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Title 44 - Health

CHAPTER 7.

HOSPITALS, TUBERCULOSIS CAMPS AND HEALTH SERVICES DISTRICTS

ARTICLE 1.

GENERAL PROVISIONS

SECTION 44-7-10. Public hospitals may maintain eye banks.

Any State, county, district or other public hospital may purchase and provide the necessary facilities and equipment to establish and maintain an eye bank for restoration-of-sight purposes.

SECTION 44-7-20. Disturbing patients with radios or musical instruments.

It shall be unlawful for any person to operate any radio or other musical instrument in such a manner that it annoys or disturbs any patient confined to a hospital or sanitarium. Any person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than one hundred dollars or imprisonment of not more than thirty days.

SECTION 44-7-30. Defrauding hospitals.

Any person who shall:

(1) At any hospital order and receive or cause to be furnished any food or accommodation based upon contract with intent to defraud the owner or proprietor of such hospital out of the value or price of such food or accommodation contract;

(2) Obtain credit at any hospital by the use of any false pretense or device or by fraudulently depositing at such hospital any baggage or property of less value than the amount of such credit or of the bill by such person incurred, unless credit be given by express agreement; or

(3) After obtaining creditor accommodation based upon contract at any hospital, surreptitiously remove his baggage or property therefrom;

Shall be guilty of a misdemeanor. Proof (a) that lodging, food or other accommodation based upon contract was obtained by false pretense or by false or fictitious show or pretense of baggage, (b) that a person absconded without paying or offering to pay for such food, lodging or other accommodation based upon contract or (c) that a person surreptitiously removed or attempted to remove his baggage shall be prima facie proof of the fraudulent intent mentioned in this section. Any person convicted of violating the provisions of this section shall pay a fine of not more than fifty dollars or be imprisoned for not more than thirty days, in the discretion of the magistrate.

The provisions of this section shall not include the fees of physicians and surgeons.

SECTION 44-7-40. Conveyance to Federal Government of lands for veterans' hospital.

The governing body of any county in this State in which the United States Government decides to locate or build a hospital for veterans may, by resolution passed by a majority vote of such body, convey to the United States Government in fee simple, free of all encumbrances, any lands now owned or hereafter acquired by it for the use and benefit of such veterans' hospital, such conveyance to be without consideration and as a gift to the United States Government. Such deed of conveyance if made under the provisions of this section shall be signed by such officer or officers of the county as the resolution duly passed by such governing body may prescribe or provide. A certified copy of such resolution shall be recorded with the deed of conveyance so made.

SECTION 44-7-50. Modification of doctrines of charitable and sovereign immunity as they relate to hospitals and other medical facilities.

The doctrines of charitable and sovereign immunity as they relate to hospitals and other medical facilities in this State are hereby modified to the extent that any person sustaining an injury or dying by reason of the tortious act of commission or omission of agents, servants, employees or officers of a charitable hospital or medical facility or of a hospital or other medical facility operated or funded by the State, its agencies, departments, institutions, commissions, boards or political subdivisions may recover in any action brought against such hospital or other medical facility for such actual damages as he may sustain a sum not exceeding one hundred thousand dollars. Except as to licensed physicians and dentists, the judgment in an action under this section shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the charitable or governmental entity whose act or omission gave rise to the claim; and a plaintiff, when bringing an action under the provisions of this section, shall only name as a party defendant the entity for which the employee was acting and shall not name the employee individually unless the entity for which the employee was acting cannot be determined at the time the action is instituted. In the event the employee is individually named under the conditions permitted above, the entity for which the employee was acting shall be substituted as the party defendant when it can be so reasonably determined. The provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist.

SECTION 44-7-60. Borrowing money by nonprofit public hospitals.

Notwithstanding any other provision of law, the governing board of any nonprofit public hospital in this State with the approval of the governing body of the county wherein such hospital is located which has borrowed money may continue to borrow money in the name of the hospital for general hospital purposes. "Borrowing money" as used herein shall include the authority to make notes or other evidences of debt and to secure payment thereof by placing a mortgage on any or all of its property, both real and personal.

SECTION 44-7-70. Report to State Board of Medical Examiners concerning action resulting in limitation upon physician's privilege to practice in health care facility.

(A) The medical staff chief or medical director of a health care facility, as defined in Section 44-7-130, shall report in writing to the State Board of Medical Examiners the results of and the circumstances concerning an action resulting in the revocation or suspension of or other limitation upon, a physician's privileges to practice in that health care facility. This report is not required in the case of:

(1) a nondisciplinary resignation by the physician; however, a resignation occurring after an incident or occurrence which could result in the revocation or suspension of or other limitation upon the physician's privileges must be reported;

(2) a minor disciplinary action regarding the physician's privileges in that health care facility when the action taken does not involve the revocation or suspension of or other limitation upon the physician's privileges to practice there;

(3) a disciplinary action resulting from the physician's failure to meet recordkeeping standards;

(4) a disciplinary action resulting from the physician's failure to attend meetings; or

(5) other disciplinary actions as defined by regulation promulgated by the State Board of Medical Examiners.

(B) The medical staff chief or medical director of a health care facility, as defined in Section 44-7-130, shall report in writing to the State Board of Medical Examiners and to the Board of Podiatry Examiners the results of and the circumstances concerning an action resulting in the revocation or suspension of or other limitation upon, a podiatrist's privileges to practice in that health care facility. This report is not required in the case of:

(1) a nondisciplinary resignation by the podiatrist; however, a resignation occurring after an incident or occurrence which could result in the revocation or suspension of or other limitation upon the podiatrist's privileges must be reported;

(2) a minor disciplinary action regarding the podiatrist's privileges in that health care facility when the action taken does not involve the revocation or suspension of or other limitation upon the podiatrist's privileges to practice there;

(3) a disciplinary action resulting from the podiatrist's failure to meet recordkeeping standards;

(4) a disciplinary action resulting from the podiatrist's failure to attend meetings; or

(5) other disciplinary actions as defined by regulation promulgated by the Board of Podiatry Examiners.

