September 16, 2014, Introduced by Senators RICHARDVILLE, KOWALL, BRANDENBURG, GREEN and MARLEAU and referred to the Committee on Government Operations.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 22201, 22207, 22209, 22211, 22213, 22215, and
22219 (MCL 333.22201, 333.22207, 333.22209, 333.22211, 333.22213,
333.22215, and 333.22219), section 22201 as added by 1988 PA 332,
sections 22207, 22209, 22213, and 22215 as amended and section
22219 as added by 2002 PA 619, and section 22211 as amended by 2014
PA 107.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 22201. (1) For purposes of this part, the words and
phrases
defined in sections 22203 to 22207 22208 have the meanings
ascribed to them in those sections.
(2) In addition, article 1 contains general definitions and
principles of construction applicable to all articles in this code.
(3) The definitions in part 201 do not apply to this part.
Sec. 22207. (1) "Medicaid" means the program for medical
assistance
administered by the department of community health under
the social welfare act, 1939 PA 280, MCL 400.1 to 400.119b.
(2) "Modernization" means an upgrading, alteration, or change
in function of a part or all of the physical plant of a health
facility. Modernization includes, but is not limited to, the
alteration, repair, remodeling, and renovation of an existing
building and initial fixed equipment and the replacement of
obsolete fixed equipment in an existing building. Modernization of
the physical plant does not include normal maintenance and
operational expenses.
(3) "New construction" means construction of a health facility
where a health facility does not exist or construction replacing or
expanding an existing health facility or a part of an existing
health facility.
(4)
"Person" means a person that term as defined in
section
1106
or and includes a governmental entity.
(5) "Planning area" means the area defined in a certificate of
need review standard for determining the need for, and the resource
allocation of, a specific health facility, service, or equipment.
Planning
area includes, but is not limited to, the this state, a
health facility service area, or a health service area or subarea
within
the this state.
(6) "Proposed project" means a proposal to acquire an existing
health facility or begin operation of a new health facility, make a
change in bed capacity, initiate, replace, or expand a covered
clinical service, or make a covered capital expenditure.
(7) "Public member" means a member of the general public who
is not a licensee or registrant under this article or article 15,
is a resident of this state, is not less than 18 years of age, does
not have an ownership interest in or a contractual relationship
with a health facility, does not have a material financial interest
in the provision of health services, and has not had a material
financial interest in the provision of health services within the
12 months immediately preceding his or her appointment to the
commission.
(8) (7)
"Rural county" means a
county not located in a
metropolitan statistical area or micropolitan statistical areas as
those
terms areas are defined delineated under the "2010 standards
for
defining delineating metropolitan and micropolitan statistical
areas"
as adopted by the statistical policy office of the office
of
information and regulatory affairs of the United States office of
management
and budget, 65 F.R. p. 82238 (December 27, 2000).75 FR
123, p. 37246 (June 28, 2010).
(9) (8)
"Stipulation" means a
requirement that is germane to
the proposed project and has been agreed to by an applicant as a
condition of certificate of need approval.
Sec. 22209. (1) Except as otherwise provided in this part, a
person shall not do any of the following without first obtaining a
certificate of need:
(a) Acquire an existing health facility or begin operation of
a health facility at a site that is not currently licensed for that
type of health facility.
(b) Make a change in the bed capacity of a health facility.
(c) Initiate, replace, or expand a covered clinical service.
(d) Make a covered capital expenditure.
(2) A certificate of need is not required for a reduction in
licensed bed capacity or services at a licensed site.
(3)
Subject to subsection (9) and if the If a hospital bed
relocation does not result in an increase of licensed beds within
that health service area, a certificate of need is not required for
any of the following:
(a) The physical relocation of licensed beds from a hospital
site licensed under part 215 to another hospital site licensed
under the same license as the hospital seeking to transfer the beds
if both hospitals are located within a 2-mile radius of each other.
