PRINTER'S NO. 4176
No. 2760 Session of 2004
INTRODUCED BY BAKER, STERN, BOYD, CREIGHTON, DAILEY, HESS,
KELLER, MANDERINO, MUNDY, PISTELLA, SATHER, T. STEVENSON,
TANGRETTI, E. Z. TAYLOR, J. TAYLOR, THOMAS, TIGUE, WALKO,
YOUNGBLOOD AND DeLUCA, JUNE 28, 2004
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
JUNE 28, 2004
AN ACT
1 Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An
2 act relating to health care; prescribing the powers and
3 duties of the Department of Health; establishing and
4 providing the powers and duties of the State Health
5 Coordinating Council, health systems agencies and Health Care
6 Policy Board in the Department of Health, and State Health
7 Facility Hearing Board in the Department of Justice;
8 providing for certification of need of health care providers
9 and prescribing penalties," reenacting and amending
10 provisions relating to certificates of need.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. The title of the act of July 19, 1979 (P.L.130,
14 No.48), known as the Health Care Facilities Act, is reenacted
15 and amended to read:
16 AN ACT
17 Relating to health care; prescribing the powers and duties of
18 the Department of Health; establishing and providing the
19 powers and duties of the [State Health Coordinating Council,
20 health systems agencies and] Health [Care] Policy Board in
1 the Department of Health[, and State Health Facility Hearing
2 Board in the Department of Justice]; and providing for
3 certification of need of health care providers and
4 prescribing penalties.
5 Section 2. Section 103 of the act, amended December 18, 1992
6 (P.L.1602, No.179) and October 16, 1998 (P.L.777, No.95), is
7 reenacted and amended to read:
8 Section 103. Definitions.
9 The following words and phrases when used in this act shall
10 have, unless the context clearly indicates otherwise, the
11 meanings given to them in this section:
12 "Act." The comprehensive Health Care Facilities Act.
13 "Board." The Health Policy Board established under section
14 401.1.
15 "Certificate of need." A notice of approval issued by the
16 department under the provisions of this act, including those
17 notices of approval issued as an amendment to an existing
18 certificate of need.
19 "Clinically related health service." Certain diagnostic,
20 treatment or rehabilitative services as determined in section
21 701.
22 "Community-based health services planning committee." A
23 committee established in accordance with procedures approved by
24 the Department of Health which includes representatives of local
25 or regional groups of consumers, business, labor, health care
26 providers, payors or other affected interests.
27 "Conflict of interest." For the purpose of section 501, the
28 interest of any person, whether financial, by association with,
29 or as a contributor of money or time to, any nonprofit
30 corporation or other corporation, partnership, association, or
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1 other organization, and whenever a person is a director, officer
2 or employee of such organization, but shall not exist whenever
3 the organization in which such person is interested is being
4 considered as part of a class or group for whom regulations are
5 being considered, if the material facts as to the relationship
6 or interest are disclosed or are known to the board.
7 "Consumer." A natural person who is not involved in the
8 provision of health services or health insurance. For the
9 purpose of this act, any person who holds a fiduciary position
10 in any health care facility, health maintenance organization or
11 third party payor shall not be considered a consumer.
12 "Department." The Department of Health.
13 "Develop." When used in connection with health services or
14 facilities, means to undertake those activities which on their
15 completion will result in the offer of a new health service or
16 the incurring of a financial obligation in relation to the
17 offering of such a service.
18 "Health care facility." For purposes of Chapter 7, any
19 health care facility providing clinically related health
20 services, including, but not limited to, a general or special
21 hospital, including psychiatric hospitals, rehabilitation
22 hospitals, ambulatory surgical facilities, long-term care
23 nursing facilities, cancer treatment centers using radiation
24 therapy on an ambulatory basis and inpatient drug and alcohol
25 treatment facilities, both profit and nonprofit and including
26 those operated by an agency or State or local government. The
27 term shall also include a hospice. The term shall also include
28 an office where reviewable clinically related health services
29 are offered. The term shall not include an office used primarily
30 for the private or group practice by health care practitioners
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1 where no reviewable clinically related health service is
2 offered, a facility providing treatment solely on the basis of
3 prayer or spiritual means in accordance with the tenets of any
4 church or religious denomination or a facility conducted by a
5 religious organization for the purpose of providing health care
6 services exclusively to clergy or other persons in a religious
7 profession who are members of the religious denominations
8 conducting the facility.
