KRS CHAPTER 216B- LICENSURE AND REGULATION OF HEALTH FACILITIES AND SERVICES

 

KRS CHAPTER  216B – LICENSURE
AND REGULATION OF HEALTH FACILITIES AND SERVICES
KRS 216B.010 thru KRS 216B.990  
Health Facilities – Certificate of Need –  Itemized Statement of Charges –  Boarding Homes – Continuing Care Retirement Communities – Emergency Care – Psychiatric Residential Treatment Facilities –  Penalties
KRS 216B.060 Repealed 1982.
KRS 216B.070 Repealed 1990.
KRS 216B.080 Repealed 1982.
KRS 216B.100 Repealed 1982.
KRS 216B.107 Repealed 1996.
KRS 216B.110 Repealed 1982.
KRS 216B.145 Repealed 1996.
Itemized Statement of Charges
Boarding Homes
Continuing Care Retirement Communities
KRS 216B.335 Repealed, 2012.
Emergency Care
KRS 216B.410 Repealed 2002.
Psychiatric Residential Treatment Facilities
Penalties
KRS 216B.990 Penalties         
 
Updated 10/30/2013 [2013] 
 
 
 
KRS 216B.010 Legislative findings and purposes.
The General Assembly finds that the licensure of health facilities and health services is a means to insure that the citizens of this Commonwealth will have safe, adequate, and efficient medical care; that the proliferation of unnecessary health-care facilities, health services, and major medical equipment results in costly duplication and underuse of such facilities, services, and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth. Therefore, it is the purpose of this chapter to fully authorize and empower the Cabinet for Health and Family Services to perform any certificate-of-need function and other statutory functions necessary to improve the quality and increase access to health-care facilities, services, and providers, and to create a cost efficient health-care delivery system for the citizens of the Commonwealth.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 99, sec. 504, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 448, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 371, sec. 36, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7,
sec. 22, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 4, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 1, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 1, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
St. Luke Hospitals, Inc. v. Commonwealth, No. 2004-CA-000692-MR (KY 6/3/2005) (KY, 2005) 
 "The Cabinet is a state agency authorized by statute to administer the CON program consistent with the [SHP]." Cabinet for Health Services v. Family Home Health Care, Inc., 98 S.W.3d 524, 527 (Ky. App. 2003), citing KRS 216B.010. "In carrying out this function, the Cabinet is required to promulgate administrative regulations `to establish criteria for issuance and denial of certificates of need.’" Id., citing KRS 216B.040(2)(a)2.     The specific provision at issue in this case, KRS 216B.061(1)(a), provides that a licensed health provider such as St. Luke must obtain a CON before establishing a health facility. St. Luke seeks a newly licensed ASC. Thus, under the
statute, it must obtain a CON. Further, its CON must be consistent with the SHP. See KRS 216B.040(2)(a).
 
Commonwealth v. Family Home Health Care, Inc., 2003 KY 127 (KYCA, 2003)
The Cabinet is the state agency authorized by statute to administer the CON program consistent with the State Health Plan. See, KRS 216B.010. In carrying out this function, the Cabinet is required to promulgate administrative regulations " to establish criteria for issuance and denial of certificates of need." KRS 216B.040(2)(a)2. The General Assembly has established the circumstances under which a person or entity is required to obtain a certificate of need. KRS 216B.061. The specific section of the statute at issue in this case, KRS 216B.061(1)(d), provides that a licensed health provider such as Integrity must obtain a certificate of need before making" a substantial change in a health service. A substantial change in a health service" is defined at KRS 216B.015(28) as:
(a) The addition of a health service for which there are review criteria and standards in the state health plan;
(b) The addition of a health service subject to licensure under this chapter; or
(c) The reduction or termination of a health service which had previously been provided in the health facility.`
 
St. Luke Hosp., Inc. v. Health Policy Bd., 913 S.W.2d 1 (Ky. App., 1996)
 While there is no legislative history for KRS 216B.020(1), KRS 216B.010 provides that one of the purposes for enacting Chapter 216B was "to insure that the citizens of this Commonwealth will have safe, adequate and efficient medical care." Viewing this in context to KRS 216B.020(1), we see the most obvious reason for the exemptions therein was the immediate need of these health care services in Kentucky. This would certainly explain the time requirement in the statute. This would especially be true for growing areas like Boone County where St. Luke is located 2. St. Elizabeth’s own argument against St. Luke’s establishing a Level I neonatal unit (because there is no Level II unit within the same facility) lends further support for the exemption, given the legislative interest in providing safe, adequate and efficient medical care. The justifiable reason for the maximum cost requirement of $600,000 can also be seen in the language of KRS 216B.010, expressing the legislature’s concern over the rising cost of quality health care in the Commonwealth. Lastly, we point out the myriad of other health care services and facilities that are included in the exemption.     In sum, we hold that the exemption in KRS 216B.020 does not constitute special legislation in violation of § 59 or § 60 of the Kentucky Constitution. Accordingly, the judgment of the Franklin Circuit Court is reversed.
 
Medical Personnel Pool of Louisville, Inc. v. Management Registry, Inc., 869 S.W.2d 42 (Ky. App., 1993)
 Chapter 216B concerns Licensure and Regulation of Health Facilities and Services. KRS 216B.010 explains:   The general assembly finds that the licensure of health facilities and health services is a means to insure that the citizens of this Commonwealth will have safe, adequate and efficient medical care; that the proliferation of unnecessary health care facilities, health services and major medical equipment results in costly duplication and underuse of such facilities, services and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth. Therefore, it is the purpose of this chapter to provide for the establishment of the commission for health economics control in Kentucky for the purpose of acting on applications for certificates of need.
 
Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369 (Ky., 1988)
 Further, NKC/Children’s maintains that if Audubon is required to apply for an additional CON to perform this service, the Board will be obliged to refuse because, considering the limited volume of patients in need of such services, cost effectiveness and quality of care for the community will be significantly impaired. KRS 216B.010, "Legislative findings and purposes," provides among the reasons for establishing a state regulatory process, "the proliferation of unnecessary health care facilities, health services and major medical equipment results in costly duplication and underuse of such facilities, services and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth." And, the State Health Plan specifies:   "The importance of ensuring that all existing units are operating at satisfactory levels of utilization cannot be overemphasized in terms of both cost and quality considerations."     In furtherance of this purpose the State Health Plan stipulates, inter alia, that no new pediatric open heart surgery program can be initiated until each existing pediatric program is operating at a level of 130 cases annually and that no new pediatric catheterization program can be initiated until each existing pediatric program is performing catheterizations on 250 children annually.
 
 
KRS 216B.015 Definitions for chapter.
Except as otherwise provided, for purposes of this chapter, the following definitions shall apply:
(1) "Abortion facility" means any place in which an abortion is performed;
(2) "Administrative regulation" means a regulation adopted and promulgated pursuant to the procedures in KRS Chapter 13A;
(3) "Affected persons" means the applicant; any person residing within the geographic area served or to be served by the applicant; any person who regularly uses health facilities within that geographic area; health facilities located in the health service area in which the project is proposed to be located which provide services similar to the services of the facility under review; health facilities which, prior to receipt by the agency of the proposal being reviewed, have formally indicated an intention to provide similar services in the future; and the cabinet and third-party payors who reimburse health facilities for services in the health service area in which the project is proposed to be located;
(4)
(a) "Ambulatory surgical center" means a health facility:
1. Licensed pursuant to administrative regulations promulgated by the cabinet;
2. That provides outpatient surgical services, excluding oral or dental procedures; and
3. Seeking recognition and reimbursement as an ambulatory surgical center from any federal, state, or third-party insurer from which payment is sought.
(b) An ambulatory surgical center does not include the private offices of physicians where in-office outpatient surgical procedures are performed as long as the physician office does not seek licensure, certification, reimbursement, or recognition as an ambulatory surgical center from a federal, state, or third-party insurer.
(c) Nothing in this subsection shall preclude a physician from negotiating enhanced payment for outpatient surgical procedures performed in the physician’s private office so long as the physician does not seek recognition or reimbursement of his or her office as an ambulatory surgical center without first obtaining a certificate of need or license required under KRS 216B.020 and 216B.061;
(5) "Applicant" means any physician’s office requesting a major medical equipment expenditure of one million five hundred thousand dollars ($1,500,000) or more after July 15, 1996, adjusted annually, or any person, health facility, or health service requesting a certificate of need or license;
(6) "Cabinet" means the Cabinet for Health and Family Services;
(7) "Capital expenditure" means an expenditure made by or on behalf of a health facility which:
(a) Under generally accepted accounting principles is not properly chargeable as an expense of operation and maintenance or is not for investment purposes only; or
(b) Is made to obtain by lease or comparable arrangement any facility or part thereof or any equipment for a facility or part thereof;
(8) "Capital expenditure minimum" means one million five hundred thousand dollars ($1,500,000) beginning with July 15, 1994, and as adjusted annually thereafter. In determining whether an expenditure exceeds the expenditure minimum, the cost of any studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the improvement, expansion, or replacement of any plant or any equipment with respect to which the expenditure is made shall be included. Donations of equipment or facilities to a health facility which if acquired directly by the facility would be subject to review under this chapter shall be considered a capital expenditure, and a transfer of the equipment or facilities for less than fair market value shall be considered a capital expenditure if a transfer of the equipment or facilities at fair market value would be subject to review;
(9) "Certificate of need" means an authorization by the cabinet to acquire, to establish, to offer, to substantially change the bed capacity, or to substantially change a health service as covered by this chapter;
(10) "Certified surgical assistant" means a certified surgical assistant or certified first assistant who is certified by the National Surgical Assistant Association on the Certification of Surgical Assistants, the Liaison Council on Certification of Surgical Technologists, or the American Board of Surgical Assistants. The certified surgical assistant is an unlicensed health-care provider who is directly accountable to a physician licensed under KRS Chapter 311 or, in the absence of a physician, to a registered nurse licensed under KRS Chapter 314;
(11) "Continuing care retirement community" means a community that provides, on the same campus, a continuum of residential living options and support services to persons sixty (60) years of age or older under a written agreement. The residential living options shall include independent living units, nursing home beds, and either assisted living units or personal care beds;
(12) "Formal review process" means the ninety (90) day certificate-of-need review conducted by the cabinet;
(13) "Health facility" means any institution, place, building, agency, or portion thereof, public or private, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care and includes alcohol abuse, drug abuse, and mental health services. This shall include but shall not be limited to health facilities and health services commonly referred to as hospitals, psychiatric hospitals, physical rehabilitation hospitals, chemical dependency programs, tuberculosis hospitals, skilled nursing facilities, nursing facilities, nursing homes, personal care homes, intermediate care facilities, family care homes, primary care centers, rural health clinics, outpatient clinics, ambulatory care facilities, ambulatory surgical centers, emergency care centers and services, ambulance providers, hospices, community centers for mental health or individuals with an intellectual disability, home health agencies, kidney disease treatment centers and freestanding hemodialysis units, facilities and services owned and operated by health maintenance organizations directly providing health services subject to certificate of need, and others providing similarly organized services regardless of nomenclature;
(14) "Health services" means clinically related services provided within the Commonwealth to two (2) or more persons, including but not limited to diagnostic, treatment, or rehabilitative services, and includes alcohol, drug abuse, and mental health services;
(15) "Independent living" means the provision of living units and supportive services, including but not limited to laundry, housekeeping, maintenance, activity direction, security, dining options, and transportation;
(16) "Intraoperative surgical care" includes the practice of surgical assisting in which the certified surgical assistant or physician assistant is working under the direction of the operating physician as a first or second assist, and which may include the following procedures:
(a) Positioning the patient;
(b) Preparing and draping the patient for the operative procedure;
(c) Observing the operative site during the operative procedure;
(d) Providing the best possible exposure of the anatomy incident to the operative procedure;
(e) Assisting in closure of incisions and wound dressings; and
(f) Performing any task, within the role of an unlicensed assistive person, or if the assistant is a physician assistant, performing any task within the role of a physician assistant, as required by the operating physician incident to the particular procedure being performed;
(17) "Major medical equipment" means equipment which is used for the provision of medical and other health services and which costs in excess of the medical equipment expenditure minimum. For purposes of this subsection, "medical equipment expenditure minimum" means one million five hundred thousand dollars ($1,500,000) beginning with July 15, 1994, and as adjusted annually thereafter. In determining whether medical equipment has a value in excess of the medical equipment expenditure minimum, the value of studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition of the equipment shall be included;
(18) "Nonsubstantive review" means an expedited review conducted by the cabinet of an application for a certificate of need as authorized under KRS 216B.095;
(19) "Nonclinically related expenditures" means expenditures for:
(a) Repairs, renovations, alterations, and improvements to the physical plant of a health facility which do not result in a substantial change in beds, a substantial change in a health service, or the addition of major medical equipment, and do not constitute the replacement or relocation of a health facility; or
(b) Projects which do not involve the provision of direct clinical patient care, including but not limited to the following:
1. Parking facilities;
2. Telecommunications or telephone systems;
3. Management information systems;
4. Ventilation systems;
5. Heating or air conditioning, or both;
6. Energy conservation; or
7. Administrative offices;
(20) "Party to the proceedings" means the applicant for a certificate of need and any affected person who appears at a hearing on the matter under consideration and enters an appearance of record;
(21) "Perioperative nursing" means a practice of nursing in which the nurse provides preoperative, intraoperative, and postoperative nursing care to surgical patients;
(22) "Person" means an individual, a trust or estate, a partnership, a corporation, an association, a group, state, or political subdivision or instrumentality including a municipal corporation of a state;
(23) "Physician assistant" means the same as the definition provided in KRS 311.550;
(24) "Record" means, as applicable in a particular proceeding:
(a) The application and any information provided by the applicant at the request of the cabinet;
(b) Any information provided by a holder of a certificate of need or license in response to a notice of revocation of a certificate of need or license;
(c) Any memoranda or documents prepared by or for the cabinet regarding the matter under review which were introduced at any hearing;
(d) Any staff reports or recommendations prepared by or for the cabinet;
(e) Any recommendation or decision of the cabinet;
(f) Any testimony or documentary evidence adduced at a hearing;
(g) The findings of fact and opinions of the cabinet or the findings of fact and recommendation of the hearing officer; and
(h) Any other items required by administrative regulations promulgated by the cabinet;
(25) "Registered nurse first assistant" means one who:
(a) Holds a current active registered nurse licensure;
(b) Is certified in perioperative nursing; and
(c) Has successfully completed and holds a degree or certificate from a recognized program, which shall consist of:
1. The Association of Operating Room Nurses, Inc., Core Curriculum for the registered nurse first assistant; and
2. One (1) year of postbasic nursing study, which shall include at least forty-five (45) hours of didactic instruction and one hundred twenty (120) hours of clinical internship or its equivalent of two (2) college semesters.
A registered nurse who was certified prior to 1995 by the Certification Board of Perioperative Nursing shall not be required to fulfill the requirements of paragraph (c) of this subsection;
(26) "Secretary" means the secretary of the Cabinet for Health and Family Services;
(27) "Sexual assault examination facility" means a licensed health facility, emergency medical facility, primary care center, or a children’s advocacy center or rape crisis center that is regulated by the Cabinet for Health and Family Services, and that provides sexual assault examinations under KRS 216B.400;
(28) "State health plan" means the document prepared triennially, updated annually, and approved by the Governor;
(29) "Substantial change in a health service" means:
(a) The addition of a health service for which there are review criteria and standards in the state health plan;
(b) The addition of a health service subject to licensure under this chapter; or
(c) The reduction or termination of a health service which had previously been provided in the health facility;
(30) "Substantial change in bed capacity" means the addition, reduction, relocation, or redistribution of beds by licensure classification within a health facility;
(31) "Substantial change in a project" means a change made to a pending or approved project which results in:
(a) A substantial change in a health service, except a reduction or termination of a health service;
(b) A substantial change in bed capacity, except for reductions;
(c) A change of location; or
(d) An increase in costs greater than the allowable amount as prescribed by regulation;
(32) "To acquire" means to obtain from another by purchase, transfer, lease, or other comparable arrangement of the controlling interest of a capital asset or capital stock, or voting rights of a corporation. An acquisition shall be deemed to occur when more than fifty percent (50%) of an existing capital asset or capital stock or voting rights of a corporation is purchased, transferred, leased, or acquired by comparable arrangement by one (1) person from another person;
(33)) "To batch" means to review in the same review cycle and, if applicable, give comparative consideration to all filed applications pertaining to similar types of services, facilities, or equipment affecting the same health service area;
(34) "To establish" means to construct, develop, or initiate a health facility;
(35) "To obligate" means to enter any enforceable contract for the construction, acquisition, lease, or financing of a capital asset. A contract shall be considered enforceable when all contingencies and conditions in the contract have been met. An option to purchase or lease which is not binding shall not be considered an enforceable contract; and
(36) "To offer" means, when used in connection with health services, to hold a health facility out as capable of providing, or as having the means of providing, specified health services.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 103, sec. 1, effective July 12, 2012; and ch. 146, sec. 106, effective July 12, 2012. — Amended 2005 Ky. Acts ch. 99, sec. 60, effective June 20, 2005. — Amended 2001 Ky. Acts ch. 36, sec. 1, effective June 21, 2001. — Amended 2000 Ky. Acts ch. 96, sec. 1, effective July 14, 2000; ch. 142, sec. 5, effective July 14, 2000; ch. 264, sec. 1, effective July 14, 2000; and ch. 538, sec. 1, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 426, sec. 449, effective July 15, 1998; and ch. 582, sec. 1, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 233, sec. 8, effective July 15, 1996; and ch. 371, sec. 37, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7, sec. 23, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 235, sec. 6, effective July 13, 1990; and ch. 499, sec. 1, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210, sec. 5, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 2, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 2, effective July 15, 1980.
Legislative Research Commission Note (7/12/2012). This statute was amended by 2012 Ky. Acts chs. 103 and 146, which do not appear to be in conflict and have been codified together.
 
ANNOTATIONS FOR THIS STATUTE:
 
Commonwealth v. Family Home Health Care, Inc., 2003 KY 127 (KYCA, 2003)
Family Home Health counters that if the blood draw is incident to IV infusion and related to initial start-up, the service is subject to licensure as a mobile health service pursuant to 902 KAR 20:275. However, Family Home Health argues that any services beyond"initial start-up of IV therapy" are subject to licensure as a home health agency pursuant to 902 KAR20:081. Consequently, Family Home Health argues that the service would be the addition of a health service subject to licensure under KRS 216B and would, therefore, be a substantial change to the health service as defined in KRS 216B.015(19).     Family Home Health has failed to prove that the Cabinet’s February 22, 1999, Advisory Opinion reached an erroneous conclusion. The Cabinet based its decision on its interpretation of the language of 902 KAR 20:275, Section 1(5), a regulation which it promulgated. An agency’s interpretation and application of its own statutes and regulations are to be afforded great weight and deference. [Citations omitted.] An adequate legal basis has been presented by Integrity and the Cabinet to support the conclusion of the Advisory Opinion dated February 22, 1999, that a Certificate of Need is not required under the circumstances herein because there has not been a substantial change in Integrity’s mobile health service as defined in KRS 216B.015(19). FHHC appealed the Cabinet’s decision to the Franklin Circuit Court. In reversing the Cabinet’s decision, the court determined that:ongoing blood testing of the kind proposed by Integrity exceeds the scope of the mobile health services regulation as the additional service of drawing blood is not within the initial start-up services as set forth in 902 KAR 20:27[34], Section 1(5).   The court concluded that Integrity must obtain an additional certificate of need and license in order to draw blood from its patients for continued IV therapy treatment purposes. Both the Cabinet and Integrity filed appeals against FHHC.     The sole issue for this Court’s review is whether the circuit court erred in its determination that on-going drawing of blood is a"substantial change in a health service" as contemplated by KRS 216B.015(28) and whether the Cabinet misinterpreted its own regulations in ruling that Integrity could draw blood from its patients without obtaining an additional certificate of need.     When our review is one of questions of law, it is de novo; our standard of review, therefore, does not defer to the interpretation of the circuit court. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, Ky., 983 S.W.2d 488, 490 (1998). In contrast, we note that an administrative agency’s interpretation of its own regulations is entitled to substantial deference. Camera Center, Inc. v. Revenue Cabinet, Ky., 34 S.W.3d 39 (2000). A reviewing court is not free to substitute its judgment as to the proper interpretation of the agency’s regulations as long as that interpretation is compatible and consistent with the statute under which it was promulgated and is not otherwise defective as arbitrary or capricious. City of Louisville by Kuster v. Milligan, Ky., 798 S.W.2d 454, 458 (1990).     The Cabinet is the state agency authorized by statute to administer the CON program consistent with the State Health Plan. See, KRS 216B.010. In carrying out this function, the Cabinet is required to promulgate administrative regulations"to establish criteria for issuance and denial of certificates of need." KRS 216B.040(2)(a)2. The General Assembly has established the circumstances under which a person or entity is required to obtain a certificate of need. KRS 216B.061. The specific section of the statute at issue in this case, KRS 216B.061(1)(d), provides that a licensed health provider such as Integrity must obtain a certificate of need before making"a substantial change in a health service. [S]ubstantial change in a health service" is defined at KRS 216B.015(28)
 
ACSR, Inc. v. Cabinet for Health Services, 2000 KY 42251 (KYCA, 2000)
 In January 1997, Pulaski Day Services, Inc., (hereinafter PDS) submitted an application for a certificate of need in connection with the establishment of an adult day care health program in a facility in Somerset. PDS’s application indicated an intent to construct a new building with a capacity of 65-70 patients. Under its program, PDS would provide therapeutic and personal care services to adult patients between 7:00 a.m. and 6:30 p.m. PDS subsequently requested and was granted non-substantive review by the Cabinet pursuant to KRS 216B.095 and 900 KAR 6:015E , which allows for an expedited, less comprehensive procedure for review than applies with a formal review. See KRS 216B.015(9) and (13), KRS 216B.040, KRS 216B.095, and 900 KAR 6:050. In April 1997, the Cabinet issued a public notice of PDS’s application, under the non-substantive review status and ACSR filed a request for a hearing on the application. ACSR (Active Services Corp. d/b/a Somerset Active Day Center), which currently operates a licensed adult day health care facility in Somerset, opposed the issuance of a certificate of need to PDS on various grounds under the criteria set forth in KRS 216B.040. ACSR also, however, challenged the validity of 900 KAR 6:050 and the Cabinet’s authority to promulgate the regulation.
 
