W. Va. Code R. § 65-7-2

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

Section 65-7-2 - Definitions

As used in this legislative rule, all terms that are defined in section 2 of the Act have those same meanings which are in some cases further clarified in this section. Terms not defined in the Act have the following meanings unless the context expressly requires otherwise.

2.1. "Acquire a Health Care Facility" means to obtain by purchase, donation, lease, stock transfer or comparable arrangement a health care facility's assets used in the provision of health services or a majority of stock, including the transfer of a health care facility from a subsidiary corporation to its parent corporation or vice versa or including a change or transfer of the licensee of the health care facility.

2.2. "Act" means the certificate of need act, W. Va. Code § 16-2D-1 et seq.

2.3. "Batching" means the consideration of completed certificate of need applications which pertain to similar types of services, facilities or equipment affecting the same health service area.

2.4. "Batching Category" means any one of the groupings in section 10 of this rule.

2.5. "Board" means the West Virginia Health Care Authority established pursuant to W. Va. Code § 16-29B-5 and which is designated to administer the certificate of need program by W. Va. Code § 16-29B-11.

2.6. "Certificate of Need" means a document issued by the board which indicates that a proposed new institutional health service is in compliance with the intent, purposes and provisions of W. Va. Code § 16-2D-1 et seq., and that a need exists for the proposed new institutional health service.

2.7. "Consistent With The State Health Plan" means a determination made by the board that the preponderance of the evidence supports the achievement of the applicable provisions of the State Health Plan unless the Plan is in conflict with any statute or this rule.

2.8. "Diagnostic services" means, the offering or development of laboratory or imaging services at a new or existing health care facility or health maintenance organization; provided however, that a health care facility or health maintenance organization already offering one or more laboratory or imaging services, including but not limited to, radiology, ultrasound, mammography, fluoroscopy, nuclear imaging, densitometry, or computerized tomography at its existing facility, and proposing to add at its existing health care facility laboratory or imaging services not otherwise enumerated under subsection 28.1 and not constituting major medical equipment under subdivision 2.16.j, shall not be deemed to be engaged in the addition of health care services under subdivision 2.16.e of this rule.

2.9. "Emergency Circumstances That Pose A Threat To Public Health" means those circumstances proclaimed by the Secretary of the Department of Health and Human Resources to be an emergency which pose a threat to public health or those circumstances upon which a state of emergency is declared pursuant to W. Va. Code § 15-5-6.

2.10. "Health Care Facility" has the same meaning as contained in W. Va. Code § 16-2D-2(j), but does not include personal care homes as defined in W. Va. Code § 16-5D-2, state homes for qualified veterans as defined in W. Va. Code § 9A-2-1, or any institution operated by or on behalf of the West Virginia Division of Corrections.

2.11. "Non-health Related Project" is a project that exceeds the expenditure minimum for capital expenditures but the expenditure is for a non-health related purpose. Examples of a non-health related project are a telephone system, a heating and cooling system, a parking garage, etc.

2.12. "Parties" means the applicant and, if a hearing is held, the person requesting the hearing and all persons designated by the board as parties to the hearing.

2.13. "Potentially Unnecessarily Duplicative," used as a term to describe applications, means those applications in the same review cycle which propose new institutional health services to serve the same or similar health needs of the same or potentially the same population.

2.14. "Private Office Practice" means the independent practice of one or more health professionals that meets the following requirements:

2.14.a. The independent practice of one or more health professionals consists of one profession and is licensed, authorized, or organized pursuant to the provisions of Chapter 30 of the West Virginia Code in one of the following ways:

2.14.a.1. As a sole proprietorship wholly owned and operated by a health professional who is duly licensed pursuant to the provisions of Chapter 30 of the West Virginia Code;

2.14.a.2. As a partnership wholly owned and operated by two or more health professionals who are duly licensed pursuant to the provisions of Chapter 30 of the West Virginia Code;

2.14.a.3. As a professional corporation duly registered with or certified by the appropriate health professional licensure board; or

2.14.a.4. As a professional limited liability company duly registered with or certified by the appropriate health professional licensure board.

2.14.b. Practice composition:

2.14.b.1. If the practice is a for-profit entity, the entity must be owned exclusively by health professionals, all of whom are duly licensed to practice in the State of West Virginia.

2.14.b.2. If the practice is a non-profit entity and has a membership, all of the members of the entity must be health professionals, all of whom are duly licensed to practice in the State of West Virginia.

2.14.b.3. If the practice is a non-profit entity and does not have a membership, the governing body of the entity must be composed exclusively of health professionals, all of whom are duly licensed to practice in the State of West Virginia.