9 "Health care practitioner." An individual who is authorized
10 to practice some component of the healing arts by a license,
11 permit, certificate or registration issued by a Commonwealth
12 licensing agency or board.
13 "Health care provider" or "provider." An individual, a trust
14 or estate, a partnership, a corporation (including associations,
15 joint stock companies and insurance companies), the
16 Commonwealth, or a political subdivision or instrumentality
17 (including a municipal corporation or authority) thereof, that
18 operates a health care facility.
19 "Health planning area." A geographic area within the
20 Commonwealth designated by the Department of Health for purposes
21 of health planning.
22 ["Hearing board." The State Health Facility Hearing Board
23 created in the Office of General Counsel under the provisions of
24 this act.]
25 "Interested person" or "person expressing an interest." For
26 the purposes of Chapter 7, a member of the public who is to be
27 served by the proposed new health service in the area to be
28 served by the applicant, a health care facility or health
29 maintenance organization or any health care provider providing
30 similar services in the area to be served by the applicant or
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1 who has received a certificate of need to provide services in
2 the area to be served by the applicant or who has formally filed
3 with the department a letter of intent to provide similar
4 services in the area in which the proposed service is to be
5 offered or developed and any third party payor of health
6 services provided in that area who provides written notice to
7 the department that the person is interested in a specific
8 certificate of need application before the department.
9 "Offer." Make provision for providing in a regular manner
10 and on an organized basis clinically related health services.
11 "Patient." A natural person receiving health care in or from
12 a health care provider.
13 "Person." A natural person, corporation (including
14 associations, joint stock companies and insurance companies),
15 partnership, trust, estate, association, the Commonwealth, and
16 any local governmental unit, authority and agency thereof.
17 "Policy board." The Health Policy Board created in the
18 Department of Health under the provisions of this act.
19 "Public meeting." A meeting open to the public where any
20 person has an opportunity to comment on a certificate of need
21 application or proposed State health services plan amendment.
22 "Secretary." The Secretary of the Department of Health of
23 the Commonwealth of Pennsylvania.
24 "State health services plan." A document developed by the
25 Department of Health, after consultation with the policy board
26 and approved by the Governor, that is consistent with section
27 401.3, that meets the current and projected needs of the
28 Commonwealth's citizens. The State health services plan shall
29 contain, in part, the standards and criteria against which
30 certificate of need applications are reviewed and upon which
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1 decisions are based.
2 "Third party payor." A person who makes payments on behalf
3 of patients under compulsion of law or contract who does not
4 supply care or services as a health care provider or who is
5 engaged in issuing any policy or contract of individual or group
6 health insurance or hospital or medical service benefits. The
7 term shall not include the Federal, State, or any local
8 government unit, authority, or agency thereof or a health
9 maintenance organization.
10 Section 3. Section 201 of the act, amended December 18, 1992
11 (P.L.1602, No.179), is reenacted and amended to read:
12 Section 201. Powers and duties of the department.
13 The Department of Health shall have the power and its duties
14 shall be:
15 (1) To exercise exclusive jurisdiction over health care
16 providers in accordance with the provisions of this act.
17 (2) To issue determinations of reviewability or
18 nonreviewability of certificate of need proposals.
19 (3) To issue certificates of need and amended
20 certificates of need in accordance with the provisions of
21 this act.
22 (4) To withdraw expired certificates of need.
23 (5) To require, pursuant to regulation, submission of
24 periodic reports by providers of health services and other
25 persons subject to review respecting the development of
26 proposals subject to review.
27 [(6) Upon consultation with the policy board, to
28 research, prepare and, after approval by the Governor,
29 publish, no later than 18 months after the effective date of
30 this act and annually thereafter, a revised State health
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1 services plan for the Commonwealth as defined under this act.
2 Until the State health services plan as defined in section
3 401.3 is adopted, the department shall apply the State health
4 plan in existence on the effective date of this act, along
5 with any subsequent updates to that plan.]
6 (6.1) Upon consultation with the policy board, to
7 research, prepare and, after approval by the Governor,
8 publish, no later than six months after the effective date of
9 this paragraph and annually thereafter, a State health
10 services plan for the Commonwealth as defined under this act.
11 (7) To collect and disseminate such other information as
12 may be appropriate to determine the appropriate level of
13 facilities and services for the effective implementation of
14 certification of need under this act. Where such information
15 is collected by any other agency of State government,
16 duplication shall be avoided by coordination of data
17 collection activities.
