32.1-102.11 - Application of article.
§ 32.1-102.11. Application of article.
A. On and after July 1, 1992, every project of an existing or proposedmedical care facility, as defined in § 32.1-102.1, shall be subject to allprovisions of this article unless, with respect to such project, the owner oroperator of an existing medical care facility or the developer of a proposedmedical care facility (i) has, by February 1, 1992, purchased or leasedequipment subject to registration pursuant to former § 32.1-102.3:4, (ii)has, by February 1, 1992, initiated construction requiring a capitalexpenditure exceeding one million dollars, or (iii) has made or contracted tomake or otherwise legally obligated to make, during the three years endingFebruary 1, 1992, preliminary expenditures of $350,000 or more for a formalplan of construction of the specific project, including expenditures for siteacquisition, designs, preliminary or working drawings, constructiondocuments, or other items essential to the construction of the specificproject.
Any project exempted pursuant to subdivisions (ii) and (iii) of thissubsection shall be limited to such construction, services, and equipment asspecifically identified in the formal plan of construction which shall haveexisted and been formally committed to by February 1, 1992. Further, theequipment to be exempted pursuant to subdivisions (ii) and (iii) shall belimited to the number of units and any types of medical equipment, in thecase of medical equipment intended to provide any services included insubdivision 6 of the definition of project in § 32.1-102.1, as arespecifically identified in such plan and, in the case of all other equipment,such equipment as is appropriate for the construction and services includedin such plan.
None of the exemptions provided in this subsection shall be applicable toprojects which required a certificate of public need pursuant to this articleon January 1, 1992.
B. Any medical care facility or entity claiming to meet one of the conditionsset forth in subsection A of this section shall file a completed applicationfor an exemption from the provisions of this article with the Commissioner byAugust 1, 1992. Forms for such application shall be made available by theCommissioner no later than April 1, 1992. The Commissioner may deny anexemption if the application is not complete on August 1, 1992, and themedical care facility or entity has not filed a completed application withinforty-five days after notice of deficiency in the filing of the completedapplication. After receiving a completed application, the Commissioner shalldetermine whether the project has met one of the criteria for an exemptionand is, therefore, exempt or has not met any of the criteria for an exemptionand is, therefore, subject to all provisions of this article and shall notifythe medical care facility or entity of his determination within sixty days ofthe date of filing of the completed application. If it is determined that anexemption exists for only a portion of a project, the Commissioner mayapprove an exemption for that portion and any appeal may be limited to thepart of the decision with which the appellant disagrees without affecting theremainder of the decision. The Commissioner's determination shall be made inaccordance with the provisions of the Administrative Process Act (§ 2.2-4000et seq.), except that parties to the case shall include only those partiesspecified in § 32.1-102.6.
C. For the purposes of this section:
"Formal plan of construction" means documentary evidence indicating thatthe facility, the owner or operator of the facility, or the developer of aproposed facility was formally committed to the project by February 1, 1992,and describing the specific project in sufficient detail to reasonably defineand confirm the scope of the project including estimated cost, intendedlocation, any clinical health services to be involved and any types ofequipment to be purchased. Such documentary evidence shall include designs,preliminary or working drawings, construction documents or other documentswhich have been used to explicitly define and confirm the scope of theproject for the purposes of seeking architectural or construction plans orcapital to the extent that such capital was committed or agreed to beprovided for such project prior to February 1, 1992.
"Initiated construction" means an owner or operator of an existing facilityor the developer of a proposed facility can present evidence for a specificproject that (i) a construction contract has been executed; (ii) ifapplicable, short-term financing has been completed; (iii) if applicable, acommitment for long-term financing has been obtained; and (iv) if the projectis for construction of a new facility or expansion of an existing facility,predevelopment site work and building foundations have been completed.
"Leased" means that the owner or operator of an existing medical carefacility or the developer of a proposed facility has a legally bindingcommitment to lease the equipment pursuant to an agreement providing forfixed, periodic payments commencing no later than June 30, 1992, including alease-purchase agreement in which the owner or operator of the facility ordeveloper has an option to purchase the equipment for less than fair marketvalue upon conclusion of the lease or an installment sale agreement withfixed periodic payments commencing no later than June 30, 1992.
"Purchased" means that the equipment has been acquired by the owner oroperator of an existing medical care facility or the developer of a proposedmedical care facility, or the owner or operator of the facility or thedeveloper can present evidence of a legal obligation to acquire the equipmentin the form of an executed contract or appropriately signed order orrequisition and payment has been made in full by June 30, 1992.
(1982, c. 388; 1986, c. 615; 1992, c. 612.)