(b) Subject to subsections (7) and (8) and provided that
construction of a new facility site, if applicable, commences not
later than 12 months after the effective date of the amendatory act
that added subparagraphs (v) and (vi), the physical relocation of
licensed beds from a hospital licensed under part 215 to a
freestanding surgical outpatient facility site licensed under part
208 if that freestanding surgical outpatient facility site
satisfies
each of the following criteria: on December 2, 2002:
(i) Is owned by, is under common control of, or has as
a common
parent
ownership in common with the hospital seeking to relocate
its licensed beds.
(ii) Was licensed prior to before January
1, 2002.2010.
(iii) Provides 24-hour urgent or emergency care services at that
site.
(iv) Provides at least 4 different covered clinical services at
that site.
(v) Is located within an 8-mile radius of the hospital seeking
to relocate its licensed beds.
(vi) Is located in a county with a population between 1,200,000
and 1,500,000.
(c) Subject to subsections (7) and (8), the physical
relocation of licensed beds from a hospital licensed under part 215
to another hospital licensed under part 215 within the same health
service area if the hospital receiving the licensed beds is owned
by, is under common control of, or has as a common parent the
hospital seeking to relocate its licensed beds.
(4) Subject to subsection (5), a hospital licensed under part
215 is not required to obtain a certificate of need to provide 1 or
more
of the covered clinical services listed in section 22203(10)
in a federal veterans health care facility or to use long-term care
unit beds or acute care beds that are owned and located in a
federal veterans health care facility if the hospital satisfies
each of the following criteria:
(a) The hospital has an active affiliation or sharing
agreement with the federal veterans health care facility.
(b) The hospital has physicians who have faculty appointments
at the federal veterans health care facility or has an affiliation
with a medical school that is affiliated with a federal veterans
health care facility and has physicians who have faculty
appointments at the federal veterans health care facility.
(c) The hospital has an active grant or agreement with the
state or federal government to provide 1 or more of the following
functions relating to bioterrorism:
(i) Education.
(ii) Patient care.
(iii) Research.
(iv) Training.
(5) A hospital that provides 1 or more covered clinical
services in a federal veterans health care facility or uses long-
term care unit beds or acute care beds located in a federal
veterans
health care facility under subsection (4) may shall not
utilize procedures performed at the federal veterans health care
facility to demonstrate need or to satisfy a certificate of need
review standard unless the covered clinical service provided at the
federal veterans health care facility was provided under a
certificate of need.
(6)
If a hospital licensed under part 215 had has fewer than
70
licensed beds, on December 1, 2002, that hospital is not
required to satisfy the minimum volume requirements under the
certificate of need review standards for its existing operating
rooms as long as those operating rooms continue to exist at that
licensed hospital site.
(7) Before relocating beds under subsection (3)(b), the
hospital seeking to relocate its beds shall provide the information
requested
by the department of consumer and industry services
licensing and regulatory affairs that will allow the department of
consumer
and industry services licensing
and regulatory affairs to
verify
the number of licensed beds that were staffed and available
for
patient care at that hospital. as
of December 2, 2002. A
hospital
shall transfer no more than 35% of its licensed beds to
another
hospital or freestanding surgical outpatient facility under
subsection
(3)(b) or (c) not more than 1 time after the effective
date
of the amendatory act that added this subsection if the
hospital
seeking to relocate its licensed beds or another hospital
owned
by, under common control of, or having as a common parent the
hospital
seeking to relocate its licensed beds is located in a city
that
has a population of 750,000 or more.The hospital seeking to
relocate licensed beds shall provide written verification to the
department that it shall continue to do all of the following at its
current site:
(a) Provide at least $10,000,000.00 in uncompensated care
annually.
(b) Develop a medical education and job training program in
cooperation with a local public school district, a local
intermediate school district, a local community college, or a
public higher education institution.