Com., Cabinet for Human Resources, Interim Office of Health Planning and Certification v. Jewish Hosp. Healthcare Services, Inc., 932 S.W.2d 388 (Ky. App., 1996) 
 This is an appeal from an order of the Franklin Circuit Court reversing a decision of the Interim Office of Health Planning and Certification which ruled that appellee Hospital needed to obtain a Certificate of Need in order to add a sixth cardiac catheterization laboratory. We agree with the lower court’s interpretation of KRS 216B.061 and KRS 216B.015(20) as it applies to the facts of this case. Thus, we affirm.
 
Jewish Hosp., Inc. v. Baptist Health Care System, Inc., 902 S.W.2d 844 (Ky. App., 1995)   
KRS 216B.015(2) defines "Affected persons" as "the applicant; any person residing within the geographic area served or to be served by the applicant; any person who regularly uses health facilities within that geographic area; health facilities located in the health service area in which the project is proposed to be located which provide services similar to the services of the facility under review; health facilities which, prior to receipt by the agency of the proposal being reviewed, have formally indicated an intention to provide similar services in the future; the cabinet and third-party payors who reimburse health facilities for services in the health service area in which the project is proposed to be located."     The 1993 version of 902 KAR 20:004E section 5(2) added the following sentence: "Agreement of other affected persons shall not be required." For purposes of this appeal, the 1992 version is applicable.”
 
Medical Personnel Pool of Louisville, Inc. v. Management Registry, Inc., 869 S.W.2d 42 (Ky. App., 1993)  
902KAR20.006 (renumbered 1992–902KAR20.004) regulates the certificate of need process. To further explain the meaning behind the various statutes KRS 216B.015 defines significant terms as follows:   (7) "Certificate of need" means an authorization by the commission to proceed to acquire, to establish, to offer, to substantially change the bed capacity, or to substantially change a health service as covered by this chapter.
 
 
KRS 216B.017 Health facility not to discriminate against physician on basis of degree in medicine or osteopathy.
Notwithstanding any other provision of law, no health facility licensed in the Commonwealth shall discriminate with respect to employment, staff, privileges, or the provision of professional services against a physician licensed to practice medicine on the basis of whether the physician holds a medical doctor (M.D.) or doctor of osteopathy (D.O.) degree.
Effective: July 14, 2000
History: Created 2000 Ky. Acts ch. 413, sec. 3, effective July 14, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.020 Certificate of need — Exemptions — Requirements for issuance of certificate of need.
(1) The provisions of this chapter that relate to the issuance of a certificate of need shall not apply to abortion facilities as defined in KRS 216B.015; any hospital which does not charge its patients for hospital services and does not seek or accept Medicare, Medicaid, or other financial support from the federal government or any state government; assisted living residences; family care homes; state veterans’ nursing homes; services provided on a contractual basis in a rural primary-care hospital as provided under KRS 216.380; community mental health centers for services as defined in KRS Chapter 210; primary care centers; rural health clinics; private duty nursing services licensed as nursing pools; group homes; end stage renal disease dialysis facilities, freestanding or hospital based; swing beds; special clinics, including but not limited to wellness, weight loss, family planning, disability determination, speech and hearing, counseling, pulmonary care, and other clinics which only provide diagnostic services with equipment not exceeding the major medical equipment cost threshold and for which there are no review criteria in the state health plan; nonclinically related expenditures; nursing home beds that shall be exclusively limited to on-campus residents of a certified continuing care retirement community; home health services provided by a continuing care retirement community to its on-campus residents; the relocation of hospital administrative or outpatient services into medical office buildings which are on or contiguous to the premises of the hospital; residential hospice facilities established by licensed hospice programs; or the following health services provided on site in an existing health facility when the cost is less than six hundred thousand dollars ($600,000) and the services are in place by December 30, 1991: psychiatric care where chemical dependency services are provided, level one (1) and level two (2) of neonatal care, cardiac catheterization, and open heart surgery where cardiac catheterization services are in place as of July 15, 1990. The provisions of this section shall not apply to nursing homes, personal care homes, intermediate care facilities, and family care homes; or nonconforming ambulance services as defined by administrative regulation. These listed facilities or services shall be subject to licensure, when applicable.
(2) Nothing in this chapter shall be construed to authorize the licensure, supervision, regulation, or control in any manner of:
(a) Private offices and clinics of physicians, dentists, and other practitioners of the healing arts, except any physician’s office that meets the criteria set forth in KRS 216B.015(5) or that meets the definition of an ambulatory surgical center as set out in KRS 216B.015;
(b) Office buildings built by or on behalf of a health facility for the exclusive use of physicians, dentists, and other practitioners of the healing arts; unless the physician’s office meets the criteria set forth in KRS 216B.015(5), or unless the physician’s office is also an abortion facility as defined in KRS 216B.015, except no capital expenditure or expenses relating to any such building shall be chargeable to or reimbursable as a cost for providing inpatient services offered by a health facility;
(c) Dispensaries and first-aid stations located within business or industrial establishments maintained solely for the use of employees, if the facility does not contain inpatient or resident beds for patients or employees who generally remain in the facility for more than twenty-four (24) hours;
(d) Establishments, such as motels, hotels, and boarding houses, which provide domiciliary and auxiliary commercial services, but do not provide any health related services and boarding houses which are operated by persons contracting with the United States Veterans Administration for boarding services;
(e) The remedial care or treatment of residents or patients in any home or institution conducted only for those who rely solely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any recognized church or religious denomination and recognized by that church or denomination; and
(f) On-duty police and fire department personnel assisting in emergency situations by providing first aid or transportation when regular emergency units licensed to provide first aid or transportation are unable to arrive at the scene of an emergency situation within a reasonable time.
(3) An existing facility licensed as skilled nursing, intermediate care, or nursing home shall notify the cabinet of its intent to change to a nursing facility as defined in Public Law 100-203. A certificate of need shall not be required for conversion of skilled nursing, intermediate care, or nursing home to the nursing facility licensure category.
(4) Notwithstanding any other provision of law to the contrary, dual-license acute care beds licensed as of December 31, 1995, and those with a licensure application filed and in process prior to February 10, 1996, may be converted to nursing facility beds by December 31, 1996, without applying for a certificate of need. Any dual-license acute care beds not converted to nursing facility beds by December 31, 1996, shall, as of January 1, 1997, be converted to licensed acute care beds.
(5) Notwithstanding any other provision of law to the contrary, no dual-license acute care beds or acute care nursing home beds that have been converted to nursing facility beds pursuant to the provisions of subsection (3) of this section may be certified as Medicaid eligible after December 31, 1995, without the written authorization of the secretary.
(6) Notwithstanding any other provision of law to the contrary, total dual-license acute care beds shall be limited to those licensed as of December 31, 1995, and those with a licensure application filed and in process prior to February 10, 1996. No acute care hospital may obtain a new dual license for acute care beds unless the hospital had a licensure application filed and in process prior to February 10, 1996.
(7) Ambulance services owned and operated by a city government, which propose to provide services in coterminous cities outside of the ambulance service’s designated geographic service area, shall not be required to obtain a certificate of need if the governing body of the city in which the ambulance services are to be provided enters into an agreement with the ambulance service to provide services in the city.
(8) Notwithstanding any other provision of law, a continuing care retirement community’s nursing home beds shall not be certified as Medicaid eligible unless a certificate of need has been issued authorizing applications for Medicaid certification. The provisions of subsection (3) of this section notwithstanding, a continuing care retirement community shall not change the level of care licensure status of its beds without first obtaining a certificate of need.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 90, sec. 2, effective July 12, 2012; and ch. 103, sec. 2, effective July 12, 2012. — Amended 2005 Ky. Acts ch. 102, sec. 1, effective June 20, 2005. — Amended 2000 Ky. Acts ch. 264, sec. 2, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 582, sec. 2, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 299, sec. 1, effective July 15, 1996; ch. 351, sec. 2, effective July 15, 1996; and ch. 371, sec. 38, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7, sec. 24, effective July 15, 1994. – Amended 1992 Ky. Acts ch. 61, sec. 4, effective March 16, 1992. — Amended 1990 Ky. Acts ch. 235, sec. 7, effective July 13, 1990; and ch. 499, sec. 2, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 436, sec. 2, effective July 15, 1988. — Amended 1986 Ky. Acts ch. 31, sec. 3, effective February 28, 1986. — Amended 1984 Ky. Acts ch. 301, sec. 2, effective July 13, 1984. — Amended 1982 Ky. Acts ch. 347, sec. 3, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 3, effective July 15, 1980.
Legislative Research Commission Note (7/12/2012). This statute was amended by 2012 Ky. Acts chs. 90 and 103, which do not appear to be in conflict and have been codified together.
 
ANNOTATIONS FOR THIS STATUTE:
 
Commonwealth v. Bluegrass Orthopaedics Surgical Div., LLC (Ky. App., 2011)
Not all health-care services and facilities are subject to Cabinet regulation under KRS 216B. For example, "[p]rivate offices and clinics of physicians, dentists, and other practitioners of the healing arts" are exempt from this regulation. KRS 216B.020(2)(a). This exemption does not extend to physicians and clinics seeking to purchase major medical equipment that costs $1,500,000 or more. KRS 216B.015(4).
This consolidated appeal concerns two orthopedic ASCs that claim their facilities are exempt from the certificate of need requirement based upon the physician’s office exemption. Louisville Orthopaedic Surgery Center
Louisville Orthopaedic is an ASC which is wholly owned by Louisville Orthopaedic Clinic and Sports Rehabilitation Center, PSC, a corporation owned by a group of practicing physicians. In 2005, through its attorney, Louisville Orthopaedic anonymously sought an advisory opinion from the Cabinet regarding whether its establishment of an ASC required a certificate of need. The request provided the following description of Louisville Orthopaedic:
ABC Physician Group is organized as a professional service corporation that provides single specialty surgery services. All shareholders of the professional service corporation are physicians licensed to practice medicine in Kentucky. ABC Physician Group owns the office building to construct an outpatient surgery center that complies with Medicare’s conditions of participation for an ASC. ABC Physician Group Practices will maintain its current offices on the second and third floors of the building. It is anticipated that two operating rooms will be implemented on the first floor of the physician group’s office building. These operating rooms will be implemented at a cost less than the major medical equipment capital expenditure minimum threshold. Shareholders or employees of the physician group practice will personally perform surgical procedures there on a regular basis.
It is our legal opinion that a certificate of need is not required for our clients to establish an ASC or an outpatient surgery center as part of their private physician’s group practice and office pursuant to KRS 216.020(2)(a).
On June 14, 2005, the Cabinet issued an advisory opinion concluding that a certificate of need would not be required for the addition of operating rooms to the practice if: (1) the only physicians performing surgery were the shareholders and employees of the physician group; and (2) no major medical equipment expenditure exceeded $1,500,000. The advisory opinion included several disclaimers rendering the opinion void if the information provided in the request was inaccurate. Approximately six months later, Louisville Orthopaedic financed and constructed two operating rooms, which make up the ASC.
Louisville Orthopaedic applied to the Accreditation Association for Ambulatory Health Care (AAAHC) for Medicare accreditation. AAAHC denied the application based upon the Cabinet’s refusal to verify that Louisville Orthopaedic was exempt from regulation and the certificate of need requirement.
The Cabinet opined that Louisville Orthopaedic would be subject to regulation and the certificate of need requirement if it sought licensure for a Medicare certification as an ASC.
Similarly, on November 11, 2007, Louisville Orthopaedic submitted its Medicare Health Care Provider/Supplier Enrollment Application (Medicare application) to receive federal reimbursement for the ambulatory service costs and facility fees incurred by Medicare patients. In order to receive Medicare reimbursements, Louisville Orthopaedic had to also provide a Cabinet statement declaring the ASC was exempt from regulation and the certificate of need requirement.
Louisville Orthopaedic moved the Franklin Circuit Court for a declaratory judgment or summary judgment that the Cabinet failed to recognize its exemption and failed to enforce the advisory opinion. On August 25, 2009, the Franklin Circuit Court granted summary judgment in favor of the Cabinet and concluded that Louisville Orthopaedic was not exempt from KRS 216B regulation. The court found that, "Louisville Orthopaedic is not merely a physicians’ office adding operating rooms to its office; it is a separate and distinct entity that conducts only surgery." This appeal follows.
Louisville Orthopaedic claims that its physician shareholders are entitled to the exemption regardless of the legal form under which they practice and that they detrimentally relied upon the Cabinet’s advisory opinion. 
 
Muhlenberg Community Hospital v. Muhlenberg Medical Properties, No. 2007-CA-002219-MR (Ky. App. 10/9/2009) (Ky. App., 2009)
    Muhlenberg Community Hospital, Owensboro Medical Health System, Inc. and the Kentucky Hospital Association (collectively referred to as appellants) bring this appeal from an August 10, 2007, Opinion and Order of the Franklin Circuit Court reversing the Findings of Fact, Conclusions of Law and Final Order (final order) of the Commonwealth of Kentucky, Cabinet for Health and Family Services and holding that Muhlenberg Medical Properties VI, LLC qualified for an exemption under Kentucky Revised Statutes (KRS) 216B.020(2)(a) to the certificate of need requirement. We reverse.
      9. Therefore, the issue before the undersigned is whether the Cabinet correctly concluded in the Advisory Opinion that [Muhlenberg Medical] cannot operate MRI services without a certificate of need. Specifically, it must be determined whether [Muhlenberg Medical] may rely on the [private] office exemption, and thus be allowed to operate without obtaining a certificate of need.
        10. After considering all the evidence presented, it must be concluded that [Muhlenberg Medical] does not fall within the [private] office exemption and that the Cabinet’s Advisory Opinion should be affirmed.
 
Com., Cabinet for Human Resources, Interim Office of Health Planning and Certification v. Jewish Hosp. Healthcare Services, Inc., 932 S.W.2d 388 (Ky. App., 1996) 
We finally address appellant’s argument that a prior statute (KRS 216B.020(1)) which expired on December 30, 1991, and exempted cardiac catheterization units from the Certificate of Need requirement, showed the legislature’s intent to now require a Certificate of Need for any cardiac catheterization unit which a hospital seeks to add. We are unpersuaded by this argument. The statutory exemptions in KRS 216B.020 apply only if a Certificate of Need is required by KRS 216B.061. However, if, as in the case at bar, a hospital is not required to obtain a Certificate of Need under KRS 216B.061, it is irrelevant to consider whether an exemption is available to it under KRS 216B.020. There is no doubt that under the present statutory scheme of KRS 216B, a hospital which seeks to newly begin operating a cardiac catheterization lab would be required to obtain a Certificate of Need. That is not the case here.
 
St. Luke Hosp., Inc. v. Health Policy Bd., 913 S.W.2d 1 (Ky. App., 1996)
While there is no legislative history for KRS 216B.020(1), KRS 216B.010 provides that one of the purposes for enacting Chapter 216B was "to insure that the citizens of this Commonwealth will have safe, adequate and efficient medical care." Viewing this in context to KRS 216B.020(1), we see the most obvious reason for the exemptions therein was the immediate need of these health care services in Kentucky. This would certainly explain the time requirement in the statute. This would especially be true for growing areas like Boone County where St. Luke is located 2. St. Elizabeth’s own argument against St. Luke’s establishing a Level I neonatal unit (because there is no Level II unit within the same facility) lends further support for the exemption, given the legislative interest in providing safe, adequate and efficient medical care. The justifiable reason for the maximum cost requirement of $600,000 can also be seen in the language of KRS 216B.010, expressing the legislature’s concern over the rising cost of quality health care in the Commonwealth. Lastly, we point out the myriad of other health care services and facilities that are included in the exemption.     In sum, we hold that the exemption in KRS 216B.020 does not constitute special legislation in violation of § 59 or § 60 of the Kentucky Constitution. Accordingly, the judgment of the Franklin Circuit Court is reversed.  
 
Cabinet for Human Resources v. Women’s Health Services, Inc., 878 S.W.2d 806 (Ky. App., 1994)   
 Health Services moved to dismiss the action claiming that under KRS 216B.020(3)(a) it was exempt from any license requirements as a private office. The motion to dismiss was accompanied by the affidavit of Dr. Banchongmanie in which he stated that he conducted an OB/GYN specialist practice at his private offices in Louisville and that he regularly delivered children at several hospitals where he has privileges. He further stated that he is qualified to and does perform second trimester abortions in his office.     On February 16, 1993, the court issued an order dismissing the action based on Dr. Banchongmanie’s affidavit and the fact that it believed the depositions tendered by the Cabinet did not overcome the assertions made in that affidavit. The court concluded that, pursuant to KRS 216B.020(3)(a), Health Services was not required to obtain a CON from the state. It is from that order this appeal is prosecuted.
 
Medical Personnel Pool of Louisville, Inc. v. Management Registry, Inc., 869 S.W.2d 42 (Ky. App., 1993)
  With the applicable statutes laid out, we will now address the specific issue brought upon appeal. Spaid Nursing Services sent the nurses working in its private duty nursing service to various patients’ homes without first obtaining a CON. It did so in reliance upon the exemption contained in KRS 216B.020. The Franklin Circuit Court found that the statute was clear on its face and the Legislature indeed intended for the exemption to mean exactly what it said. According to the trial court CHECK was in error when it read into KRS 216B.020(1) the condition that the private duty nursing service must be acting within the confines of the definition of a nursing pool.   We find that the Franklin Circuit Court reads too much into the exemption. As CHECK found, the key to the exemption must center upon the very nature of a nursing pool. Nursing pools provide temporary employment in health care facilities. The definition does not include employment in patients’ homes. Hence, the temporary personnel is being provided for an already established health facility whose people in authority oversee the nursing pool personnel. It follows that a private duty nursing service licensed as a nursing pool is entitled to the exemption to the extent that it is acting within the confines of the definition of a nursing pool.     To hold otherwise would nullify the exemption’s requirement that the service must be licensed as a nursing pool. Although there is no applicable statute which defines "license," the Court in City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948) stated:   Specifically or technically speaking, to license means to confer on a person the right to do something which otherwise he would not have the right to do–a special privilege rather than a right common to all persons. It impacts regulation. 214 S.W.2d at 253.      This meaning is further supported by 906KAR1:050 Section 1(4) which defines license to mean "an authorization issued by the Cabinet for the purpose of operating a nursing pool." Provided the private duty nursing service is licensed as a nursing pool it has those rights and only those rights conferred upon a nursing pool.     Although the trial court may find it redundant not to, there is no reason to read into the exemption that private duty nursing services are free to act outside the scope of their license. To add to that, to further allow the private duty nursing service to do what other agencies have to acquire a CON for before they act would not logically be something the Legislature would do. One must not forget the reason why the various restrictions are mandated. See KRS 216B.010.     We should also point out that appellee not only argues that KRS 216B.020(1) plainly and specifically exempts private duty nursing services it maintains that the Commission’s decision is based upon Commission Policy 87-7 which violates the mandates of KRS 13A in that the policy was not in the form of an administrative regulation. Nowhere in the hearing report which was adopted in full by CHECK can we find any reliance upon Commission Policy 87-7. This argument has no merit. Appellee also argues that the Commission’s determination procedure is without statutory authority. This argument also has no merit. See KRS 216B.040.
 