18 (8) To furnish such staff support and expertise to the
19 policy board as may be needed to perform its
20 responsibilities.
21 (9) To receive, log and review all applications for
22 certificates of need or amendments thereof and approve or
23 disapprove the same.
24 (10) To minimize the administrative burden on health
25 care providers by eliminating unnecessary duplication of
26 financial and operational reports and to the extent possible
27 coordinating reviews and inspections performed by Federal,
28 State, local and private agencies.
29 (11) To adopt and promulgate regulations necessary to
30 carry out the purposes and provisions of this act relating to
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1 certificate of need.
2 (12) To enforce the rules and regulations promulgated by
3 the department as provided in this act.
4 (13) To provide technical assistance to individuals and
5 public and private entities in filling out the necessary
6 forms for the development of projects and programs.
7 (14) To establish and publish in the Pennsylvania
8 Bulletin a fee schedule for certificate of need applications
9 and letters of intent in accordance with section 902.1.
10 (15) To coordinate any data collection activities
11 necessary for administration of this act so as not to
12 duplicate unnecessarily the data collection activities of
13 other Federal and State agencies.
14 (16) To modify the list of reviewable clinically related
15 health services established under section 701.
16 Section 4. Section 401.3 of the act, added December 18, 1992
17 (P.L.1602, No.179), is reenacted to read:
18 Section 401.3. State health services plan.
19 The State health services plan shall consist of at a minimum:
20 (1) An identification of the clinically related health
21 services necessary to serve the health needs of the
22 population of this Commonwealth, including those medically
23 underserved areas in rural and inner-city locations.
24 (2) An analysis of the availability, accessibility and
25 affordability of the clinically related health services
26 necessary to meet the health needs of the population of this
27 Commonwealth.
28 (3) Qualitative and quantitative standards and criteria
29 for the review of certificate of need applications by the
30 department under this act.
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1 (4) An exceptions process which permits exceptions to be
2 granted to the standards and criteria in order to reflect
3 local experience or ensure access or to respond to
4 circumstances which pose a threat to public health and
5 safety.
6 Section 5. Section 602 of the act is reenacted to read:
7 Section 602. Regulations.
8 The department is hereby authorized and empowered pursuant to
9 the provisions of this act to adopt rules and regulations
10 establishing procedures required by this act for administration
11 of certificate of need.
12 Section 6. Sections 603, 701 and 702 of the act, amended
13 December 18, 1992 ( P.L.1602, No.179), are reenacted and amended
14 to read:
15 Section 603. Enforcement of orders relating to certificate of
16 need.
17 (a) (1) [No] After December 31, 2004, no certificate of
18 need shall be granted to any person for a health care
19 facility or reviewable clinically related health service
20 unless such facility or clinically related health service is
21 found by the department to be needed.
22 (2) [No] After December 31, 2004, no person shall offer
23 or develop a health care facility or reviewable clinically
24 related health service without obtaining a certificate of
25 need as required by this act.
26 (3) [No] After December 31, 2004, no binding arrangement
27 or commitment for financing the offering or development of a
28 health care facility or reviewable clinically related health
29 service shall be made by any person unless a certificate of
30 need for such clinically related health service or facility
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1 has been granted in accordance with this act.
2 (b) Orders for which the time of appeal has expired shall be
3 enforced by the department in summary proceedings or, when
4 necessary, with the aid of the court.
5 (c) No collateral attack on any order, including questions
6 relating to jurisdiction shall be permitted in the enforcement
7 proceeding, but such relief may be sought when such relief has
8 not been barred by the failure to take a timely appeal.
9 (d) [Any] After December 31, 2004, any person operating a
10 reviewable clinically related health service or health care
11 facility within this Commonwealth for which no certificate of
12 need has been obtained, after service of a cease and desist
13 order of the department, or after expiration of the time for
14 appeal of any final order on appeal, upon conviction thereof,
15 shall be sentenced to pay a fine of not less than [$100] $1,000
16 or more than [$1,000] $10,000 and costs of prosecution. Each day
17 of operating a clinically related health service or health care
18 facility after issuance of a cease and desist order shall
19 constitute a separate offense.
20 (e) [Any] After December 31, 2004, any person who violates
21 this act by failing to obtain a certificate of need, by
22 deviating from the provisions of the certificate, by beginning
23 construction, by providing services, or by acquiring equipment
24 after the expiration of a certificate of need shall be subject
25 to a penalty of not less than [$100] $1,000 per day and not more
26 than [$1,000] $10,000 per day. Each day of each such violation
27 shall be considered a separate offense.
