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ACT OF THE GENERAL ASSEMBLY 2007-2008

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NO. 27.  AN ACT RELATING TO THE REGULATION OF HEALTH CARE FACILITIES.

(H.380)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  18 V.S.A. § 1854(a) is amended to read:

(a)  A hospital shall make public the maximum patient census and the number of registered nurses, licensed practical nurses, and licensed nursing assistants providing direct patient care in each unit during each shift.  The number of nurses shall be reported  Each unit’s information shall be reported in full-time equivalents, with either every eight hours or 12 hours worked by a registered nurse, licensed practical nurse, or licensed nursing assistant during the shift as one full-time equivalent.  The reporting of this information shall be in a manner consistent with the requirements for public reporting for measures of nurse staffing selected by the commissioner of banking, insurance, securities, and health care administration under subdivision 9405b(a)(12) of this title, but shall not in any way change what is required to be posted as set forth in this subsection.  Each unit's information shall be posted in a prominent place that is readily accessible to patients and visitors in that unit at least once each day.  The posting shall include the information for the preceding seven days.


Sec. 2.  18 V.S.A. § 1905(17) is amended to read:

(17)  The board of health may when circumstances warrant, issue a temporary license for such period or periods and subject to such conditions as the board shall deem proper, subject to the limitation that such a temporary license shall not be issued for a total period of more than 36 months.  Such circumstances shall include issues concerning indicators in the hospital’s community report which may result in the board issuing a license conditioned upon corrective measures or a temporary license with conditions. 

Sec. 3.  18 V.S.A. § 1905(21) is added to read:

(21)  In conducting its reviews, the licensing agency shall evaluate the quality and financial indicators published by the department of banking, insurance, securities, and health care administration under subsection 9405b(c) of this title.

Sec. 4.  18 V.S.A. § 9405a is amended to read:

§ 9405a.  COMMUNITY NEEDS ASSESSMENT PUBLIC

                PARTICIPATION AND STRATEGIC PLANNING

On or before January 1, 2005, each Each hospital shall conduct a four-year community needs assessment. The assessment shall identify and prioritize the have a protocol for meaningful public participation in its strategic planning process for identifying and addressing health care needs of the service area or patient population for which a hospital provides services, and engage the public in the hospital’s strategic planning process. It shall be accomplished in collaboration with community members, including other health care professionals in the community, local government officials, community organizations, and local businesses.  The process for assessing the community’s health care needs shall include at least one public meeting held solely for soliciting public comment, notice for which shall be provided pursuant to section 174 of Title 1 that the hospital provides or could provide in its service area.  Needs identified through the process shall be integrated with the hospital’s long-term planning and shall be described as a component of its four-year capital expenditure projections provided to the public oversight commission under subdivision 9407(b)(2) of this title.  The needs assessment shall be prepared in a uniform format approved by the commissioner and process shall be updated as necessary to continue to be consistent with such planning and capital expenditure projections, and identified needs shall be summarized in the hospital’s community report.  In addition, each hospital shall develop a mechanism for receiving ongoing public comment, including an annual public meeting, regarding the community needs assessment and for revising it biannually so that the assessment will continue to project a four-year vision.  Subsequent community needs assessments shall be conducted every four years thereafter, beginning March 1, 2009.


Sec. 5.  18 V.S.A. § 9405b(a)(10) is amended to read:

(10)  a summary of the community needs assessment, including a description of strategic initiatives discussed with or derived from the assessment identification of health care needs; the one-year and four-year capital expenditure plans; and the depreciation schedule for existing facilities;

Sec. 6.  18 V.S.A. § 9405(b) is amended to read:

(b)  On or before July 1, 2005, the commissioner, in consultation with the secretary of human services, shall submit to the governor a four-year health resource allocation plan. The plan shall identify Vermont needs in health care services, programs, and facilities; the resources available to meet those needs; and the priorities for addressing those needs on a statewide basis.

(1)  The plan shall include:

* * *

(C)  Consistent with the principles set forth in subdivision (A) of this subdivision (1), recommendations for the appropriate supply and distribution of resources, programs, and services identified in subdivision (B) of this subdivision (1), options for implementing such recommendations and mechanisms which will encourage the appropriate integration of these services on a local or regional basis. To arrive at such recommendations, the commissioner shall consider at least the following factors: the values and goals reflected in the state health plan; the needs of the population on a statewide basis; the needs of particular geographic areas of the state, as identified in the state health plan; the needs of uninsured and underinsured populations; the use of Vermont facilities by out-of-state residents; the use of out-of-state facilities by Vermont residents; the needs of populations with special health care needs; the desirability of providing high quality services in an economical and efficient manner, including the appropriate use of midlevel practitioners; the cost impact of these resource requirements on health care expenditures; the services appropriate for the four categories of hospitals described in subdivision 9402(12) of this title; the overall quality and use of health care services as reported by the Vermont program for quality in health care and the Vermont ethics network; the overall quality and cost of services as reported in the annual hospital community reports; information from the hospital community needs assessments; individual hospital four-year capital budget projections; the unified health care budget; and the four-year projection of health care expenditures prepared by the division.