 
KRS 216B.021 Authorization for two 120-bed nursing homes in western and eastern Kentucky.
The General Assembly hereby approves and authorizes the construction and operation of two (2) one hundred twenty (120) bed nursing homes, one in western Kentucky and the other in eastern Kentucky.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 223, sec. 1, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.025 Commission of Health Economics Control in Kentucky.
(1) There is hereby created a separate administrative agency of state government to be known as the Commission of Health Economics Control in Kentucky for the purpose of carrying out its duties prescribed in this chapter. The commission shall be composed of the members of the Kentucky Health Care Cost Containment Advisory Committee. The chairman of the Kentucky Health Care Cost Containment Advisory Committee shall serve as chairman of the commission. Members of the commission shall serve for a term of four (4) years. In the event of a vacancy the person appointed shall serve only for the remaining portion of the vacated term. All members shall serve until such time as their successors are qualified and appointed.
(2) The secretary shall employ the members of the commission on a full-time basis and furnish necessary office space and assistance.
(3) A majority of the commission members shall constitute a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the commission. No vacancy in the commission shall impair the right of the remaining members to exercise all of the powers of the commission.
(4) No member of the commission may, in the exercise of any function described in this chapter, vote on any matter before the commission respecting any applicant, licensee or holder of a certificate of need with which such member has or, within the twelve (12) months preceding the vote, had any substantial ownership, employment, medical staff, fiduciary, contractual, creditor, or consultative relationship. A member who has or has had such a relationship with the applicant, licensee or holder of a certificate of need involved in a matter before the commission shall make a written disclosure of the relationship before any action is taken by the commission, and such disclosure shall become part of the record of the proceeding.
Effective: July 15, 1988
History: Amended 1988 Ky. Acts ch. 210, sec. 6, effective July 15, 1988. – Amended 1984 Ky. Acts ch. 377, sec. 8, effective July 13, 1984. — Amended 1982 Ky. Acts ch. 347, sec. 4, effective July 15, 1982. –Created 1980 Ky. Acts ch. 135, sec. 4, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.030 Principal office of commission.
(1) The principal office of the commission shall be located at the state capital, and it shall be kept open during the usual business hours.
(2) The commission shall hold meetings at its principal office and at such other convenient places in the Commonwealth as are expedient or necessary for the proper performance of its duties.
Effective: July 15, 1988
History: Amended 1988 Ky. Acts ch. 210, sec. 7, effective July 15, 1988. – Created 1980 Ky. Acts ch. 135, sec. 5, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.035 Administrative staff assistance — Records — Oaths.
(1) The cabinet shall hire any administrative staff required by the cabinet to carry out its duties and functions under the provisions of this chapter.
(2) The secretary shall keep a full and true record of all the proceedings of the cabinet, of all books and papers ordered filed by the cabinet, and of all exemptions and certificates of need issued by the cabinet, and shall be responsible to it for the safe custody and preservation of all documents in its possession. The secretary may administer oaths in all parts of the state, where the exercise of that power is properly incidental to the performance of the duties of the cabinet under this chapter.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 39, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 25, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 8, effective July 15, 1988. –Amended 1982 Ky. Acts ch. 347,
sec. 5, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 6, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.040 Functions of cabinet in administering chapter — Regulatory authority.
(1) The cabinet shall have four (4) separate and distinct functions in administering this chapter:
(a) To approve or deny certificates of need in accordance with the provisions of this chapter, except as to those applications which have been granted nonsubstantive review status by the cabinet;
(b) To issue and to revoke certificates of need;
(c) To provide a due process hearing and issue a final determination on all actions by the cabinet to deny, revoke, modify, or suspend licenses of health facilities and health services issued by the cabinet; and
(d) To enforce, through legal actions on its own motion, the provisions of this chapter and its orders and decisions issued pursuant to its functions.
(2) The cabinet shall:
(a) Promulgate administrative regulations pursuant to the provisions of KRS Chapter 13A:
1. To establish the certificate of need review procedures, including but not limited to, application procedures, notice provisions, procedures for review of completeness of applications, and timetables for review cycles.
2. To establish criteria for issuance and denial of certificates of need which shall be limited to the following considerations:
a. Consistency with plans. Each proposal approved by the cabinet shall be consistent with the state health plan, and shall be subject to biennial budget authorizations and limitations, and with consideration given to the proposal’s impact on health care costs in the Commonwealth. The state health plan shall contain a need assessment for long-term care beds, which shall be based on a statistically valid analysis of the present and future needs of the state as a whole and counties individually. The need assessment shall be applied uniformly to all areas of the state. The methodology shall be reviewed and updated on an annual basis. The long-term care bed need criteria in the state health plan or as set forth by the appropriate certificate of need authority shall give preference to conversion of personal care beds and acute care beds to nursing facility beds, so long as the state health plan or the appropriate certificate of need authority establishes a need in the affected counties and the proposed conversions are more cost effective than new construction. The fact that the state health plan shall not address the specific type of proposal being reviewed shall not constitute grounds for disapproval of the proposal. Notwithstanding any other provision of law, the long-term care bed need criteria in the state health plan or as set forth by the appropriate certificate of need authority shall not consider, factor in, or include any continuing care retirement community’s nursing home beds established under KRS 216B.015, 216B.020, 216B.330, and 216B.332;
b. Need and accessibility. The proposal shall meet an identified need in a defined geographic area and be accessible to all residents of the area. A defined geographic area shall be defined as the area the proposal seeks to serve, including its demographics, and shall not be limited to geographical boundaries;
c. Interrelationships and linkages. The proposal shall serve to accomplish appropriate and effective linkages with other services, facilities, and elements of the health care system in the region and state, accompanied by assurance of effort to achieve comprehensive care, proper utilization of services, and efficient functioning of the health care system;
d. Costs, economic feasibility, and resources availability. The proposal, when measured against the cost of alternatives for meeting needs, shall be judged to be an effective and economical use of resources, not only of capital investment, but also ongoing requirements for health manpower and operational financing;
e. Quality of services. The applicant shall be prepared to and capable of undertaking and carrying out the responsibilities involved in the proposal in a manner consistent with appropriate standards and requirements assuring the provision of quality health care services, as established by the cabinet;
f. Hospital-based skilled nursing, intermediate care, and personal care beds shall be considered by the cabinet in determining the need for freestanding long-term care beds.
(b) Conduct public hearings, as requested, in respect to certificate-of-need applications, revocations of certificates of need, and denials, suspensions, modifications, or revocations of licenses.
(3) The cabinet may:
(a) Issue other administrative regulations necessary for the proper administration of this chapter;
(b) Administer oaths, issue subpoenas, subpoenas duces tecum, and all necessary process in proceedings brought before or initiated by the cabinet, and the process shall extend to all parts of the Commonwealth. Service of process in all proceedings brought before or initiated by the cabinet may be made by certified mail, or in the same manner as other process in civil cases, as the cabinet directs;
(c) Establish by promulgation of administrative regulation under KRS Chapter 13A reasonable application fees for certificates of need;
(d) Appoint technical advisory committees as are deemed necessary to administer its functions under the provisions of this chapter;
 (e) Establish a mechanism for issuing advisory opinions to prospective applicants for certificates of need regarding the requirements of a certificate of need; and
(f) Establish a mechanism for biennial review of projects for compliance with the terms of the certificate of need.
Effective: July 14, 2000
History: Amended 2000 Ky. Acts ch. 264, sec. 3, effective July 14, 2000. – Amended 1996 Ky. Acts ch. 299, sec. 2, effective July 15, 1996; and ch. 371, sec. 40, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7, sec. 26, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 493, sec. 1, effective July 13, 1990; and ch. 499, sec. 3, effective July 13, 1990. –Amended 1988 Ky. Acts ch. 210, sec. 9, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 6, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 7, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
Family Home Health Care, Inc. v. Saint Joseph Health System, Inc., No. 2008-CA-001790-MR (Ky. App. 8/7/2009) (Ky. App., 2009)
 Appellant, Family Home Health Care, Inc. ("Family"), appeals from a decision of the Franklin Circuit Court setting aside an order of the Cabinet for Health and Family Services ("Cabinet") granting Family a Certificate of Need to expand its home health care services into Laurel County, Kentucky. Finding no error, we affirm.
        In order to obtain a Certificate of Need, an applicant must demonstrate that its proposal is consistent with five statutory review criteria set forth in KRS 216B.040. However, while several of the criteria are open to interpretation by the hearing officer, the Certificate of Need must be consistent with the State Health Plan (SHP), a document prepared by the Cabinet that is used to determine whether there is a sufficient "need" from a statistical perspective for a new or expanded service. In other words if the SHP indicates no need for that particular facility or service in the county in question, then any application for a Certificate of Need is "un-approvable" as a matter of law.
     Herein, for Family’s application to be approvable as an expansion of an existing service, the SHP had to show that, statistically, at least 125 additional patients were projected to be in need of home health care services in Laurel County. If the SHP showed fewer than 125 additional patients in need of such services, Family’s application could not be approved even if it satisfied the remaining criteria set forth in KRS 216B.040.
 
St. Luke Hospitals, Inc. v. Commonwealth, No. 2004-CA-000692-MR (KY, 2005)  
"The Cabinet is a state agency authorized by statute to administer the CON program consistent with the [SHP]." Cabinet for Health Services v. Family Home Health Care, Inc., 98 S.W.3d 524, 527 (Ky.App. 2003), citing KRS 216B.010. "In carrying out this function, the Cabinet is required to promulgate administrative regulations `to establish criteria for issuance and denial of certificates of need.’" Id., citing KRS 216B.040(2)(a)2.     Te specific provision at issue in this case, KRS 216B.061(1)(a), provides that a licensed health provider such as St. Luke must obtain a CON before establishing a health facility. St. Luke seeks a newly licensed ASC. Thus, under the statute, it must obtain a CON. Further, its CON must be consistent with the SHP. See KRS 216B.040(2)(a).
 
Commonwealth v. Family Home Health Care, Inc., 2003 KY 127 (KYCA, 2003)    
The Cabinet is the state agency authorized by statute to administer the CON program consistent with the State Health Plan. See, KRS 216B.010. In carrying out this function, the Cabinet is required to promulgate administrative regulations"to establish criteria for issuance and denial of certificates of need." KRS 216B.040(2)(a)2. The General Assembly has established the circumstances under which a person or entity is required to obtain a certificate of need. KRS 216B.061. The specific section of the statute at issue in this case, KRS 216B.061(1)(d), provides that a licensed health provider such as Integrity must obtain a certificate of need before making"a substantial change in a health service.   A[S]ubstantial change in a health service" is defined at KRS 216B.015(28) as: (a) The addition of a health service for which there are review criteria and standards in the state health plan; (b) The addition of a health service subject to licensure under this chapter; or (c) The reduction or termination of a health service which had previously been provided in the health facility.
 
ACSR, Inc. v. Cabinet for Health Services, 2000 KY 42251 (KYCA, 2000)
 In connection with its first complaint, ACSR contends that 900 KAR 6:050 unlawfully amends KRS 216B.040 and KRS 216B.095 in violation of KRS 13A.120. KRS 216B.040 requires the Cabinet to promulgate regulations establishing the requirements for obtaining a certificate of need. Subsection (2)(a)(2) lists six factors relevant to the criteria to be established in the regulations for review of certificate of need applications: (1) consistency with the State Health Plan; (2) need and accessibility; (3) interrelationships and linkages; (4) costs, economic feasibility, and resources availability; (5) quality of services; and (6) the existence of skilled nursing and of intermediate and personal care beds in determining the need for freestanding long-term care beds. See also 900 KAR 6:050(7). KRS 216B.040(2)(a)(1) authorizes the Cabinet to promulgate administrative regulations "[t]o establish the certificate of need review procedures, including but not limited to, application procedures, notice provisions, procedures for review of completeness of applications . . . ." KRS 216B.040(1)(a) indicates that the formal review procedures apply "except as to those applications which have been granted non-substantive review status by the Cabinet."
 
Jewish Hosp., Inc. v. Baptist Health Care System, Inc., 902 S.W.2d 844 (Ky. App., 1995) 
Humana of Kentucky, supra, is easily distinguished from the present case. That case did not turn on the issue of notice of a CON hearing, rather it turned on the extent of the authority of the commission, pursuant to KRS 216B.040, to grant an additional certificate of need when the board has utilized an advisory opinion to determine that no action was necessary. The language of KRS 216B.040(2)(b), inter alia, charges the commission with the duty to: onduct public hearings, as requested, in respect to certificate of need applications, revocations of certificates of need, and denials, suspensions, modifications, or revocations of licenses.
 
 
Cabinet for Human Resources v. Women’s Health Services, Inc., 878 S.W.2d 806 (Ky. App., 1994)
  Under KRS 216B.040, KRS 216B.105, and KRS 216B.042, the Cabinet is charged with regulating health facilities and health services, including the classification of health facilities and health services according to type, size, range of services, and level of care. Pursuant to these enabling statutes, the Cabinet promulgated 902 KAR 20:106 Section 2, which contains the definition of "ambulatory surgical center". It states as follows: Section 2. Scope of Operation and Services. Ambulatory surgical centers are public or private institutions that are hospital based or freestanding, operated under the supervision of an organized medical staff and established, equipped, and operated primarily for the purpose of treatment of patients
 
