Chapter 287
2009 -- S 0866 SUBSTITUTE A AS
AMENDED
Enacted 11/13/09
A N A C T
RELATING TO
HEALTH AND SAFETY -- DETERMINATION OF NEED FOR NEW HEALTH CARE EQUIPMENT AND
NEW INSTITUTIONAL HEALTH SERVICES
Introduced By: Senators Perry, Miller, Sosnowski, Sheehan, and Pichardo
Date Introduced: April 22, 2009
It is enacted by the
General Assembly as follows:
SECTION 1. Section 23-15-2 of the General Laws in Chapter
23-15 entitled
"Determination of Need
for New Health Care Equipment and New Institutional Health Services"
is hereby amended to read as follows:
23-15-2.
Definitions. -- As used in this chapter:
(1) "Affected
person" means and includes the person whose proposal is being reviewed,
or the applicant, health care facilities located within
the state which provide institutional health
services, the state medical society, the state osteopathic
society, those voluntary nonprofit area-
wide planning agencies that may be established in the state,
the state budget office, the office of
health insurance commissioner, any hospital or medical
service corporation organized under the
laws of the state, the statewide health coordinating
council, contiguous health systems agencies,
and those members of the public who are to be served by
the proposed new institutional health
services or new health care equipment.
(2) "Cost impact
analysis" means a written analysis of the effect that a proposal to offer
or develop new institutional health services or new
health care equipment, if approved, will have
on health care costs and shall include any detail that
may be prescribed by the state agency in
rules and regulations.
(3)
"Director" means the director of the
(4) (i) "Health care
facility" means any institutional health service provider, facility or
institution, place, building, agency, or portion of them, whether
a partnership or corporation,
whether public or private, whether organized for profit or
not, used, operated, or engaged in
providing health care services, which are limited to hospitals,
nursing facilities, inpatient
rehabilitation centers (including drug and/or alcohol abuse
treatment centers), and certain
facilities providing surgical treatment to patients not
requiring hospitalization (surgi-centers,
multi-practice physician ambulatory surgery centers and
multi-practice podiatry ambulatory
surgery centers)
and facilities providing inpatient hospice care. Single-practice
physician or
podiatry ambulatory surgery centers (as defined in subdivisions
23-17-2(13) and 23-17-2(14),
respectively) are exempt from the requirements of chapter 15 of
this title; provided, however, that
such exemption shall not apply if a single-practice
physician or podiatry ambulatory surgery
center is established by a medical practice group (as
defined in section 5-37-1) within two (2)
years following the formation of such medical practice
group, when such medical practice group
is formed by the merger or consolidation of two (2) or
more medical practice groups or the
acquisition of one medical practice group by another medical
practice group. The term "health
care facility" does not include Christian Science
institutions (also known as Christian Science
nursing facilities) listed and certified by the Commission
for Accreditation of Christian Science
Nursing Organizations/Facilities, Inc.
(ii) Any provider of
hospice care who provides hospice care without charge shall be
exempt from the provisions of this chapter.
(5) "Health care
provider" means a person who is a direct provider of health care
services (including but not limited to physicians, dentists,
nurses, podiatrists, physician assistants,
or nurse practitioners) in that the person's primary
current activity is the provision of health care
services for persons.
(6) "Health
services" means organized program components for preventive, assessment,
maintenance, diagnostic, treatment, and rehabilitative services
provided in a health care facility.
(7) "Health
services council" means the advisory body to the
department of health established in accordance with chapter 17
of this title, appointed and
empowered as provided to serve as the advisory body to the
state agency in its review functions
under this chapter.
(8) "Institutional
health services" means health services provided in or through health
care facilities and includes the entities in or through
which the services are provided.
(9) "New health
care equipment" means any single piece of medical equipment (and any
components which constitute operational components of the piece
of medical equipment)
proposed to be utilized by a health care provider (whether
practicing alone or as a member of a
partnership, corporation, organization, or association) in conjunction with the provision of
services to patients or the public, the capital costs of which
would exceed one million dollars
($1,000,000); provided, however, that the state agency
shall exempt from review any application
which proposes one for one equipment replacement as defined
in regulation.
(10) "New
institutional health services" means and includes:
(i)
Construction, development, or other establishment of a new health care
facility.