(C) A person making a report required by this section is immune from criminal and civil liability in making the report, if the report is made in good faith and without malice.

SECTION 44-7-77. Program to obtain voluntary acknowledgment of paternity of newborns.

The Department of Health and Environmental Control and the State Department of Social Services, in conjunction with the South Carolina Hospital Association, shall develop and implement a program to promote obtaining voluntary acknowledgments of paternity as soon after birth as possible and where possible before the release of the newborn from the hospital. A voluntary acknowledgment including those obtained through an in-hospital program shall contain the requirements of Section 63-17-60(A)(4) and the social security number, or the alien identification number assigned to a resident alien who does not have a social security number, of both parents, and must be signed by both parents. The signatures must be notarized. As part of its in-hospital voluntary acknowledgment of paternity program, a birthing hospital as part of the birth registration process, shall collect, where ascertainable, information which is or may be necessary for the establishment of the paternity of the child and for the establishment of child support. The information to be collected on the father or on the putative father if paternity has not been established includes, but is not limited to, the name of the father, his date of birth, home address, social security number, or the alien identification number assigned to a resident alien who does not have a social security number, and employer's name, and additionally for the putative father, the names and addresses of the putative father's parents.

SECTION 44-7-78. Authority to establish facilities, programs and services in other locations.

Notwithstanding any other provision of law, an entity that operates a health care facility as defined in Section 44-7-130(10) may develop and operate facilities, programs, and services in any location where such facilities, programs, or services support the entity or provide services to residents in the area, provided all other statutory and regulatory requirements are met, including the State Certification of Need and Health Facility Licensure Act, Article 3, Chapter 7, Title 44 and related regulations promulgated by the department.

ARTICLE 2.

MEDICAID NURSING HOME PERMITS

SECTION 44-7-80. Definitions.

For the purposes of this article:

(1) "Nursing home" means a facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours, which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing intermediate or skilled nursing care for persons who are not in need of hospital care.

(2) "Medicaid nursing home permit" means a permit to serve Medicaid patients in an appropriately certified nursing home.

(3) "Medicaid patient" means a person who is eligible for Medicaid (Title XIX) sponsored long-term care services.

(4) "Medicaid patient day" means a day of nursing home care for which a nursing home receives Medicaid reimbursement.

(5) "Department" means the Department of Health and Environmental Control.

SECTION 44-7-82. Permit requirement.

No nursing home may provide care to Medicaid patients without first obtaining a permit in the manner provided in this article.

SECTION 44-7-84. Determination and allocation of Medicaid nursing home patient days; application for permit; rules and regulations.

(A) In the annual appropriations act, the General Assembly shall establish the maximum number of Medicaid patient days for which the department is authorized to issue Medicaid nursing home permits. The State Department of Health and Human Services shall provide the number of Medicaid patient days available to the department within thirty days after the effective date of the annual appropriations act.

(B) Based on a method the department develops for determining the need for nursing home care for Medicaid patients in each area of the State, the department shall determine the distribution of Medicaid patient days for which Medicaid nursing home permits can be issued. Nursing homes holding a Medicaid nursing home permit must be allocated Medicaid days based on their current allocation and available funds. Requests for days must be submitted to the department no later than June fifteenth each year. The application must state the specific number of Medicaid patient days the nursing home will provide. If a nursing home requests fewer days than the previous year, those days first must be offered to the facilities within the same county currently holding a Medicaid nursing home permit. However, if Medicaid patient days remain available after being offered to those nursing homes currently holding a Medicaid patient days permit in that county, then existing nursing homes with a restricted Certificate of Need, within the same county, may apply for a Medicaid nursing home permit to receive the Medicaid patient days remaining available. Following the initial allocation of Medicaid patient days, any additional Medicaid patient days available must be credited to a statewide pool and must be available based on the percent of need indicated by the Community Long Term Care waiting list. If a nursing home has provided fewer Medicaid patient days than allowable under the Medicaid nursing home permit program, the department may issue a Medicaid nursing home permit for fewer days than requested in order to ensure that the nursing home will serve the minimum number of Medicaid patients. If a nursing home has its Medicaid patient days reduced, the freed days first must be offered to other facilities in the same county before being offered to other nursing homes in the State. In addition, a nursing home that fails to provide at least ten percent fewer days than the number stated in its permit is not eligible to receive additional Medicaid patient days the next year. The department shall analyze the performance of nursing homes that are under the permit minimum for a fiscal year, including utilization data from the State Department of Health and Human Services, anticipated back days, delayed payments, CLTC waiting list, and other factors considered significant by the department. Based on this analysis, if the department determines that the nursing home remains out of compliance, the nursing home must be fined by the same percentages as provided for in Section 44-7-90 and is subject to having its Medicaid patient days reduced. A nursing home which terminates its Medicaid contract must not be penalized for not meeting the requirements of this section if the nursing home was in compliance with its permit at the time of the cancellation. However, if the maximum number of Medicaid patient days authorized by the General Assembly is decreased, the nursing home may be required to absorb a proportionate decrease in its Medicaid patient days' allocation.

SECTION 44-7-88. Involuntary discharge or transfer of Medicaid nursing home patients prohibited; request for waiver of permit requirements.

Nursing home patients may not be involuntarily discharged or transferred due to their Medicaid status. If no Medicaid patients are waiting for admission to the nursing home, or if for some other reason a nursing home anticipates the possibility that the home cannot satisfy the Medicaid nursing home permit requirements, the home may request a waiver of the permit requirements from the department.