 
KRS 216B.0415 Jurisdiction of State Board of Medical Licensure over physician’s acting as medical director for an ambulance service.
(1) The State Board of Medical Licensure shall have sole jurisdiction regarding any complaint relating to the medical supervision of an ambulance service or ambulance service personnel against a physician performing in the role of medical director for an ambulance service for basic or advanced life support services.
(2) This section shall not preclude or limit the filing of civil litigation in a court of appropriate jurisdiction.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 497, sec. 3, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0417 Jurisdiction of State Board of Nursing over registered nurse practicing with an ambulance service.
(1) The State Board of Nursing shall have sole jurisdiction regarding any complaint relating to the practice of a registered nurse practicing under the nurse’s nursing license in the prehospital setting for an ambulance service providing basic or advanced life support services.
(2) This section shall not preclude or limit the filing of civil litigation in a court of appropriate jurisdiction.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 497, sec. 4, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.042 Licenses — Authority to enter upon premises — Authority for administrative regulations.
(1) The cabinet shall:
(a) Establish by promulgation of administrative regulation under KRS Chapter 13A reasonable application fees for licenses and promulgate other administrative regulations necessary for the proper administration of the licensure function;
(b) Issue, deny, revoke, modify, or suspend licenses or provisional licenses in accordance with the provisions of this chapter;
(c) Establish licensure standards and procedures to ensure safe, adequate, and efficient abortion facilities, health facilities and health services. These regulations, under KRS Chapter 13A, shall include, but need not be limited to:
1. Patient care standards and safety standards, minimum operating standards, minimum standards for training, required licenses for medical staff personnel, and minimum standards for maintaining patient records;
2. Licensure application and renewal procedures; and
3. Classification of health facilities and health services according to type, size, range of services, and level of care; and
(d) Compile in a single document, maintain, and make available to abortion facilities and the public during regular business hours, all licensure standards and procedures promulgated under KRS Chapter 13A related to abortion facilities.
(2) The cabinet may authorize its agents or representatives to enter upon the premises of any health care facility for the purpose of inspection, and under the conditions set forth in administrative regulations promulgated under KRS Chapter 13A by the cabinet.
(3) The cabinet may revoke licenses or certificates of need for specific health facilities or health services or recommend the initiation of disciplinary proceedings for health care providers on the basis of the knowing violation of any provisions of this chapter.
Effective: July 15, 1998
History: Amended 1998 Ky. Acts ch. 582, sec. 3, effective July 15, 1998. – Amended 1996 Ky. Acts ch. 371, sec. 41, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7, sec. 27, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 4, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210, sec. 10, effective July 15, 1988. — Created 1982 Ky. Acts ch. 347, sec. 7, effective July 15, 1982.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0422 Hospital’s outpatient health facility — Licensure and certificate-of- need requirements.
(1) Notwithstanding any other provision of law to the contrary, if the Federal Health Care Financing Administration issues a final regulation establishing an outpatient Medicare prospective payment system for hospitals that requires that an outpatient health facility operated by the hospital be under the same license as the hospital to achieve provider-based status, the cabinet shall, at the hospital’s request, issue a new license to a hospital that owns and operates an existing or newly established outpatient health facility that lists each location operated by the hospital.
(2) Any outpatient health facility listed on the hospital’s license under subsection (1) of this section shall:
(a) Comply with all applicable licensure regulations that pertain to the type of health services provided; and
(b) Prior to the establishment of a health facility, the operation of a health facility, or the provision of health services or the addition of a health service at a location other than the hospital’s main campus, obtain a certificate of need if a certificate of need would otherwise be required in the absence of subsection (1) of this section. Licensure of the outpatient health facility or service under the same license as the hospital pursuant to subsection (1) of this section shall not eliminate the requirements for a certificate of need.
Effective: July 14, 2000
History: Created 2000 Ky. Acts ch. 292, sec. 1, effective July 14, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0425 Primary stroke center designation for acute care hospitals.
(1) Except as otherwise provided, for purposes of this section:
(a) "Acute care hospital" means a licensed facility providing inpatient and outpatient medical or surgical services to an individual that seeks care and treatment, regardless of the individual’s ability to pay for services, on an immediate and emergent basis through an established emergency department and a continuous treatment basis on its premises for more than twenty-four (24) hours; and
(b) "Primary stroke center certification" means certification for acute care hospitals issued by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or another cabinet-approved nationally recognized organization that provides disease-specific certification for stroke care, that:
1. Complies with census-based national standards and safety goals;
2. Effectively uses evidence-based clinical practice guidelines to manage and optimize care; and
3. Uses an organized approach to measure performance.
(2) The secretary of the Cabinet for Health and Family Services shall designate as a primary stroke center any acute care hospital which has received a primary stroke center certification.
(3) The secretary shall suspend or revoke an acute care hospital’s designation as a primary stroke center if certification is withdrawn by JCAHO or another cabinet-approved certifying organization.
Effective: July 15, 2010
History: Created 2010 Ky. Acts ch. 67, sec. 1, effective July 15, 2010.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0431 Licensing and procedures for abortion facilities – Administrative regulations.
(1) The cabinet shall, no later than September 1, 1998, and subject to the provisions of KRS Chapter 13A, promulgate administrative regulations providing licensure standards and procedures for abortion facilities. The cabinet shall begin enforcing the administrative regulations on March 1, 1999.
(2) Any person operating an abortion facility for which a license is required under this chapter may apply for the license prior to March 1, 1999.
(3) Each abortion facility shall report monthly to the cabinet the information required by the cabinet by administrative regulation for each abortion performed in the facility.
(4) Licensed acute-care hospitals shall be exempt from the provisions of this section, except for any reporting requirements issued by the cabinet.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 582, sec. 4, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0435 Requirement of written agreements between abortion facility and acute care hospital and ambulance service.
(1) Each abortion facility shall enter into a written agreement with a licensed acute-care hospital capable of treating patients with unforeseen complications related to an abortion facility procedure by which agreement the hospital agrees to accept and treat these patients.
(2) If unforeseen complications arise prior to or during an abortion facility procedure, the patient shall be transferred to the licensed acute-care hospital with which the abortion facility has a written agreement as provided under subsection (1) of this section or to the hospital selected by the patient, if the patient so chooses.
(3) Each abortion facility shall enter into a written agreement with a licensed local ambulance service for the transport of any emergency patient within the scope of subsection (1) of this section to the licensed acute-care hospital.
(4) The written agreements of an abortion facility with an acute-care hospital and with a local ambulance service shall be filed by the abortion facility with the cabinet.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 582, sec. 5, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0441 Cabinet to license and regulate adult day care health programs.
(1) As used in this section, "adult day health care program" means a program licensed by the Cabinet for Health and Family Services that provides organized health care for its clients during specified daytime hours, that may include continuous supervision to assure that health care needs are being met, supervision of self administration of medications, and provision of nursing services, personal care services, self-care training, and social and recreational activities for individuals of all ages.
(2) The cabinet shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish health, safety, and treatment requirements for licensed adult day health care programs. No person, association, corporation, or other organization shall operate or maintain an adult day health care program without first obtaining a license as provided in this section.
(3) The cabinet may issue a license upon request to any adult day health care program meeting the standards required under subsection (2) of this section and administrative regulations promulgated thereunder. The cabinet may deny, revoke, suspend, or modify an adult day health care program license for failure to comply with standards set by the cabinet.
(4) Services provided in an adult day health care program for its clients may include:
(a) Medical therapeutic services; and
(b) Physical and speech therapy.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 99, sec. 505, effective June 20, 2005. — Created
2000 Ky. Acts ch. 521, sec. 27, effective July 14, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0443 Administrative regulations on adult day health care.
(1) The cabinet shall, on or before August 1, 2000, promulgate administrative regulations addressing the scope of services for licensed adult day health care programs.
(2) The cabinet shall, on or prior to December 1, 2000, study and promulgate administrative regulations regarding the way case management for adult day health care patients is administered.
Effective: July 14, 2000
History: Created 2000 Ky. Acts ch. 170, sec. 1, effective July 14, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.0445 Outpatient health facility operated by hospital — Licensure — Certificate of need.
(1) Notwithstanding any other provision of law to the contrary, if the Federal Health Care Financing Administration issues a final regulation establishing an outpatient Medicare prospective payment system for hospitals that requires that an outpatient health facility operated by the hospital be under the same license as the hospital to achieve provider-based status, the cabinet shall, at the hospital’s request, issue a new license to a hospital that owns and operates an existing or newly established outpatient health facility that lists each location operated by the hospital.
(2) Any outpatient health facility listed on the hospital’s license under subsection (1) of this section shall:
(a) Comply with the applicable licensure regulations that pertain to the type of health services provided; and
(b) Prior to the establishment of a health facility, the operation of a health facility, or the provision of health services or the addition of a health service at a location other than the hospital’s main campus, obtain a certificate of need if a certificate of need would otherwise be required in the absence of subsection (1) of this section. Licensure of the outpatient health facility or service under the same license as the hospital pursuant to subsection (1) of this section shall not eliminate the requirement for a certificate of need.
Effective: April 4, 2000
History: Created 2000 Ky. Acts ch. 310, sec. 4, effective April 4, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.045 Actions of cabinet to be in writing and of record.
Every order, decision, finding, license, or certificate issued or approved by the cabinet under any of the provisions of this chapter shall be in writing and shall be entered on the records of the cabinet.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 42, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, PT. 7, sec. 28, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 11, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 8, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 8, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.050 Enforcement powers of cabinet.
The cabinet may compel obedience to its lawful orders by mandamus, injunction, or other proper proceedings in the Franklin Circuit Court or any other Circuit Court of competent jurisdiction. Every order entered by the cabinet shall continue in force until the expiration of the time, if any, named by the cabinet in the order, or until revoked or modified.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 43, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 29, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 12, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347,
sec. 9, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 9, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.055 Notice of decisions and orders of cabinet.
Notice of decisions and orders made by the cabinet under the provisions of this chapter shall be made by certified mail addressed to the last known address on file with the cabinet, or by personal service. The notice shall be mailed or personal service shall be obtained no later than fifteen (15) working days after the decision or order. Notice shall be complete and effective upon mailing.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 44, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 30, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 13, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347,
sec. 10, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 10, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.061 Actions requiring certificates of need — Prohibitions against dividing projects to evade expenditure minimums and against ex parte contacts — Ambulatory surgical centers.
(1) Unless otherwise provided in this chapter, no person shall do any of the following without first obtaining a certificate of need:
(a) Establish a health facility;
(b) Obligate a capital expenditure which exceeds the capital expenditure minimum;
(c) Make a substantial change in the bed capacity of a health facility;
(d) Make a substantial change in a health service;
(e) Make a substantial change in a project;
(f) Acquire major medical equipment;
(g) Alter a geographical area or alter a specific location which has been designated on a certificate of need or license;
(h) Transfer an approved certificate of need for the establishment of a new health facility or the replacement of a licensed facility.
(2) No person shall separate portions of a single project into components in order to evade any expenditure minimum set forth in this chapter. For purposes of this chapter, the acquisition of one (1) or more items of functionally related diagnostic or therapeutic equipment shall be considered as one (1) project.
(3) No person shall have ex parte contact with the final-decision-making authority engaged in certificate of need activities regarding a certificate-of-need application from the commencement of the review cycle to the final decision. If an ex parte contact occurs, it shall be promptly made a part of the record.
(4) No person shall obligate a capital expenditure in excess of the amount authorized by an existing certificate of need unless the person has received an administrative escalation from the cabinet as prescribed by regulation.
(5) No person shall proceed to obligate a capital expenditure under an approved certificate of need if there has been a substantial change in the project.
(6) A certificate of need shall be issued for a specific location and, when applicable, for a designated geographical area.
(7) No person shall establish an ambulatory surgical center as defined in KRS 216B.015 without obtaining a certificate of need. An ambulatory surgical center shall require a certificate of need and license, notwithstanding any exemption contained in KRS 216B.020.
(8) Nothing in this chapter shall be interpreted to require any ambulatory surgical center licensed as of July 12, 2012, to obtain a certificate of need to continue operations and exercise all of the rights of a licensed health care facility, regardless of whether it obtained a certificate of need before being licensed.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 103, sec. 3, effective July 12, 2012. — Amended 1996 Ky. Acts ch. 371, sec. 45, effective July 15, 1996. — Amended 1994 Ky. Acts
ch. 512, Part 7, sec. 31, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 5, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210, sec. 14, effective July 15, 1988. — Created 1982 Ky. Acts ch. 347, sec. 11, effective July 15, 1982.
 
ANNOTATIONS FOR THIS STATUTE:
 
St. Luke Hospitals, Inc. v. Commonwealth, No. 2004-CA-000692-MR (KY 6/3/2005) (KY, 2005)
The specific provision at issue in this case, KRS 216B.061(1)(a), provides that a licensed health provider such as St. Luke must obtain a CON before establishing a health facility. St. Luke seeks a newly licensed ASC. Thus, under the statute, it must obtain a CON. Further, its CON must be consistent with the SHP. See KRS 216B.040(2)(a).
 
Commonwealth v. Family Home Health Care, Inc., 2003 KY 127 (KYCA, 2003)
The Cabinet is the state agency authorized by statute to administer the CON program consistent with the State Health Plan. See, KRS 216B.010. In carrying out this function, the Cabinet is required to promulgate administrative regulations " to establish criteria for issuance and denial of certificates of need." KRS 216B.040(2)(a)2. The General Assembly has established the circumstances under which a person or entity is required to obtain a certificate of need. KRS 216B.061. The specific section of the statute at issue in this case, KRS 216B.061(1)(d), provides that a licensed health provider such as Integrity must obtain a certificate of need before making " a substantial change in a health service. A "Substantial change in a health service" is defined at KRS 216B.015(28) as:
(a) The addition of a health service for which there are review criteria and standards in the state health plan;
(b) The addition of a health service subject to licensure under this chapter; or
(c) The reduction or termination of a health service which had previously been provided in the health facility.`   The procedure of drawing blood was not specifically mentioned in the regulation defining"IV therapy service," 902 KAR 20:275(1)(5). Accordingly, the circuit court cautiously held that the procedure constituted a"substantial change in a health service" as contemplated by KRS 216B.061(d). However, after analyzing the language of the statute and the relevant portions of the administrative regulation, we believe that the Cabinet’s more expansive interpretation of these internal contradictions more properly harmonizes with the legislature’s intent in establishing the CON program.
 
Com., Cabinet for Human Resources, Interim Office of Health Planning and Certification v. Jewish Hosp. Healthcare Services, Inc., 932 S.W.2d 388 (Ky. App., 1996)     
 This is an appeal from an order of the Franklin Circuit Court reversing a decision of the Interim Office of Health Planning and Certification which ruled that appellee Hospital needed to obtain a Certificate of Need in order to add a sixth cardiac catheterization laboratory. We agree with the lower court’s interpretation of KRS 216B.061 and KRS 216B.015(20) as it applies to the facts of this case. Thus, we affirm.
 
St. Luke Hosp., Inc. v. Health Policy Bd., 913 S.W.2d 1 (Ky. App., 1996)
To implement this licensure function, the chapter established appellee, Health Policy Board (successor to Commission for Health Economics Control in Kentucky), "for the purpose of acting on applications for certificates of need." The issuance of a Certificate of Need ("CON") is required before a health facility can make certain changes in its physical plant or services offered to the health care consumer. Those changes are set out in KRS 216B.061(1).
 
Medical Personnel Pool of Louisville, Inc. v. Management Registry, Inc., 869 S.W.2d 42 (Ky. App., 1993)
The hearing report was adopted in full by CHECK. It concluded that Spaid Nursing Service was "required by KRS 216B.061 to obtain CON to establish a health service, which provides private duty nursing service to patients in their homes and is further ordered to cease and desist from providing this service until a CON and appropriate license are obtained." Spaid was then afforded the option of requesting a reconsideration hearing if such was called for, KRS 216B.090, or appealing the decision of CHECK by filing a petition for review in the Franklin Circuit Court. KRS 216B.115.      The matter was appealed and the Franklin Circuit Court ultimately reversed and held for naught the decision of CHECK. Thereafter, both Spaid’s competitors and CHECK appealed the case to the Court of Appeals and the two cases were consolidated. Both appellants argue that the trial court erred upon finding that Spaid was not acting in dereliction of the statutes and regulations. We agree and reverse the trial court.    
 
 
KRS 216B.0615 Prohibition against transferring a certificate of need — Penalty.
No holder of a certificate of need for a new health facility shall sell, trade, or transfer a certificate of need to any other person. Any person who violates this section shall be guilty of a Class B misdemeanor.
Effective: July 15, 1994
History: Created 1994 Ky. Acts ch. 249, sec. 2, effective July 15, 1994.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.062 Timetable for submission of application for certificate of need to be established by administrative regulation — Review procedure.
(1) Applications for certificates of need shall be submitted according to timetables established by the cabinet by promulgation of administrative regulation, pursuant to the provisions of KRS Chapter 13A. The application for a certificate of need shall include the name and business address of any owner, investor, or stockholder in the project whose ownership interest is greater than ten percent (10%). Once an application has been deemed complete pursuant to the cabinet’s administrative regulations, notice shall be given as provided by the regulations of the beginning of the review, the proposed review schedule, and the right to request a hearing. The review shall be deemed to commence on the date of notice. No review shall take longer than ninety (90) days from the commencement of the review unless the applicant agrees to a deferral of action.
(2) Applications proposing the same or similar types of services, facilities, or equipment shall be batched for review purposes, excluding those granted nonsubstantive review status. The cabinet shall by promulgation of administrative regulation under KRS Chapter 13A establish appropriate batching groups to assure that applications for each type of service, facility, or equipment will be eligible for consideration at set intervals. In each review batch, the cabinet shall review and, if appropriate, compare all timely-filed applications proposing similar types of services, facilities, or equipment in the same health service areas.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 46, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 249, sec. 1, effective July 15, 1994; and ch. 512, Part 7, sec. 32, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 15, effective July
15, 1988. — Created 1982 Ky. Acts ch. 347, sec. 12, effective July 15, 1982.
 
ANNOTATIONS FOR THIS STATUTE:
 
Jewish Hosp., Inc. v. Baptist Health Care System, Inc., 902 S.W.2d 844 (Ky. App., 1995)   
In April 1992, in accordance with KRS 216B.062, appellee, Baptist Healthcare System, Inc., filed with the Cabinet for Human Resources, Interim Office, its application for a certificate of need ("CON") for 39 additional acute care beds and five operating rooms at the Baptist Hospital East facility in Louisville. Baptist subsequently amended the application abandoning its request for additional beds, but retaining the request for additional operating rooms. Pursuant to 902 KAR 20:004E section 5(1), the Interim Office gave public notice of Baptist’s amended application for CON in Volume X, No. 5 November 19, 1992 Health Planning & Certificate of Need Newsletter to all "affected persons" 1. Accordingly, as mandated by KRS 216B.085(1), any affected person is entitled to request a public hearing within 15 days of  the date of notice. Baptist, as the applicant, made timely request for a hearing. However, no other affected persons requested a hearing within the 15 day statutory timeline. A public hearing was scheduled for January 26, 1993, and notice of the hearing was mailed to all affected persons.
 
 
KRS 216B.065 Notification of intent to acquire facility or equipment – Conditions requiring a certificate of need for acquisition.
(1) Before any person enters into a contractual agreement to acquire a licensed health facility, the person shall notify the cabinet of the intent to acquire the facility or major medical equipment and of the services to be offered in the facility and its bed capacity or the use of the medical equipment. The notice shall be in writing and shall be filed at least thirty (30) days prior to entry into a contract to acquire the health facility or major medical equipment with respect to which the notice is given.
(2) A certificate of need shall be required for the acquisition of a health facility or major medical equipment, only if:
(a) The notice required in this section is not filed and the arrangement will require the obligation of a capital expenditure which exceeds the capital expenditure minimum; or
(b) The cabinet finds within thirty (30) days after the date it received notice that the health services or bed capacity of the health facility will be substantially changed in being acquired.
(3) Donations, transfers, and leases of major medical equipment and health facilities shall be considered acquisitions of equipment and facilities, and an acquisition of medical equipment or a facility for less than fair market value shall be considered an acquisition if the fair market value exceeds the expenditure minimum.
(4) Before any health facility reduces or terminates a health service or reduces its bed capacity, the facility shall notify the cabinet of its intent. The notice shall be in writing and shall be filed at least thirty (30) days prior to the reduction or termination. A certificate of need shall be required for the reduction or termination only if the notice required in this section is not filed.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 47, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 33, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 6, effective July 13, 1990. –Amended 1988 Ky. Acts ch. 210, sec. 16, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 13, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 12, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.066 Cabinet to be notified prior to acquiring certain major medical equipment, a health service is offered, or a capital expenditure is made or obligated — Certificate of need may be required.
(1) Before a health facility acquires major medical equipment to be used solely for research, offers a health service solely for research, or makes or obligates a capital expenditure solely for research, which exceeds the prescribed minimum, the health facility shall notify the cabinet of its intent to do so. The notice shall be in writing and shall be made sixty (60) days prior to the acquisition, offering, or making or obligation of the expenditure with respect to which notice is given. The notice shall state the use to be made of the major medical equipment, health service, or capital expenditure.
(2) A certificate of need shall be required for the acquisition of major medical equipment solely for research, the offering of a health service solely for research, or the making or obligating of a capital expenditure solely for research by a health facility, only if:
(a) The notice required by this section is not filed; or
(b) The cabinet finds within sixty (60) days after it receives notice that the project or transaction for which notice is given will affect the charges of the facility for the provision of medical or other patient care services other than services which are included in the research, will substantially change the bed capacity of the facility, or will substantially change the medical or other patient care services of the facility which were offered before the acquisition, offering, making or obligation.
(3) If major medical equipment is acquired, a health service is offered, or a capital expenditure is made or obligated and, pursuant to this section, no certificate of need is required, the equipment, service, or facilities acquired through the capital expenditure shall not be used in a manner which would affect the charges of the facility for the provision of medical or other patient care services other than that included in the research, substantially change the bed capacity of the facility, or substantially change the medical or other patient care services of the facility unless a certificate of need is issued.
(4) For purposes of this section, "solely for research" means patient care provided on an
occasional and irregular basis and not as part of a research project.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 48, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 34, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 17, effective July 15, 1988. — Created 1982 Ky. Acts ch. 347,
sec. 14, effective July 15, 1982.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.071 Long-term care facilities for patients with Alzheimer’s disease exempt from certificate of need.
(1) Notwithstanding any other provisions of this chapter, long-term care facilities for patients with a primary diagnosis of Alzheimer’s disease may be constructed without obtaining a certificate of need if all the following conditions are met:
(a) The facility provides care exclusively to patients with a primary diagnosis of Alzheimer’s disease;
(b) No governmental funds are expended for the construction of the facility or for care of patients for a period of five (5) years; and
(c) Construction is completed by July 15, 1991.
(2) Notwithstanding any other provisions of this chapter, beginning July 15, 1990, senior citizens boarding homes which do not accept payment from the Kentucky Medical Assistance Program or Medicare shall be exempt from the provisions of this chapter if the senior citizens boarding homes are operating prior to July 15, 1990.
Effective: July 13, 1990.
History: Created 1990 Ky. Acts ch. 499, sec. 17, effective July 13, 1990.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
KRS 216B.072 Training for staff of long-term care facilities treating persons with Alzheimer’s disease or related disorders.
A long-term care facility as defined in KRS 216.535, except for a personal care home, that advertises to provide special care for persons with a medical diagnosis of Alzheimer’s disease or other related disorders or maintains an identifiable unit for the treatment of persons with a medical diagnosis of Alzheimer’s disease or other related disorders shall provide training to all staff members in the care and handling of Alzheimer’s disease or other related disorders as follows:
(1) At least eight (8) hours of orientation related to Alzheimer’s disease or other related disorders to include the following:
(a) Facility policies;
(b) Etiology and treatment;
(c) Disease stages;
(d) Behavior management; and
(e) Residents’ rights; and
(2) Annual continuing education of at least five (5) hours related to Alzheimer’s disease or other related disorders.
Effective: July 15, 2002
History: Created 2002 Ky. Acts ch. 296, sec. 3, effective July 15, 2002.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.075 Administrative regulations governing application and review procedures to be promulgated.
The cabinet shall promulgate administrative regulations respecting application and review procedures to comply with any federal laws and regulations promulgated thereunder.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 49, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 35, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 19, effective July 15, 1988. — Created 1980 Ky. Acts ch. 135,
sec. 14, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.085 Hearing procedures — Notification of cabinet’s decisions — Appeals.
(1) Any time no later than fifteen (15) days after the date the review commences, any affected person may request a public hearing. Hearings shall be before a person designated by the secretary to serve as hearing officer. The hearing officer shall be authorized to administer oaths, issue subpoenas, subpoenas duces tecum, and all necessary process in the proceedings.
(2) If a hearing is requested, the secretary shall set a date, time, and place for a public hearing. Reasonable notice of the hearing shall be given to all affected persons in accordance with administrative regulations promulgated by the cabinet.
(3) At the hearing, any party to the proceedings shall have the right to be represented by counsel, and to present oral or written arguments and evidence relevant to the matter which is the subject of the hearing, and may conduct reasonable cross-examination under oath of persons who make factual allegations relevant to such matters. A full and complete record shall be maintained of the hearing.
(4) Any decision of the cabinet to issue or deny a certificate of need shall be based solely on the record established with regard to the matter. All decisions granting, denying, or modifying a certificate of need shall be made by the cabinet in writing. The cabinet shall notify the parties to the proceedings of the decision and the decision shall be final for purposes of judicial appeal unless a request for reconsideration is filed. An approved certificate of need shall be issued forty (40) days after notice of the cabinet’s decision unless a request for reconsideration is filed or a judicial appeal is taken and issuance is enjoined by the court.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 50, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 36, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 7, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210, sec. 20, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 16, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 16, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
Comprehensive Home Health Servs., Inc. v. Prof’ Home Health Care Agency, Inc. 2012-SC-000090-DG  (Ky., 2013) October 24, 2013
 
Summaries: Source: Justia
Comprehensive Home Health Services filed a certificate of need (CON) with the Cabinet for Health and Family Services to expand its home health services into Whitley County. Two Existing Providers requested a hearing to oppose the application. The hearing officer approved of the CON after disallowing certain evidence proffered by the Existing Providers. The circuit court reversed, finding that the Cabinet’s decision to grant the CON was arbitrary and ruling that the evidence allowed at the remand hearing should be "limited to the scope of the October 25, 2006 hearing." The Existing Providers appealed, contending that the circuit court’s order would limit the evidence on remand to an outdated state health plan (SHP). The court of appeals reversed, concluding that the current SHP, not the one in place at the time of the original hearing, must guide the decision on remand. The Supreme Court affirmed, holding (1) allowing consideration of changed circumstances and the current SHP on remand was not contrary to principles of administrative law and fulfilled the purpose of the CON statute; and (2) the court of appeals properly interpreted CON statutes and regulations to require consideration of the current SHP and calculations.
 