2.14.c. The independent practice of health professionals is not controlled directly or indirectly, in whole or part, by any third person or entity. That control can be manifested in one or more of the following ways:

2.14.c.1. The ability of a third person or entity to nominate, appoint, elect, or remove one or more members of the practice's governing board or committee, or the ability of a third person or entity to exercise the voting power of one or more members of the governing board or committee by means of a voting trust, a voting agreement, proxy, or any other arrangement;

2.14.c.2. The ability of a third person or entity to require its approval of an action that would otherwise be within the sole purview of the practice's governing board or committee, or the ability of a third person or entity to veto an action that would otherwise be within the sole purview of the governing board or committee, regardless of whether the approval or veto power is granted by the practice's organizational documents (partnership agreement, articles of incorporation, articles of organization, bylaws, policies, etc.), by contract, or by any other means;

2.14.c.3. The ability of a third person or entity to require the practice's governing board or committee to amend or restate its organizational documents; to incur or refinance indebtedness; to assign, sell, lease, mortgage, encumber, or otherwise transfer interests in the practice's assets; to merge, consolidate, or dissolve the practice; or to otherwise direct or require any other significant action that would otherwise be within the sole purview of the practice's governing board or committee; or

2.14.c.4. The agreement of any third person or entity (other than the lender or an insurer) to guarantee, pay, or otherwise discharge any indebtedness, liability, or other financial obligation of the practice.

2.14.d. For purposes of this definition, the term "third person or entity" shall not include any person who is a health professional duly licensed pursuant to the provisions of Chapter 30 of the West Virginia Code, and who is participating in the practice as either the owner of a sole proprietorship, a partner of a partnership, a shareholder of a proprietary professional corporation, a member of a nonprofit professional corporation or a professional limited liability company, or an employed provider of professional health services to patients of the practice. All other persons constitute a "third person or entity".

2.14.e. Notwithstanding anything in this subsection 2.14 to the contrary, any practice granted a determination of nonreviewability as a private office practice by the board on or before July 1, 2010 is and shall remain a private office practice under the Act; provided there has been no material change in the facts and circumstances provided in the original request for determination of reviewability.

2.15. "Project" means a proposed new institutional health service.

2.16. "Proposed New Institutional Health Service" means:

2.16.a. The construction, development, acquisition or other establishment of a new health care facility or health maintenance organization including the acquisition of a health care facility which is not currently in operation or is not currently being operated as a health care facility but which has been operated as one in the past;

2.16.b. The partial or total closure of a health care facility or health maintenance organization with which a capital expenditure is associated;

2.16.c. Any obligation for a capital expenditure incurred by or on behalf of a health care facility, or health maintenance organization, except as exempted by this rule, in excess of the expenditure minimum or any obligation for a capital expenditure incurred by any person to acquire a health care facility. An obligation for a capital expenditure is considered to be incurred by or on behalf of a health care facility:

2.16.c.1. When a contract, enforceable under state law, is entered into by or on behalf of the health care facility for the construction, acquisition, lease or financing of a capital asset, the contract is the result of arms length negotiations; and, the board determines that the contract was not undertaken as a means of technically complying with the requirement that a capital expenditure be incurred, but was entered into with the actual intent to proceed timely towards the completion of the project. The contract shall also contain a fixed starting date and completion date;

2.16.c.2. When the governing board of the health care facility takes formal action to commit its own funds for a construction project undertaken by the health care facility as its own contractor; and the resolution contains a fixed starting date and completion date; or

2.16.c.3. In the case of donated property, on the date on which the gift is completed under state law;

2.16.d. A substantial change to the bed capacity of a health care facility with which a capital expenditure is associated;

2.16.e. The addition of any health service specified in section 28 of this rule offered by or on behalf of a health care facility or health maintenance organization and which was not offered on a regular basis by or on behalf of the health care facility or health maintenance organization within the twelve-month period prior to the time the services would be offered;

2.16.f. The addition of ventilator services for any nursing facility bed by any health care facility or health maintenance organization;

2.16.g. The deletion of one or more health services, previously offered on a regular basis by or on behalf of a health care facility or health maintenance organization, when the deletion is associated with a capital expenditure;

2.16.h. A substantial change to the bed capacity or health services offered by or on behalf of a health care facility, whether or not the change is associated with a proposed capital expenditure, if the change is associated with a previous capital expenditure for which a certificate of need was issued and if the change will occur within two years after the date the activity which was associated with the previously approved capital expenditure was undertaken;

2.16.i. The expansion of any of the following health services, whether or not the expansion is associated with a capital expenditure: open heart surgery rooms, cardiac catheterization laboratories, radiation therapy equipment, magnetic resonance imaging (MRI) equipment, PET scanners or lithotripters;

2.16.j. The acquisition of major medical equipment;

2.16.k. A substantial change in an approved new institutional health service for which a certificate of need is in effect; or,

2.16.l. An expansion of the service area for hospice or home health service, regardless of the time period in which the expansion is contemplated or made.

2.17. "Undertaken," when used to describe an activity for which a certificate of need has been issued or for which an exemption was granted, means the first use of the new institutional health service for its intended purpose.

2.18. "Verification" means a signed statement made under oath before a notary public that the information is knowingly provided and is true and correct.

W. Va. Code R. § 65-7-2