cleary and Fair
Document Path: l:\council\bills\ggs\22002ab08.doc
Introduced in the Senate on January 8, 2008
Currently residing in the Senate Committee on Medical Affairs
Summary: DHEC
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/5/2007 Senate Prefiled
12/5/2007 Senate Referred to Committee on Medical Affairs
1/8/2008 Senate Introduced and read first time SJ-46
1/8/2008 Senate Referred to Committee on Medical Affairs SJ-46
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 44-7-160, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIRCUMSTANCES REQUIRING A CERTIFICATE OF NEED, SO AS TO INCREASE TO TWO MILLION DOLLARS THE THRESHOLD AMOUNT OF CERTAIN EXPENDITURES REQUIRING A CERTIFICATE OF NEED, TO DELETE SPECIFIC REQUIREMENTS TO INCLUDE WHEN DETERMINING WHETHER AN EXPENDITURE EXCEEDS THE LIMIT, AND TO REQUIRE A CERTIFICATE OF NEED FOR THE ACQUISITION OF CERTAIN MEDICAL EQUIPMENT COSTING MORE THAN EIGHT HUNDRED THOUSAND DOLLARS; TO AMEND SECTION 44-7-170, RELATING TO EXEMPTIONS FROM THE CERTIFICATE-OF-NEED REQUIREMENT, SO AS TO PROVIDE THAT AN EXEMPTION FOR CERTAIN NONMEDICAL EXPENDITURES DOES NOT REQUIRE WRITTEN EXEMPTION FROM THE DEPARTMENT; TO AMEND SECTION 44-7-210, SO AS TO REQUIRE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL COMPLETE THE CERTIFICATE-OF-NEED APPLICATION REVIEW PROCESS IN A TIMELY MANNER AND TO IMPOSE A SIXTY-DAY PERIOD IN WHICH A PUBLIC HEARING ON AN APPLICATION MAY BE HELD; AND TO AMEND SECTION 44-7-220, RELATING TO JUDICIAL REVIEW OF FINAL CERTIFICATE-OF-NEED DECISIONS OF THE SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL BOARD, SO AS TO PROVIDE THAT ONLY AN AFFECTED PERSON WHO HAS PARTICIPATED IN THE CERTIFICATE-OF-NEED PROCESS MAY APPEAL A FINAL DECISION OF THE BOARD, TO INCREASE THE AMOUNT OF A BOND THAT MUST BE POSTED IN CONJUNCTION WITH CERTAIN APPEALS, AND TO MAKE THE AWARD OF THE ENTIRE BOND AND REASONABLE ATTORNEY'S FEES AND COSTS MANDATORY IN CERTAIN CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. 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 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 which, under generally acceptable accounting principles consistently applied, is considered a capital expenditure two million dollars except those expenditures 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;
(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 State 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 which has an annual operating cost in excess of an amount to be prescribed by regulation and for which specific standards or criteria are prescribed in the State Health Plan;
(6) the acquisition of medical equipment which that is to be used for diagnosis or treatment if the total project cost is in excess of that prescribed by regulation exceeds eight hundred thousand dollars;
(7) the acquisition or change in ownership or in controlling interest of a health care facility or entity owning a health care facility directly or indirectly by purchase, lease, gift, donation, sale of stock, or comparable arrangement if the acquisition or change in ownership or controlling interest may result in an increase in cost to the facility or increase in government-sponsored reimbursement;
(8) the acquisition of an existing health care facility by a person who has failed to notify the department and seeks an exemption before entering into a contractual arrangement to acquire an existing facility;
(9) an expenditure or financial obligation made in preparation for the offering or developing of a project which requires certification of need pursuant to this section if the expenditure or financial obligation is in excess of an amount to be prescribed by regulation."
SECTION 2. Section 44-7-170(B) of the 1976 Code is amended to read:
"(B) The Certificate-of-Need provisions of this article do not apply to:
(1) an expenditure by or on behalf of a health care facility for nonmedical projects for services such as refinancing existing debt, parking garages, laundries, roof replacements, computer systems, telephone systems, heating and air conditioning systems, upgrading facilities which do not involve additional square feet or additional health services, replacement of like equipment with similar capabilities, or similar projects as described in regulations. Notwithstanding another provision of law, a healthcare facility exempt under this item is not required to obtain a written exemption from the department;
(2) facilities owned and operated by the State Department of Mental Health and the South Carolina Department of Mental Retardation, except an addition of one or more beds to the total number of beds of the departments' health care facilities existing on July 1, 1988;
(3) educational and penal institutions maintaining infirmaries for the exclusive use of student bodies and inmate populations;
(4) any federal health care facility sponsored and operated by this State;
(5) community-based housing designed to promote independent living for persons with mental or physical disabilities. This does not include a facility defined in this article as a 'health care facility'.;
(6) kidney disease treatment centers including, but not limited to, free standing hemodialysis centers and renal dialysis centers."