The Cabinet for Health and Family Services ("the Cabinet") is the administrative agency authorized to license health facilities and services in the Commonwealth. Kentucky Revised Statute ("KRS") 216B.010. Home health care providers fall under the Cabinet’s licensure authority, and thus before a home health care provider can expand its existing services into a contiguous county, it must obtain approval from the Cabinet in the form of a CON. KRS 216B.015(8). ….  
   Other sections of KRS Chapter 216B provide further guidance and support the Court of Appeals’ conclusion. CON hearing procedure provisions provide that "[a] full and complete record shall be maintained of the hearing" and "any decision of the cabinet to issue or deny a certificate of need shall be based solely on the record established with regard to the matter." KRS 216B.085(3)-(4)). Accordingly, the Cabinet is bound to consider only the record developed at the hearing in reaching its decision to grant or deny an applicant’s CON. In our present case, the trial court remanded the matter to the hearing officer for a new hearing where a new record will be developed pursuant to KRS 216B.085(3). Under the directive of KRS 216B.085(4), the Cabinet’s decision on remand must be based on this new record. Therefore, the term "decision" cannot be construed as referencing the original 2006 decision, which will effectively be replaced by a new decision on remand pursuant to KRS 216B.085.
 
ACSR, Inc. v. Cabinet for Health Services, 2000 KY 42251 (KYCA, 2000)
Following a hearing at which both sides presented witnesses, an Administrative Law Judge (ALJ) issued findings of fact, conclusions of law, and an order approving PDS’s certificate of need application. The ALJ found that ACSR had not overcome the presumption of need applied to non-substantive applicants by clear and convincing evidence as required by 900 KAR 6:050. Pursuant to KRS 216B.090 and KRS 216B.085(4), ACSR filed a request for reconsideration, which was denied by the ALJ.    
 
Jewish Hosp., Inc. v. Baptist Health Care System, Inc., 902 S.W.2d 844 (Ky. App., 1995)
  Jewish first argues that the statutory provisions of KRS 216B.085(2) grant a right which is abrogated by operation of 902 KAR 20:004E section 5(2). Our analysis begins with a review of the pertinent parts of KRS 216B.085, which control hearing procedures:
(1) Any time no later than fifteen (15) days after the date the review commences, any
affected person may request a public hearing. Hearings shall be before a quorum of the commission, or, at the request of the chairman, before a member of the commission designated by the chairman to serve as hearing officer. The hearing officer shall be authorized to administer oaths, issue subpoenas, subpoenas duces tecum, and all necessary process in the proceedings.
 
PIE Mut. Ins. Co. v. Kentucky Medical Ins. Co., 782 S.W.2d 51 (Ky. App., 1990)
The CON statutory scheme differs from the process governing the issuance of certificates of authority to insurers. An "affected person" is defined in KRS 216B.015(2) to include "health facilities located in the service area in which the project is proposed to be located which provide services similar to the services of the facility under review." Our Supreme Court found significant that KRS 216B.085 provides that an "affected person" has standing to be a party to the CON hearing. 751 S.W.2d at 372. The court also noted that the Commission of Health Economic Control does not have uncontrolled discretion to decide when to permit competition, but must comply with the State Health Plan and "conduct a certificate of need review before permitting a ‘substantial change in a health service’ which is not ‘consistent with the state health plan.’ " Id.
 
Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369 (Ky., 1988)
When advised that Audubon was initiating a pediatric open heart surgery and cardiac catheterization program, NKC/Children’s filed with the Board a "request for determination," asking the Board to decide whether Audubon had proper CON authorization to perform these pediatric procedures. The Board utilized KRS 216B.040(3)(f) to respond. This subsection grants the Board the authority to "[e]stablish a mechanism for issuing advisory opinions to prospective applicants for certificates of need regarding the requirements of a certificate of need." (Emphasis added). This procedure is by definition "advisory." After an informal public meeting (not a statutory hearing), the Board issued an advisory opinion opining that because Audubon’s existing CONs made no distinction as to age, Audubon needed no additional CON to perform these pediatric services. There was no statutory mechanism for an appeal from this determination. It is important to note that had the Board ordered Audubon to apply for an additional CON before performing these services, the application procedure provides for public hearings with administrative due process, and an adjudication subject to "[a]n appeal to the Franklin Circuit Court … from any final decision of the board … with respect to a certificate of need application … by any party to the proceedings." KRS 216B.115(1). Further, it is important that the statutory procedure providing due process, found in KRS 216B.085, et seq., provides that any "affected person" as defined in the statute has standing to be a "party to the proceedings" and thereafter would have a right to appeal an adverse decision.
 
Baptist Hosp., Inc. v. Humana of Kentucky, Inc., 672 S.W.2d 669 (Ky. App., 1984)
Appellant’s initial issue suggests that the doctrine of administrative remedies is inapplicable to judicial proceedings involving questions of law as opposed to questions of fact. In some instances this might be true, but Baptist rests its allegations of lack of jurisdiction upon the part of the Board in that its decision was contrary to KRS 216B.085(6) which in its entirety provides that "[t]he board’s decision shall be consistent with the state health plan." Jurisdiction of the Board is found in KRS 216B.040 1 while its power to hold hearings is set forth in KRS 216B.085(1), (2), (3) and (4). Subsections (5) and (6) merely set forth the criteria which the agency must consider in reaching its decision and have nothing to do with jurisdiction. In other words, whether the Board’s decision was consistent with the state health plan is an issue of fact which is the proper subject of an appeal rather than that of a declaratory judgment action. This being our view,  then we are unpersuaded that appellant raised an issue purely legal in nature in the Franklin Circuit Court.
 
 
KRS 216B.086 Revocation of certificate of need — Hearings — Prohibition against ex parte contacts.
(1) The cabinet may revoke a certificate of need, or portion thereof, for failure of the holder of the certificate to implement the project in accordance with timetables and standards for implementation established by administrative regulation of the cabinet; however, for projects involving long-term care beds, the cabinet may revoke any certificate granted which is not implemented within twenty-four (24) months or within any six (6) month reporting interval during which there is not satisfactory progress in meeting the project timetable and shall revoke any certificate granted which is not implemented within thirty-six (36) months except for those projects specified as an exception pursuant to Executive Order 96-129 in which case those projects shall be implemented according to the intervals and timetable set forth in this section, as of the effective date of Medicaid funding in the biennial budget for those projects. The administrative regulation for projects involving long-term care beds shall be based on project completion in twenty-four (24) months and shall specify criteria for measuring implementation of project objectives at six (6) month reporting intervals. If, at any six (6) month reporting period, the certificate holder is able to show good cause as to why a project failed to meet its timetables, an extension of six (6) months may be granted to meet that particular timetable. The burden of proof shall be on the certificate holder. An extension may be granted beyond a total of thirty-six (36) months, only if the applicant requests that the cabinet grant an additional six (6) month extension beyond the initial thirty-six (36) month completion period and shows good cause. For purposes of this section, there shall be deemed to be "good cause" if the project can be completed within the additional six (6) month period. In no case shall an extension be granted beyond a total of forty-two (42) months. The holder of the certificate of need shall file with the cabinet the name and business address of all owners, investors, and stockholders in the project whose ownership interest is greater than ten percent (10%). All reports submitted by the certificate holder under this subsection shall be considered a public record in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884.
(2) The cabinet shall give notice to the holder of the certificate of its initial decision to revoke the certificate of need or portion thereof. The cabinet’s initial decision to revoke a certificate of need or portion thereof shall become final after thirty (30) days unless a hearing is requested. The secretary shall give notice to the holder of the certificate of a decision which has become final under the provisions of this subsection.
(3) The holder of the certificate of need to be revoked may request in writing a public hearing in respect to an initial decision by the cabinet to revoke a certificate of need within thirty (30) days of the date of notice of the initial decision. Failure to request a hearing shall constitute a waiver of any right to reconsideration or judicial appeal of a final cabinet decision to revoke a certificate of need.
 (4) The hearing shall be before a person designated by the secretary to be the hearing officer. The hearing shall be no later than thirty (30) days after the request for the hearing is filed.
(5) If a hearing is requested, the secretary shall set a date, time, and place for a public hearing. Reasonable notice of the hearing shall be given to all affected persons in accordance with administrative regulations promulgated by the cabinet.
(6) At the hearing, any party to the proceedings shall have the right to be represented by counsel and to present oral or written arguments and evidence relevant to the revocation of the certificate of need and may conduct reasonable cross-examination under oath of persons who testify. A full and complete record shall be maintained of the hearing, and all testimony shall be recorded but not be transcribed unless the cabinet’s final decision is appealed pursuant to this chapter.
(7) After the issuance of an initial decision to revoke a certificate of need and before a final decision is made, no person shall have ex parte contacts with employees of the cabinet regarding the revocation. If an ex parte contact occurs, it shall be promptly made a part of the record.
(8) If a hearing is requested after notice of the cabinet’s initial decision to revoke a certificate of need, the cabinet shall make a final decision within thirty (30) days after the hearing. Any final decision revoking a certificate of need shall be made by the cabinet in writing. The cabinet shall notify the parties to the proceedings of the final decision.
(9) Any final decision of the cabinet to revoke a certificate of need shall be based solely on the record established with regard to the revocation.
(10) Except as provided in subsection (3) of this section, reconsideration pursuant to KRS 216B.090 or judicial appeal pursuant to KRS 216B.115 shall be available with regard to a final decision of the cabinet to revoke a certificate of need.
Effective: July 15, 1998
History: Amended 1998 Ky. Acts ch. 593, sec. 1, effective July 15, 1998. – Amended 1996 Ky. Acts ch. 371, sec. 51, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 249, sec. 3, effective July 15, 1994; and ch. 512, Part 7, sec. 37, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 8, effective July 13, 1990. – Amended 1988 Ky. Acts ch. 210, sec. 21, effective July 15, 1988. — Created 1982 Ky. Acts ch. 347, sec. 17, effective July 15, 1982.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.090 Reconsideration of cabinet’s decisions.
(1) Any party to the proceedings may, for good cause shown, request in writing a hearing for purposes of reconsideration of a decision of the cabinet pertaining to a certificate of need or the revocation of a certificate of need under procedures promulgated by administrative regulation. The request shall be filed within fifteen (15) days of the notice of the decision. For purposes of this section there shall be deemed to be "good cause shown" if the request for a public hearing:
(a) Presents significant, relevant information not previously available for consideration by the cabinet;
(b) Demonstrates that there have been significant changes in the factors or circumstances relied upon by the cabinet in reaching its decision;
(c) Demonstrates that the cabinet has materially failed to follow its adopted procedures in reaching its decision; or
(d) States that a public hearing pursuant to KRS 216B.085 was not conducted prior to a decision to deny a certificate of need.
(2) If a public hearing is granted, it shall be held within thirty (30) days after the decision to grant the request for reconsideration. The hearing shall be conducted in accordance with the provisions of this chapter. The cabinet shall make its decision on reconsideration and shall give notice thereof. The decision of the cabinet shall be final for purposes of judicial appeal. An approved certificate of need shall be issued forty (40) days after notice of the cabinet’s decision unless a judicial appeal is taken and issuance is enjoined by the court.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 52, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 38, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 9, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210,
sec. 22, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 18, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 17, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
ACSR, Inc. v. Cabinet for Health Services, 2000 KY 42251 (KYCA, 2000)
Following a hearing at which both sides presented witnesses, an Administrative Law Judge (ALJ) issued findings of fact, conclusions of law, and an order approving PDS’s certificate of need application. The ALJ found that ACSR had not overcome the presumption of need applied to non-substantive applicants by clear and convincing evidence as required by 900 KAR 6:050. Pursuant to KRS 216B.090 and KRS 216B.085(4), ACSR filed a request for reconsideration, which was denied by the ALJ.
 
Medical Personnel Pool of Louisville, Inc. v. Management Registry, Inc., 869 S.W.2d 42 (Ky. App., 1993)     
The hearing report was adopted in full by CHECK. It concluded that Spaid Nursing Service was "required by KRS 216B.061 to obtain CON to establish a health service, which provides private duty nursing service to patients in their homes and is further ordered to cease and desist from providing this service until a CON and appropriate license are obtained." Spaid was then afforded the option of requesting a reconsideration hearing if such was called for, KRS 216B.090, or appealing the decision of CHECK by filing a petition for review in the Franklin Circuit Court. KRS 216B.115.     The matter was appealed and the Franklin Circuit Court ultimately reversed and held for naught the decision of CHECK. Thereafter, both Spaid’s competitors and CHECK appealed the case to the Court of Appeals and the two cases were consolidated. Both appellants argue that the trial court erred upon finding that Spaid was not acting in dereliction of the statutes and regulations. We agree and reverse the trial court.
 
 
KRS 216B.095 Nonsubstantive review of application.
(1) An applicant may waive the procedures for formal review of an application for a certificate of need and request a nonsubstantive review as provided below. The cabinet may grant or deny nonsubstantive review status within ten (10) days of the date the application is deemed completed and shall give notice to all affected persons of the decision to conduct a nonsubstantive review. Any affected person other than the applicant may request a hearing by filing a request with the cabinet within ten (10) days of the notice to conduct a nonsubstantive review. As applicable, hearings shall be conducted as provided in KRS 216B.085. Based solely upon the record established with regard to the matter, the cabinet shall approve or deny a certificate of need on all projects assigned nonsubstantive review status within thirty-five (35) days of the determination of nonsubstantive review status. If the application is denied nonsubstantive review status, it shall automatically be placed in the formal review process.
(2) If a certificate of need is denied following a nonsubstantive review, the applicant may request that the application be placed in the next cycle of the formal review process. Nothing in this subsection shall require an applicant to pursue a formal review before obtaining judicial review pursuant to KRS 216B.115.
(3) The cabinet may grant nonsubstantive review status to an application for a certificate of need which is required:
(a) To change the location of a proposed health facility;
(b) To replace or relocate a licensed health facility, if there is no substantial change in health services or substantial change in bed capacity;
(c) To replace or repair worn equipment if the worn equipment has been used by the applicant in a health facility for five (5) years or more;
(d) For cost escalations;
(e) To establish an industrial ambulance service; or
(f) In other circumstances the cabinet by administrative regulation may prescribe.
(4) Notwithstanding any other provision to the contrary in this chapter, the cabinet may approve a certificate of need for a project required for the purposes set out in paragraphs (a) to (f) of subsection (3) of this section, unless it finds the facility or service with respect to which the capital expenditure is proposed to be made is not required; or to the extent the facility or services contemplated by the proposed capital expenditure is addressed in the state health plan, the cabinet finds that the capital expenditure is not consistent with the state health plan.
(5) The decision of the cabinet approving or denying a certificate of need pursuant to this section shall be final for purposes of judicial appeal, unless the applicant requests the application be placed in the formal review process. An approved certificate shall be issued thirty (30) days after notice of the cabinet’s decision, unless a judicial appeal is taken and issuance is enjoined by the court.
(6) Notwithstanding any other provision of law, the cabinet shall not grant nonsubstantive review status to a certificate of need application that indicates an intent to apply for Medicaid certification of nursing home beds within a continuing care retirement community established under KRS 216B.015, 216B.020, 216B.330, and 216B.332.
(7) Notwithstanding any provision of state law or the state health plan promulgated by administrative regulation in accordance with KRS 216B.040, the cabinet shall grant nonsubstantive review for a certificate of need proposal to establish an ambulatory surgical center if the applicant complies with the following:
(a) The applicant is an ambulatory surgical center that was organized and in operation as the private office of a physician or physician group prior to October 1, 2006;
(b)
1. The cabinet’s general counsel has submitted a letter to the Accreditation Association for Ambulatory Health Care advising that the cabinet does not object to the applicant’s parent company applying for and obtaining Medicare certification; or
2. The applicant is an ambulatory surgical center that has received from the cabinet a favorable advisory opinion dated June 14, 2005, confirming that the applicant would be exempt from the certificate of need or licensure requirement;
(c) The applicant’s ambulatory surgical center has been inspected and accredited by the Accreditation Association for Ambulatory Health Care since December 31, 2006, and has maintained accreditation with that organization consistently since that time; and
(d) The applicant was a party to litigation concerning the ambulatory surgical center and physician office issue and, prior to July 12, 2012, obtained a Court of Appeals ruling in its favor.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 103, sec. 4, effective July 12, 2012. — Amended 2000 Ky. Acts ch. 264, sec. 4, effective July 14, 2000. — Amended 1996 Ky. Acts ch. 371, sec. 53, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7, sec. 39, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 10, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210, sec. 23, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 19, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 18, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
Baptist Convalescent Ctr., Inc. v. Boonespring Transitional Care Ctr., LLC (Ky. App., 2012) 2010-CA-001466-MR October 5, 2012
After filing its certificate of need application, the Cabinet granted Boonespring nonsubstantive review status. Thereafter, Baptist, as an "affected" party, requested a hearing on the application. KRS 216B.095(1); 900 KAR 6:075 Section 2 (5)(a). At the administrative hearing, Baptist argued that Boonespring’s certificate of need should be denied because it was inconsistent with the state health plan. Baptist maintained that the nonsubstantive review procedure contained in 900 KAR 6:075 directly conflicted with KRS 216B.095(4) and was invalid. Conversely, Boonespring maintained that a certificate of need application under the nonsubstantive review procedure outlined in 900 KAR 6:075 was not reviewed for consistency with the state health plan and that 900 KAR 6:075 did not conflict with KRS 216B.095(4).
In its final order, the Cabinet recognized that its own administrative regulation (900 KAR 6:075) conflicted with the enabling statute (KRS 216B.095(4)) by allowing approval of a certificate of need through the nonsubstantive review process without Cabinet review for consistency of proposed capital expenditures with the state health plan. The Cabinet concluded that when a regulation conflicted with a statute the statute (KRS 216B.095(4)) must prevail and, thus, 900 KAR 6:075 was invalid. As Baptist clearly demonstrated that Boonespring’s application for certificate of need was inconsistent with the state health plan, the Cabinet disapproved the application as being inconsistent with the state health plan.
 In the case at hand, Boonespring’s certificate of need was disapproved by the Cabinet because it determined that 900 KAR 6:075 was invalid as conflicting with KRS 216B.095(4). And, the validity of 900 KAR 6:075 was strenuously argued by the parties in both the administrative proceedings and the circuit court action. Thus, this legal issue was squarely presented to the circuit court for adjudication. As a result, the validity of 900 KAR 6:075 constituted a legal issue that was both essential to resolution of the administrative appeals and ripe for adjudication by the circuit court. Even if the Cabinet lacked authority to declare 900 KAR 6:075 invalid, the circuit court certainly possessed the authority and the concomitant duty to adjudicate the validity of 900 KAR 6:075 in its review of the Cabinet’s decision. Simply stated, the circuit court cannot abdicate its duty to adjudicate relevant and dispositive legal issues by citing the scarcity of judicial resources. Accordingly, the failure of the circuit court to address the validity of 900 KAR 6:075 constitutes clear error.
By juxtaposing the mandates of KRS 216B.095(4) with the regulatory scheme outlined in 900 KAR 6:075, it becomes readily apparent that the two are directly and materially inconsistent.
 It is well-established that a regulation is deemed invalid if such regulation is inconsistent or conflicts with statutory lawRevenue Cabinet v. Joy Techs. Inc., 838 S.W.2d 406 (Ky. App. 1992); Natural Res. and Envtl. Prot. Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438 (Ky. 1987); Lovern v. Brown, 390 S.W.2d 448 (Ky. 1965). As 900 KAR 6:075 Section 2 (6), (7), and (8) directly conflict with KRS 216B.095(4), we conclude that the nonsubstantive review procedure set forth in 900 KAR 6:075 is invalid.
 