(ii) Any expenditure
except acquisitions of an existing health care facility which will not
result in a change in the services or bed capacity of the
health care facility by or on behalf of an
existing health care facility in excess of two million dollars
($2,000,000) which is a capital
expenditure including expenditures for predevelopment activities.
(iii) Where a person
makes an acquisition by or on behalf of a health care facility or
health maintenance organization under lease or comparable
arrangement or through donation,
which would have required review if the acquisition had
been by purchase, the acquisition shall
be deemed a capital expenditure subject to review.
(iv)
Any capital expenditure which results in the addition of a health
service or which
changes the bed capacity of a health care facility with
respect to which the expenditure is made,
except that the state agency may exempt from review by rules
and regulations promulgated for
this chapter any bed reclassifications made to licensed
nursing facilities and annual increases in
licensed bed capacities of nursing facilities that do not
exceed the greater of ten (10) beds or ten
percent (10%) of facility licensed bed capacity and for which
the related capital expenditure does
not exceed two million dollars ($2,000,000).
(v) Any health service
proposed to be offered to patients or the public by a health care
facility which was not offered on a regular basis in or
through the facility within the twelve (12)
month period prior to the time the service would be
offered, and which increases operating
expenses by more than seven hundred and fifty thousand dollars
($750,000), except that the state
agency may exempt from review by rules and regulations
promulgated for this chapter any health
service involving reclassification of bed capacity made to
licensed nursing facilities.
(vi)
Any new or expanded tertiary or specialty care service, regardless of
capital expense
or operating expense, as defined by and listed in
regulation, the list not to exceed a total of twelve
(12) categories of services
at any one time and shall include full body magnetic resonance
imaging and computerized axial tomography; provided, however,
that the state agency shall
exempt from review any application which proposes one for
one equipment replacement as
defined by and listed in regulation. Acquisition of full body
magnetic resonance imaging and
computerized axial tomography shall not require a certificate of
need review and approval by the
state agency if satisfactory evidence is provided to the
state agency that it was acquired for under
one million dollars ($1,000,000) on or before January 1,
2010 and was in operation on or before
July 1, 2010.
(11) "Person"
means any individual, trust or estate, partnership, corporation (including
associations, joint stock companies, and insurance companies),
state or political subdivision, or
instrumentality of a state.
(12)
"Predevelopment activities" means expenditures for architectural
designs, plans,
working drawings and specifications, site acquisition,
professional consultations, preliminary
plans, studies, and surveys made in preparation for the
offering of a new institutional health
service.
(13) "State
agency" means the
(14) "To
develop" means to undertake those activities which, on their completion,
will
result in the offering of a new institutional health service
or new health care equipment or the
incurring of a financial obligation, in relation to the
offering of that service.
(15) "To
offer" means to hold oneself out as capable of providing, or as having the
means for the provision of, specified health services or
health care equipment.
SECTION 2. Sections 23-17-2, 23-17-6, 23-17-50 and 23-17-57
of the General Laws in
Chapter 23-17 entitled
"Licensing of Health Care Facilities" are
hereby amended to read as
follows:
23-17-2.
Definitions. -- As used in this chapter:
(1) "Alzheimer's
dementia special care unit or program" means a distinct living
environment within a nursing facility that has been physically
adapted to accommodate the
particular needs and behaviors of those with dementia. The unit
provides increased staffing,
therapeutic activities designed specifically for those with
dementia, and trains its staff on an
ongoing basis on the effective management of the physical and
behavioral problems of those with
dementia. The residents of the unit/program have had a
standard medical diagnostic evaluation
and have been determined to have a diagnosis of
Alzheimer's dementia or another dementia.
(2) (i) "Change in operator"
means a transfer by the governing body or operator of a
health care facility to any other person (excluding
delegations of authority to the medical or
administrative staff of the facility) of the governing body's
authority to:
(A) Hire or fire the chief
executive officer of the health care facility;
(B) Maintain and
control the books and records of the health care facility;
(C) Dispose of assets
and incur liabilities on behalf of the health care facility; or
(D) Adopt and enforce
policies regarding operation of the health care facility.