28 (f) The department may seek injunctive relief to prevent
29 continuing violations of this act. In seeking such relief, the
30 department need not prove irreparable harm.
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1 (g) [No] After December 31, 2004, no license to operate a
2 health care facility or reviewable clinically related health
3 service by any person in this Commonwealth shall be granted and
4 any license issued after December 31, 2004, shall be void and of
5 no effect as to any facility, organization, service or part
6 thereof for which a certificate of need is required by this act
7 and not granted. Nor shall a certificate of need be required for
8 any new institutional health service provided by a health care
9 facility that serves a medically underserved area and is located
10 in a nonmetropolitan area and in a county of the sixth, seventh
11 or eighth class.
12 Section 701. Certificate of need required; clinically related
13 health services subject to review.
14 (a) [Any] After December 31, 2004, any person, including,
15 but not limited to, a health care facility, health maintenance
16 organization or health care provider who offers, develops,
17 constructs, renovates, expands or otherwise establishes or
18 undertakes to establish within the State a clinically related
19 health service that is included in the department's list of
20 reviewable services developed under subsections (d) and (e) or a
21 health care facility as defined in section 103 must obtain a
22 certificate of need from the department if one or more of the
23 following factors applies:
24 (1) The proposal requires a capital expenditure in
25 excess of [$2,000,000] $3,000,000 under generally accepted
26 accounting principles, consistently applied.
27 (2) The proposal involves the establishment of a health
28 care facility or a reviewable clinically related health
29 service.
30 [(3) The proposal increases the number of licensed beds
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1 by more than ten beds or 10%, whichever is less, every two
2 years.
3 (i) If the additional beds are acute care beds and
4 are not beds in a distinct-part psychiatric,
5 rehabilitation or long-term care unit, all licensed beds
6 of the acute-care facility shall be counted in
7 determining whether the increased number of beds exceeds
8 10%.
9 (ii) If the additional beds are beds in a distinct-
10 part psychiatric, rehabilitation or long-term care unit
11 of an acute care facility, only the beds within that unit
12 shall be counted in determining whether the increased
13 number of beds exceeds 10%.
14 (iii) If the additional beds are in a freestanding
15 psychiatric, rehabilitation or long-term care facility,
16 all licensed beds of the freestanding facility shall be
17 counted in determining whether the increased number of
18 beds exceeds 10%.]
19 (4) The proposal substantially expands an existing
20 clinically related health service as determined by the
21 department in the State health services plan.
22 (b) For the purposes of this act, an expenditure for the
23 purpose of acquiring an existing health care facility or
24 replacement of equipment where there is no change in service
25 shall not be considered to be a capital expenditure subject to
26 review. Expenditures for nonclinical activities or services,
27 such as parking garages, computer systems or refinancing of
28 debt, and research projects involving premarket approval of new
29 equipment shall not be subject to review.
30 (c) The capital expenditure threshold identified in
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1 subsection (a)(1) may be modified periodically by the department
2 to reflect any increase in the construction cost or other
3 factors influencing health care-related capital expenditures.
4 The department shall publish a modification of the expenditure
5 threshold through the regulatory review process.
6 (d) A list of reviewable clinically related health services
7 shall be published by the department within 30 days of [the
8 effective date of this act] December 31, 2004, and may be
9 modified by regulation on an annual basis. [Exclusive of new
10 high-cost technology, the initial list published by the
11 department as required under this subsection shall be no more
12 extensive than those services reviewable on the effective date
13 of this act.] Criteria for inclusion of reviewable services
14 shall include, but not be limited to:
15 (1) the quality of the service to be offered is likely
16 to be compromised through insufficient volumes or
17 utilization;
18 (2) the service is dependent upon the availability of
19 scarce natural resources such as human organs; or
20 [(3) the operating costs associated with the service are
21 reimbursed by major third party payors on a cost
22 reimbursement basis; or]
23 (4) the service involves the use of new technology.
24 (e) Any changes to the list required under subsection (d)
25 and proposed by regulation shall be developed by the department
26 after consultation with the policy board.