(c) Provide access to health care services, including, but not
limited to, primary care services, pediatric services, prenatal
services, inpatient and outpatient surgical services, oncology
services, cardiac services, emergency medical services, chronic
disease prevention and treatment services focused on obesity,
infant mortality, and smoking cessation, mental health services,
substance abuse services, diagnostic services, rehabilitation
services, physical therapy services, occupational therapy services,
geriatric health care services, and dialysis services.
(d) Maintain at least 70 licensed beds.
(8) The licensed beds relocated under subsection (3)(b) or (c)
shall not be included as new beds in a hospital or as a new
hospital under the certificate of need review standards for
hospital
beds. One of every 2 beds transferred under subsection
(3)(b)
up to a maximum of 100 shall be beds that were staffed and
available
for patient care as of December 2, 2002. A hospital
relocating
beds under subsection (3)(b) shall not reactivate
licensed
beds within that hospital that were unstaffed or
unavailable
for patient care on December 2, 2002 for a period of 5
years
after the date of the relocation of the licensed beds under
subsection
(3)(b).Services at the new
site shall not be considered
an initiation, replacement, or expansion of covered clinical
services for the purposes of subsection (1)(c) if those same
services are provided at the existing hospital site at the time the
licensed beds are relocated to the new site.
(9)
No licensed beds shall be physically relocated under
subsection
(3) if 7 or more members of the commission, after the
appointment
and confirmation of the 6 additional commission members
under
section 22211 but before June 15, 2003, determine that
relocation
of licensed beds under subsection (3) may cause great
harm
and detriment to the access and delivery of health care to the
public
and the relocation of beds should not occur without a
certificate
of need.
(9) (10)
An applicant seeking a certificate
of need for the
acquisition of an existing health facility may file a single,
consolidated application for the certificate of need if the project
results in the acquisition of an existing health facility but does
not result in an increase or relocation of licensed beds or the
initiation, expansion, or replacement of a covered clinical
service. Except as otherwise provided in this subsection, a person
acquiring an existing health facility is subject to the applicable
certificate of need review standards in effect on the date of the
transfer for the covered clinical services provided by the acquired
health facility. The department may except 1 or more of the covered
clinical services listed in section 22203(10)(b), except the
covered clinical service listed in section 22203(10)(b)(iv), from
the minimum volume requirements in the applicable certificate of
need review standards in effect on the date of the transfer, if the
equipment used in the covered clinical service is unable to meet
the minimum volume requirements due to the technological incapacity
of the equipment. A covered clinical service excepted by the
department under this subsection is subject to all the other
provisions in the applicable certificate of need review standards
in effect on the date of the transfer, except minimum volume
requirements.
(10) (11)
An applicant seeking a certificate
of need for the
relocation or replacement of an existing health facility may file a
single, consolidated application for the certificate of need if the
project does not result in an increase of licensed beds or the
initiation, expansion, or replacement of a covered clinical
service. A person relocating or replacing an existing health
facility is subject to the applicable certificate of need review
standards in effect on the date of the relocation or replacement of
the health facility.
(11) (12)
As used in this section,
"sharing agreement" means a
written agreement between a federal veterans health care facility
and a hospital licensed under part 215 for the use of the federal
veterans health care facility's beds or equipment, or both, to
provide covered clinical services.
Sec. 22211. (1) The certificate of need commission is created
in
the department. The Beginning
60 days after the effective date
of the amendatory act that added subdivision (k), the commission
consists
of 11 13 members appointed by the governor with the advice
and consent of the senate. The governor shall not appoint more than
6
7 members from the same major political party and
shall appoint 5
6 members from another major political party. Within 30 days after
the effective date of the amendatory act that added subdivision
(k), the governor shall appoint the 2 general public members to the
commission as required under subdivision (k). The commission
consists
of the following 11 members:
(a)
Two individuals representing who
represent hospitals.
(b)
One individual representing who
represents physicians
licensed under part 170 to engage in the practice of medicine.
(c)
One individual representing who
represents physicians
licensed under part 175 to engage in the practice of osteopathic
medicine and surgery.