(ii) This definition is
not applicable to circumstances wherein the governing body of a
health care facility retains the immediate authority and
jurisdiction over the activities enumerated
in subdivisions (2)(i)(A) --
(2)(i)(D).
(3) "Change in
owner" means:
(i)
In the case of a health care facility which is a partnership, the removal,
addition, or
substitution of a partner which results in a new partner acquiring
a controlling interest in the
partnership;
(ii) In the case of a
health care facility which is an unincorporated solo proprietorship,
the transfer of the title and property to another person;
(iii) In the case of a
health care facility that is a corporation:
(A) A sale, lease
exchange, or other disposition of all, or substantially all of the property
and assets of the corporation; or
(B) A merger of the
corporation into another corporation; or
(C) The consolidation
or two (2) or more corporations, resulting in the creation of a new
corporation; or
(D) In the case of a
health care facility which is a business corporation, any transfer of
corporate stock which results in a new person acquiring a
controlling interest in the corporation;
or
(E) In the case of a
health care facility which is a nonbusiness
corporation, any change in
membership which results in a new person acquiring a controlling
vote in the corporation.
(4)
"Clinician" means a physician licensed under title 5, chapter 37; a
nurse licensed
under title 5, chapter 34; a psychologist licensed under
title 5, chapter 44; a social worker licensed
under title 5, chapter 39.1; a physical therapist licensed
under title 5, chapter 40; and a speech
language pathologist or audiologist licensed under title 5,
chapter 48.
(5)
"Director" means the director of the
(6) "Health care
facility" means any institutional health service provider, facility or
institution, place, building, agency, or portion thereof, whether
a partnership or corporation,
whether public or private, whether organized for profit or
not, used, operated, or engaged in
providing health care services, including but not limited to
hospitals; nursing facilities; home
nursing care provider (which shall include skilled nursing
services and may also include activities
allowed as a home care provider or as a nursing service
agency); home care provider (which may
include services such as personal care or homemaker
services); rehabilitation centers; kidney
disease treatment centers; health maintenance organizations;
free-standing emergency care
facilities, and facilities providing surgical treatment to
patients not requiring hospitalization
(surgi-centers); hospice
care, and physician ambulatory surgery centers and podiatry ambulatory
surgery centers providing surgical treatment. The term
"health care facility" also includes
organized ambulatory care facilities which are not part of a
hospital but which are organized and
operated to provide health care services to outpatients such
as central services facilities serving
more than one health care facility or health care
provider, treatment centers, diagnostic centers,
outpatient clinics, infirmaries and health centers, school based
health centers and neighborhood
health centers. The term "health care facility"
also includes a mobile health screening vehicle as
defined in this section. The term "health care
facility" shall not apply to organized ambulatory
care facilities owned and operated by professional service
corporations as defined in chapter 5.1
of title 7, as amended (the "Professional Service
Corporation Law"), or to a private practitioner's
(physician, dentist, or other
health care provider) office or group of the practitioners' offices
(whether owned and/or
operated by an individual practitioner, alone or as a member of a
partnership, professional service corporation, organization, or
association). Individual categories
of health care facilities shall be defined in rules and
regulations promulgated by the licensing
agency with the advice of the health services council. Rules
and regulations concerning hospice
care shall be promulgated with regard to the
"Standards of a Hospice Program of Care",
promulgated by National Hospice Organization. Any provider of
hospice care who provides
hospice care without charge shall be exempt from the
licensing provisions of this chapter but
shall meet the "Standards of a Hospice Program of Care."
Facilities licensed by the department of
mental health, retardation, and hospitals and the department
of human services, and clinical
laboratories licensed in accordance with chapter 16.2 of this
title, as well as Christian Science
institutions (also known as Christian Science Nursing Facilities)
listed and certified by the
Commission for Accreditation of Christian Science
Nursing Organizations/Facilities, Inc. shall
not be considered health care facilities for purposes of
this chapter.
(7)
"Homemaker", or however else called, means a trained non-professional
worker who
performs related housekeeping services in the home for the
sick, disabled, dependent, or infirm,
and as further defined by regulation; the director shall
establish criteria for training.
(8)
"Hospital" means a person or governmental entity licensed in
accordance with this
chapter to establish, maintain and operate a hospital.