* * *

(4)  The commissioner shall develop a mechanism for receiving ongoing public comment regarding the plan and for revising it biannually every four years or as needed, in consultation with the public oversight commissionThe public oversight commission shall recommend revisions to the plan at least every four years and at any other time it determines revisions are warranted.

(5)  The commissioner in consultation with appropriate health care organizations and state entities shall inventory and assess existing state health care data and expertise, and shall seek grants to assist with the preparation of any revisions to the health resource allocation plan.  Based on this assessment and no later than January 15, 2004, the commissioner shall submit a report to the general assembly stating his or her recommendations regarding the professional assistance, budget, staff, and process needed to integrate available health care data and expertise into the health resource allocation plan.

(6)  The commissioner may retain such professional staff or other staff as needed to assist in his or her responsibilities under this section.  The reasonable expenses of such staff shall be funded to the maximum extent possible with grant money. Any additional amounts needed, not to exceed $300,000.00, shall be assessed and collected from hospitals licensed under chapter 43 of this title, proportionate to their annual operating budgets.  The commissioner’s assessment authority under this subdivision shall begin on July 1, 2003 and shall expire on July 1, 2005.

(7)(6)  The plan or any revised plan proposed by the commissioner shall be the health resource allocation plan for the state after it is approved by the governor or upon passage of three months from the date the governor receives the plan, whichever occurs first, unless the governor disapproves the plan, in whole or in part.  If the governor disapproves, he or she shall specify the sections of the plan which are objectionable and the changes necessary to meet the objections.  The sections of the plan not disapproved shall become part of the health resource allocation plan.  Upon its adoption, the plan shall be submitted to the appropriate legislative committees.

Sec. 7.  18 V.S.A. § 9434 is amended to read:

§ 9434.  CERTIFICATE OF NEED; GENERAL RULES

* * *

(b)  A health care facility other than a hospital that proposes to develop a project described in subdivision (a)(1) or (4) of this section which is exempt from the requirements of this subchapter solely because the cost or value of the proposed project does not exceed the financial thresholds of those subdivisions shall file a letter of intent with the commissioner, if the cost or value is greater than $750,000.00 or, in the case of durable medical equipment, $500,000.00. Upon review, the commissioner may require the health care facility to obtain a certificate of need if, within 30 days of receiving the letter of intent, he or she finds that the proposed development:

(1)  may be inconsistent with the health resource allocation plan;

(2)  has the potential for significantly increasing utilization or rates; or

(3)  may substantially change the type, scope, or volume of service.

(c)(b)  A hospital shall not develop, or have developed on its behalf a new health care project without issuance of a certificate of need by the commissioner.  For purposes of this subsection, a “new health care project” includes the following:

* * *

(d)  A hospital that proposes to develop a project described in subdivision (c)(1) or (2) of this section which is exempt from the requirements of this subchapter solely because the cost or value of the proposed project does not exceed the financial thresholds of those subdivisions shall file a letter of intent with the commissioner, if the cost or value is greater than $1,500,000.00 or, in the case of diagnostic and therapeutic equipment, $750,000.00. Upon review, the commissioner may require the health care facility to obtain a certificate of need if, within 30 days of receiving the letter of intent, he or she finds that the proposed development:

(1)  may be inconsistent with the health resource allocation plan;

(2)  has the potential for significantly increasing utilization or rates;

(3)  may substantially change the type, scope, or volume of service; or

(4)  has the potential to place an undue financial burden on the hospital’s resources.