(d) One individual who is a physician licensed under part 170
or
175 representing and who
represents a school of medicine or
osteopathic medicine.
(e)
One individual representing who
represents nursing homes.
(f)
One individual representing who
represents nurses.
(g)
One individual representing who
represents a company that
is self-insured for health coverage.
(h)
One individual representing who
represents a company that
is not self-insured for health coverage.
(i)
One individual representing a nonprofit health care
corporation
operating pursuant to the nonprofit health care
corporation
reform act, 1980 PA 350, MCL 550.1101 to 550.1704, or
who represents a nonprofit mutual disability insurer into which a
nonprofit health care corporation has merged as provided in section
5805(1) of the insurance code of 1956, 1956 PA 218, MCL 500.5805.
(j)
One individual representing who
represents organized labor
unions in this state.
(k) Two individuals who represent the general public, 1 of
whom is designated by the governor as the chairperson.
(2) In making appointments, the governor shall, to the extent
feasible, assure that the membership of the commission is broadly
representative of the interests of all of the people of this state
and of the various geographic regions.
(3) A member of the commission shall serve for a term of 3
years or until a successor is appointed. A vacancy on the
commission shall be filled for the remainder of the unexpired term
in the same manner as the original appointment.
(4) Commission members are subject to the following:
(a) 1968 PA 317, MCL 15.321 to 15.330.
(b) 1973 PA 196, MCL 15.341 to 15.348.
(c) 1978 PA 472, MCL 4.411 to 4.431.
Sec. 22213. (1) The commission shall, within 2 months after
appointment and confirmation of all members, adopt bylaws for the
operation of the commission. The bylaws shall include, at a
minimum, voting procedures that protect against conflict of
interest and minimum requirements for attendance at meetings.
(2) The governor may remove a commission member from office
for failure to attend 3 consecutive meetings in a 1-year period.
(3)
The commission annually shall elect a chairperson and
vice-chairperson.
(4) If an item on the commission's agenda presents a conflict
of interest for the chairperson, the vice-chairperson shall lead
the discussion for that item.
(5) (4)
The commission shall hold regular
quarterly meetings
at places and on dates fixed by the commission. Special meetings
may be called by the chairperson, by not less than 3 commission
members, or by the department.
(6) (5)
A majority of the commission
members appointed and
serving constitutes a quorum. Final action by the commission shall
be only by affirmative vote of a majority of the commission members
appointed and serving. A commission member shall not vote by proxy.
(7) (6)
The legislature annually shall fix
the per diem
compensation of members of the commission. Expenses of members
incurred in the performance of official duties shall be reimbursed
as provided in section 1216.
(8) (7)
The department shall furnish
administrative services
to the commission, shall have charge of the commission's offices,
records,
and accounts, and shall provide at least 2 full-time
administrative
employees, secretarial staff, and other staff
necessary
to allow the proper exercise of the powers and duties of
the
commission. sufficient staff
to support the work of the
commission. The department shall make available the times and
places of commission meetings and keep minutes of the meetings and
a record of the actions of the commission. The department shall
make available a brief summary of the actions taken by the
commission.
(9) (8)
The department shall assign at
least 2 full-time
professional employees to staff the commission to assist the
commission in the performance of its substantive responsibilities
under this part.
Sec. 22215. (1) The commission shall do all of the following:
(a) If determined necessary by the commission, revise, add to,
or delete 1 or more of the covered clinical services listed in
section 22203. If the commission proposes to add to the covered
clinical services listed in section 22203, the commission shall
develop proposed review standards and make the review standards
available to the public not less than 30 days before conducting a
hearing under subsection (3).