27 (f) A facility providing treatment solely on the basis of
28 prayer or spiritual means in accordance with the tenets of any
29 church or religious denomination or a facility conducted by a
30 religious organization for the purpose of providing health care
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1 services exclusively to clergy or other persons in a religious
2 profession who are members of the religious denomination
3 conducting the facility shall not be considered to constitute a
4 health service subject to review under this act.
5 [(g) As used in this section, "new high-cost technology"
6 means new technological equipment with an aggregate purchase
7 cost of greater than $500,000. The department shall consult with
8 national medical and surgical speciality organizations
9 recognized by the American Board of Medical Specialities (ABMS)
10 and other nationally recognized scientific resources in the
11 determination of what constitutes new technological equipment.]
12 Section 702. Certificates of need; notice of intent;
13 application; issuance.
14 (a) [Projects] After December 31, 2004, projects requiring a
15 certificate of need shall, at the earliest possible time in
16 their planning, be submitted to the department in a letter of
17 intent in such detail advising of the scope and nature of the
18 project as required by regulations. Within 30 days after receipt
19 of the letter of intent, the department shall inform the
20 applicant providing the letter of intent whether the proposed
21 project is subject to a certificate of need review or if
22 additional information is required to make that determination.
23 If the department determines that the project is subject to a
24 certificate of need review, the project shall be subject to the
25 remaining provisions of this act.
26 (b) A person desiring to obtain or amend a certificate of
27 need shall apply in writing to the department, supplying such
28 information as is required by the department and certifying that
29 all data, information and statements are factual to the best of
30 their knowledge, information and belief. The department shall
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1 have 60 days after receipt of the application within which to
2 assess the application and in which to request specific further
3 information. If further information is requested, the department
4 shall complete its preliminary assessment of the application
5 within 45 days of receipt of the same. No information shall be
6 required that is not specified in the rules and regulations
7 promulgated by the department.
8 (c) Timely notice of the beginning of review of the
9 application by the department shall be published after
10 preliminary assessment of the application is completed by the
11 department. The "date of notification" of the beginning of
12 review shall be the date such notice is sent, or the date such
13 notice is published in the Pennsylvania Bulletin or in a
14 newspaper of general circulation, whichever is latest.
15 (d) The department shall approve or disapprove the
16 application within [90] 120 days from the date of notification
17 of the beginning of the review [unless the period for review is
18 extended by the applicant in writing]. Unless a disapproval is
19 issued by the department within the period provided in this
20 section, an application made under section 702 shall be deemed
21 approved.
22 (e) (1) Certificates of need shall be granted or refused.
23 They shall not be conditioned upon the applicant changing
24 other aspects of its facilities or services or requiring the
25 applicant to meet other specified requirements, and no such
26 condition shall be imposed by the department in granting or
27 refusing approval of certificates of need.
28 (2) A certificate of need shall state the maximum amount
29 of expenditures which may be obligated under it and
30 applicants proceeding with an approved project may not exceed
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1 this level of expenditure except as allowed under the
2 conditions and procedures established by the department
3 through regulation.
4 (f) (1) The department shall make written findings which
5 state the basis for any final decision made by the
6 department. Such findings shall be served upon the applicant
7 and provided to all persons expressing an interest in the
8 proceedings and shall be made available to others upon
9 written request.
10 (2) All decisions of the department shall be based
11 solely on the record. No ex parte contact regarding the
12 application between any employee of the department who
13 exercises responsibilities respecting the application and the
14 applicant, any person acting on behalf of the applicant or
15 any person opposed to the issuance of the certificate of need
16 shall occur after the commencement of a hearing on the
17 application and before a decision is made by the department.
18 (g) Modification of the application at any stage of the
19 proceeding shall not extend the time limits provided by this act
20 unless the department expressly finds that the modification
21 represents a substantial change in the character of the
22 application.
23 (h) The responsibility of performing certificate of need
24 review may not be delegated by the department. The department
25 shall consider recommendations of one or more community-based
26 health services planning committees whose localities are
27 affected by specific applications.
28 (i) The department may provide that categories of projects
29 shall receive simultaneous and comparative review.
30 Section 7. Section 703 of the act, amended July 12, 1980
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1 (P.L.655, No.136), is amended to read:
2 [Section 703. Notice and hearings before health systems
3 agencies.
4 (a) Notice of completed applications for certificates of
5 need or amendment thereto and of the beginning of review shall
6 be published by the health systems agency in the appropriate
7 news media and by the department in the Pennsylvania Bulletin in
8 accordance with 45 Pa.C.S. Chap. 7B (relating to publication of
9 documents), and the health systems agency shall notify all
10 affected persons with notice of the schedule for review, the
11 date by which a public hearing must be demanded, and of the
12 manner notice will be given of a hearing, if one is to be held.