SECTION 44-7-90. Violations of Sections 44-7-80 through 44-7-90; penalties.

(A) Based on reports from the State Department of Health and Human Services, the department shall determine each nursing home's compliance with its Medicaid nursing home permit. Violations of this article include:

(1) a nursing home exceeding by more than ten percent the number of Medicaid patient days stated in its permit;

(2) a nursing home failing to provide at least ten percent fewer days than the number stated in its permit;

(3) the provisions of any Medicaid patient days by a home without a Medicaid nursing home permit.

(B) Each Medicaid patient day above or below the allowable range is considered a separate violation. Fines for nursing homes out of compliance with their Medicaid Nursing Home Permit for years before July 1, 1995 are waived. After June 30, 1995, a nursing home that exceeds by more than ten percent the number of Medicaid patient days stated in its permit must be fined based on the number of Medicaid patient days exceeding the permit days times their daily Medicaid per diem times thirty percent. A nursing home that fails to provide at least ten percent fewer days than the number stated in its permit must be fined based on the number of Medicaid patient days under the permit days times their daily Medicaid per diem times thirty percent. A fine assessed against a nursing home must be deducted from the nursing home's Medicaid reimbursement. Appeals from this action must comply with the appropriate provisions of Chapter 23 of Title 1.

ARTICLE 3.

STATE CERTIFICATION OF NEED AND HEALTH FACILITY LICENSURE ACT

SECTION 44-7-110. Short title.

This article may be cited as the "State Certification of Need and Health Facility Licensure Act".

SECTION 44-7-120. Declaration of purpose.

The purpose of this article is to promote cost containment, prevent unnecessary duplication of health care facilities and services, guide the establishment of health facilities and services which will best serve public needs, and ensure that high quality services are provided in health facilities in this State. To achieve these purposes, this article requires:

(1) the issuance of a Certificate of Need before undertaking a project prescribed by this article;

(2) adoption of procedures and criteria for submittal of an application and appropriate review before issuance of a Certificate of Need;

(3) preparation and publication of a State Health Plan;

(4) the licensure of facilities rendering medical, nursing, and other health care.

SECTION 44-7-130. Definitions.

As used in this article:

(1) "Affected person" means the applicant, a person residing within the geographic area served or to be served by the applicant, persons located in the health service area in which the project is to be located and who provide similar services to the proposed project, persons who before receipt by the department of the proposal being reviewed have formally indicated an intention to provide similar services in the future, persons who pay for health services in the health service area in which the project is to be located and who have notified the department of their interest in Certificate of Need applications, the State Consumer Advocate, and the State Ombudsman. Persons from another state who would otherwise be considered "affected persons" are not included unless that state provides for similar involvement of persons from South Carolina in its certificate of need process.

(2) "Ambulatory surgical facility" means a facility organized and administered for the purpose of performing surgical procedures for which patients are scheduled to arrive, receive surgery, and be discharged on the same day. The owner or operator makes the facility available to other providers who comprise an organized professional staff.

(3) "Board" means the State Board of Health and Environmental Control.

(4) "Chiropractic inpatient facility" means a facility organized and administered to provide overnight care for patients requiring chiropractic services, including vertebral sublaxation, analysis, and adjustment.

(5) "Competing applicants" means two or more persons or health care facilities as defined in this article who apply for Certificates of Need to provide similar services or facilities in the same service area within a time frame as established by departmental regulations and whose applications, if approved, would exceed the need for services or facilities.

(6) "Community residential care facility" means a facility which offers room and board and provides a degree of personal assistance for two or more persons eighteen years old or older.

(7) "Day-care facility for adults" means a facility for adults eighteen years or older which offers in a group setting a program of individual and group activities and therapies. The program is directed toward providing community-based care for those in need of a supportive setting for less than twenty-four hours a day, thereby preventing unnecessary institutionalization, and shall provide a minimum of four and a maximum of fourteen hours of operation a day.

(8) "Department" means the Department of Health and Environmental Control.

(9) "The federal act" means Title VI of the United States Public Health Service Act (the Hill-Burton Construction Program); Title XVI of the United States Public Health Service Act (National Health Planning and Resources Development Act of 1974--Public Law 93-641); grants for all center and facility construction under Public Law 91-211 (community mental health centers' amendments to Title II, Public Law 88-164, Community Mental Health Centers Act); grants for all facility construction under Public Law 91-517 (developmental disabilities services and facilities construction amendments of 1970 to Part C, Title I, grants for construction of facilities for the mentally retarded--Public Law 88-164); and other federal programs as may exist or be enacted which provide for the construction of hospitals or related health facilities.

(10) "Health care facility" means acute care hospitals, psychiatric hospitals, alcohol and substance abuse hospitals, methadone treatment facilities, tuberculosis hospitals, nursing homes, ambulatory surgical facilities, hospice facilities, radiation therapy facilities, rehabilitation facilities, residential treatment facilities for children and adolescents, habilitation centers for mentally retarded persons or persons with related conditions, and any other facility for which Certificate of Need review is required by federal law.

(11) "Health service" means clinically related, diagnostic, treatment, or rehabilitative services and includes alcohol, drug abuse, and mental health services for which specific standards or criteria are prescribed in the State Health Plan.

(12) "Hospital" means a facility organized and administered to provide overnight medical or surgical care or nursing care of illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care is administered by or under the direction of persons currently licensed to practice medicine, surgery, or osteopathy.

Hospital may include residential treatment facilities for children and adolescents in need of mental health treatment which are physically a part of a licensed psychiatric hospital. This definition does not include facilities which are licensed by the Department of Social Services.