ACSR, Inc. v. Cabinet for Health Services, 2000 KY 42251 (KYCA, 2000)
In January 1997, Pulaski Day Services, Inc., (hereinafter PDS) submitted an application for a certificate of need in connection with the establishment of an adult day care health program in a facility in Somerset. PDS’s application indicated an intent to construct a new building with a capacity of 65-70 patients. Under its program, PDS would provide therapeutic and personal care services to adult patients between 7:00 a.m. and 6:30 p.m. PDS subsequently requested and was granted non-substantive review by the Cabinet pursuant to KRS 216B.095 and 900 KAR 6:015E , which allows for an expedited, less comprehensive procedure for review than applies with a formal review. See KRS 216B.015(9) and (13), KRS 216B.040, KRS 216B.095, and 900 KAR 6:050. In April 1997, the Cabinet issued a public notice of PDS’s application, under the non-substantive review status and ACSR filed a request for a hearing on the application. ACSR (Active Services Corp. d/b/a Somerset Active Day Center), which currently operates a licensed adult day health care facility in Somerset, opposed the issuance of a certificate of need to PDS on various grounds under the criteria set forth in KRS 216B.040. ACSR also, however, challenged the validity of 900 KAR 6:050 and the Cabinet’s authority to promulgate the regulation.    Following a hearing at which both sides presented witnesses, an Administrative Law Judge (ALJ) issued findings of fact, conclusions of law, and an order approving PDS’s certificate of need application. The ALJ found that ACSR had not overcome the presumption of need applied to non-substantive applicants by clear and convincing evidence as required by 900 KAR 6:050. Pursuant to KRS 216B.090 and KRS 216B.085(4), ACSR filed a request for reconsideration, which was denied by the ALJ.
 
 
KRS 216B.105 License procedure — Hearings — Decisions of cabinet to be in writing and of record.
(1) Unless otherwise provided in this chapter, no person shall operate any health facility in this Commonwealth without first obtaining a license issued by the cabinet, which license shall specify the kind or kinds of health services the facility is authorized to provide. A license shall not be transferable and shall be issued for a specific location and, if specified, a designated geographical area.
(2) The cabinet may deny, revoke, modify, or suspend a license in any case in which it finds that there has been a substantial failure to comply with the provisions of this chapter or the administrative regulations promulgated hereunder. The denial, revocation, modification, or suspension shall be effected by mailing to the applicant or licensee, by certified mail, a notice setting forth the particular reasons for the action. The denial, revocation, modification, or suspension shall become final and conclusive thirty (30) days after notice is given, unless the applicant or licensee, within the thirty (30) day period, shall file a request in writing for a hearing with the cabinet.
(3) The hearing shall be before a person designated to serve as hearing officer by the secretary.
(4) Within thirty (30) days from the conclusion of the hearing, the findings and recommendations of the hearing officer shall be transmitted to the cabinet, with a synopsis of the evidence contained in the record and a statement of the basis of the hearing officer’s findings. The applicant or licensee shall be entitled to be represented at the hearing in person or by counsel, or both, and shall be entitled to introduce testimony by witnesses or, if the cabinet so permits, by depositions. A full and complete record shall be kept of all hearings, and all testimony shall be reported but need not be transcribed unless the decision is appealed pursuant to this chapter. The cabinet may adopt the hearing officer’s findings and recommendations or prepare written findings of fact and state the basis for its decision which shall become part of the record of the proceedings.
(5) All decisions revoking, suspending, modifying or denying licenses shall be made by the cabinet in writing. The cabinet shall notify the applicant or licensee of the decision.
(6) The decision of the cabinet shall be final for purposes of judicial appeal upon notice of the cabinet’s decision.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 54, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 40, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 24, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 20, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 20, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
Bullington v. Bush, No. 2007-CA-000705-MR (Ky. App. 5/15/2009) (Ky. App., 2009)
   This is an appeal from a January 18, 2007, judgment of the Warren Circuit Court, whereby the jury entered a verdict for the defendant, Dr.Wayne Bush, and from a March 2, 2007, court order denying the motion of Appellant, Kerri Bullington, for a judgment notwithstanding the verdict or for a new trial. After a thorough review, we reverse and remand to the trial court.
   This case must be tried again, and for the purposes of this retrial we point out that Dr. Hasbrouck [the expert], prior to trial, read all the discovery depositions and the hospital records. Thus, Dr. Hasbrouck was in possession of all the requisite facts and may express his opinion and the reasons for his opinion in response to direct interrogation and need not be asked hypothetical questions.
        In the matter sub judice, Drs. Bush and Burgin were given the authenticated medical records at the trial. However, Drs. Bush and Burgin had been questioned concerning the records during their depositions prior to trial. This was the case in Seaton. Further, the admission of the testimony of Drs. Bush and Burgin is consistent with KRE 703(a) wherein states "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." Either doctor, duly qualified as an expert, should have been allowed to review the records and if the facts or data were of a type reasonably relied upon by experts in their particular field, express an opinion in response to direct interrogation without a hypothetical question. KRE 703(a).13 See Parrish, M.D. v. Kentucky Board of Medical Licensure, 145 S.W.3d 401 (Ky.App. 2004);14 Gorman v. Hunt, 19 S.W. 3d 662 (Ky. 2000);15 Seaton, supra.
        While it is certainly permissible for an expert to testify as to hypothetical presentation of facts, we find that the trial court committed reversible error by limiting the cross-examination to hypothetical questions based on the facts sub judice.
        As to the admissions of the medical records into evidence, this Court has hereinbefore discussed both the requirements of admissibility and some of the objections thereto. It was reversible error for the trial court to not admit into evidence the excerpts from the medical records as they were both properly authenticated and explained to the jury by a medical expert.
NOTES:
   Medical charts or records of any hospital licensed under KRS 216B.105 that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony, by use of legible and durable copies, certified in the manner provided herein by the employee of the hospital charged with the responsibility of being custodian of the originals thereof. Said copies may be used in any trial, hearing, deposition or any other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original charts or records which, however, the hospital shall hold available during the pendency of the action or proceeding for inspection and comparison by the court, tribunal or hearing officer and by the parties and their attorneys of record.
 
Matthews v. Com., 163 S.W.3d 11 (KY, 2005)  
That said, we must note that KRS 422.300 is not applicable to the hospital records in this case. "Medical charts or records of any hospital licensed under KRS 216B.105 that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony. . . ." KRS 216B.105 provides the authority for licensing of hospitals in the Commonwealth of Kentucky. But because the hospital records in question in this case are from a hospital in West Virginia, KRS 216B.105 does not apply to that hospital, and, by logical extension, KRS 422.300 does not apply to those records. KRS 422.300, therefore, cannot be used as a means of establishing the foundation, identity, or authenticity of records from hospitals from other states; the foundation, identity, and authenticity of those records must be proved by other means.
 
Cabinet for Human Resources v. Women’s Health Services, Inc., 878 S.W.2d 806 (Ky. App., 1994)    
Under KRS 216B.040, KRS 216B.105, and KRS 216B.042, the Cabinet is charged with regulating health facilities and health services, including the classification of health facilities and health services according to type, size, range of services, and level of care. Pursuant to these enabling statutes, the Cabinet promulgated 902 KAR 20:106 Section 2, which contains the definition of "ambulatory surgical center". It states as follows:   Section 2. Scope of Operation and Services. Ambulatory surgical centers are public or private institutions that are hospital based or freestanding, operated under the supervision of an organized medical staff and established, equipped, and operated primarily for the purpose of treatment of patients by surgery, whose recovery under normal circumstances will not require inpatient care. (Emphasis ours.)
 
Our Lady of the Woods, Inc. v. Com., Kentucky Health Facilities and Health Services Certificate of Need and Licensure Bd., 655 S.W.2d 14 (Ky. App., 1982)
 Appellant’s final assertion herein is that the appeal process provided for in KRS 216B.010, et seq., violates due process, in that the appeal from the appellee’s order to close the nursing home consists of a hearing before an officer appointed by the board, and then a review by appellee itself. We disagree. By statute, KRS 216B.105(5)(b), a licensee shall be entitled to be represented at the hearing in person or by counsel or both, and shall be entitled to introduce testimony by witnesses. Furthermore, all testimony shall be reported and a full record kept of all hearings, and written findings of fact shall be prepared which are the basis for the board’s decision. Also, the licensee shall receive notification of the decision. In other words, the legislature has insured that a licensee be afforded the full panoply of procedural rights during the hearing. As for the actual decision-making process, as appellee points out, agency decisions may be based upon the work of its hearing officers. Robinson v. Kentucky Health Facilities, Ky.App., 600 S.W.2d 491 (1980). However, review of an administrative decision does not rest solely with the agency. Again, the legislature has provided a means of independent review through appointment by the Attorney General of an appeals officer, who "may not be an employe or agent of the board or the department for human resources." KRS 216B.110(1). As already mentioned, appellant requested the hearing, at which counsel was present, testimony introduced upon its behalf, and appellee’s witnesses cross-examined. Appellant also availed itself of the independent review prior to appealing in the lower court. Thus, we fail to see how appellant has been denied due process herein.
 
 
KRS 216B.115 Appeal to Franklin Circuit Court.
(1) An appeal to the Franklin Circuit Court may be taken from any final decision of the cabinet with respect to a certificate-of-need application, a certificate of need, or a license, by any party to the proceedings.
(2) An appeal may be taken by filing a petition for review in the Franklin Circuit Court within thirty (30) days after notice of the final decision unless a request for reconsideration has been filed, in which case the petition shall be filed within fifteen (15) days of the cabinet’s decision not to reconsider or notice of its decision on reconsideration. The petition shall state completely the grounds upon which the review is sought and shall assign all errors relied upon. The petitioner shall serve a copy of the petition to each person who was a party to the proceedings. Summons shall be issued upon the petition directing the adverse party or parties to file an answer within twenty (20) days after service of summons. The cabinet shall, upon being served with the summons and within thirty (30) days thereafter, file a copy of the record, duly certified by the secretary, the cost of the record to be taxed as costs upon appeal. In lieu of filing of the record, an abstract thereof may be filed if all parties to the appeal agree.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 55, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 41, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 11, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210,
sec. 25, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 21, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 22, effective July 15, 1980.
 
ANNOTATIONS FOR THIS STATUTE:
 
Metro Medical Imaging, LLC v. Commonwealth, No. 2004-CA-001463-MR (KY 9/16/2005) (KY, 2005)
 Metro Medical Imaging (MMI) operates diagnostic imaging facilities at locations on Dupont Circle, Newburg Road and Dixie Highway in Louisville. The Cabinet for Health and Family Services determined that MMI is not exempt from either the Certificate of Need or licensing requirements of KRS1 Chapter 216B, and must therefore apply for a Certificate of Need and obtain a license in order to continue in operation. MMI attempted to appeal the Cabinet’s ruling pursuant to the provisions of KRS 216B.115(2).
 
ACSR, Inc. v. Cabinet for Health Services, 2000 KY 42251 (KYCA, 2000)
In July 1997, ACSR filed an appeal to the Franklin Circuit Court. See KRS 216B.115. Both the Cabinet and PDS filed answers that included requests for dismissal of the petition. The Cabinet later filed a motion requesting dismissal or separation of ACSR’s complaints dealing with the validity of the administrative regulations from its challenge to the certificate of need on the merits. ACSR filed a response to the Cabinet’s motion. On June 10, 1999, the circuit court entered an opinion and order dismissing ACSR’s petition on the merits. The court held that the agency’s regulations dealing with non-substantive review status for a certificate of need application were properly promulgated and did not deprive appellant of any substantive or procedural due process rights. This appeal followed.
 
Medical Personnel Pool of Louisville, Inc. v. Management Registry, Inc., 869 S.W.2d 42 (Ky. App., 1993)
The hearing report was adopted in full by CHECK. It concluded that Spaid Nursing Service was "required by KRS 216B.061 to obtain CON to establish a health service, which provides private duty nursing service to patients in their homes and is further ordered to cease and desist from providing this service until a CON and appropriate license are obtained." Spaid was then afforded the option of requesting a reconsideration hearing if such was called for, KRS 216B.090, or appealing the decision of CHECK by filing a petition for review in the Franklin Circuit Court. KRS 216B.115.     The matter was appealed and the Franklin Circuit Court ultimately reversed and held for naught the decision of CHECK. Thereafter, both Spaid’s competitors and CHECK appealed the case to the Court of Appeals and the two cases were consolidated. Both appellants argue that the trial court erred upon finding that Spaid was not acting in dereliction of the statutes and regulations. We agree and reverse the trial court.
 
Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369 (Ky., 1988)
When advised that Audubon was initiating a pediatric open heart surgery and cardiac catheterization program, NKC/Children’s filed with the Board a "request for determination," asking the Board to decide whether Audubon had proper CON authorization to perform these pediatric procedures. The Board utilized KRS 216B.040(3)(f) to respond. This subsection grants the Board the authority to "[e]stablish a mechanism for issuing advisory opinions to prospective applicants for certificates of need regarding the requirements of a certificate of need." (Emphasis added). This procedure is by definition "advisory." After an informal public meeting (not a statutory hearing), the Board issued an advisory opinion opining that because Audubon’s existing CONs made no distinction as to age, Audubon needed no additional CON to perform these pediatric services. There was no statutory mechanism for an appeal from this determination. It is important to note that had the Board ordered Audubon to apply for an additional CON before performing these services, the application procedure provides for public hearings with administrative due process, and an adjudication subject to "[a]n appeal to the Franklin Circuit Court … from any final decision of the board … with respect to a certificate of need application … by any party to the proceedings." KRS 216B.115(1). Further, it is important that the statutory procedure providing due process, found in KRS 216B.085, et seq., provides that any "affected person" as defined in the statute has standing to be a "party to the proceedings" and thereafter would have a right to appeal an adverse decision.
 
Starks v. Kentucky Health Facilities, 684 S.W.2d 5 (Ky. App., 1984)
On June 9, 1983, appellee/Hospital Corporation of America (HCA) was granted permission by the board to purchase the Logan County Hospital, which it had been operating under a lease, and to construct a new facility to be owned and operated by it. Through procedures provided in Chapter 216B, Ronald Starks has opposed the efforts of HCA from the inception. After issuance of the Certificate of Need to HCA, Starks appealed to the Franklin Circuit Court. KRS 216B.115. The circuit court reviewed the action of the board, in light of KRS 216B.120, and approved.
 
 
KRS 216B.120 Judicial appeals — Bonds — Costs.
(1) Each party to the proceedings may participate as a party in the proceedings in the Circuit Court on an appeal.
(2) In case of an appeal, no new or additional evidence may be introduced in the Circuit Court except as to fraud or misconduct of some person engaged in the administration of this chapter and affecting the decision or order; the court shall hear the case upon the certified record or abstract thereof, and shall dispose of the case in a summary manner, its review being limited to determining whether the cabinet acted within its jurisdiction, whether the decision or order was procured by fraud, and whether the findings of fact in issue are supported by substantial evidence and are not clearly erroneous based upon a review of the record as a whole.
(3) The court shall enter judgment affirming, modifying, reversing, or setting aside the decision or, in its discretion, remanding the case to the cabinet for proceedings in conformity with the directions of the court. If the court affirms the issuance of the certificate of need, the holder of the certificate shall be entitled to recover its costs of defense of the appeal, including its attorney’s fees. The decision of the Circuit Court shall be final and nonappealable.
(4) In any case in which the granting of a license or certificate of need is appealed by a competing health care provider, the court shall require the appellant to post a bond, with good and sufficient surety, in the sum the court deems proper, for the payment of the costs and damages as may be incurred or suffered by the certificate of need or license applicant as a result of the filing and pendency of the appeal. Failure to post the bond as required by the court shall result in the dismissal of the appeal. If the decision of the cabinet granting the certificate of need or license is sustained, the court shall order the appellant health care provider to pay the applicant its costs incurred and damages suffered as a result of the filing and pendency of the appeal, which shall not be limited to the amount of the bond. The court shall not withhold the finality of its decision on the merits of the appeal pending the determination as to the costs and damages. As used in this section, "competing health care provider" means any health facility or health maintenance organization which competes with the applicant for patients, customers, the services of health care personnel, or policyholders.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 56, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 42, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 499, sec. 12, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 210,
sec. 26, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347, sec. 22, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 23, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.125 Civil action for judicial enforcement of chapter.
If the cabinet fails to issue or deny a certificate of need or an exemption pursuant to this chapter within the time prescribed under this chapter or administrative regulations promulgated by the cabinet, the applicant may seek judicial enforcement of this chapter by filing a civil action in Franklin Circuit Court.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 57, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 43, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 210, sec. 27, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347,
sec. 23, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 24, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.130 Expenditure minimums or limits to be adjusted annually.
Any other provisions of this chapter notwithstanding, any expenditure minimum or limit as provided in this chapter shall be adjusted for each twelve (12) month period beginning twelve (12) months after July 15, 1994, to reflect the changes in the preceding twelve (12) month period in a cost index designated by regulation for the purposes of making the adjustment. The cabinet shall effect the adjustment by administrative regulations.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 371, sec. 58, effective July 15, 1996. – Amended 1994 Ky. Acts ch. 512, Part 7, sec. 44, effective July 15, 1994. –Amended 1988 Ky. Acts ch. 210, sec. 28, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 347,
sec. 24, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, sec. 27, effective July 15, 1980.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.131 Use of moneys.
(1) All moneys derived from applicants seeking certificates of need or licenses or from any other sources connected with this chapter shall be promptly paid over to the State Treasurer, who shall deposit such moneys in a special fund which, in addition to appropriated funds, shall be used to carry out the purposes of this chapter and for no other purpose.
(2) Any fine imposed for the violation of this chapter shall, when collected, be paid into the Kentucky nursing incentive scholarship fund.
Effective: July 13, 1990
History: Amended 1990 Ky. Acts ch. 249, sec. 5, effective July 13, 1990. –Created 1982 Ky. Acts ch. 347, sec. 25, effective July 15, 1982.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.135 Creation of Task Force on Health Care Cost and Quality.
There is hereby created a Task Force on Health Care Cost and Quality for the purpose of studying the implementation of KRS 216B.015, 216B.020, 216B.040, 216B.042, 216B.061, 216B.065, 216B.085, 216B.086, 216B.090, 216B.095, 216B.115, and 216B.120. The task force members shall be appointed by the Governor on July 13, 1990. The task force shall include a reasonable number of members and shall include, but not be limited to, chief executive officers of nonprofit health insurance organizations and for profit and not-for-profit health-care institutions and prominent citizens with an interest in health-care cost containment. The task force shall be co-chaired by the mayor of the largest city within and county judge/executive of any county containing more than three thousand (3,000) acute-care hospital beds. The task force shall hold its first meeting no later than July 30, 1990, and shall meet at least bimonthly. The task force shall forward a report of its findings and recommendations to the secretary of the Cabinet for Health Services and to the Legislative Research Commission no later than December 31, 1991.
Effective: July 15, 1998
History: Amended 1998 Ky. Acts ch. 426, sec. 450, effective July 15, 1998. – Created 1990 Ky. Acts ch. 499, sec. 16, effective July 13, 1990.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.140 Licensed hospitals to provide services for child sexual abuse victims.
Each hospital licensed by the board shall provide medical and diagnostic services for child sexual abuse victims.
Effective: July 14, 1992
History: Created 1992 Ky. Acts ch. 351, sec. 11, effective July 14, 1992.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.150 Badge or insignia for hospital employees.
(1) All employees of a hospital who are licensed, registered, certified, or otherwise regulated under the laws of the Commonwealth shall wear a badge or other insignia indicating the person is a licensed, registered, certified or otherwise regulated health care provider, provided the badge or insignia does not violate sterile procedures.
(2) No hospital licensed under the provisions of this chapter shall prohibit a person licensed, registered, certified, or otherwise regulated under the laws of the Commonwealth from wearing a badge or other insignia, provided the badge or insignia does not violate sterile procedures. No other information shall appear on the badge unless approved by the hospital chief executive officer, facility manager, or designee.
(3) No hospital licensed under the provisions of this chapter shall demote, dismiss, suspend, or otherwise penalize any employee for reporting a violation of subsection (1) of this section to the cabinet.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 503, sec. 1, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.155 Development of quality assurance standards for health care facilities.
(1) All health care facilities and services licensed under this chapter, with the exception of personal care homes, family care homes, and boarding homes, shall develop comprehensive quality assurance or improvement standards adequate to identify, evaluate, and remedy problems related to the quality of health care facilities and services. These standards shall be made available upon request to the public during regular business hours and shall include:
(a) An ongoing written internal quality assurance or improvement program;
(b) Specific, written guidelines for quality care studies and monitoring;
(c) Performance and clinical outcomes-based criteria;
(d) Procedures for remedial action to correct quality problems, including written procedures for taking appropriate corrective action;
(e) A plan for data gathering and assessment;
(f) A peer review process; and
(g) A summary of process outcomes and follow-up actions related to the overall quality improvement program for the health care facility or service. Current federal or state regulations which address quality assurance and quality improvement requirements for nursing facilities, intermediate care facilities, and skilled care facilities shall suffice for compliance with the standards in this section.
(2) All health care facilities licensed, with the exception of personal care homes, family care homes, and boarding homes, under this chapter, shall use the application form and guidelines established pursuant to KRS 304.17A-545(5) for assessing the credentials of those applying for privileges.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 144, sec. 6, effective June 20, 2005. – Created 1998 Ky. Acts ch. 384, sec. 1, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.160 Requirement for a care delivery model based on patient needs for licensed health care facilities and services.
All health care facilities and services licensed under this chapter shall include in their policies and procedures a care delivery model based on patient needs which includes, but is not limited to:
(1) Defined roles and responsibilities of licensed and unlicensed health care personnel;
(2) A policy that establishes the credentialing, oversight, appointment, and reappointment of the registered nurse first assistant and for granting, renewing, and revising of the registered nurse first assistant’s clinical privileges;
(3) A policy that establishes the credentialing, oversight, appointment, and reappointment of the physician assistant and for granting, renewing, and revising of the physician assistant’s clinical privileges;
(4) A policy that establishes the credentialing, oversight, appointment, and reappointment of the certified surgical assistant and for granting, renewing, and revising of the certified surgical assistant’s clinical privileges;
(5) A staffing plan that specifies staffing levels of licensed and unlicensed personnel required to safely and consistently meet the performance and clinical out-comes-based standards as outlined in the facility’s or service’s quality improvement plan;
(6) A staffing model that is developed and implemented in an interdisciplinary and collaborative manner;
(7) A policy and method that incorporates at least four (4) components in an ongoing assessment done by the registered nurse of the severity of the patient’s disease, patient condition, level of impairment or disability, and the specific unit patient census to meet the needs of the individual patient in a timely manner; and
(8) A staffing model that supports the delivery of patient care services with an appropriate mix of licensed health care personnel that will allow them to practice according to their legal scope of practice, and for nurses, the professional standards of practice referenced in KRS Chapter 314, and facility and service policies. If a nursing facility, intermediate care facility, or skilled care facility meets the most current state or federal regulations which address safe and consistent staffing levels of licensed and unlicensed personnel, those shall suffice for compliance with the standards in this section. This section shall not be interpreted as requiring any health care facility to develop a policy or a procedure for a service not offered by the facility.
Effective: June 21, 2001
History: Amended 2001 Ky. Acts ch. 36, sec. 2, effective June 21, 2001. – Amended 2000 Ky. Acts ch. 96, sec. 2, effective July 14, 2000; and ch. 538, sec. 2, effective July 14, 2000. — Created 1998 Ky. Acts ch. 384, sec. 2, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.165 Duty to report quality of care and safety problems — Investigation and report — Prohibition against retaliation.
(1) Any agent or employee of a health care facility or service licensed under this chapter who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy shall make an oral or written report of the problem to the health care facility or service, and may make it to any appropriate private, public, state, or federal agency.
(2) Any individual in an administrative or supervisory capacity at the health care facility or service who receives a report under subsection (1) of this section shall investigate the problem, take appropriate action, and provide a response to the individual reporting the problem within seven (7) working days.
(3) No health care facility or service licensed under this chapter shall by policy, contract, procedure, or other formal or informal means subject to reprisal, or directly or indirectly use, or threaten to use, any authority or influence, in any manner whatsoever, which tends to discourage, restrain, suppress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any agent or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the health care facility or service the circumstances or facts to form the basis of a report under subsections (1) or (2) of this section. No health care facility or service shall require any agent or employee to give notice prior to making a report, disclosure, or divulgence under subsections (1) or (2) of this section.
(4) All reports, investigations, and action taken subject to this chapter shall be conducted in a manner that protects and maintains the confidentiality of patients and personnel and preserves the integrity of data, information, and medical records.
(5) All health care facilities and services licensed under this chapter shall, as a condition of licensure, abide by the terms of KRS 216B.155 and this section.
(6) No agent or employee of a health care facility or service shall file a report under subsection (1) or (2) of this section in bad faith and shall have a reasonable basis for filing a report.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 384, sec. 3, effective July 15, 1998.
 