13 Notice to affected persons (other than members of the public who
14 are to be served by the proposed new institutional health
15 service) shall be by mail (which may be part of a newsletter).
16 Members of the public may be notified through newspapers of
17 general circulation. Directly affected persons may file
18 objections within 15 days of such publication with the local
19 health systems agency setting forth specifically the reasons
20 such objections were filed. Persons filing the objections shall
21 be parties to the proceeding, unless and until such objections
22 are withdrawn.
23 (b) Affected persons may request a public hearing or the
24 health systems agency may require a public hearing during the
25 course of such review. Fourteen days written notice of the
26 hearing shall be given to affected persons in the same manner as
27 a notice of a completed application is provided in subsection
28 (a). In the hearing, any person shall have the right to be
29 represented by counsel and to present oral or written arguments
30 and relevant evidence. Any person directly affected may conduct
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1 reasonable questioning of persons who make relevant factual
2 allegations. A record of the hearing shall be maintained.]
3 Section 8. Sections 704, 705, 706, 707, 708.1 and 709 of the
4 act, amended or added December 18, 1992 (P.L.1602, No.179), are
5 reenacted to read:
6 Section 704. Notice of public meetings.
7 (a) Notification of the beginning of review of a certificate
8 of need application shall be published by the department in the
9 appropriate news media and in the Pennsylvania Bulletin in
10 accordance with 45 Pa.C.S. Ch. 7 Subch. B (relating to
11 publication of documents). The notice shall identify the
12 schedule for review, the date by which a public meeting must be
13 requested and the manner in which notice will be given of a
14 meeting, if one is held.
15 (b) Interested persons may request a public meeting within
16 15 days of publication, and the department shall hold such a
17 meeting or the department may require a public meeting during
18 the course of such review. The department shall publish written
19 notice of the meeting in the appropriate news media and the
20 Pennsylvania Bulletin at least 14 days prior to the public
21 meeting date. In the meeting, the applicant and any interested
22 person providing prior notice to the department shall have the
23 right to present oral or written comments and relevant evidence
24 on the application in the manner prescribed by the department.
25 The department shall prepare a transcript of the oral testimony
26 presented at the meeting. Meetings shall be held in accordance
27 with the guidelines and procedures established by the department
28 and published in the Pennsylvania Code as a statement of policy.
29 The department may require the applicant to provide copies of
30 the application to any interested person making a request for
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1 such application, at the expense of the interested person.
2 (c) The applicant may, for good cause shown, request in
3 writing a public hearing for the purpose of reconsideration of a
4 decision of the department within ten days of service of the
5 decision of the department. The department shall treat the
6 request in accordance with the provisions of 1 Pa. Code § 35.241
7 (relating to application for rehearing or reconsideration). The
8 department shall set forth the cause for the hearing and the
9 issues to be considered at such hearing. If such hearing is
10 granted, it shall be held no sooner than six days and no later
11 than 30 days after the notice to grant such a hearing and shall
12 be limited to the issues submitted for reconsideration. A
13 transcript shall be made of the hearing and a copy of the
14 transcript shall be provided at cost to the applicant. The
15 department shall affirm or reverse its decision and submit the
16 same to the person requesting the hearing within 30 days of the
17 conclusion of such hearing. Any change in the decision shall be
18 supported by the reasons for the change.
19 (d) Where hearings under subsection (b) are held on more
20 than two days, consecutive days of hearings and intervening
21 weekends and holidays shall be excluded in calculating the time
22 permitted for the department to conduct its review, and, if
23 briefs are to be filed, ten days subsequent to the adjournment
24 of the hearing shall also be excluded.
25 Section 705. Good cause.
26 Good cause shall be deemed to have been shown if:
27 (1) there is significant, relevant information not
28 previously considered;
29 (2) there is significant change in factors or
30 circumstances relied on in making the decision;
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1 (3) there has been material failure to comply with the
2 procedural requirements of this act; or
3 (4) good cause is otherwise found to exist.
4 Section 706. Information during review.
5 During the course of review the department shall upon request
6 of any person set forth the status, any findings made in the
7 proceeding and other appropriate information requested. The
8 department may require such request in writing.
9 Section 707. Criteria for review of applications for
10 certificates of need or amendments.