(13) "Nursing home" means a facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing intermediate or skilled nursing care for persons who are not in need of hospital care.

(14) "Facility for chemically dependent or addicted persons" means a facility organized to provide outpatient or residential services to chemically dependent or addicted persons and their families based on an individual treatment plan including diagnostic treatment, individual and group counseling, family therapy, vocational and educational development counseling, and referral services.

(15) "Person" means an individual, a trust or estate, a partnership, a corporation including an association, joint stock company, insurance company, and a health maintenance organization, a state, a political subdivision, or an instrumentality including a municipal corporation of a state, or any legal entity recognized by the State.

(16) "Residential treatment facility for children and adolescents" means a facility operated for the assessment, diagnosis, treatment, and care by two or more persons of 'children and adolescents in need of mental health treatment' which provides:

(a) a special education program with a minimum program defined by the South Carolina Department of Education;

(b) recreational facilities with an organized youth development program; and

(17) "Solely for research" means a service, procedure, or equipment which has not been approved by the Food and Drug Administration (FDA) but which is currently undergoing review by the FDA as an investigational device. FDA research protocol and any applicable Investigational Device Exemption (IDE) policies and regulations must be followed by a facility proposing a project "solely for research".

(18) "Children and adolescents in need of mental health treatment" in a residential treatment facility means a child or adolescent under age eighteen or a child or adolescent under age twenty-one who is a client of, committed to the custody of, or in the legal custody of an agency of the State of South Carolina who manifests a substantial disorder of cognitive or emotional process, which lessens or impairs to a marked degree that child's or adolescent's capacity either to develop or to exercise age-appropriate or age-adequate behavior. The behavior includes, but is not limited to, marked disorders of mood or thought processes, severe difficulties with self-control and judgment including behavior dangerous to self or others, and serious disturbances in the ability to care for and relate to others.

(19) "Intermediate care facility for the mentally retarded" means a facility that serves four or more mentally retarded persons or persons with related conditions and provides health or rehabilitative services on a regular basis to individuals whose mental and physical conditions require services including room, board, and active treatment for their mental retardation or related conditions.

(20) "Freestanding or mobile technology" means medical equipment owned or operated by a person other than a health care facility for which the total cost is in excess of that prescribed by regulation and for which specific standards or criteria are prescribed in the State Health Plan.

(21) "Like equipment with similar capabilities" means medical equipment which does not increase the potential volume or type of procedures possible.

(22) "Facilities wherein abortions are performed" means a facility, other than a hospital, in which any second trimester or five or more first trimester abortions are performed in a month.

(23) "Radiation therapy facility" means a person or a health care facility which provides or seeks to provide mega-voltage therapeutic services to patients through the use of high energy radiation.

SECTION 44-7-140. Department as sole agency for control of program.

The department is designated the sole state agency for control and administration of the granting of Certificates of Need and licensure of health facilities and other activities necessary to be carried out under this article.

SECTION 44-7-150. Duties of department.

In carrying out the purposes of this article, the department shall:

(1) require reports and make inspections and investigations as considered necessary;

(2) to the extent that is necessary to effectuate the purposes of this article, enter into agreements with other departments, commissions, agencies, and institutions, public or private;

(3) adopt in accordance with Article I of the Administrative Procedures Act substantive and procedural regulations considered necessary by the department and approved by the board to carry out the department's licensure and Certificate of Need duties under this article, including regulations to deal with competing applications;

(4) accept on behalf of the State and deposit with the State Treasurer, any grant, gift, or contribution made to assist in meeting the cost of carrying out the purpose of this article and expend it for that purpose;

(5) The department may adopt a filing fee for Certificate of Need applications. The fee must be approved by the board. Any fee collected pursuant to this section must be deposited into the general fund of the State. The fee must be collected prior to review of the application. A fee may not be increased beyond the cost of administration of the Certificate of Need Program.

SECTION 44-7-160. Certificate of Need required under certain circumstances.

A person or health care facility as defined in this article is required to obtain a Certificate of Need from the department before undertaking any of the following:

(1) the construction or other establishment of a new health care facility;

(2) a change in the existing bed complement of a health care facility through the addition of one or more beds or change in the classification of licensure of one or more beds;

(3) an expenditure by or on behalf of a health care facility in excess of an amount to be prescribed by regulation which, under generally acceptable accounting principles consistently applied, is considered a capital expenditure except those expenditures exempted in Section 44-7-170(B)(1). The cost of any studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the development, acquisition, improvement, expansion, or replacement of any plant or equipment must be included in determining if the expenditure exceeds the prescribed amount;

(4) a capital expenditure by or on behalf of a health care facility which is associated with the addition or substantial expansion of a health service for which specific standards or criteria are prescribed in the State Health Plan;

(5) the offering of a health service by or on behalf of a health care facility which has not been offered by the facility in the preceding twelve months and which has an annual operating cost in excess of an amount to be prescribed by regulation and for which specific standards or criteria are prescribed in the State Health Plan;

(6) the acquisition of medical equipment which is to be used for diagnosis or treatment if the total project cost is in excess of that prescribed by regulation;

(7) the acquisition or change in ownership or in controlling interest of a health care facility or entity owning a health care facility directly or indirectly by purchase, lease, gift, donation, sale of stock, or comparable arrangement if the acquisition or change in ownership or controlling interest may result in an increase in cost to the facility or increase in government-sponsored reimbursement;

(8) the acquisition of an existing health care facility by a person who has failed to notify the department and seeks an exemption before entering into a contractual arrangement to acquire an existing facility;

(9) an expenditure or financial obligation made in preparation for the offering or developing of a project which requires certification of need pursuant to this section if the expenditure or financial obligation is in excess of an amount to be prescribed by regulation.