ANNOTATION FOR THIS STATUTE:
 
Foster v. Jennie Stuart Med. Ctr., Inc. (Ky. App., 2013)  2011-CA-001136-MR
 September 20, 2013
The first issue we will discuss is Oliver’s claim against JSMC and the individual appellees for violating KRS 216B.165(3). ….
This statute does not set out a civil remedy that would allow Oliver and Foster to sue JSMC. Their ability to bring suit comes pursuant to KRS 446.070, which states that “a person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation." It is undisputed that Foster and Oliver are properly suing for violation of KRS 216B.165(3) via KRS 446.070.
The trial court dismissed Oliver’s claim for unlawful retaliation in violation of KRS 216B.165(3) because she was not the actual whistleblower. We agree with the trial court.
 
 
KRS 216B.170 Identification requirement for persons dealing with patients.
(1) All health care facilities and services licensed under this chapter shall require all persons, including students, who examine, observe, or treat a patient or resident of the health care facility or service to wear identification which readily identifies, at a minimum, the person’s first name, licensure credential, and position title or department.
(2) The identification shall be of a size and type and appropriately displayed so that it may be easily detected and read.
Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 384, sec. 4, effective July 15, 1998.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.175  Services by a physician assistant or advanced practice registered nurse for patient admitted to acute care or psychiatric hospital — Transferability of history and physical examination to another licensed level of care within same hospital — Administrative regulations.
(1) A physician assistant, credentialed under KRS Chapter 311, when those duties and responsibilities are within the scope of training received in an approved program and within the scope of the supervising physician’s practice, or an advanced practice registered nurse licensed under KRS Chapter 314, may:
(a) Perform a history and physical examination for a patient admitted to an acute care or psychiatric hospital licensed under this chapter; and
(b) Order and review continuation of restraints and seclusion as a health care practitioner in accordance with 42 C.F.R. 482.13.
(2) A history and physical examination shall be performed no more than thirty (30) days before or twenty-four (24) hours after a patient is admitted to an acute care or psychiatric hospital licensed under this chapter.
(3) The history and physical examination that has been performed in compliance with subsection (2) of this section is transferable to another licensed level of care within the same hospital.
(4) The Cabinet for Health and Family Services shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish the content of the history and physical examination required by subsection (2) of this section performed in an acute or psychiatric hospital that shall be used by the licensing entity.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 85, sec. 39, effective July 15, 2010. — Amended 2007 Ky. Acts ch. 80, sec. 1, effective June 26, 2007. — Amended 2005 Ky. Acts ch. 99, sec. 506, effective June 20, 2005. — Created 2000 Ky. Acts ch. 422, sec. 2, effective July 14, 2000.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.176 School-based health care programs provided by not-for-profit primary care centers.
Notwithstanding any other provision of law, a not-for-profit primary care center licensed under KRS Chapter 216, which is a participant in the Kentucky Patient Access and Care System of the Department for Medicaid Services, may enter into a written agreement with a board of education to provide a school-based health care program. The agreement shall include the following provisions:
(1) The services shall include basic primary care, episodic acute care, care for chronic conditions, and preventive health care for the pupils enrolled in the school;
(2) The program shall be located in a public school;
(3) The program shall operate as a satellite of a licensed primary care center under the supervision of the medical director of the primary care center;
(4) When in operation as a satellite of a primary care center, the program staff shall include a physician, physician assistant, or advanced practice registered nurse and may be staffed with additional health care professionals appropriate for the services being provided; and
(5) The program may, under agreement with the school, participate in the school’s health education program.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 85, sec. 40, effective July 15, 2010. — Created 2003 Ky. Acts ch. 127, sec. 1, effective June 24, 2003.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.177 Moratorium — Establishment of additional satellite school-based health care programs.
Until August 1, 2004, KRS 216B.176 shall apply only to primary care centers operating a satellite school-based health care program on June 24, 2003. Until August 1, 2004, no primary care center licensed under KRS Chapter 216B shall enter into an agreement with a board of education to operate a school-based health care program that was not in operation on June 24, 2003.
Effective: June 24, 2003
History: Created 2003 Ky. Acts ch. 127, sec. 2, effective June 24, 2003.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.180 Certificate of need not required for respite-service beds in intermediate-care facility for individuals with an intellectual disability.
Notwithstanding any other provisions contained in this chapter, a certificate of need shall not be required for an existing intermediate-care facility for individuals with an intellectual disability (ICF/ID) to add beds which shall be dedicated to providing respite services to individuals with an ICF/ID level of care for no more than thirty (30) days. The establishment of ICF/ID respite beds shall be limited to three (3) beds per fifty (50) ICF/ID beds in a facility and shall not be eligible for Medicaid certification. Beds designated for respite services under this section shall comply with all applicable federal and state licensure requirements for intermediate-care facilities for individuals with an intellectual disability.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 146, sec. 107, effective July 12, 2012. — Created 2002 Ky. Acts ch. 286, sec. 1, effective July 15, 2002.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.182 Conversion of licensed nursing home beds to licensed intermediate care facility beds between July 1, 2004, and September 1, 2005.
(1) Effective for the period beginning July 1, 2004, and ending on September 1, 2005, any facility with beds licensed as nursing home beds may convert any of their licensed nursing home beds to licensed intermediate care facility beds.
(2) Notwithstanding any other provision of law to the contrary, a certificate of need shall not be required for a conversion of licensed nursing home beds to licensed intermediate care facility beds under the authority provided in this section.
(3) Subsections (1) and (2) of this section shall not apply to any facility providing nursing facility services if the facility has a total bed capacity, as defined in KRS 142.301, greater than sixty (60) beds.
Effective: June 20, 2005
History: Created 2005 Ky. Acts ch. 73, sec. 1, effective June 20, 2005.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.185 Accreditation as evidence of compliance with licensing requirements — Exemption from inspection — Fees — Submission of building plans – Standards for licensure.
(1) The Office of the Inspector General shall accept accreditation by the Joint Commission on Accreditation of Healthcare Organizations or another nationally recognized accrediting organization with comparable standards and survey processes, that has been approved by the United States Centers on Medicare and Medicaid Services, as evidence that a hospital demonstrates compliance with all licensure requirements under this chapter. An annual on-site licensing inspection of a hospital shall not be conducted if the Office of the Inspector General receives from the hospital:
(a) A copy of the accreditation report within thirty (30) days of the initial accreditation and all subsequent reports; or
(b) Documentation from a hospital that holds full accreditation from an approved accrediting organization on or before July 15, 2002.
(2) Nothing in this section shall prevent the Office of the Inspector General from making licensing validation inspections and investigations as it deems necessary related to any complaints. The cabinet shall promulgate the necessary administrative regulations to implement the licensing validation process. Any administrative regulations shall reflect the validation procedures for accredited hospitals participating in the Medicare program.
(3) A hospital shall pay any licensing fees required by the cabinet in order to maintain a license.
(4) A new hospital shall not be exempt from the on-site inspection until meeting the requirements of subsection (1) of this section and administrative regulations promulgated under KRS 216B.040, 216B.042, and 216B.105 for acute, critical access, psychiatric, and rehabilitation facility requirements.
(5) Before beginning construction for the erection of a new building, the alteration of an existing building, or a change in facilities for a hospital, the hospital shall submit plans to the Office of Inspector General for approval.
(6) To the extent possible, the cabinet shall consider all national standards when promulgating administrative regulations for hospital licensure.
Effective: July 15, 2002
History: Created 2002 Ky. Acts ch. 159, sec. 1, effective July 15, 2002.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.190 Newborn infant — Treatment when identity of parents is  unknown — Immunity from liability — Anonymity of person leaving infant – Emergency custody order — Materials for health and medical information.
(1) As used in this section, "newborn infant" means an infant who is medically determined to be less than seventy-two (72) hours old.
(2) Every hospital of this state that offers emergency services shall admit and provide all necessary medical care, diagnostic tests, and medical treatment to any newborn infant brought to the hospital when the identity of the parents is unknown. Any person performing medical care, diagnostic testing, or medical treatment shall be immune from criminal or civil liability for having performed the act. Nothing in this subsection shall limit liability for negligence.
(3) Any person or parent, other than an emergency medical services provider, a police officer, or a firefighter acting in the course of his or her official duties, who leaves a newborn infant at an emergency room, or brings a newborn infant to an emergency room and expresses an intent to leave the infant and not return, shall have the right to remain anonymous and to leave at any time, and shall not be pursued or followed. The physician shall consider these actions as implied consent for treatment.
(4) Upon admittance, the physician or hospital administrator shall immediately contact the local office of the Department for Community Based Services. The Department for Community Based Services shall immediately seek an emergency custody order in accordance with KRS 620.350.
(5) Every emergency room shall make available materials to gather health and medical information concerning the infant and the parents. The materials shall be offered to the person leaving the newborn infant and it shall be clearly stated that acceptance is completely voluntary and completion of the materials may be done anonymously.
(6) The provisions of subsection (3) of this section shall not apply when indicators of child physical abuse or child neglect are present.
Effective: April 9, 2002
History: Created 2002 Ky. Acts ch. 303, sec. 3, effective April 9, 2002.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.195 Residential hospice facilities — Automated pharmacy system.
(1) As used in this section:
(a) "Automated pharmacy system" means a mechanical system that delivers prescribed over-the-counter and legend drugs, and controlled substances received from a pharmacy licensed in Kentucky that maintains transaction information; and
(b) "Residential hospice facility" means a facility licensed under KRS Chapter 216B that provides residential skilled nursing care, pain management, and treatment for acute and chronic conditions for terminally ill patients.
(2) A residential hospice facility shall be deemed in compliance with licensure requirements relating to pharmaceutical services if the facility obtains pharmacy services through an automated pharmacy system in accordance with KRS 315.295 and related administrative regulations promulgated by the Kentucky Board of Pharmacy.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 153, sec. 3, effective July 12, 2006.
 
 
Itemized Statement of Charges
 
KRS 216B.250 Health facility to furnish itemized statement of charges on request of paying patient.
(1) For purposes of this section, "paying patient" means persons receiving health care services who pay directly for services rendered, patients with private health insurance or health maintenance organization coverage, persons receiving Medicaid or Medicaid benefits under Title XVIII and Title XIX of the Social Security Act and persons receiving veteran’s health care benefits. "Paying patient" does not include medically indigent persons with no source of payment whatsoever.
(2) (a) When a copy of an itemized statement is requested by any paying patient, each health facility shall furnish to the patient within thirty (30) days of the patient’s discharge or within fifteen (15) days of the patient’s request, whichever is later, one (1) copy free of charge of the itemized statement of services rendered and charges incurred by the patient.
(b) A summary statement of services rendered and charges incurred by the patient shall be included with the invoice sent by a health facility to the patient. Each invoice shall indicate that an itemized statement may be obtained upon request. The Cabinet for Human Resources shall impose a civil fine of five hundred dollars ($500) for each violation by a health care facility for failure to provide an itemized statement as required under this section.
(c) The itemized statement shall be stamped "Kentucky Revised Statutes prohibit the use of this statement for insurance payment purposes where benefits have been assigned."
(3) Each health facility shall post in a publicly visible place in their admission, outpatient areas and, where applicable, emergency areas that an itemized statement is available to any paying patient upon request.
(4) The itemized statement rendered shall be the record maintained by the health facility that details the charges made for services rendered to patients and shall indicate whether an assignment of benefits has been obtained.
(5) Each health facility shall designate and make available appropriate staff to provide, upon patient request, an explanation of charges listed in the itemized statement.
(6) If a health facility knows of a discrepancy in the total charges as reported in an itemized statement and that which is reported to a third party payor, or at any time that a health facility becomes aware of such a discrepancy, the health facility shall provide the patient and third party payor with notification, an explanation and, if applicable, any reconciliation of the discrepancy in total charges.
Effective: April 10, 1998
History: Amended 1998 Ky. Acts ch. 496, sec. 57, effective April 10, 1998. – Created 1986 Ky. Acts ch. 288, sec. 1, effective July 15, 1986.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
Boarding Homes
 
KRS 216B.300 Definitions for KRS 216B.300 to 216B.320 and KRS 216B.990(7).
As used in KRS 216B.300 to 216B.320 and KRS 216B.990(5), unless the context requires otherwise:
(1) "Cabinet" means the Cabinet for Health and Family Services or its designee. "Designee" means any agency established under KRS Chapter 211 or KRS 147A.050 whose duties related to this chapter shall be set forth in administrative regulation;
(2) "Secretary" means the secretary of the Cabinet for Health and Family Services;
(3) "Boarder" means a person who does not require supervision or assistance related to medication, activities of daily living, or a supervised plan of care; and
(4) "Boarding home" means any home, facility, institution, lodging, or other establishment, however named, which accommodates three (3) or more adults not related by blood or marriage to the owner, operator, or manager, and which offers or holds itself out to offer room and board on a twenty-four (24) hour basis for hire or compensation. It shall not include any facility which is otherwise licensed and regulated by the cabinet or any hotel as defined in KRS 219.011(3).
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 161, sec. 33, effective July 15, 2010. — Amended 2005 Ky. Acts ch. 99, sec. 507, effective June 20, 2005. — Amended 1998 Ky. Acts ch. 426, sec. 451, effective July 15, 1998. — Created 1990 Ky. Acts ch. 439, sec. 1, effective July 13, 1990.
 
ANNOTATIONS FOR THIS STATUTE:
 
Pathways, Inc. v. Hammons (Ky., 2003)
Applying the above principles, Pathways was required to know, at the time it placed Hammons at Moore’s, that boarding homes are regulated by the Commonwealth. In general, this regulation establishes minimum health and safety standards for boarding homes and was enacted for the protection of "boarders," i.e., persons who reside in boarding homes. KRS 216B.300 et seq.; 902 KAR 20:350. These protections are assured through mandatory registration — under penalty of law — by all boarding homes as defined by KRS 216B.300(4) with the Cabinet for Health Services. KRS 216B.305(1). This means that the foreseeable risks of placing Hammons in an unregistered boarding home were defined by the risks to boarders’ health and safety that registration was enacted to avoid. A review of the applicable statutes and regulations reveals that Stacy’s assaults fell within the scope of foreseeable risk.
 
