Section 25C Determination of need
Section 25C. Notwithstanding any contrary provisions of law, except as provided in section twenty-five C1/2, no person or agency of the commonwealth or any political subdivision thereof shall make substantial capital expenditures for construction of a health care facility or substantially change the service of such facility unless there is a determination by the department that there is need therefor. No such determination of need shall be required for any substantial capital expenditure for construction or any substantial change in service which shall be related solely to the conduct of research in the basic biomedical or applied medical research areas, and shall at no time result in any increase in the clinical bed capacity or outpatient load capacity of a health care facility, and shall at no time be included within or cause an increase in the gross patient service revenue of a facility for health care services, supplies, and accommodations, as such revenue shall be defined from time to time in accordance with section thirty-one of chapter six A. Any person undertaking any such expenditure related solely to such research which shall exceed or may reasonably be regarded as likely to exceed one hundred and fifty thousand dollars or any such change in service solely related to such research, shall give written notice thereof to the department and the division of health care finance and policy at least sixty days before undertaking such expenditure or change in service. Said notice shall state that such expenditure or change shall be related solely to the conduct of research in the basic biomedical or applied medical research areas, and shall at no time be included within or result in any increase in the clinical bed capacity or outpatient load capacity of a facility, and shall at no time cause an increase in the gross patient service revenue, as defined in accordance with said section thirty-one of said chapter six A, of a facility for health care services, supplies and accommodations. Notwithstanding the preceding three sentences, a determination of need shall be required for any such expenditure or change if the notice required by this section is not filed in accordance with the requirements of this section, or if the department finds, within sixty days after receipt of said notice, that such expenditure or change will not be related solely to research in the basic biomedical or applied medical research areas, or will result in an increase in the clinical bed capacity or outpatient load capacity of a facility, or will be included within or cause an increase in the gross patient service revenues of a facility. A research exemption granted under the provisions of this section shall not be deemed to be as evidence of need in any determination of need proceeding.
No person or agency of the commonwealth or any political subdivision thereof shall provide an innovative service or use a new technology, as such terms are defined in section twenty-five B, in any location other than in a health care facility, as such term is defined in section twenty-five B, unless the person or agency first is issued a determination of need therefor by the department.
No person or agency of the commonwealth or any political subdivision thereof shall acquire for location in other than a health care facility a unit of medical, diagnostic, or therapeutic equipment, other than equipment used to provide an innovative service or which is a new technology, as such terms are defined in section twenty-five B, with a fair market value in excess of one hundred and fifty thousand dollars unless the person or agency notifies the department of the person’s or agency’s intent to acquire such equipment and of the use that will be made of the equipment. Such notice shall be made in writing and shall be received by the department at least thirty days before contractual arrangements are entered into to acquire the equipment with respect to which notice is given. A determination by the department of need therefor shall be required for any such acquisition (i) if the notice required by this paragraph is not filed in accordance with the requirements of this paragraph, and (ii) if the requirements for exemption under subsection (a) of section twenty-five C1/2; provided, however, that in no event shall any person who acquires a unit of magnetic resonance imaging equipment for location other than in a health care facility refer or influence any referrals of patients to said equipment, unless said person is a physician directly providing services with that equipment; provided, however, that for the purposes of this section, no public advertisement shall be deemed a referral or an influence of referrals; and provided, further, that any person who has an ownership interest in said equipment, whether direct or indirect, shall disclose said interest to patients utilizing said equipment in a conspicuous manner.
Each person or agency operating a unit of equipment described in this section shall submit annually to the department information and data in connection with utilization and volume rates of said equipment on a form or forms prescribed by the department are not met.
Except as provided in section twenty-five C1/2, no person or agency of the commonwealth or any political subdivision thereof shall acquire an existing health care facility unless the person or agency notifies the department of the person’s or agency’s intent to acquire such facility and of the services to be offered in the facility and its bed capacity. Such notice shall be made in writing and shall be received by the department at least thirty days before contractual arrangements are entered into to acquire the facility with respect to which the notice is given. A determination of need therefor shall be required for any such acquisition if the notice required by this paragraph is not filed in accordance with the requirements of this paragraph or if the department finds, within thirty days after receipt of notice in accordance with this paragraph, that the services or bed capacity of the facility will be changed in being acquired.