11 (a) An application for certificate of need shall be
12 considered for approval when the department determines that the
13 application substantially meets the requirements listed below:
14 (1) There is need by the population served or to be
15 served by the proposed service or facility.
16 [(2) The proposed service or facility will provide care
17 consistent with quality standards established by the State
18 health services plan.]
19 (3) The proposed service or facility will meet the
20 standards identified in the State health services plan for
21 access to care by medically underserved groups, including
22 individuals eligible for medical assistance and persons
23 without health insurance.
24 (b) The department shall issue a certificate of need if the
25 project substantially meets the criteria of subsection (a)(1)[,]
26 and (2) [and (3)] and the project is consistent with the State
27 health services plan unless the department can demonstrate:
28 (1) There is a more appropriate, less costly or more
29 effective alternative method of providing the proposed
30 services.
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1 (2) The service or facility is not financially and
2 economically feasible, considering anticipated volume of care
3 and the availability of reasonable financing based on
4 information received from the applicant and other sources
5 during the review process.
6 (3) The proposed service or facility will have an
7 inappropriate, adverse impact on the overall level of health
8 care expenditures in the area.
9 (4) The proposed service or facility adversely impacts
10 the maintenance and development of rural and inner-city
11 health services generally and, in particular, those services
12 provided by health care providers which are based in rural
13 and inner-city locations and which have an established
14 history of providing services to medically underserved
15 populations.
16 (c) Notwithstanding the provisions of subsections (a) and
17 (b), applications for projects described in subsection (d) shall
18 be approved unless the department finds that the facility or
19 service with respect to such expenditure as proposed is not
20 needed or that the project is not consistent with the State
21 health services plan. An application made under this subsection
22 shall be approved only to the extent that the department
23 determines it is required to overcome the conditions described
24 in subsection (d).
25 (d) Subject to the provisions of subsection (c), subsections
26 (a) and (b) shall not apply to capital expenditures required to:
27 (1) eliminate or prevent imminent safety hazards as a
28 result of violations of safety codes or regulations;
29 (2) comply with State licensure standards; or
30 (3) comply with accreditation standards, compliance with
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1 which is required to receive reimbursement or payments under
2 Title XVIII or XIX of the Federal Social Security Act.
3 Section 708.1. Monitoring certificate of need; expiration of a
4 certificate of need.
5 A certificate of need or an amendment to it shall expire two
6 years from the date issued unless substantially implemented, as
7 defined by regulation. The department may grant extensions for a
8 specified time upon request of the applicant and upon a showing
9 that the applicant has or is making a good faith effort to
10 substantially implement the project. An expired certificate of
11 need shall be invalid, and no person may proceed to undertake
12 any activity pursuant to it for which a certificate of need or
13 amendment is required. The applicant shall report to the
14 department, on forms prescribed by the department, the status of
15 the project until such time as the project is licensed or
16 operational, if no license is required.
17 Section 709. Emergencies.
18 Notwithstanding any other provision of this act, in the event
19 of an emergency the department may suspend the foregoing
20 application process and permit such steps to be taken as may be
21 required to meet the emergency including the replacement of
22 equipment or facilities.
23 Section 9. Section 711 of the act, amended December 18, 1992
24 (P.L.1602, No.179), is reenacted to read:
25 Section 711. Review of activities.
26 (a) The department shall prepare and publish not less
27 frequently than annually reports of reviews conducted under this
28 act, including a statement on the status of each such review and
29 of reviews completed by it and statements of the decisions made
30 in the course of such reviews since the last report. The
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1 department shall also make available to the general public for
2 examination at reasonable times of the business day all
3 applications reviewed by it. Such reports and applications shall
4 be considered public records.
5 (b) The department's report which shall be submitted to the
6 members of the Health and Welfare Committees of the Senate and
7 House of Representatives shall contain the following
8 information:
9 (1) The volume of applications submitted, by project
10 type, their dollar value, and the numbers and costs
11 associated with those approved and those not approved.
12 (2) The assessment of the extent of competition in
13 specific service sectors that guided decisions.
14 (3) A detailed description of projects involving
15 nontraditional or innovative service delivery methods or
16 organizational arrangements and the decisions made on each of
17 these projects.
18 (4) The average time for review, by level of review.
19 (5) The fees collected for reviews and the cost of the
20 program.