(e)(c)  In the case of a project which requires a certificate of need under this section, expenditures for which are anticipated to be in excess of $20,000,000.00 $30,000,000.00, the applicant first shall secure a conceptual development phase certificate of need, in accordance with the standards and procedures established in this subchapter, which permits the applicant to make expenditures for architectural services, engineering design services, and or any other planning services, as defined by the commissioner, needed in connection with the project.  Upon completion of the conceptual development phase of the project, and before offering or further developing the project, the applicant shall secure a final certificate of need, in accordance with the standards and procedures established in this subchapter.  Applicants shall not be subject to sanctions for failure to comply with the provisions of this subsection if such failure is solely the result of good faith reliance on verified project cost estimates issued by qualified persons, which cost estimates would have led a reasonable person to conclude the project was not anticipated to be in excess of $20,000,000.00 $30,000,000.00 and therefore not subject to this subsection. The provisions of this subsection notwithstanding, expenditures may be made in preparation for obtaining a conceptual development phase certificate of need, which expenditures shall not exceed $1,500,000.00 for non-hospitals or $3,000,000.00 for hospitals.

(f)(d)  If the commissioner determines that a person required to obtain a certificate of need under this subchapter has separated a single project into components in order to avoid cost thresholds or other requirements under this subchapter, the person shall be required to submit an application for a certificate of need for the entire project, and the commissioner may proceed under section 9445 of this title.  The commissioner’s determination under this subsection shall have the effect of a final decision and is subject to appeal under this subchapter.

(g)(e)  Beginning January 1, 2005, and biannually thereafter, the commissioner may by rule adjust the monetary jurisdictional thresholds contained in this section.  In doing so, the commissioner shall reflect the same categories of health care facilities, services, and programs recognized in this section.  Any adjustment by the commissioner shall not exceed the consumer price index rate of inflation.

Sec. 8.  18 V.S.A. § 9440(c) is amended to read:

(c)  The application process shall be as follows:

(1)  Applications shall be accepted only at such times as the commissioner shall establish by rule.

(2)  Prior to filing an application for a certificate of need, an applicant shall file a an adequate letter of intent with the commissioner no less than 30 days or, in the case of review cycle applications under section 9439 of this title, no less than 45 days prior to the date on which the application is to be filed.  The letter of intent shall form the basis for determining the applicability of this subchapter to the proposed expenditure or action.  A letter of intent shall become invalid if an application is not filed within six months of the date that the letter of intent is received or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule.  Public Except for requests for expedited review under subdivision (5) of this subsection, public notice of such letters of intent shall be provided in newspapers having general circulation in the region of the state affected by the letter of intent.  The notice shall identify the applicant, the proposed new health care project, and the date by which a competing application or petition to intervene must be filed.  In addition, a copy of the public notice shall be sent to the clerk of the municipality in which the health care facility is located.  Upon receipt, the clerk shall post the notice in or near the clerk’s office and in at least two other public places in the municipality.

(3)  The commissioner shall review each letter of intent and, if the letter contains the information required for letters of intent as established by the commissioner by rule, within 30 days, determine whether the project described in the letter will require a certificate of need.  If the commissioner determines that a certificate of need is required for a proposed expenditure or action, an application for a certificate of need shall be filed before development of the project begins.

(4)  Within 30 90 days of receipt of an application, the commissioner shall notify the applicant that the application contains all necessary information required and is complete, or that additional information is required the application review period is complete notwithstanding the absence of necessary information.  The commissioner may extend the 90-day application review period for an additional 60 days, or for a period of time in excess of 150 days with the consent of the applicant.  The time during which the applicant is responding to the commissioner’s notice that additional information is required shall not be included within the maximum review period permitted under this subsection.  The public oversight commission may recommend, or the commissioner may determine that the certificate of need application shall be denied if the applicant has failed to provide all necessary information required to review the application.

(5)  An applicant seeking expedited review of a certificate of need application may simultaneously file a letter of intent and an application with the commissioner.  Upon making a determination that the proposed project may be uncontested and does not substantially alter services, as defined by rule, the commissioner shall issue public notice of the application and the request for expedited review and identify a date by which a competing application or petition for interested party status must be filed.  If a competing application is not filed and no person opposing the application is granted interested party status, the commissioner may formally declare the application uncontested and may issue a certificate of need without further process, or with such abbreviated process as the commissioner deems appropriate.  If a competing application is filed or a person opposing the application is granted interested party status, the applicant shall follow the certificate of need standards and procedures in this section.

(5)(6)  If an applicant fails to respond to an information request under subdivision (4) of this subsection within six months or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule, the application will be deemed inactive unless the applicant has, within said six months, filed an adequate, as determined by the commissioner, amended letter of intent.  If an applicant fails to respond to an information request within 12 months or, in the case of review cycle applications under section 9439 of this title, within such time limits as the commissioner shall establish by rule, the application will become invalid, unless the applicant requests, and the commissioner grants, an extension.

