W. Va. Code R. § 65-7-11

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 65-7-11 - Application Review Procedure

11.1. This section applies to the review of standard and expedited applications.

11.2. A health care facility shall not offer or develop in this state any new institutional health service, until the health care facility submits an application for a certificate of need and the certificate of need is approved by the board or the health care facility is exempt from certificate of need.

11.3. Any person proposing a new institutional health service shall file with the board a letter of intent at least fifteen (15) days before the submission of an application. The letter of intent shall contain sufficient information to advise the board of the nature, scope, cost and timing of the project, as well as the location and name of the proposed applicant. Letters of intent are effective for one year from the date of their filing.

11.4. Upon receipt of a certificate of need application, the board shall determine whether the application is complete or whether additional information is required. A declaration by the board that an application is complete means that there is sufficient information contained in the application for the board to make an informed decision. It does not mean that the approval of the application is warranted. Except in emergency situations that pose a threat to the public health, the board shall not declare an application complete if:

11.4.a. A long-range plan with a sufficient level of detail acceptable to the board and adopted by the applicant within the preceding five (5) years is not on file with the board; or

11.4.b. The applicant is a health care facility subject to the financial disclosure provisions of W. Va. Code § 16-5F-1 et seq. or W. Va. Code § 16-29B-1 et seq., and the health care facility has failed to file with the board all reports, records, data or other information required by the Code and the rules promulgated pursuant to the Code.

11.5. The board shall make a determination of completeness within fifteen (15) days of its receipt of the application. If the board determines that the application is not complete, it may request additional information or ask additional questions. Upon receipt of the additional information, the board has fifteen (15) days within which to determine if the application is complete. If the applicant fails to respond within one hundred eighty (180) days, the application is considered withdrawn. If the applicant later desires to pursue the project, the applicant shall file a new letter of intent and an application.

11.6. Upon a determination by the board that an application is complete, the board shall publish a notice in the Saturday Charleston newspapers and the State Register. The notice shall, at a minimum, contain the following:

11.6.a. The name of the applicant;

11.6.b. A description of the proposed project;

11.6.c. The date the review cycle begins;

11.6.d. The last date for an affected person to request a public hearing;

11.6.e. The file closing date if no public hearing is requested;

11.6.f. The date upon which the board will issue a decision;

11.6.g. If applicable, a statement that the board has determined that the application is potentially unnecessarily duplicative of other applications under review; and

11.6.h. If the application is one for expedited review, the last date for an affected person to present reasons why the applicant should complete a standard application.

11.7. If the application is for expedited review and the board has published the required notice of completeness, any affected person may present reasons why the board should require the applicant to proceed with the project only upon the filing of a standard application. The affected person shall submit the reasons in writing within ten (10) days of the date the review cycle begins. The board shall then determine whether cause exists to require the applicant to use the standard application process. If the board determines that the standard application process should be used, it shall immediately terminate the review of the expedited application.

11.8. When a determination of completeness is made by the board and the notice specified in subsection 11.6 of this rule is published, affected persons may request a public hearing within thirty (30) days from the beginning of the review period. A request for a public hearing shall be in writing and shall be addressed to: General Counsel, West Virginia Health Care Authority, Certificate of Need Program, 100 Dee Drive, Suite 201, Charleston, West Virginia 25311.

11.9. The board shall hold a public hearing on an application if it is requested within the time period specified by subsection 11.8 of this rule by any affected person. The board may also hold a public hearing upon its own initiative. The board shall conduct the public hearing in accordance with the requirements for administrative hearings found in W. Va. Code § 29A-5-1 et seq.

11.10. If a public hearing is held on an application, and the board has determined other applications to be potentially unnecessarily duplicative, the board shall hold the public hearing on the application and all other applications that are potentially unnecessarily duplicative.

11.11. When a public hearing is scheduled to be conducted upon an application, the board shall, prior to the hearing, provide notice to all parties and publish notice in the Saturday Charleston newspapers and the State Register. The notice shall, at a minimum, contain the following:

11.11.a. The name of the applicant;

11.11.b. A description of the proposed project;

11.11.c. The date of the public hearing; and

11.11.d. The date of any prehearing conference.