(b) Develop, approve, disapprove, or revise certificate of
need review standards that establish for purposes of section 22225
the need, if any, for the initiation, replacement, or expansion of
covered clinical services, the acquisition or beginning the
operation of a health facility, making changes in bed capacity, or
making covered capital expenditures, including conditions,
standards, assurances, or information that must be met,
demonstrated, or provided by a person who applies for a certificate
of need. A certificate of need review standard may also establish
ongoing quality assurance requirements including any or all of the
requirements specified in section 22225(2)(c). Except for nursing
home and hospital long-term care unit bed review standards, by
January 1, 2004, the commission shall revise all certificate of
need review standards to include a requirement that each applicant
participate
in title XIX. of the social security act, chapter 531,
49
Stat. 620, 1396r-6 and 1396r-8 to 1396v.
(c) Direct the department to prepare and submit
recommendations regarding commission duties and functions that are
of interest to the commission including, but not limited to,
specific modifications of proposed actions considered under this
section.
(d) Approve, disapprove, or revise proposed criteria for
determining health facility viability under section 22225.
(e) Annually assess the operations and effectiveness of the
certificate of need program based on periodic reports from the
department and other information available to the commission.
(f)
By January 1 , 2005, and of every 2 years
thereafter, odd
year, make recommendations to the joint committee regarding
statutory changes to improve or eliminate the certificate of need
program.
(g) Upon submission by the department approve, disapprove, or
revise standards to be used by the department in designating a
regional certificate of need review agency, pursuant to section
22226.
(h) Develop, approve, disapprove, or revise certificate of
need review standards governing the acquisition of new technology.
(i) In accordance with section 22255, approve, disapprove, or
revise proposed procedural rules for the certificate of need
program.
(j) Consider the recommendations of the department and the
department of attorney general as to the administrative feasibility
and legality of proposed actions under subdivisions (a), (b), and
(c).
(k) Consider the impact of a proposed restriction on the
acquisition of or availability of covered clinical services on the
quality, availability, and cost of health services in this state.
The commission shall also evaluate all certificate of need review
standards to determine if the language allows for actual approval
of an application. If the commission determines that a service will
be capped at a specific number of providers, the commission shall
express that determination plainly in the review standards.
(l) If the commission determines it necessary, appoint standard
advisory committees to assist in the development of proposed
certificate of need review standards. A standard advisory committee
shall complete its duties under this subdivision and submit its
recommendations to the commission within 6 months unless a shorter
period of time is specified by the commission when the standard
advisory committee is appointed. Voting on all motions before the
committees shall be documented by a roll call vote and shall be
recorded in the minutes. An individual shall serve on no more than
2 standard advisory committees in any 2-year period. The
composition of a standard advisory committee shall not include a
lobbyist registered under 1978 PA 472, MCL 4.411 to 4.431, but
shall include all of the following:
(i) Experts with professional competence in the subject matter
of the proposed standard, who shall constitute a 2/3 majority of
the standard advisory committee.
(ii) Representatives of health care provider organizations
concerned with licensed health facilities or licensed health
professions.
(iii) Representatives of organizations concerned with health
care consumers and the purchasers and payers of health care
services.
(m) In addition to subdivision (b), review and, if necessary,
revise each set of certificate of need review standards at least
every 3 years.
(n) If a standard advisory committee is not appointed by the
commission and the commission determines it necessary, submit a
request to the department to engage the services of private
consultants or request the department to contract with any private
organization for professional and technical assistance and advice
or other services to assist the commission in carrying out its
duties and functions under this part.
(o)
Within 6 months after the appointment and confirmation of
the
6 additional commission members under section 22211, develop,
approve,
or revise certificate of need review standards governing
the
increase of licensed beds in a hospital licensed under part
215,
the physical relocation of hospital beds from 1 licensed site
to
another geographic location, and the replacement of beds in a
hospital
licensed under part 215.
(2) The commission shall exercise its duties under this part
to promote and assure all of the following:
(a) The availability and accessibility of quality health
services at a reasonable cost and within a reasonable geographic
proximity for all people in this state.
(b) Appropriate differential consideration of the health care
needs of residents in rural counties in ways that do not compromise
the quality and affordability of health care services for those
residents.
(3) Not less than 30 days before final action is taken by the
commission
under subsection (1)(a), (b), (d), or
(h), or (o), the
commission shall conduct a public hearing on its proposed action.
