West Virginia Code of State Rules › Agency 65 - Health Care Authority › Title 65 - LEGISLATIVE RULE HEALTH CARE AUTHORITY › Series 65-32 - Certificate of Need › Section 65-32-2 - Definitions

Current through Register Vol. XLI, No. 28, July 12, 2024
2.1. As used in this
				legislative rule, all terms that are defined in W. Va. Code §
									16-2D-2 have those same meanings
				which are in some cases further clarified in this section. Terms not defined in
				the statute have the following meanings unless the context expressly requires
				otherwise.
2.1.a. "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.
2.1.b. "Authority" 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 §
										16-2D-3(a)(1).
2.1.c. "Batching" means the consideration of
				completed certificate of need applications which are grouped by the date they
				are deemed complete. There are two batches each month: one on the fifteenth day
				of the month and one on the last day of the month. If either of these dates
				fall on a Saturday, Sunday or legal holiday, the applications will be batched
				on the next business day.
2.1.d.
				"Certificate of Need" means a document issued by the Authority which indicates
				that a proposed new 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 health service.
2.1.e. "Consistent With The State Health
				Plan" means a determination made by the Authority 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 rule.
2.1.f. "Emergency Circumstances That Pose A
				Threat To Public Health" means those circumstances proclaimed by the Secretary
				of the Department of Health 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.
2.1.g. "Health Care Facility" has the same
				meaning as contained in W. Va. Code §
										16-2D-2(16) but
				does not include 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.
2.1.h. "Private Office
				Practice" means the independent practice of one or more health professionals
				that meets the following requirements:
2.1.h.1. 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:
2.1.h.1.A. 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;
2.1.h.1.B. 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;
2.1.h.1.C. As a professional corporation duly
				registered with or certified by the appropriate health professional licensure
				board; or
2.1.h.1.D. As a
				professional limited liability company duly registered with or certified by the
				appropriate health professional licensure board.
2.1.h.2. Practice composition:
2.1.h.2.A. 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.
2.1.h.2.B. 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.
2.1.h.2.C. 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.
2.1.h.3. 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:
2.1.h.3.A. The
				ability of a third person or entity to nominate, appoint, elect, or remove one
				or more members of the practice's governing Authority or committee, or the
				ability of a third person or entity to exercise the voting power of one or more
				members of the governing Authority or committee by means of a voting trust, a
				voting agreement, proxy, or any other arrangement;
2.1.h.3.B. 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 Authority 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 Authority 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;
2.1.h.3.C. The ability of a
				third person or entity to require the practice's governing Authority 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 Authority or committee; or
2.1.h.3.D. 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.
2.1.h.4. 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".
2.1.h.5. Notwithstanding
				anything to the contrary, a management services organization's provision of
				administrative services to a practice shall not constitute control, either
				direct or indirect, of the practice.
2.1.h.6. Notwithstanding anything to the
				contrary, any practice granted a determination of nonreviewability as a private
				office practice by the Authority on or before July 1, 2010, is and shall remain
				a private office practice under the statute; provided there has been no
				material change in the facts and circumstances provided in the original request
				for determination of reviewability.
2.1.i. "Project" means a proposed new health
				service.
2.1.j. "Proposed New
				Health Service" means:
2.1.j.1. The
				construction, development, acquisition, or other establishment of a new health
				care facility 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;
2.1.j.2. The partial or total closure of a
				health care facility with which a capital expenditure is associated;
2.1.j.3. Any obligation for a capital
				expenditure incurred by or on behalf of a health care facility 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:
2.1.j.3.A. 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;
2.1.j.3.B. When 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;
				or
2.1.j.3.C. In the case of
				donated property, on the date on which the gift is completed under state
				law;
2.1.j.4. A
				substantial change to the bed capacity of a health care facility with which a
				capital expenditure is associated;
2.1.j.5. The addition of any health service
				specified in section 20 of this rule and which was not offered on a regular
				basis within the twelve-month period prior to the time the services would be
				offered;
2.1.j.6. The addition of
				ventilator services by a hospital;
2.1.j.7. The elimination of one or more
				health services, previously offered on a regular basis by or on behalf of a
				health care facility when the elimination is associated with a capital
				expenditure;
2.1.j.8. 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;
2.1.j.9. The acquisition of major medical
				equipment;
2.1.j.10. A substantial
				change in an approved new health service for which a certificate of need is in
				effect;
2.1.j.11. An expansion of
				the service area for hospice or home health agency, regardless of the time
				period in which the expansion is contemplated or made; or
2.1.j.12. The addition of health services
				which were not offered on a regular basis by or on behalf of the health care
				facility within the 12-month period prior to the time the services would be
				offered.
2.1.k.
				"Statute" means the certificate of need statute, W. Va. Code §
										16-2D-1
et
				seq.
2.1.l. "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
				health service for its intended purpose.
2.1.m. "Verification" means a signed
				statement made under oath before a notary public that the information is
				knowingly provided and is true and correct.