SECTION 44-7-170. Institutions and transactions exempt from article.

(A) The provisions of this article do not apply to:

(1) health care facilities owned and operated by the federal government;

(2) the offices of a licensed private practitioner whether for individual or group practice except as provided for in Section 44-7-160(1) and (6);

(3) the acquisition by a health care facility of medical equipment to be used solely for research, the offering of an institutional health service by a health care facility solely for research, or the obligation of a capital expenditure by a health care facility to be made solely for research if it does not (a) affect the charges of the facility for the provision of medical or other patient care services other than the services which are included in the research; (b) change the bed capacity of the facility; or (c) substantially change the medical or other patient care services of the facility. A written description of the proposed research project must be submitted to the department in order for the department to determine if the above conditions are met. A Certificate of Need is required in order to continue use of the equipment or service after research restrictions are removed;

(4) purchases of or agreements to purchase real estate; however, the costs associated with the purchase of real estate must be included in determining the total project cost at the time the real estate is proposed to be developed.

(B) The Certificate of Need provisions of this article do not apply to:

(1) an expenditure by or on behalf of a health care facility for nonmedical projects for services such as refinancing existing debt, parking garages, laundries, roof replacements, computer systems, telephone systems, heating and air conditioning systems, upgrading facilities which do not involve additional square feet or additional health services, replacement of like equipment with similar capabilities, or similar projects as described in regulations;

(2) facilities owned and operated by the State Department of Mental Health and the South Carolina Department of Mental Retardation, except an addition of one or more beds to the total number of beds of the departments' health care facilities existing on July 1, 1988;

(3) educational and penal institutions maintaining infirmaries for the exclusive use of student bodies and inmate populations;

(4) any federal health care facility sponsored and operated by this State;

(5) community-based housing designed to promote independent living for persons with mental or physical disabilities. This does not include a facility defined in this article as a "health care facility".

(6) kidney disease treatment centers including, but not limited to, free standing hemodialysis centers and renal dialysis centers.

SECTION 44-7-180. Health planning committee; appointment, composition, terms, and allowances; State Health Plan; fees to cover costs of certificate of need program.

(A) There is created a health planning committee comprised of fourteen members. The Governor shall appoint twelve members, at least one member from each congressional district. Each of the following groups must be equally represented among the Governor's appointees: health care consumers, health care financiers to include business and insurance, and health care providers. The chairman of the board shall appoint one member. The South Carolina Consumer Advocate or the Consumer Advocate's designee is an ex officio nonvoting member. Members are appointed for four-year terms, may serve only two consecutive terms, and are allowed the usual mileage and subsistence as provided for members of boards, committees, and commissions.

(B) With the advice of the health planning committee, the department shall prepare a State Health Plan for use in the administration of the Certificate of Need Program provided in this article. The plan at a minimum must include:

(1) an inventory of existing health care facilities, beds, specified health services, and equipment;

(2) projections of need for additional health care facilities, beds, health services, and equipment;

(3) standards for distribution of health care facilities, beds, specified health services, and equipment including scope of services to be provided, utilization, and occupancy rates, travel time, regionalization, other factors relating to proper placement of services, and proper planning of health care facilities; and

(4) a general statement as to the project review criteria considered most important in evaluating certificate of need applications for each type of facility, service, and equipment, including a finding as to whether the benefits of improved accessibility to each such type of facility, service, and equipment may outweigh the adverse affects caused by the duplication of any existing facility, service, or equipment.

The State Health Plan must address and include projections and standards for specified health services and equipment which have a potential to substantially impact health care cost and accessibility. Nothing in this provision shall be construed as requiring the department to approve any project which is inconsistent with the State Health Plan.

(C) Upon approval by the health planning committee, the State Health Plan must be submitted at least once every two years to the board for final revision and adoption. Once adopted by the board, the plan may later be revised through the same planning and approval process. The department shall adopt by regulation a procedure to allow public review and comment, including regional public hearings, before adoption or revision of the plan.

(D) The Department of Health and Environmental Control may charge and collect fees to cover the cost of operating the Certificate of Need program. Upon submission of a complete Certificate of Need application, the applicant must pay a fee of five hundred dollars plus five-tenths of one percent of the project cost for review of the project, not to exceed seven thousand, five hundred dollars; however, for an applicant whose review fee would exceed seven thousand, five hundred dollars an additional fee of seven thousand, five hundred dollars is imposed if the applicant is awarded a Certificate of Need, which must be paid at the time of the award. Fees paid pursuant to this subsection must be deposited to the credit of the general fund of the State.

SECTION 44-7-185. Establishment of a task force; conducting a study regarding open-heart surgery and therapeutic cardiac catheterization.

A. There is established a task force under the Health Care Planning and Oversight Committee which shall conduct a study regarding open-heart surgery and therapeutic cardiac catheterization services for residents of South Carolina counties that are included in the Federal Bureau of Census' Metropolitan Statistical Areas (MSA) of another state. The study shall consider access to open-heart surgery to citizens of this State, the total cost of care to the patient and the patient's family, the impact on the economy of South Carolina, the impact on health care economics of South Carolina; quality of care available based upon physician volume, population trends, and projections of the South Carolina community.

The task force must be appointed by the Governor and must be composed of:

(1) one South Carolina citizen residing in an MSA to be studied;

(2) one member of the General Assembly representing an MSA to be studied;

(3) the Chairman of the State Health Planning Committee;

(4) a physician recommended by the South Carolina Medical Association;

(5) a representative of the hospital industry recommended by the South Carolina Hospital Association;

(6) the Commissioner of the South Carolina Department of Health and Environmental Control; and

(7) the Director of the Department of Insurance.

