W. Va. Code R. § 65-32-8 - Application Review Procedure

8.1. Any person proposing a new health service shall file with the Authority a letter of intent 10 days before the submission of an application. The letter of intent shall contain sufficient information to advise the Authority of the nature, scope, cost, and timing of the project, as well as the location and name of the proposed applicant.

8.2. Notification of receipt of the letter of intent shall be published in a newspaper of general circulation in the area where the health service is being proposed. The newspaper notice shall contain a statement that further information regarding the application is on the Authority's website. The notification in the newspaper shall be provided within five days of receipt of the letter of intent. A copy of the letter of intent shall be placed on the Authority's website.

8.3. A certificate of need application must be filed 10 days after the letter of intent.

8.4. The application must be accompanied by the appropriate fees as defined in W. Va. Code § 16-2D-13(b)(2). An application will not be accepted without the appropriate fee.

8.5. A copy of the application must be submitted to the Director of the Office of Insurance Consumer Advocacy.

8.6. Upon receipt of a certificate of need application, the Authority shall determine whether the application is complete or whether additional information is required. A declaration by the Authority that an application is complete means that there is sufficient information contained in the application for the Authority to make an informed decision. It does not mean that the approval of the application is warranted. Except in emergency situations that pose a threat to the public health, the Authority shall not declare an application complete if:

8.6.a. The applicant is a health care facility subject to the financial disclosure provisions of W. Va. Code § 16-29B-24, et seq. or W. Va. Code § 16-29B-1, et seq., and the health care facility has failed to file with the Authority all reports, records, data, or other information required by the code and the rules promulgated pursuant to the code.

8.6.b. Information provided in the application differs from information provided in the letter of intent; and

8.6.c. The application is not timely filed as provided in subsection 8.3. of this rule.

8.7. The Authority shall make a determination of completeness within 10 days of its receipt of the application. If the Authority determines that the application is not complete, it may request additional information or ask additional questions. Upon receipt of the additional information, the Authority has 10 days within which to determine if the application is complete. If the applicant fails to respond within 45 days, the application is considered withdrawn. If the applicant later desires to pursue the project, the applicant shall file a new letter of intent and an application.

8.8. Upon a determination by the Authority that an application is complete, the Authority shall notify the applicant in writing.

8.9. The Authority may batch completed application for review on the 15th day of the month or the last day of the month in which the application was deemed complete. The Authority shall publish on its website a notice of review for each batch. The notice shall, at a minimum, contain the following:

8.9.a. The name of the applicant;

8.9.b. A description of the proposed project;

8.9.c. The date the review cycle begins;

8.9.d. The last date for an affected person to request a public hearing;

8.9.e. The file closing date if no public hearing is requested; and

8.9.f. The last date upon which the Authority will issue a decision.

8.10. When a determination of completeness is made by the Authority and the notice specified in subsection 8.9. of this rule is published, affected persons may request a public hearing within 30 days from the batch date. A request for a public hearing shall be in writing and shall be addressed to: General Counsel, West Virginia Health Care Authority, Certificate of Need Program, 100 Dee Drive, Suite 201, Charleston, West Virginia 25311.

8.11. The Authority shall hold a public hearing on an application if it is requested within the time period specified by subsection 8.14. of this rule by any affected person. The Authority shall conduct the public hearing in accordance with the requirements for administrative hearings found in W. Va. Code § 29A-5-1, et seq.

8.12. A hearing order shall be entered by the Authority within 15 days from the last date an affected person may request an administrative hearing on a certificate of need application.

8.13. The hearing order shall contain, at a minimum, the following:

8.13.a. The date of the hearing;

8.13.b. The date of the prehearing conference;

8.13.c. The last date to submit replacement pages;

8.13.d. The last date to file motions for discovery;

8.13.e. The completion date for discovery;

8.13.f. The last date to file all motions which must be a minimum of three days prior to the prehearing conference; and

8.13.g. The last date to file requests for subpoenas or subpoenas duces tecum, or both.

8.14. The hearing shall be conducted no later than three months from the date the hearing order is entered by the Authority and in accordance with the administrative hearing requirements in W. Va. Code § 29A-5-1, et seq.

8.15. When a public hearing is scheduled to be conducted upon an application, the Authority shall, prior to the hearing, provide notice to all parties and publish notice on its website. The notice shall, at a minimum, contain the following:

8.15.a. The name of the applicant;

8.15.b. A description of the proposed project;

8.15.c. The date of the public hearing; and

8.15.d. The date of any prehearing conference.