21 Section 10. Section 712 of the act, added July 12, 1980
22 (P.L.655, No.136), is reenacted and amended to read:
23 Section 712. Actions against violations of law and rules and
24 regulations[; bonds].
25 [(a)] Whenever any person, regardless of whether such person
26 is a licensee, has willfully violated any of the provisions of
27 this act or the rules and regulations adopted thereunder, the
28 department may maintain any action in the name of the
29 Commonwealth for an injunction or other process restraining or
30 prohibiting such person from engaging in such activity.
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1 Section 11. Section 808 of the act, amended December 18,
2 1992 (P.L.1602, No.179) and October 16, 1998 (P.L.777, No.95),
3 is reenacted and amended to read:
4 Section 808. Issuance of license.
5 (a) Standards.--The department shall issue a license to a
6 health care provider when it is satisfied that the following
7 standards have been met:
8 (1) that the health care provider is a responsible
9 person;
10 (2) that the place to be used as a health care facility
11 is adequately constructed, equipped, maintained and operated
12 to safely and efficiently render the services offered;
13 (3) that the health care facility provides safe and
14 efficient services which are adequate for the care, treatment
15 and comfort of the patients or residents of such facility;
16 (4) that there is substantial compliance with the rules
17 and regulations adopted by the department pursuant to this
18 act; and
19 (5) that after December 31, 2004, a certificate of need
20 has been issued if one is necessary.
21 (b) Separate and limited licenses.--Separate licenses shall
22 not be required for different services within a single health
23 care facility except that home health care, hospice or long-term
24 nursing care will require separate licenses. A limited license,
25 excluding from its terms a particular service or portion of a
26 health care facility, may be issued under the provisions of this
27 act.
28 (c) Addition of services.--When the certificate of need for
29 a facility is amended as to services which can be offered, the
30 department shall issue an appropriate license for those services
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1 upon demonstration of compliance with licensure requirements.
2 Section 12. Section 901 amended July 12, 1980 (P.L.655,
3 No.136), is reenacted and amended to read:
4 Section 901. Existing facilities and institutions.
5 No certificate of need shall be required for any buildings,
6 real property and equipment owned, leased or being operated, or
7 under contract for construction, purchase, or lease and for all
8 services being rendered by licensed or approved providers on
9 [April 1, 1980] December 31, 2004. [Nor shall a certificate of
10 need be required for any new institutional health services for
11 which an approval has been granted under section 1122 of the
12 Social Security Act or for which an application is found
13 pursuant to such section to be in conformity with the standards,
14 criteria or plans to which such section refers, or as to which
15 the Federal Secretary of Health and Human Services makes a
16 finding that reimbursement shall be granted: Provided, however,
17 That such approval is in force on August 1, 1980 or such
18 application shall have been filed prior to August 1, 1980 or the
19 acceptance of applications for reviews under this act, whichever
20 shall last occur.]
21 Section 13. Sections 902.1 and 904.1 of the act, added
22 December 18, 1992 (P.L.1602, No.179), are reenacted and amended
23 to read:
24 Section 902.1. Fees for review of certificate of need
25 applications.
26 (a) The department shall charge a fee of [$150] $500 for
27 each letter of intent filed. The letter of intent fee shall be
28 deducted from the total application fee required under
29 subsection (b) if an application is submitted on the project
30 proposed in the letter of intent.
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1 (b) For each application the department shall charge a fee,
2 payable on submission of an application. The fee shall not be
3 less than $500 plus up to [$3] $10 per $1,000 of proposed
4 capital expenditure and shall not be more than $20,000.
5 (c) The department shall publish a fee schedule in the
6 Pennsylvania Bulletin which shall explain the procedure for
7 filing fees.
8 (d) All fees payable under this section are due upon the
9 date of filing a letter of intent or application. If a person
10 fails to file the appropriate fee, all time frames required of
11 the department under this act, with respect to review of a
12 letter of intent or application, are suspended until the
13 applicable fee is paid in full.
14 Section 904.1. Sunset.
15 The authority, obligations and duties arising under Chapter 7
16 and all other provisions of this act pertaining to certificates
17 of need shall terminate [four years after the effective date of
18 this section] December 31, 2014. [Twelve months prior to this
19 expiration] On December 31, 2013, the Legislative Budget and
20 Finance Committee shall commence a review of the impact of the
21 certificate of need program on quality, access and cost of
22 health care services, including the costs of appeals, reviewable
23 under this act.
24 Section 14. This act shall take effect immediately.
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