(9) "Licensing
agency" means the
(10) "Medical
services" means any professional services and supplies rendered by or
under the direction of persons duly licensed under the laws
of this state to practice medicine,
surgery, or podiatry that may be specified by any medical
service plan. Medical service shall not
be construed to include hospital services.
(11) "Non-English
speaker" means a person who cannot speak or understand, or has
difficulty in speaking or understanding, the English language,
because he/she uses only or
primarily a spoken language other than English, and/or a person
who uses a sign language and
requires the use of a sign language interpreter to facilitate
communication.
(12) "Person"
means any individual, trust or estate, partnership, corporation, (including
associations, joint stock companies, and insurance companies)
state, or political subdivision or
instrumentality of a state.
(13) "Physician
ambulatory surgery center" means an office or portion of an office which
is utilized for the purpose of furnishing surgical
services to the owner and/or operator’s own
patients on an ambulatory basis, and shall include both
single-practice physician ambulatory
surgery centers and multi-practice physician ambulatory
surgery centers. A “single-practice
physician ambulatory surgery center” is a physician ambulatory
center owned and/or operated by
a physician controlled professional service corporation
as (defined in chapter 5.1 of title 7 (the
"Professional Service Corporation Law")),
or a physician controlled limited liability company (as
defined in chapter 16 of title 7 (the “Limited Liability
Company Act)) in which no physician is an
officer, shareholder, director, or employee of any other
corporation engaged in the practice of the
same profession,
or a private physician's office or group of the physicians' offices
(whether
owned and/or operated by an individual practitioner, alone
or as a member of a partnership,
professional service corporation, limited liability company,
organization, or association). A
“multi-practice physician
ambulatory surgery center” is a physician ambulatory surgery center
owned and/or operated by a physician controlled
professional service corporation (as defined in
the Professional Service Corporation Law) or a physician
controlled limited liability company (as
defined in the Limited Liability Company Act) in which a
physician is also an officer,
shareholder, director, or employee of another corporation engaged
in the practice of the same
profession, or a group of physicians’ offices (whether owned
and/or operated by an individual
practitioner, alone or as a member of a partnership, professional
service corporation, limited
liability company, organization, or association). which is utilized
for the purpose of furnishing
surgical services to the owner and/or operator's own patients
on an ambulatory basis.
(14) "Podiatry
ambulatory surgery center" means an office or portion of an office which
is utilized for the purpose of furnishing surgical services
to the owner and/or operator’s own
patients on an ambulatory basis, and shall include both
single-practice podiatry ambulatory
surgery centers and multi-practice podiatry ambulatory
surgery centers. A “single-practice
podiatry ambulatory surgery center” is a podiatry ambulatory
center owned and/or operated by a
podiatrist controlled professional service corporation as (defined
in chapter 5.1 of title 7 (the
"Professional Service Corporation Law")),
or a podiatrist controlled limited liability company (as
defined in chapter 16 of title 7 (the “Limited Liability
Company Act”)) in which no podiatrist is
an officer, shareholder, director, or employee of any
other corporation engaged in the practice of
the same profession, or a private podiatrist's office or group of the podiatrists'
offices (whether
owned and/or operated by an individual practitioner, alone
or as a member of a partnership,
professional service corporation, limited liability company,
organization, or association). A
“multi-practice podiatry
ambulatory surgery center” is a podiatry ambulatory surgery center
owned and/or operated by a podiatry controlled professional
service corporation(as defined in the
Professional Service Corporation Law) or a podiatry
controlled limited liability company (as
defined in the Limited Liability Company Act) in which a
podiatrist is also an officer,
shareholder, director, or employee of another corporation engaged
in the practice of the same
profession, or a group of podiatrists’ offices (whether owned
and/or operated by a an individual
practitioner, alone or as a member of a partnership, professional
service corporation, limited
liability company, organization, or association). which is utilized
for the purpose of furnishing
surgical services to the owner and/or operator's own patients.
(15) "Qualified
interpreter" means a person who, through experience and/or training, is
able to translate a particular foreign language into
English with the exception of sign language
interpreters who must be licensed in accordance with chapter 71 of
title 5.
(16) "Qualified
sign language interpreter" means one who has been licensed in
accordance with the provisions of chapter 71 of title 5.
