Bill 927

                    Current Status

Bill Number:               927
Ratification Number:       564
Act Number                 471
Introducing Body:          Senate
Subject:                   Initial application fee

(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.