The department, in making any such determination, shall encourage appropriate allocation of private and public health care resources and the development of alternative or substitute methods of delivering health care services so that adequate health care services will be made reasonably available to every person within the commonwealth at the lowest reasonable aggregate cost and shall take into account the special needs and circumstances of HMOs. The department shall also recognize the special needs and circumstances of projects that (1) are essential to the conduct of research in basic biomedical or health care delivery areas or to the training of health care personnel, (2) are unlikely to result in any increase in the clinical bed capacity or outpatient load capacity of the facility, and (3) are unlikely to cause an increase in the total patient care charges of the facility to the public for health care services, supplies, and accommodations, as such charges shall be defined from time to time in accordance with section five of chapter four hundred and nine of the acts of nineteen hundred and seventy-six.
Applications for such determination shall be filed with the department, together with such other forms and information as shall be prescribed by, or acceptable to, the department. A duplicate copy of any application together with supporting documentation therefor, shall be a public record and kept on file in the department. The department may require a public hearing on any application. A reasonable fee, established by the department, shall be paid upon the filing of such application; provided, that in no event shall such fee exceed one-tenth of one per cent of the capital expenditures, if any, proposed by the applicant.
Except in the case of an emergency situation determined by the department as requiring immediate action to prevent further damage to the public health or to a health care facility, the department shall not act upon an application for such determination unless (a) the application has been on file with the department for at least thirty days, (b) the division of health care finance and policy, the state, and appropriate regional comprehensive health planning agencies and, in the case of long-term care facilities only, the department of elder affairs, have been provided copies of such application and supporting documents and given reasonable opportunity to comment thereon, and (c) a public hearing has been held thereon when requested by the applicant, the state or appropriate regional comprehensive health planning agency, or any ten taxpayers of the commonwealth. If, in any filing period, an individual application is filed which would implicitly decide any other application filed during such period, the department shall not act only upon an individual.
The department shall so approve or disapprove in whole or in part each such application for a determination of need within eight months after filing with the department; provided that the department may, on one occasion only, delay such action for up to two months after the applicant has provided information which the department reasonably has requested during such eight month period. Applications remanded to the department by the health facilities appeals board pursuant to the provisions of section twenty-five E shall be acted upon by the department within the same time limits provided in this section for the department to approve or disapprove applications for a determination of need. If an application has not been acted upon by the department within such time limits, the applicant may, within a reasonable period of time, bring an action in the nature of mandamus in the superior court to require the department to act upon the application.
Such determinations of need shall be based on the written record compiled by the department during its review of the application and on such criteria consistent with sections twenty-five B to twenty-five G, inclusive, as were in effect on the date of filing of the application. In compiling such record the department shall confine its requests for information from the applicant to matters which shall be within the normal capacity of the applicant to provide. In each case the action by the department on the application shall be in writing and shall set forth the reasons therefor; and every such action and the reasons therefor shall constitute a public record and be filed in the department.
The department shall stipulate the period during which a determination of need shall remain in effect, which in no event shall originally be longer than three years but which may be extended by the department for cause shown. Any such determination shall continue to be effective only upon the applicant (a) making reasonable progress toward completing the construction or substantial change in services for which need was determined to exist, (b) complying with all other provisions of law relating to the construction, licensure, and operation of health care facilities, and (c) complying with such further terms and conditions as the department reasonably shall require.
The department shall notify the secretary of elder affairs forthwith of the pendency of any proceeding, of any public hearing and of any action to be taken under this section on any application submitted by or on behalf of any long-term care facility.
No long term care facility located in an underbedded urban area shall be replaced or the license for said facility transferred outside an underbedded urban area. For the purposes of this paragraph, an underbedded urban area shall mean a city or town in which: (a) the per capita income is below the state average; or (b) the percentage of the population below one hundred percent of the federal poverty level is above the state average; or (c) the percentage of the population below two hundred percent of the federal poverty level is above the state average.