Members of the task force shall receive the mileage, subsistence, and per diem allowed by law for members of state boards, committees, and commissions. The findings and recommendations of the task force must be submitted to the Health Care Planning and Oversight Committee and the state health planning committee, established pursuant to Section 44-7-180, no later than January 1, 1995. In the manner provided for in Section 44-7-180 of the 1976 Code, the findings and recommendations submitted to the health planning committee become part of the State Health Plan in effect at the time the findings and recommendations are submitted to the committee.

B. Until the task force established under subsection A. issues its findings and recommendations, a facility may provide therapeutic cardiac catheterizations if that facility:

(1) has obtained a Certificate of Need for diagnostic cardiac catheterization before July 10, 1992, and filed to obtain a Certificate of Need for open-heart surgical services before January 1, 1993; and

(2) has a written open-heart surgery back-up agreement with a facility that provides an open-heart surgery service located within a thirty-minute one-way drive.

If the findings and recommendations of the task force do not provide for continued performance of therapeutic cardiac catheterization at a facility performing these services under this provision, the facility shall cease performing therapeutic cardiac catheterizations services within thirty days of the issuance of the findings and recommendations. If the findings and recommendations of the task force provide for continued performance of cardiac catheterizations at a facility performing this service under this provision and the facility applies for a Certificate of Need within thirty days, the facility may continue to provide the services until a final agency decision on the application for a Certificate of Need is issued, unless continued service is otherwise prohibited by Section 44-7-180 of the 1976 Code.

C. A committee appointed by the South Carolina Board of Medical Examiners shall conduct an annual review of the provision of therapeutic cardiac catheterization services and related physician practice at any hospital providing these services as authorized under subsection B. The committee must be composed of one physician specializing in cardiology from each congressional district and one cardiologist selected by the Board of Medical Examiners from the Medical University of South Carolina Cardiology Department who shall serve as chairman of the committee. None of the members of the committee may practice or reside in the Metropolitan Statistical Area (MSA) in which a facility to be reviewed is located. If the committee finds action by any physician at a facility where a review is being conducted creates an unreasonable risk to any patient, the State Board of Medical Examiners may take such action against the physician it considers necessary. In addition, the committee shall forward its findings to the Department of Health and Environmental Control and the department may take such action against the facility it considers necessary.

D. On May 25, 1994, the Office of Research and Statistical Services of the State Budget and Control Board immediately shall initiate a study of facilities providing therapeutic cardiac catheterizations without on-site open-heart surgery services. The study shall compare patient outcomes between these facilities and facilities with on-site open-heart surgery and determine if there is a statistically significant difference in patient outcomes. If the study concludes that patients of a facility conducting therapeutic cardiac catheterization without on-site open-heart surgery services have a statistically significant unfavorable outcome compared to patients at facilities with open-heart surgery services, the facility without open-heart surgery services immediately shall discontinue performing therapeutic cardiac catheterizations. The Office of Research and Statistical Services shall issue its findings no later than twelve months from May 25, 1994. Any facility which is the subject of this study shall provide the office with all data and information sufficient to complete its work.

E. If the department has reason to believe that patient care is being compromised, it may impose sanctions and take action authorized under Article 3, Chapter 7, Title 44 of the 1976 Code.

F. All proceedings of a person or entity conducting a review described in subsections C. or D. are not subject to discovery, subpoena or introduction into evidence in any civil action for damages for injury to the person arising out of any medical or surgical treatment, omission, or operation by a licensed health care provider as defined in Article 5, Chapter 79, Title 38. Further, there is no monetary liability on the part of and no cause of action for damages arising against a person or entity conducting or participating in a review described in subsection C. Nothing in Article 3, Chapter 7, Title 44 of the 1976 Code is intended to provide immunity to a person or entity in a civil action for damages.

G. Nothing in this section negates or may be construed to prohibit any enforcement action taken by the department against a facility for initiating a therapeutic cardiac service without a Certificate of Need.

H. Except as otherwise provided for in this section, the provisions of this section apply prospectively only.

SECTION 44-7-190. Project Review Criteria.

The department shall adopt, upon approval of the board, Project Review Criteria which, at a minimum, must provide for the determination of need for health care facilities, beds, services and equipment, to include demographic needs, appropriate distribution, and utilization; accessibility to underserved groups; availability of facilities and services without regard to ability to pay; absence of less costly and more effective alternatives; appropriate financial considerations to include method of financing, financial feasibility, and cost containment; consideration of impact on health systems resources; site and building suitability; consideration of quality of care; and relevant special considerations as may be appropriate. The Project Review Criteria must be adopted as a regulation pursuant to the Administrative Procedures Act.

SECTION 44-7-200. Application for Certificate of Need.

(A) An application for a Certificate of Need must be submitted to the department in a form established by regulation. The application must address all applicable standards and requirements set forth in departmental regulations, Project Review Criteria of the department, and the State Health Plan. The application must include the payment of a nonrefundable initial application fee of five hundred dollars. The department shall deduct this fee from the Certificate of Need filing fee which is payable in accordance with departmental regulations when the application is determined to be complete.

(B) Within twenty days before submission of an application, the applicant shall publish notification that an application is to be submitted to the department in a newspaper serving the area where the project is to be located for three consecutive days. The notification must contain a brief description of the scope and nature of the project. No application may be accepted for filing by the department unless accompanied by proof that publication has been made for three consecutive days within the prior twenty-day period and payment of the initial application fee has been received.

(1) members of the board and persons appointed by the board to hear appeals from department staff decisions may not communicate directly or indirectly with any person in connection with the application; and

(2) no person shall communicate, or cause another to communicate, as to the merits of the application with members of the board and persons appointed by the board to hear appeals from department staff decisions.

