32.1-102.3:2 - Certificates of public need; applications to be filed in response to Requests For Applications (RFA...
§ 32.1-102.3:2. Certificates of public need; applications to be filed inresponse to Requests For Applications (RFAs).
A. Except for applications for continuing care retirement community nursinghome bed projects filed by continuing care providers registered with theState Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) ofTitle 38.2 which comply with the requirements established in this section,the Commissioner shall approve, authorize or accept applications for theissuance of any certificate of public need pursuant to this article only inresponse to Requests for Applications (RFAs) for any project which wouldresult in (i) an increase in the number of beds in a planning district inwhich nursing facility, extended care, psychiatric, or substance abusetreatment services are provided, or (ii) the establishment of new psychiatricor substance abuse treatment services.
B. The Board shall adopt regulations establishing standards for the approvaland issuance of Requests for Applications by the Commissioner. The standardsshall include, but shall not be limited to, a requirement that determinationsof need take into account any limitations on access to existing nursing homebeds, psychiatric, or substance abuse treatment beds, or psychiatric orsubstance abuse services in the planning districts. The RFAs, which shall bepublished at least annually, shall be jointly developed by the Department and(i) in the case of nursing home beds, the Department of Medical AssistanceServices, or (ii) in the case of psychiatric or substance abuse treatmentbeds or services, the Department of Behavioral Health and DevelopmentalServices. RFAs shall be based on analyses of the need, or lack thereof, forincreases in the nursing home psychiatric, or substance abuse treatment bedsupply or psychiatric or substance abuse treatment services in each of theCommonwealth's planning districts in accordance with standards adopted by theBoard by regulation. The Commissioner shall only accept for reviewapplications in response to such RFAs which conform with the geographic andbed need determinations of the specific RFA. Any conversion of psychiatric orsubstance abuse treatment beds approved pursuant to this section tononpsychiatric or non-substance abuse treatment inpatient beds shallconstitute a project and shall be reviewable pursuant to this article.
C. Sixty days prior to the Commissioner's approval and issuance of any RFA,the Board shall publish the proposed RFA in the Virginia Register for publiccomment together with an explanation of (i) the regulatory basis for theplanning district bed needs set forth in the RFA and (ii) the rationale forthe RFA's planning district designations. Any person objecting to thecontents of the proposed RFA may notify, within fourteen days of thepublication, the Board and the Commissioner of his objection and theobjection's regulatory basis. The Commissioner shall prepare, and deliver byregistered mail, a written response to each such objection within two weeksof the date of receiving the objection. The objector may file a rebuttal tothe Commissioner's response in writing within five days of receiving theCommissioner's response. If objections are received, the Board may, afterconsidering the provisions of the RFA, any objections, the Commissioner'sresponses, and if filed, any written rebuttals of the Commissioner'sresponses, hold a public hearing to receive comments on the specific RFA.Prior to making a decision on the RFA, the Commissioner shall consider anyrecommendations made by the Board.
D. Except for a continuing care retirement community applying for acertificate of public need pursuant to provisions of subsections A, B, and Cabove, applications for continuing care retirement community nursing home bedprojects shall be accepted by the Commissioner only if the following criteriaare met: (i) the facility is registered with the State Corporation Commissionas a continuing care provider pursuant to Chapter 49 (§ 38.2-4900 et seq.) ofTitle 38.2, (ii) the number of new nursing home beds requested in the initialapplication does not exceed the lesser of twenty percent of the continuingcare retirement community's total number of beds that are not nursing homebeds or sixty beds, (iii) the number of new nursing home beds requested inany subsequent application does not cause the continuing care retirementcommunity's total number of nursing home beds to exceed twenty percent of itstotal number of beds that are not nursing home beds, and (iv) the continuingcare retirement community has established a qualified resident assistancepolicy.
