§ 131E-178. Activities requiring certificate of need.
§ 131E‑178. Activitiesrequiring certificate of need.
(a) No person shalloffer or develop a new institutional health service without first obtaining acertificate of need from the Department; provided, however, no person whoprovides gastrointestinal endoscopy procedures in one or more gastrointestinalendoscopy rooms located in a nonlicensed setting, shall be required to obtain acertificate of need to license that setting as an ambulatory surgical facilitywith the existing number of gastrointestinal endoscopy rooms, provided that:
(1) The licenseapplication is postmarked for delivery to the Division of Health ServiceRegulation by December 31, 2006;
(2) The applicantverifies, by affidavit submitted to the Division of Health Service Regulationwithin 60 days of the effective date of this act, that the facility is inoperation as of the effective date of this act or that the completedapplication for the building permit for the facility was submitted by theeffective date of this act;
(3) The facility hasbeen accredited by The Accreditation Association for Ambulatory Health Care,The Joint Commission on Accreditation of Healthcare Organizations, or TheAmerican Association for Accreditation of Ambulatory Surgical Facilities by thetime the license application is postmarked for delivery to the Division ofHealth Service Regulation of the Department; and
(4) The licenseapplication includes a commitment and plan for serving indigent and medicallyunderserved populations.
Allother persons proposing to obtain a license to establish an ambulatory surgicalfacility for the provision of gastrointestinal endoscopy procedures shall berequired to obtain a certificate of need. The annual State Medical FacilitiesPlan shall not include policies or need determinations that limit the number ofgastrointestinal endoscopy rooms that may be approved.
(b) No person shallmake an acquisition by donation, lease, transfer, or comparable arrangementwithout first obtaining a certificate of need from the Department, if the acquisitionwould have been a new institutional health service if it had been made bypurchase. In determining whether an acquisition would have been a newinstitutional health service, the capital expenditure for the asset shall bedeemed to be the fair market value of the asset or the cost of the asset,whichever is greater.
(c) No person shallincur an obligation for a capital expenditure which is a new institutionalhealth service without first obtaining a certificate of need from theDepartment. An obligation for a capital expenditure is incurred when:
(1) An enforceablecontract, excepting contracts which are expressly contingent upon issuance of acertificate of need, is entered into by a person for the construction,acquisition, lease or financing of a capital asset;
(2) A person takesformal action to commit funds for a construction project undertaken as his owncontractor; or
(3) In the case ofdonated property, the date on which the gift is completed.
(d) Where the estimatedcost of a proposed capital expenditure, including the fair market value ofequipment acquired by purchase, lease, transfer, or other comparablearrangement, is certified by a licensed architect or engineer to be equal to orless than the expenditure minimum for capital expenditure for new institutionalhealth services, such expenditure shall be deemed not to exceed the amount fornew institutional health services regardless of the actual amount expended,provided that the following conditions are met:
(1) The certifiedestimated cost is prepared in writing 60 days or more before the obligation forthe capital expenditure is incurred. Certified cost estimates shall beavailable for inspection at the facility and sent to the Department upon itsrequest.
(2) The facility onwhose behalf the expenditure was made notifies the Department in writing within30 days of the date on which such expenditure is made if the expenditureexceeds the expenditure minimum for capital expenditures. The notice shallinclude a copy of the certified cost estimate.
(e) The Department maygrant certificates of need which permit capital expenditures only forpredevelopment activities. Predevelopment activities include the preparation ofarchitectural designs, plans, working drawings, or specifications, the preparationof studies and surveys, and the acquisition of a potential site. (1977, 2nd Sess., c. 1182, s.2; 1979, c. 876, s. 2; 1981, c. 651, s. 3; 1983, c. 775, s. 1; 1983 (Reg.Sess., 1984), c. 1110, s. 3; 1985, c. 740, s. 3; 1985 (Reg. Sess., 1986), c.1001, s. 1; 1987, c. 511, s. 1; c. 768; 1991, c. 692, s. 3; 1993, c. 7, s. 4;2005‑346, s. 7; 2007‑182, s. 1.)