SECTION 3. Section 44-7-210 of the 1976 Code is 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 of affected persons begins the review period. During the review process, the department shall determine the relative importance of the project review criteria for this project and shall notify the applicant of this determination. The applicant has thirty days from the date of the receipt of this notice to submit any additional information. The review period for a completed application is sixty days from the date of notification of affected persons, or up to sixty days from the date that applicants are notified of the relative importance of project review criteria provided for in this section, whichever is longer. The department shall make every reasonable effort to complete the review in as timely manner as possible. One extension of up to sixty days may be granted by the department in accordance with departmental regulations with the exception of an extension that is granted to comply with a request for a public hearing.
(B) The department may hold a public hearing no more than sixty days after the department determines that an application is complete, if timely requested, to gather information and obtain public comment and opinion about the proposed project.
(C) The department may not issue a Certificate of Need unless an application complies with the 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 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 by the department.
(D) On the basis of staff review of the application, the staff of the department shall make a proposed decision to grant or deny the Certificate of Need. Notice of the proposed decision must be sent to the applicant and affected persons who have asked to be notified. The proposed decision becomes the final agency decision within ten days after the receipt of a notice of the proposed decision by the applicant unless a:
(1) a reconsideration by the staff of the department is requested in writing within the ten-day period by an affected person showing good cause for reconsideration of the proposed decision; or
(2) a contested case hearing before the board, or its designee, regarding the grant or denial of the Certificate of Need is requested in writing within the ten-day period by the applicant or other affected person with standing to contest the grant or denial of the application.
Reconsideration by the staff must occur within thirty days from receipt of the request.
(E) The department's proposed decision is not final until the completion of reconsideration or contested case proceedings. The burden of proof in a reconsideration or contested case hearing must be upon the moving party. The contested case hearing before the board or its designee is conducted as a contested case under the Administrative Procedures Act. The issues considered at the contested case hearing are limited to those presented or considered during the staff review and decision process.
(F) The department may not issue a Certificate-of-Need approval for a methadone treatment facility until licensure standards are promulgated by the department, in accordance with the Administrative Procedures Act, for these facilities. The department shall convene a study group to revise and propose licensure standards for methadone clinics. The study group shall consist of representatives of the department, the Department of Alcohol and Other Drug Abuse Services, methadone providers in South Carolina, and the Medical University of South Carolina. The licensure standards shall include standards for location of these facilities within the community. Methadone treatment facilities licensed as of January 1, 1997, must not be required to obtain a Certificate of Need pursuant to this section."
SECTION 4. Section 44-7-220 of the 1976 Code is amended to read:
"Section 44-7-220. After the contested case hearing is concluded and a final board decision is made, a party who participated in the contested case hearing and who is affected adversely by the board's decision may obtain judicial review of the decision in the circuit court pursuant to the Administrative Procedures Act. Notwithstanding another provision of law, an affected person who has not participated in the Certificate-of-Need process may not appeal a final decision of the board in a Certificate-of-Need case. An appeal taken to the circuit court from a decision of the board on a Certificate-of-Need application has precedence on the court's calendar and must be heard not later than forty-five days from the date the petition is filed.
An applicant whose Certificate-of-Need application is denied by the board in favor of a competing application or a party adversely affected by the board's decision shall deposit a bond with the clerk of court for the circuit court before the filing of a petition to appeal a final decision of the board granting or denying a Certificate of Need. The bond must be secured by cash or a surety authorized to do business in this State in an amount equal to five ten percent of the total cost of the project or twenty twenty-five thousand dollars, whichever is greater. If the court affirms the decision of the board or dismisses the appeal, the court may shall award to the applicant approved for the Certificate of Need who is a party to the appeal all or a portion of the bond and may award reasonable attorney's fees and costs incurred in the appeal. If an applicant appeals only the denial of his Certificate-of-Need application and there is no competing application involved in the appeal, the applicant is not required to deposit a bond with the circuit court.
If, at any stage of the appeal process involving the grant or denial of a Certificate of Need, the court finds that the appeal was frivolous, the court may award damages to the applicant approved for the Certificate of Need in addition to awarding the approved applicant single or double costs incurred in the appeal. In the case of a frivolous appeal of a denial of a Certificate of Need, which does not involve a competing application, the court may award costs incurred in the appeal to the department.
As used in this section, 'frivolous appeal' means any one of the following:
(1) an appeal taken solely for purposes of delay or harassment;
(2) where no question of law is involved;
(3) where the appeal is without merit."
SECTION 5. This act takes effect upon approval by the Governor.
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