A person who violates this subsection is subject to the penalties provided in Section 1-23-360.

(D) After receipt of an application with proof of publication and payment of the initial application fee, the department shall publish in the State Register a notice that an application has been accepted for filing. Within thirty days of acceptance of the application, the department may request additional information as may be necessary to complete the application. The applicant has thirty days from the date of the request to submit the additional information. If the applicant fails to submit the requested information within the thirty-day period, the application is considered withdrawn.

SECTION 44-7-210. Notification that application for Certificate of Need has been completed; review process; proposal to grant or deny certificate; final decision; methadone treatment facilities.

(A) After the department has determined that an application is complete, affected persons must be notified in accordance with departmental regulations. The notification of affected persons begins the review period. During the review process, the department shall determine the relative importance of the project review criteria for this project and shall notify the applicant of this determination. The applicant has thirty days from the date of the receipt of this notice to submit any additional information. The review period for a completed application is sixty days from the date of notification of affected persons, or up to sixty days from the date that applicants are notified of the relative importance of project review criteria provided for in this section, whichever is longer. One extension of up to sixty days may be granted by the department in accordance with departmental regulations with the exception of an extension that is granted to comply with a request for a public hearing.

(B) The department may hold a public hearing, if timely requested, to gather information and obtain public comment and opinion about the proposed project.

(C) The department may not issue a Certificate of Need unless an application complies with the State Health Plan, Project Review Criteria, and other regulations. Based on project review criteria and other regulations, which must be identified by the department, the department may refuse to issue a Certificate of Need even if an application complies with the State Health Plan. In the case of competing applications, the department shall award a Certificate of Need, if appropriate, on the basis of which, if any, most fully complies with the requirements, goals, and purposes of this article and the State Health Plan, Project Review Criteria, and the regulations adopted by the department.

(D) On the basis of staff review of the application, the staff of the department shall make a proposed decision to grant or deny the Certificate of Need. Notice of the proposed decision must be sent to the applicant and affected persons who have asked to be notified. The proposed decision becomes the final agency decision within ten days after the receipt of a notice of the proposed decision by the applicant unless:

(1) a reconsideration by the staff of the department is requested in writing within the ten-day period by an affected person showing good cause for reconsideration of the proposed decision; or

(2) a contested case hearing before the board, or its designee, regarding the grant or denial of the Certificate of Need is requested in writing within the ten-day period by the applicant or other affected person with standing to contest the grant or denial of the application.

Reconsideration by the staff must occur within thirty days from receipt of the request.

(E) The department's proposed decision is not final until the completion of reconsideration or contested case proceedings. The burden of proof in a reconsideration or contested case hearing must be upon the moving party. The contested case hearing before the board or its designee is conducted as a contested case under the Administrative Procedures Act. The issues considered at the contested case hearing are limited to those presented or considered during the staff review and decision process.

(F) The department may not issue a Certificate of Need approval for a methadone treatment facility until licensure standards are promulgated by the department, in accordance with the Administrative Procedures Act, for these facilities. The department shall convene a study group to revise and propose licensure standards for methadone clinics. The study group shall consist of representatives of the department, the Department of Alcohol and Other Drug Abuse Services, methadone providers in South Carolina, and the Medical University of South Carolina. The licensure standards shall include standards for location of these facilities within the community. Methadone treatment facilities licensed as of January 1, 1997, must not be required to obtain a Certificate of Need pursuant to this section.

SECTION 44-7-220. Judicial review of final board decision.

After the contested case hearing is concluded and a final board decision is made, a party who participated in the contested case hearing and who is affected adversely by the board's decision may obtain judicial review of the decision in the circuit court pursuant to the Administrative Procedures Act. An appeal taken to the circuit court from a decision of the board on a Certificate of Need application has precedence on the court's calendar and must be heard not later than forty-five days from the date the petition is filed.

An applicant whose Certificate of Need application is denied by the board in favor of a competing application or a party adversely affected by the board's decision shall deposit a bond with the clerk of court for the circuit court before the filing of a petition to appeal a final decision of the board granting or denying a Certificate of Need. The bond must be secured by cash or a surety authorized to do business in this State in an amount equal to five percent of the total cost of the project or twenty thousand dollars, whichever is greater. If the court affirms the decision of the board or dismisses the appeal, the court may award to the applicant approved for the Certificate of Need who is a party to the appeal all or a portion of the bond and may award reasonable attorney's fees and costs incurred in the appeal. If an applicant appeals only the denial of his Certificate of Need application and there is no competing application involved in the appeal, the applicant is not required to deposit a bond with the circuit court.

If, at any stage of the appeal process involving the grant or denial of a Certificate of Need, the court finds that the appeal was frivolous, the court may award damages to the applicant approved for the Certificate of Need in addition to awarding the approved applicant single or double costs incurred in the appeal. In the case of a frivolous appeal of a denial of a Certificate of Need which does not involve a competing application, the court may award costs incurred in the appeal to the department.

As used in this section, "frivolous appeal" means any one of the following:

(1) an appeal taken solely for purposes of delay or harassment;

(2) where no question of law is involved;

(3) where the appeal is without merit.

SECTION 44-7-230. Limitation on Certificate of Need; capital expenditure; architectural plans; time limitation; Certificate of Need as not transferable.

(A) The Certificate of Need, if issued, is valid only for the project described in the application including location, beds and services to be offered, physical plant, capital or operating costs, or other factors as set forth in the application, except as may be modified in accordance with regulations. The department shall require periodic reports and make inspections to determine compliance with the Certificate of Need. Implementation of the project or operation of the facility or medical equipment that is not in accordance with the Certificate of Need application or conditions subsequently agreed to by the applicant and the department may be considered a violation of this article.