E. The Commissioner may approve an initial certificate of public need fornursing home beds in a continuing care retirement community not to exceed thelesser of sixty beds or twenty percent of the total number of beds that arenot nursing home beds which authorizes an initial one-time, three-year openadmission period during which the continuing care retirement community mayaccept direct admissions into its nursing home beds. The Commissioner mayapprove a certificate of public need for nursing home beds in a continuingcare retirement community in addition to those nursing home beds requestedfor the initial one-time, three-year open admission period if (i) the numberof new nursing home beds requested in any subsequent application does notcause the continuing care retirement community's total number of nursing homebeds to exceed twenty percent of its total number of beds that are notnursing beds, (ii) the number of licensed nursing home beds within thecontinuing care retirement community does not and will not exceed twentypercent of the number of occupied beds that are not nursing beds, and (iii)no open-admission period is allowed for these nursing home beds. Upon theexpiration of any initial one-time, three-year open admission period, acontinuing care retirement community which has obtained a certificate ofpublic need for a nursing facility project pursuant to subsection D may admitinto its nursing home beds (i) a standard contract holder who has been a bonafide resident of the non-nursing home portion of the continuing careretirement community for at least thirty days, or (ii) a person who is astandard contract holder who has lived in the non-nursing home portion of thecontinuing care retirement community for less than thirty days but whorequires nursing home care due to change in health status since admission tothe continuing care retirement community, or (iii) a person who is a familymember of a standard contract holder residing in a non-nursing home portionof the continuing care retirement community.
F. Any continuing care retirement community applicant for a certificate ofpublic need to increase the number of nursing home beds shall authorize theState Corporation Commission to disclose such information to the Commissioneras may be in the State Corporation Commission's possession concerning suchcontinuing care retirement community in order to allow the Commissioner toenforce the provisions of this section. The State Corporation Commissionshall provide the Commissioner with the requested information when soauthorized.
G. For the purposes of this section:
"Family member" means spouse, mother, father, son, daughter, brother,sister, aunt, uncle or cousin by blood, marriage or adoption.
"One-time, three-year open admission period" means the three years afterthe initial licensure of nursing home beds during which the continuing careretirement community may take admissions directly into its nursing home bedswithout the signing of a standard contract. The facility or a relatedfacility on the same campus shall not be granted any open admissions periodfor any subsequent application or authorization for nursing home beds.
"Qualified resident assistance policy" means a procedure, consistentlyfollowed by a facility, pursuant to which the facility endeavors to avoidrequiring a resident to leave the facility because of inability to payregular charges and which complies with the requirements of the InternalRevenue Service for maintenance of status as a tax exempt charitableorganization under § 501(c) (3) of the Internal Revenue Code. This policyshall be (i) generally made known to residents through the resident contractand (ii) supported by reasonable and consistent efforts to promote theavailability of funds, either through a special fund, separate foundation oraccess to other available funds, to assist residents who are unable to payregular charges in whole or in part.
This policy may (i) take into account the sound financial management of thefacility, including existing reserves, and the reasonable requirements oflenders and (ii) include requirements that residents seeking such assistanceprovide all requested financial information and abide by reasonableconditions, including seeking to qualify for other assistance andrestrictions on the transfer of assets to third parties.
A qualified resident assistance policy shall not constitute the business ofinsurance as defined in Chapter 1 (§ 38.2-100 et seq.) of Title 38.2.
"Standard contract" means a contract requiring the same entrance fee,terms, and conditions as contracts executed with residents of the non-nursinghome portion of the facility, if the entrance fee is no less than the amountdefined in § 38.2-4900.
H. This section shall not be construed to prohibit or prevent a continuingcare retirement community from discharging a resident (i) for breach ofnonfinancial contract provisions, (ii) if medically appropriate care can nolonger be provided to the resident, or (iii) if the resident is a danger tohimself or others while in the facility.
I. The provisions of subsections D, E, and H of this section shall not affectany certificate of public need issued prior to July 1, 1998; however, anycertificate of public need application for additional nursing home beds shallbe subject to the provisions of this act.
(1989, c. 517; 1990, cc. 191, 478, 753, 845; 1991, c. 561; 1992, cc. 612,682; 1993, cc. 347, 474, 540, 564, 704, 762, 957, 993; 1994, cc. 57, 680,711, 726, 797; 1995, cc. 505, 632, 641, 695, 753; 1996, cc. 531, 849, 901;1998, c. 794; 2009, c. 175.)