S*927 Session 108 (1989-1990)
S*0927(Rat #0564, Act #0471 of 1990) General Bill, By J.V. Smith, Giese,
Leatherman, J.M. Long, Matthews, P.B. McLeod, Peeler and N.W. Smith
A Bill to amend Section 44-7-200, as amended, Code of Laws of South Carolina,
1976, relating to a certificate of need application, so as to provide for the
payment of an initial application fee, to change the time during which an
applicant is required to publish notice of his application, and to provide for
additional information to complete the application; Section 44-7-210, as
amended, relating to the completion of the application, so as to provide for
the time of the review period for the application, to change the effective
date of the agency decision on the application, and to provide for a
reconsideration hearing; Section 44-7-220, as amended, relating to judicial
review of the decision of the Board of Health and Environmental Control, so as
to provide for appeal to the Circuit Court instead of the appropriate state
court, to provide for the requirements of the appeal and of a bond, and to
provide for the action to be taken by the court; and Section 44-7-230, as
amended, relating to the limitation on a certificate of need, so as to change
the time during which a certificate of need is valid, to revise the
circumstances under which an extension may be granted, and to provide the
requirements for completion of the project.
11/06/89 Senate Prefiled
11/06/89 Senate Referred to Committee on Medical Affairs
01/09/90 Senate Introduced and read first time SJ-63
01/09/90 Senate Referred to Committee on Medical Affairs SJ-63
02/13/90 Senate Committee report: Favorable with amendment
Medical Affairs SJ-17
02/15/90 Senate Amended SJ-42
02/15/90 Senate Read second time SJ-45
02/15/90 Senate Ordered to third reading with notice of
amendments SJ-45
02/20/90 Senate Read third time and sent to House SJ-13
02/21/90 House Introduced and read first time HJ-25
02/21/90 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-25
04/19/90 House Recalled from Committee on Medical, Military,
Public and Municipal Affairs HJ-24
05/02/90 House Objection by Rep. Phillips HJ-24
05/02/90 House Read second time HJ-24
05/03/90 House Read third time and enrolled HJ-10
05/08/90 Ratified R 564
05/14/90 Signed By Governor
05/14/90 Effective date 05/14/90
05/14/90 Act No. 471
06/12/90 Copies available
(A471, R564, S927)
AN ACT TO AMEND SECTION 44-7-200, AS AMENDED, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO A CERTIFICATE OF NEED APPLICATION, SO AS TO
PROVIDE FOR THE PAYMENT OF AN INITIAL APPLICATION FEE, TO CHANGE THE TIME
DURING WHICH AN APPLICANT IS REQUIRED TO PUBLISH NOTICE OF HIS
APPLICATION, AND TO PROVIDE FOR ADDITIONAL INFORMATION TO COMPLETE THE
APPLICATION; SECTION 44-7-210, AS AMENDED, RELATING TO THE COMPLETION OF
THE APPLICATION, SO AS TO PROVIDE FOR THE TIME OF THE REVIEW PERIOD FOR
THE APPLICATION, TO CHANGE THE EFFECTIVE DATE OF THE AGENCY DECISION ON
THE APPLICATION, AND TO PROVIDE FOR A RECONSIDERATION HEARING; SECTION
44-7-220, AS AMENDED, RELATING TO JUDICIAL REVIEW OF THE DECISION OF THE
BOARD OF HEALTH AND ENVIRONMENTAL CONTROL, SO AS TO PROVIDE FOR APPEAL
TO THE CIRCUIT COURT INSTEAD OF THE APPROPRIATE STATE COURT, TO PROVIDE
FOR THE REQUIREMENTS OF THE APPEAL AND OF A BOND, AND TO PROVIDE FOR THE
ACTION TO BE TAKEN BY THE COURT; AND SECTION 44-7-230, AS AMENDED,
RELATING TO THE LIMITATION ON A CERTIFICATE OF NEED, SO AS TO CHANGE THE
TIME DURING WHICH A CERTIFICATE OF NEED IS VALID, TO REVISE THE
CIRCUMSTANCES UNDER WHICH AN EXTENSION MAY BE GRANTED, AND TO PROVIDE THE
REQUIREMENTS FOR COMPLETION OF THE PROJECT.
Be it enacted by the General Assembly of the State of South Carolina:
Initial application fee
SECTION 1. Section 44-7-200 of the 1976 Code, as last amended by Act
670 of 1988, is further amended to read:
"Section 44-7-200. (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 Medical Facilities 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.
(C) 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."
Application; review period
SECTION 2. Section 44-7-210(A) of the 1976 Code, as last amended by
Act 670 of 1988, is further amended to read:
"(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. The review period for a completed application is
sixty days from the date of notification of affected persons. 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."
Decision on the application
SECTION 3. Section 44-7-210(D) of the 1976 Code, as last amended by
Act 670 of 1988, is further amended to read:
"(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. 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 one of the following occurs:
(1) A reconsideration hearing before the staff of the
department is requested in writing within the ten-day period by a person
showing good cause for reconsideration of the proposed decision.
(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.
A reconsideration hearing must be conducted within thirty days from
receipt of the request."
Judicial review; appeal
SECTION 4. Section 44-7-220 of the 1976 Code, as last amended by Act
670 of 1988, is further amended to read:
"Section 44-7-220. 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."
Certificate of need; application and project requirements
SECTION 5. Section 44-7-230(D) of the 1976 Code, as last amended by
Act 670 of 1988, is further amended to read:
"(D) A Certificate of Need is valid for six months 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."
Time effective
SECTION 6. This act takes effect upon approval by the Governor.
Approved the 14th day of May, 1990.
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