(B) In issuing a Certificate of Need, the department shall specify the maximum capital expenditure obligated under the certificate. The department shall prescribe the method used to determine capital expenditure maximums, establish procedures to monitor capital expenditures obligated under certificates, and establish procedures to review projects for which the capital expenditure maximum is exceeded or expected to be exceeded.

(C) Prior to any construction authorized by a Certificate of Need, final drawings and specifications prepared by an architect or engineer legally registered under the laws of this State must be submitted to the department for approval. All construction must be completed in accordance with approved plans and specifications and prior approval must be obtained from the department for any changes that substantially alter the scope of work, function of construction, or major items of equipment, safety, or cost of the facility during construction.

(D) A Certificate of Need is valid for six months from the date of issuance except for projects involving construction or replacement of, or major renovations or additions to, an acute care hospital. For these projects the Certificate of Need is valid for one year from the date of issuance. A Certificate of Need must be issued with a timetable submitted by the applicant and approved by the department to be followed for completion of the project. The holder of the Certificate of Need shall submit periodic progress reports on meeting the timetable as may be required by the department. Failure to meet the timetable results in the revocation of the Certificate of Need by the department unless the department determines that extenuating circumstances beyond the control of the holder of the Certificate of Need are the cause of the delay. The department may grant two extensions of up to six months each upon evidence that substantial progress has been made in accordance with procedures set forth in regulations. The board may grant further extensions of up to six months each only if it determines that substantial progress has been made in accordance with the procedures set forth in regulations.

(E) A Certificate of Need is nontransferable. A Certificate of Need or rights thereunder may not be sold, assigned, leased, transferred, mortgaged, pledged, or hypothecated, and any actual transfer or attempt to make a transfer of this sort results in the immediate voidance of the Certificate of Need. The sale or transfer of the controlling interest or majority ownership in a corporation, partnership, or other entity holding, either directly or indirectly, a Certificate of Need, results in the transfer and voidance of a Certificate of Need.

SECTION 44-7-240. Construction program.

The department may establish a construction program providing for adequate facilities in this State and, insofar as possible, shall provide for the distribution of facilities and services throughout this State in such manner as to make all types of health services reasonably accessible to all persons in this State. The State Health Plan as required by this article may be used for purposes of establishing the relative need of projects for which applications are submitted under this construction program. Submittal of applications and review and approval of projects for which federal funds are requested must be in accordance with regulations adopted by the department and applicable federal act.

SECTION 44-7-250. Department to establish and enforce basic standards.

The department shall establish and enforce basic standards for the licensure, maintenance, and operation of health facilities and services to ensure the safe and adequate treatment of persons served in this State.

SECTION 44-7-260. Requirements for licensure.

(A) If they provide care for two or more unrelated persons, the following facilities or services may not be established, operated, or maintained in this State without first obtaining a license in the manner provided by this article and regulations promulgated by the department:

(1) hospitals, including general and specialized hospitals;

(2) nursing homes;

(3) residential treatment facilities for children and adolescents;

(4) ambulatory surgical facilities;

(5) chiropractic inpatient facilities;

(6) community residential care facilities;

(7) facilities for chemically dependent or addicted persons;

(8) end-stage renal dialysis units;

(9) day-care facilities for adults;

(10) any other facility operating for the diagnosis, treatment, or care of persons suffering from illness, injury or other infirmity and for which the department has adopted standards of operation by regulation.

(11) habilitation centers for the mentally retarded or persons with related conditions.

(12) freestanding or mobile technology.

(13) facilities wherein abortions are performed.

(B) The licensing provisions of this article do not apply to:

(1) infirmaries for the exclusive use of the student bodies of privately-owned educational institutions which maintain infirmaries;

(2) community-based housing sponsored, licensed, or certified by the South Carolina Department of Disabilities and Special Needs. The Department of Disabilities and Special Needs shall provide to the Department of Health and Environmental Control the names and locations of these facilities on a continuing basis; or

(3) homeshare programs designated by the Department of Mental Health, provided that these programs do not serve more than two persons at each program location, the length of stay does not exceed fourteen consecutive days for one of the two persons, and the temporarily displaced person must be directly transferred from a homeshare program location. The Department of Mental Health shall provide to the Department of Health and Environmental Control the names and locations of these programs on a continuing basis.

(C) The department is authorized to investigate, by inspection or otherwise, any facility to determine if its operation is subject to licensure.

(D) Each hospital must have a single organized medical staff that has the overall responsibility for the quality of medical care provided to patients. Medical staff membership must be limited to doctors of medicine or osteopathy who are currently licensed to practice medicine or osteopathy by the State Board of Medical Examiners, dentists licensed to practice dentistry by the State Board of Dentistry and podiatrists licensed to practice podiatry by the State Board of Podiatry Examiners. No individual is automatically entitled to membership on the medical staff or to the exercise of any clinical privilege merely because he is licensed to practice in any state, because he is a member of any professional organization, because he is certified by any clinical examining board, or because he has clinical privileges or staff membership at another hospital without meeting the criteria for membership established by the governing body of the respective hospital. Patients of podiatrists and dentists who are members of the medical staff of a hospital must be coadmitted by a doctor of medicine or osteopathy who is a member of the medical staff of the hospital who is responsible for the general medical care of the patient. Oral surgeons who have successfully completed a postgraduate program in oral surgery accredited by a nationally recognized accredited body approved by the United States Office of Education may admit patients without the requirement of coadmission if permitted by the bylaws of the hospital and medical staff.

(E) No person, regardless of his ability to pay or county of residence, may be denied emergency care if a member of the admitting hospital's medical staff or, in the case of a transfer, a member of the accepting hospital's medical staff determines that the person is in need of emergency care. &qu