In addition, not less than 30 days before final action is taken by
the
commission under subsection (1)(a), (b), (d), or (h), or (o),
the commission chairperson shall submit the proposed action and a
concise summary of the expected impact of the proposed action for
comment to each member of the joint committee. The commission shall
inform the joint committee of the date, time, and location of the
next meeting regarding the proposed action. The joint committee
shall promptly review the proposed action and submit its
recommendations and concerns to the commission.
(4) The commission chairperson shall submit the proposed final
action including a concise summary of the expected impact of the
proposed final action to the governor and each member of the joint
committee. The governor or the legislature may disapprove the
proposed final action within 45 days after the date of submission.
If the proposed final action is not submitted on a legislative
session day, the 45 days commence on the first legislative session
day after the proposed final action is submitted. The 45 days shall
include not less than 9 legislative session days. Legislative
disapproval
shall be expressed by concurrent resolution which that
shall be adopted by each house of the legislature. The concurrent
resolution shall state specific objections to the proposed final
action. A proposed final action by the commission under subsection
(1)(a),
(b), (d), or (h) , or (o) is
not effective if it has been
disapproved under this subsection. If the proposed final action is
not disapproved under this subsection, it is effective and binding
on all persons affected by this part upon the expiration of the 45-
day period or on a later date specified in the proposed final
action. As used in this subsection, "legislative session day" means
each day in which a quorum of either the house of representatives
or the senate, following a call to order, officially convenes in
Lansing to conduct legislative business.
(5) The commission shall not develop, approve, or revise a
certificate of need review standard that requires the payment of
money or goods or the provision of services unrelated to the
proposed project as a condition that must be satisfied by a person
seeking a certificate of need for the initiation, replacement, or
expansion of covered clinical services, the acquisition or
beginning the operation of a health facility, making changes in bed
capacity, or making covered capital expenditures. This subsection
does not preclude a requirement that each applicant participate in
title
XIX of the social security act, chapter 531, 49 Stat. 620,
1396r-6
and 1396r-8 to 1396v , or a
requirement that each applicant
provide covered clinical services to all patients regardless of his
or her ability to pay.
(6)
If the reports received under section 22221(f) indicate
that
the certificate of need application fees collected under
section
20161 have not been within 10% of 3/4 the cost to the
department
of implementing this part, the commission shall make
recommendations
regarding the revision of those fees so that the
certificate
of need application fees collected equal approximately
3/4
of the cost to the department of implementing this part.
(6) (7)
As used in this section,
"joint committee" means the
joint committee created under section 22219.
Sec. 22219. (1) A joint legislative committee to focus on
proposed actions of the commission regarding the certificate of
need program and certificate of need standards and to review other
certificate of need issues is created. The joint committee shall
consist of 6 members as follows:
(a) The chairperson of the senate committee on health policy.
(b) The vice-chairperson of the senate committee on health
policy.
(c) The minority vice-chairperson of the senate committee on
health policy.
(d) The chairperson of the house of representatives committee
on health policy.
(e) The vice-chairperson of the house of representatives
committee on health policy.
(f) The minority vice-chairperson of the house of
representatives committee on health policy.
(2) The joint committee shall be co-chaired by the chairperson
of the senate committee on health policy and the chairperson of the
house committee on health policy.
(3) The joint committee may administer oaths, subpoena
witnesses, and examine the application, documentation, or other
reports and papers of an applicant or any other person involved in
a matter properly before the committee.
(4) The joint committee shall review the recommendations made
by
the commission under section 22215(6) regarding the revision of
the certificate of need application fees and submit a written
report to the legislature outlining the costs to the department to
implement the program, the amount of fees collected, and its
recommendation regarding the revision of those fees.
(5) The joint committee may develop a plan for the revision of
the certificate of need program. If a plan is developed by the
joint committee, the joint committee shall recommend to the
legislature the appropriate statutory changes to implement the
plan.