8.16. Whenever a public hearing is scheduled upon any application, the Authority may direct the parties to appear for a prehearing conference. The prehearing conference may be held before any member of the board or before a hearing examiner appointed by the board. The board or its designee shall designate parties to the public hearing at the prehearing conference. The Authority may designate affected persons as parties after the prehearing conference only for good cause shown.

8.17. Parties shall file all prehearing motions with the Authority a minimum of three days prior to the prehearing conference or in accordance with the date established by the time frame order entered in the case, whichever is sooner. The Authority or its designee may consider motions at the prehearing conference.

8.18. Parties shall exchange a list of all witnesses and copies of all documents to be presented or introduced at a public hearing with all other parties to the hearing. The witness lists and the copies of the documents shall be filed by the parties with the Authority or its designee during or prior to the prehearing conference unless a different date is established by the Authority or its designee. Failure to comply with this section is sufficient grounds for the Authority or its designee to disallow the testimony of a proposed witness or disallow the introduction of any exhibit.

8.19. Parties shall file the original and one copy of all communications concerning a pending application with the Authority. A standard certificate of service shall be attached to each written communication which shows that copies have been sent by the regular United States Mail, postage prepaid, to all other parties to the matter. A list of all parties to a matter may be obtained from the Authority. The Authority or its designee may strike a written communication from the record if it does not comply with the requirements of this section.

8.20. The Authority may subpoena witnesses, papers, records, documents and any other information or data it considers necessary for its determination. The Authority shall issue all subpoenas and subpoenas duces tecum in the name of the Authority. Any party requesting a subpoena or subpoena duces tecum is responsible for seeing that they are properly served. Service of subpoenas or subpoenas duces tecum issued at the instance of the Authority is the responsibility of the Authority.

8.21. All requests for subpoenas and subpoenas duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay all fees for the attendance and travel of witnesses.

8.22. Every subpoena or subpoena duces tecum issued at the request of a party shall be served by the party at least five days before the return date, either by personal service by a person over 18 years of age or by registered or certified mail, return receipt requested. If service is by mail, the five-day notice period shall not begin until the date the person or entity receives the subpoena or subpoena duces tecum.

8.23. Fees for the attendance of witnesses are the same as for witnesses before the circuit court of this State and shall be paid by the party requesting the issuance of the subpoena or subpoena duces tecum.

8.24. In any case of disobedience or neglect of any subpoena or subpoena duces tecum issued by the Authority, or any refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, the Authority may apply to the Circuit Court of Kanawha County, and the court shall compel obedience through the same manner as a subpoena or subpoena duces tecum is enforced in Kanawha County Circuit Court.

8.25. The affected parties may engage in discovery as provided by the West Virginia Rules of Civil Procedure. The scope of discovery is limited to relevant and admissible evidence. Affected parties engaging in discovery are required to file a copy of the certificate of service attached to the discovery request or response with the Authority. Affected parties shall not file copies of the actual discovery and responses with the Authority.

8.26. In a public hearing, any party may be represented by counsel and may present oral or written arguments and evidence relevant to the matter which is the subject of the hearing. Any party may conduct reasonable cross-examination of persons who testify at the proceeding.

8.27. All witnesses who testify during a hearing are first subject to oath or affirmation.

8.28. The Authority shall maintain a verbatim record of the public hearing.

8.29. After the commencement of a public hearing on an application, and before a decision is rendered by the Authority, there shall be no ex parte contacts between the applicant, any person acting on behalf of the applicant or any person opposed to the application with the Authority or any of its employees or agents who exercise any responsibility regarding the application.

8.30. If a public hearing is not conducted during the review of an application, the Authority shall close the file on the thirty-fifth day after the batch date. After this date, no other factual information or evidence may be considered by the Authority unless the file closing date is extended by the Authority.

8.31. The Authority shall review an uncontested certificate of need application within 60 days from the date the application is batched. An uncontested application is deemed approved if the Authority does not issue a decision within this time period unless an extension, up to 15 days is requested by the applicant as provided in section 9 of this rule.

8.32. In the event a hearing is conducted on the certificate of need application, the Authority shall issue a decision within 45 days of the closing of the file in the administrative proceedings.

8.33. At any time prior to the file closing date, the Authority shall, upon request, provide a detailed itemization of the documents in the Authority's file on a proposed new health service.

8.34. The Authority may, after the publication of a notice on its website and allowing 30 days after the publication for public comment, adopt population projections for use in certificate of need decisions.

Notes

W. Va. Code R. § 65-32-8