(6)(7)  For purposes of this section, “interested party” status shall be granted to persons or organizations representing the interests of persons who demonstrate that they will be substantially and directly affected by the new health care project under review.  Persons able to render material assistance to the commissioner by providing nonduplicative evidence relevant to the determination may be admitted in an amicus curiae capacity but shall not be considered parties.  A petition seeking party or amicus curiae status must be filed within 20 days following public notice of the letter of intent, or within 20 days following public notice that the application is complete.  The commissioner shall grant or deny a petition to intervene under this subdivision within 15 days after the petition is filed.  The commissioner shall grant or deny the petition within an additional 30 days upon finding that good cause exists for the extension.  Once interested party status is granted, the commissioner shall provide the information necessary to enable the party to participate in the review process.  Such information includes information about procedures, copies of all written correspondence, and copies of all entries in the application record.

(7)(8)  Once an application has been deemed to be complete, public notice of the application will be provided in newspapers having general circulation in the region of the state affected by the application.  The notice shall identify the applicant, the proposed new health care project, and the date by which a competing application under section 9439 of this title or a petition to intervene must be filed.

(8)(9)  The health care ombudsman’s office established under section 4089j of Title 8 or, in the case of nursing homes, the long-term care ombudsman’s office established under section 7502 of Title 33, is authorized but not required to participate in any administrative or judicial review of an application under this subchapter and shall be considered an interested party in such proceedings upon filing a notice of intervention with the commissioner.


Sec. 9.  18 V.S.A. § 9456(d) is amended to read:

(d)(1)  Annually, the commissioner shall establish a budget for each hospital by September 15 followed by a written decision by October 1.  Each hospital shall operate within the budget established under this section.

(2)(A)  It is the general assembly's intent that hospital cost containment conduct is afforded state action immunity under applicable federal and state antitrust laws, if:

(i)  the commissioner requires or authorizes the conduct in any hospital budget established by the commissioner under this section;

(ii)  the conduct is in accordance with standards and procedures prescribed by the commissioner; and

(iii)  the conduct is actively supervised by the commissioner.

(B)  A hospital’s violation of the commissioner’s standards and procedures shall be subject to enforcement pursuant to subsection (h) of this section.

Sec. 10.  MOBILE HEALTH FACILITIES

The general assembly finds that there have been concerns raised about the practices of private mobile health facilities that enter the state of Vermont for the purpose of providing one-day diagnostic screenings to Vermont residents for a specified fee.  The general assembly requests that the commissioner of health, in consultation with the office of the attorney general, review whether the practices of such mobile health facilities serve the best interests of Vermonters and report his or her findings to the general assembly not later than November 30, 2007.

Sec. 11.  REPEAL

(a)  Sec. 25 of No. 53 of the Acts of 2003 (requiring an annual report on collaboration among hospitals) is repealed.

(b)  Subdivision 9402(2) of Title 18 (community needs assessment definition) is repealed and the remaining subsections renumbered accordingly.

Sec. 12.  HEALTH INFORMATION TECHNOLOGY PLANNING

(a)  Notwithstanding the procedures in subchapter 5 of chapter 221 of Title 18, an applicant seeking expedited review of a certificate of need application for a health information technology project may simultaneously file a letter of intent and an application with the commissioner of banking, insurance, securities, and health care administration without providing the public notice required under subdivision 9440(c)(2) of Title 18.  The commissioner shall issue public notice of the application and the request for expedited review and identify a date by which a competing application or petition for interested party status must be filed.  If a competing application is not filed and no person opposing the application is granted interested party status, the commissioner may formally declare the application uncontested and may issue a certificate of need without further process, or with such abbreviated process as the commissioner deems appropriate, upon a finding that application is consistent with:

(1)  the preliminary health information technology plan issued by the Vermont information technology leaders on January 1, 2007, pursuant to subsection 9417(g) of Title 18, or with the final health information technology plan, if it has been issued at the time the certificate of need is filed; and

(2)  the health resource allocation plan. 

(b)  In making a determination, the commissioner may rely upon the written opinions of persons with expertise in health information technology.  If a competing application is filed or a person opposing the application is granted interested party status, the applicant shall follow the certificate of need standards and procedures in section 9440 of Title 18.

(c)  This section shall be repealed upon approval of the health information technology plan by the general assembly and upon adoption of rules under section 9440b of Title 18.

Sec. 13.  EFFECTIVE DATE

Sec. 12 of this act shall take effect upon passage.  The remaining sections of this act shall take effect July 1, 2007.

Approved:  May 16, 2007



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us