(17) "School based
health center" means a facility located in an elementary or secondary
school that delivers primary and preventive health care
services to students on site.
(18) "Mobile
health screening vehicle" means a mobile vehicle, van, or trailer that
delivers primary and preventive health care screening
services, and:
(i)
Does not maintain active contracts or arrangements with any health insurer
subject to
regulation under chapters 20 or 42 of title 27;
(ii) Does not maintain
active contracts or arrangements with another licensed health care
facility as that term is defined within this section; and
(iii) Does not provide
medical services free of charge.
23-17-6.
Issuance of license -- Posting -- Transfer -- Conditions.
-- (a) Upon receipt of
an application for a license, the licensing agency shall
issue a license if the applicant and health
care facility meet the requirements established under this
chapter and any rules and regulations
that may be established in accordance with the
requirements established under this chapter. A
license issued under the provisions of this section shall be
the property of the state and loaned to
the licensee, and it shall be kept posted in a
conspicuous place on the licensed premises. Each
license shall be issued only for the premises and persons
named in the application, and shall not
be transferable or assignable except with the written
approval of the licensing agency. Home
nursing care providers and home care providers operating
under a single license may establish
branch offices under that same single license and that
license shall be maintained and posted in
the central office.
(b) Any change in
owner, operator, or lessee of a licensed health care facility, except for
a physician office setting providing surgical
treatment, (except for
single-practice physician
ambulatory surgery centers, multi-practice physician ambulatory
surgery centers, single-practice
podiatry ambulatory surgery centers and multi-practice
podiatry ambulatory surgery centers as
defined in subsections 13 and 14 of chapter 17, section 2) which license shall be transferable or
assignable by decision of the licensing agency as shall be
provided by regulation, shall require
prior review by the health services council and approval of
the licensing agency as a condition
precedent to the transfer, assignment, or issuance of a new
license. Issuance of the license may be
made subject to any condition; provided, that no condition
may be made unless it directly relates
to the statutory purpose expressed in section 23-17-3 or
to the review criteria set forth in section
23-17-14.3. This shall not
limit the authority of the licensing agency to require correction of
conditions or defects which existed prior to the proposed change
of owner, operator, or lessee and
of which notice had been given to the health care
facility by the licensing agency.
23-17-50.
Physician ambulatory surgery center -- Accreditation, survey, complaint
investigation, and exemptions. -- (a) Accreditation from a national organization
acceptable to
the director may be required, at the discretion of the
director, in lieu of an annual survey by the
department.
(b) The provisions of subsection
(a) shall not limit in any way the prerogatives of the
director to inspect any physician ambulatory surgery center at
any reasonable time, whether for
purpose of general survey or for complaint investigation. The
director has access to all records of
the licensed physician ambulatory surgery center
including medical records.
(c) Physician Single
practice physician ambulatory surgery centers as defined in
subdivision 23-17-2(13)
are exempt from the requirements of chapter 15 of this title.
(d) Physician Single
practice physician ambulatory surgery centers as defined in
subdivision 23-17-2(13)
are exempt from the provisions of sections 23-17-14.3 and 23-17-14.4
with respect to initial licensure under this chapter.
23-17-57. Podiatry
ambulatory surgery center -- Accreditation, survey, complaint
investigation, and exemptions. -- (a) Accreditation from a national organization
acceptable to
the director may be required, at the discretion of the
director, in lieu of an annual survey by the
department.
(b) The provisions of
subsection (a) shall not limit in any way the prerogatives of the
director to inspect any podiatry ambulatory surgery center at
any reasonable time, whether for
purpose of general survey or for complaint investigation. The
director has access to all records of
the licensed podiatry ambulatory surgery center including
medical records.
(c) Podiatry Single
practice podiatry ambulatory surgery centers as defined in
subdivision 23-17-2(14)
are exempt from the requirements of chapter 15 of this title.
(d) Podiatry Single
practice podiatry ambulatory surgery centers as defined in
subdivision 23-17-2(14)
are exempt from the provisions of sections 23-17-14.3 and 23-17-14.4
with respect to initial licensure under this chapter.
SECTION 3. This act shall take effect upon passage.
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