11.12. Whenever a public hearing is scheduled upon any application, the board may direct the parties to appear for a prehearing conference. The prehearing conference may be held before any member of the board or before a hearing examiner appointed by the board. The board or its designee shall designate parties to the public hearing at the prehearing conference. The board may designate affected persons as parties after the prehearing conference only for good cause shown.

11.13. Parties shall file all prehearing motions with the board a minimum of three days prior to the prehearing conference or in accordance with the date established by the time frame order entered in the case, whichever is sooner. The board or its designee may consider motions at the prehearing conference.

11.14. Parties shall exchange a list of all witnesses and copies of all documents to be presented or introduced at a public hearing with all other parties to the hearing. The witness lists and the copies of the documents shall be filed by the parties with the board or its designee during or prior to the prehearing conference unless a different date is established by the board or its designee. Failure to comply with this section is sufficient grounds for the board or its designee to disallow the testimony of a proposed witness or disallow the introduction of any exhibit.

11.15. Parties shall file the original and two copies of all communications concerning a pending application with the board. A standard certificate of service shall be attached to each written communication which shows that copies have been sent by the regular United States Mail, postage prepaid, to all other parties to the matter. A list of all parties to a matter may be obtained from the board. The board or its designee may strike a written communication from the record if it does not comply with the requirements of this section.

11.16. The board may subpoena witnesses, papers, records, documents and any other information or data it considers necessary for its determination. The board shall issue all subpoenas and subpoenas duces tecum in the name of the board. Any party requesting a subpoena or subpoena duces tecum is responsible for seeing that they are properly served. Service of subpoenas or subpoenas duces tecum issued at the instance of the board is the responsibility of the board.

11.17. All requests for subpoenas and subpoenas duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay all fees for the attendance and travel of witnesses.

11.18. Every subpoena or subpoena duces tecum issued at the request of a party shall be served by the party at least five (5) days before the return date, either by personal service by a person over eighteen (18) years of age or by registered or certified mail, return receipt requested. If service is by mail, the five (5) day notice period shall not begin until the date the person or entity receives the subpoena or subpoena duces tecum.

11.19. Fees for the attendance of witnesses are the same as for witnesses before the circuit court of this State and shall be paid by the party requesting the issuance of the subpoena or subpoena duces tecum.

11.20. In any case of disobedience or neglect of any subpoena or subpoena duces tecum issued by the board, or any refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, the board may apply to the Circuit Court of Kanawha County, and the court shall compel obedience through the same manner as a subpoena or subpoena duces tecum is enforced in Kanawha County Circuit Court.

11.21. The affected parties may engage in discovery as provided by the West Virginia Rules of Civil Procedure. The scope of discovery is limited to relevant and admissible evidence. Affected parties engaging in discovery are required to file a copy of the certificate of service attached to the discovery request or response with the board. Affected parties shall not file copies of the actual discovery and responses with the board.

11.22. In a public hearing, any party may be represented by counsel and may present oral or written arguments and evidence relevant to the matter which is the subject of the hearing. Any party may conduct reasonable cross-examination of persons who testify at the proceeding.

11.23. All witnesses who testify during a hearing are first subject to oath or affirmation.

11.24. The board shall maintain a verbatim record of the public hearing.

11.25. After the commencement of a public hearing on an application, and before a decision is rendered by the board, there shall be no ex parte contacts between the applicant, any person acting on behalf of the applicant or any person opposed to the application with the board or any of its employees or agents who exercise any responsibility regarding the application.

11.26. The board or its designee may continue a public hearing on an application and the board may elect to hold a rehearing on any application at its sole discretion.

11.27. If a public hearing is not conducted during the review of a standard application in batching categories (a) through (g) of subsection 10.1 of this rule, the board shall close the file on the seventy-fifth day of the review. The board may extend the file closing date pursuant to section 13 of this rule.

11.28. If a public hearing is not conducted during the review of an expedited application or an application falling within batching category (h) of subsection 10.1 of this rule, the board shall close the file on the thirty-first day of the review. The board may extend the file closing date pursuant to section 13 of this rule.

11.29. At any time prior to the file closing date, the board shall, upon written request, provide a detailed itemization of the documents in the board's file on a proposed new institutional health service.

11.30. The board may, after the publication of a legal notice in the Saturday Charleston newspapers, and allowing thirty (30) days after the publication for public comment, adopt population projections for use in certificate of need decisions.

W. Va. Code R. § 65-7-11