 
KRS 216B.303 Rights of residents of boarding homes.
Every resident in a boarding home, as defined in KRS 216B.300, shall have at least the following rights:
(1) Before entering a boarding home, the resident or the resident’s guardian, if any, shall be fully informed in writing, as evidenced by the resident’s written acknowledgment or that of the resident’s guardian, of all services provided by the boarding home and all applicable charges.
(2) Before entering a boarding home, the resident or the resident’s guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment or that of the resident’s guardian, of all the resident’s rights as defined in this section, and a list of any rules established by the boarding home.
(3) All residents shall be allowed to exercise their rights as a resident and a citizen, and may voice grievances and recommend changes in policies and services to the boarding home operator and to outside representatives of their choice, free from restraint, interference, coercion, discrimination, or reprisal.
(4) All residents shall be free from mental and physical abuse.
(5) Each resident may manage the use of his personal funds. The boarding home operator shall not require a resident to designate the operator as payee for any benefits received by the resident. However, if the operator accepts the responsibility for managing the resident’s personal funds as evidenced by the operator’s written acknowledgment, proper accounting and monitoring of such funds shall be made. This shall include the operator giving quarterly itemized statements to the resident or the resident’s guardian which detail the status of the resident’s personal funds and any transactions in which such funds have been received or disbursed. The operator shall return to the resident his valuables, personal possessions, and any unused balance of moneys from his account at the time the resident leaves the boarding home.
(6) Residents shall not be required to perform services for the boarding home.
(7) Residents may associate and communicate privately with persons of their choice, within reasonable hours established by the boarding home, and send and receive personal mail unopened.
(8) No resident shall be detained against the resident’s will. Residents shall be permitted and encouraged to go outdoors and leave the premises as they wish.
(9) Residents shall be permitted to participate in activities of social, religious, and community groups at their discretion.
(10) Residents shall be assured of at least visual privacy in multibed rooms and in bathrooms.
(11) If the resident has been adjudicated wholly mentally disabled in both financial and personal affairs in accordance with KRS 387.590, the resident’s guardian shall not place the ward in a boarding home.
(12) Each resident shall be treated with consideration, respect, and full recognition of his dignity and individuality.
(13) Residents shall have access to a telephone at a convenient location within the boarding home for making and receiving telephone calls subject to reasonable rules established by the boarding home.
(14) Residents have the right to have private meetings with inspectors representing the Cabinet for Health and Family Services.
(15) Each resident and his guardian has the right to have access to all inspection reports on the boarding home.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 99, sec. 508, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 452, effective July 15, 1998. — Created 1992 Ky. Actsch. 63, sec. 2, effective July 14, 1992.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.305 Registration of boarding home — Standards for operation — Unannounced inspection — Denial of registration — Access by cabinet employees and agents — No preemption of local authority for stricter requirements.
(1) No person, association, business entity, or organization shall advertise, solicit boarders, or operate a boarding home without registering, on an annual basis, in a manner and form prescribed by the secretary. No person who has been convicted of a crime of abuse under KRS 508.100 to 508.120 or who has had a report of abuse substantiated by the cabinet shall be registered to operate a boarding home. The secretary shall impose a fee, not to exceed one hundred dollars ($100), for this registration.
(2) The secretary shall adopt standards, by administrative regulation pursuant to KRS Chapter 13A, for the operation of boarding homes. The administrative regulations shall include minimum requirements in the following areas:
(a) Minimum room sizes for rooms occupied for sleeping purposes. Rooms occupied by one (1) boarding home resident shall contain at least sixty (60) square feet of floor space. Rooms occupied by more than one (1) occupant shall contain at least forty (40) square feet of floor space for each occupant;
(b) Bedding, linens, and laundry services provided to residents;
(c) Sanitary and plumbing fixtures, water supply, sewage disposal, and sanitation of the premises;
(d) Heating, lighting, and fire prevention, including the installation and maintenance of smoke detectors;
(e) Maintenance of the building;
(f) Food handling, preparation, and storage, and kitchen sanitation;
(g) Nutritional standards sufficient to meet the boarder’s need;
(h) Complaint procedures whereby residents may lodge complaints with the cabinet concerning the operation of the boarding home; and
(i) Initial and periodic screening procedures to ensure that individuals meet the definition of "boarder" under KRS 216B.300(3).
(3) Prior to the initial or annual registration of a boarding home, the cabinet shall cause an unannounced inspection to be made of the boarding home, either by cabinet personnel or through the local health department acting on behalf of the cabinet, to determine if the boarding home is in compliance with:
(a) Standards established in subsections (1) and (2) of this section;
(b) Administrative regulations relating to the operation of boarding homes promulgated pursuant to subsection (2) of this section; and
(c) All applicable local health, fire, building, and safety codes and zoning ordinances.
(4)
(a) A boarding home shall not be registered to any person, association, business entity, or organization that has been previously penalized for operating a boarding home without a registration or that has had a previously denied or revoked registration to operate a boarding home, for a period of five (5) years following the date of imposition of the previous penalty or denial or revocation of registration.
(b) A boarding home operator may appeal the cabinet’s denial of initial or annual registration, and an administrative hearing shall be conducted in accordance with KRS Chapter 13B. A hearing held for a summary suspension shall be expedited and shall be in accordance with administrative regulations promulgated by the cabinet. If a boarding home continues to operate in violation of administrative regulations promulgated pursuant to subsection (2) of this section, the cabinet shall institute injunctive proceedings in Circuit Court to terminate the operation of the boarding home.
(5) Any person, association, business entity, or organization that submits an   application to register a boarding home that conceals a previously denied or revoked application or conceals a penalty received for operating a boarding home without a registration shall be liable for a civil penalty of at least one thousand dollars ($1,000) but not more than five thousand dollars ($5,000). Any registration issued in reliance upon the application concealing information shall be immediately revoked.
(6) Initial and annual registration may be denied and existing registration may be revoked for any of the following:
(a) The boarding home fails to achieve or maintain substantial and continuing compliance with administrative regulations promulgated pursuant to subsection (2) of this section;
(b) The boarding home fails or refuses to correct violations within a reasonable time as specified by the cabinet; or
(c) The applicant for registration or the registrant has been convicted of a crime related to abuse, neglect, or exploitation of an adult or has had an incident of adult abuse, neglect, or exploitation as defined in KRS 209.020, substantiated by the cabinet.
(7) Employees or designated agents of the cabinet shall have the authority to enter at any time a boarding home or any premises suspected of operating as an unregistered boarding home for the purpose of conducting an inspection or investigating a complaint.
(8) A boarding home shall not handle, store, dispense, or assist with the dispensing of a boarder’s prescription or non-prescription medications.
(9) Upon request of the boarder, the boarding home shall provide access to a lockable compartment for use by a resident who requests secure storage for prescription medication.
(10) If a boarding home fails to meet a minimum standard established in subsection (2) or (3) of this section and is in such a condition that the cabinet determines that the boarding home’s continued operation poses a significant risk to the health and safety of its residents, the cabinet may summarily suspend the registration of the boarding home by ordering that its operations cease until corrections are made or until a hearing is held on the appropriateness of the suspension.
(11) Nothing in this section or KRS 216B.303 shall be construed to prohibit local governments from imposing requirements on boarding homes that are stricter than those imposed by administrative regulations of the Cabinet for Health and Family Services.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 99, sec. 509, effective June 20, 2005. – Amended 2004 Ky. Acts ch. 170, sec. 2, effective July 13, 2004. — Amended 1998 Ky. Acts ch. 426, sec. 453, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 318, sec. 121, effective July 15, 1996. — Amended 1992 Ky. Acts ch. 63, sec. 1, effective July 14, 1992. — Created 1990 Ky. Acts ch. 439, sec. 2, effective July 13, 1990.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.306 Procedures, remedies, and penalties for operation of boarding home without registration.
(1) When the cabinet has reasonable cause to believe that any person, association, business entity, or organization is operating a boarding home without a registration, the cabinet may:
(a) Issue and deliver a notice to cease and desist from the violations;
(b) Issue and deliver a notice to cease and desist to any person who aids and abets the operation of a boarding home that is not registered; and
(c) Impose a civil penalty of at least one thousand dollars ($1,000) but not more than five thousand dollars ($5,000) upon the person, association, business entity, or organization that operates a boarding home that is not registered by the cabinet.
(2) Issuance of a notice under subsection (1) of this section shall not constitute agency action for which a hearing under KRS Chapter 13B may be sought.
(3) For the purpose of enforcing a cease and desist order and penalties under subsection (1) of this section, the cabinet may file a proceeding in the name of the Commonwealth seeking issuance of an injunction and enforcement of penalties against any person who violates subsection (1) of this section.
(4) In addition to the remedies under subsection (1) of this section, the cabinet may impose a civil penalty of at least one thousand dollars ($1,000) but not more than five thousand dollars ($5,000) upon the person, association, business, entity, or organization who aids and abets the operation of a boarding home that is not registered. If the cabinet is required to seek enforcement of the cease and desist order, it shall be entitled to collect attorney’s fees, costs, and any expenses incurred by the cabinet or local government as a consequence of and incident to the relocation of boarders to appropriate housing.
Effective: July 13, 2004
History: Created 2004 Ky. Acts ch. 170, sec. 1, effective July 13, 2004.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.310 Listing of boarding homes to be maintained.
The secretary shall maintain a listing of all registered boarding homes which shall be updated at least quarterly. At the time the list is updated, the cabinet shall submit the list of registered boarding homes to the local health department and fire department in counties containing registered boarding homes.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 63, sec. 3, effective July 14, 1992. – Created 1990 Ky. Acts ch. 439, sec. 3, effective July 13, 1990.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.315 Student housing not included in KRS 216B.300 to 216B.320.
Nothing in KRS 216B.300 to 216B.320 shall be construed as requiring registration by persons providing room or board or both to students.
Effective: July 13, 1990
History: Created 1990 Ky. Acts ch. 439, sec. 4, effective July 13, 1990.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.320 KRS 216B.300 to 216B.320 not applicable to boarding home regulated by federal government.
The provisions of KRS 216B.300 to 216B.320 shall not apply to any boarding home operated or regulated by the federal government.
Effective: July 13, 1990
History: Created 1990 Ky. Acts ch. 439, sec. 5, effective July 13, 1990.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
Continuing Care Retirement Communities
 
KRS 216B.330 Administrative regulations.
The cabinet shall promulgate administrative regulations according to KRS Chapter 13A that set forth the procedures and requirements for obtaining a certificate of compliance for a continuing care retirement community.
Effective: July 14, 2000
History: Created 2000 Ky. Acts ch. 264, sec. 5, effective July 14, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.332 Requirements for certificate of compliance — Assessment of residents in nursing home beds — Limitations upon admission to nursing home beds — Move-out notice and alternative living arrangements — Certificate of need not required to provide home health services to on-campus residents.
(1) To be eligible for a certificate of compliance, a continuing care retirement community shall certify in writing to the cabinet and shall disclose in writing to each of its residents that:
(a) None of the health facilities or health services operated by the continuing care retirement community shall apply for or become certified for participation in the Medicaid program; and
(b) No claim for Medicaid reimbursement shall be submitted for any person for any health service provided by the continuing care retirement community.
(2) A continuing care retirement community may establish one (1) bed at the nursing home level of care for every four (4) living units or personal care beds operated by the continuing care retirement community collectively. All residents in nursing home beds shall be assessed using the Health Care Financing Administration or Centers for Medicare and Medicaid Services approved long-term care resident assessment instrument.
(3) Admissions to continuing care retirement community nursing home beds shall be exclusively limited to on-campus residents. A resident shall not be admitted to a continuing care retirement community nursing home bed prior to ninety (90) days of residency in the continuing care retirement community unless the resident experiences a significant change in health status documented by a physician. No resident admitted to a nursing home bed shall be transferred or discharged without thirty (30) days prior written notice to the resident or his or her guardian.
(4) A continuing care retirement community shall assist each resident upon a move-out notice to find appropriate living arrangements. Each continuing care retirement community shall share information on alternative living arrangements provided by the Department for Aging and Independent Living at the time a move-out notice is given to a resident. The written agreement executed by the resident and the continuing care retirement community shall contain provisions for assisting any resident who has received a move-out notice to find appropriate living arrangements, prior to the actual move-out date.
(5) Home health services provided by a continuing care retirement community to its on-campus residents shall not require a certificate of need.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 90, sec. 1, effective July 12, 2012. — Amended 2007 Ky. Acts ch. 24, sec. 24, effective June 26, 2007. — Amended 2005 Ky. Acts ch. 99, sec. 61, effective June 20, 2005. — Created 2000 Ky. Acts ch. 264, sec. 6, effective July 14, 2000.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.339 Monitoring of establishment of nursing home beds — Collection of data — Secretary’s report to General Assembly.
(1) The cabinet shall monitor the establishment of continuing care retirement communities’ nursing home beds closely. The cabinet shall collect the following data regarding continuing care retirement communities’ nursing home beds:
(a) The number of applications for a certificate of need to convert nursing home beds to nursing facility beds, the number of beds included in each application, and the number of beds approved;
(b) The number of applications for Medicaid certification for continuing care retirement communities’ nursing home beds, the number of beds included in each application, and the number of beds certified as Medicaid eligible;
(c) The payor sources for continuing care retirement communities’ nursing home beds; and
(d) The number of each type of bed or living unit within each continuing care retirement community on July 14, 2000, and the number of each type of bed or living unit within each continuing care retirement community on October 31, 2003.
(2) Prior to the beginning of the 2004 Regular Session of the General Assembly, the secretary shall issue a report to the President of the Senate and the Speaker of the House of Representatives, the chair of the Senate Standing Committee on Health and Welfare, and the chair of the House Standing Committee on Health and Welfare addressing the impact of KRS 216B.015, 216B.020, 216B.330, and 216B.332 upon the state’s Medicaid budget, consumer access issues, and providers of long-term care.
Effective: March 28, 2002
History: Amended 2002 Ky. Acts ch. 85, sec. 2, effective March 28, 2002. – Created 2000 Ky. Acts ch. 264, sec. 8, effective July 14, 2000.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
Emergency Care
 
KRS 216B.400 Emergency care — Examination services for victims of sexual offenses — Examination expenses paid by Crime Victims’ Compensation Board — Reporting to law enforcement — Examination samples as evidence.
(1) Where a person has been determined to be in need of emergency care by any person with admitting authority, no such person shall be denied admission by reason only of his or her inability to pay for services to be rendered by the hospital.
(2) Every hospital of this state which offers emergency services shall provide that a physician, a sexual assault nurse examiner, who shall be a registered nurse licensed in the Commonwealth and credentialed by the Kentucky Board of Nursing as provided under KRS 314.142, or another qualified medical professional, as defined by administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707, is available on call twenty-four (24) hours each day for the examinations of persons seeking treatment as victims of sexual offenses as defined by KRS 510.010 to 510.140, 530.020, 530.064(1)(a), and 531.310.
(3) An examination provided in accordance with this section of a victim of a sexual offense may be performed in a sexual assault examination facility as defined in KRS 216B.015. An examination under this section shall apply only to an examination of a victim.
(4) The physician, sexual assault nurse examiner, or other qualified medical professional, acting under a statewide medical forensic protocol which shall be developed by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707, and promulgated by the secretary of justice and public safety pursuant to KRS Chapter 13A shall, upon the request of any peace officer or prosecuting attorney, and with the consent of the victim, or upon the request of the victim, examine such person for the purposes of providing basic medical care relating to the incident and gathering samples that may be used as physical evidence. This examination shall include but not be limited to:
(a) Basic treatment and sample gathering services; and
(b) Laboratory tests, as appropriate.
(5) Each victim shall be informed of available services for treatment of sexually transmitted infections, pregnancy, and other medical and psychiatric problems. Pregnancy counseling shall not include abortion counseling or referral information.
(6) Each victim shall be informed of available crisis intervention or other mental health services provided by regional rape crisis centers providing services to victims of sexual assault.
(7) Notwithstanding any other provision of law, a minor may consent to examination under this section. This consent is not subject to disaffirmance because of minority, and consent of the parents or guardians of the minor is not required for the examination.
(8)
(a) The examinations provided in accordance with this section shall be paid for by the Crime Victims’ Compensation Board at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707.
(b) Upon receipt of a completed claim form supplied by the board and an itemized billing for a forensic sexual assault examination or related services that are within the scope of practice of the respective provider and were performed no more than twelve (12) months prior to submission of the form, the board shall reimburse the hospital or sexual assault examination facility, pharmacist, health department, physician, sexual assault nurse examiner, or other qualified medical professional as provided in administrative regulations promulgated by the board pursuant to KRS Chapter 13A. Reimbursement shall be made to an out-of-state nurse who is credentialed in the other state to provide sexual assault examinations, an out-of-state hospital, or an out-of-state physician if the sexual assault occurred in Kentucky.
(c) Independent investigation by the Crime Victims’ Compensation Board shall not be required for payment of claims under this section; however, the board may require additional documentation or proof that the forensic medical examination was performed.
(9) No charge shall be made to the victim for sexual assault examinations by the hospital, the sexual assault examination facility, the physician, the pharmacist, the health department, the sexual assault nurse examiner, other qualified medical professional, the victim’s insurance carrier, or the Commonwealth.
(10)
(a) Each victim shall have the right to determine whether a report or other notification shall be made to law enforcement, except where reporting of abuse and neglect of a child, spouse, and other vulnerable adult is required, as set forth in KRS 209.030, 209A.030, and 620.030. No victim shall be denied an examination because the victim chooses not to file a police report, cooperate with law enforcement, or otherwise participate in the criminal justice system.
(b)
1. All samples collected during an exam where the victim has chosen not to immediately report to law enforcement shall be stored, released, and destroyed, if appropriate, in accordance with an administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707.
2. Facilities collecting samples pursuant to this section may provide the required secure storage, sample destruction, and related activities, or may enter into agreements with other agencies qualified to do so, pursuant to administrative regulation.
3. All samples collected pursuant to this section shall be stored for at least ninety (90) days from the date of collection in accordance with the administrative regulation promulgated pursuant to this subsection.
4. Notwithstanding KRS 524.140, samples collected during exams where the victim chose not to report immediately or file a report within ninety  (90) days after collection may be destroyed as set forth in accordance with the administrative regulation promulgated pursuant to this subsection. No hospital, sexual assault examination facility, or designated storage facility shall be liable for destruction of samples after the required storage period has expired.
Effective: June 25, 2013
History: Amended 2013 Ky. Acts ch. 69, sec. 1, effective June 25, 2013. — Amended 2010 Ky. Acts ch.b101, sec.b1, effective July 15, 2010. – Amended 2007 Ky. Acts ch.b85, sec.b250, effective June 26, 2007. — Amended 2006 Ky. Acts ch.b182, sec.b57, effective July 12, 2006. — Amended 2004 Ky. Acts ch.b73, sec.b2, effective April 6, 2004. — Amended 2002 Ky. Acts ch.b20, sec.b1, effective July 15, 2002. — Amended 2000 Ky. Acts ch.b142, sec.b6, effective July 14, 2000. — Amended 1996 Ky. Acts ch.b260, sec.b1, effective July 15, 1996. — Amended 1990 Ky. Acts ch.b274, sec.b1, effective July 13, 1990. – Amended 1984 Ky. Acts ch.b175, sec.b1, effective July 13, 1984. — Amended 1978 Ky. Acts ch.b368, sec.b1, effective June 17, 1978. — Created 1974 Ky. Acts ch.b352, sec.b1(1). Formerly codified as KRS 216.453.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.405 Course on recognition and prevention of pediatric abusive head trauma to be given by urgent treatment facility and urgent care facility.
(1) As used in this section, "urgent treatment facility" or "urgent care facility" means a facility that delivers medically necessary ambulatory medical care apart from a hospital emergency department setting usually on a walk-in basis.
(2) All urgent treatment or urgent care facilities shall make available at least one (1) time every two (2) years a continuing education course relating to the recognition and prevention of pediatric abusive head trauma, as defined in KRS 620.020. Training in recognizing pediatric abusive head trauma may be designed in collaboration with organizations and agencies that specialize in the prevention and recognition of pediatric abusive head trauma approved by the secretary of the Cabinet for Health and Family Services.
Effective: July 15, 2010
History: Created 2010 Ky. Acts ch. 171, sec. 10, effective July 15, 2010.
 
 
Psychiatric Residential Treatment Facilities
 
KRS 216B.450 Definitions for KRS 216B.450 and 216B.455.
As used in this section and KRS 216B.455 and 261B.457:
(1) "Cabinet" means the Cabinet for Health and Family Services;
(2) "Community-based" means a facility that is located in an existing residential neighborhood or community;
(3) "Freestanding" means a completely detached building or two (2) residences under one (1) roof that are clearly separate and can serve youth independently;
(4) "Home-like" means a residence with living space designed to accommodate the daily living needs and tasks of a family unit, with opportunity for adult-child communication, shared tasks, adult-child learning, congregate meals, and family-type routines appropriate to the ages and levels of functioning of the residents;
(5) "Psychiatric residential treatment facility" means either a licensed:
(a) Level I community-based, and home-like facility with a maximum of nine (9) beds which provides inpatient psychiatric residential treatment to residents age six (6) to twenty-one (21) years who have an emotional disability or severe emotional disability as defined in KRS 200.503, with an age range of no greater than five (5) years at the time of admission in a living unit; or
(b) Level II home-like facility that provides twenty-four (24) hour inpatient psychiatric residential treatment and habitation to persons who:
1. Are ages four (4) to twenty-one (21) years, with an age range of no greater than five (5) years at the time of admission to the facility;
2. Have a severe emotional disability as defined by KRS 200.503 in addition to severe and persistent aggressive behaviors, intellectual disability, sexually acting out behaviors, or developmental disability; and
3. Do not meet the medical necessity criteria for an acute care hospital or a psychiatric hospital and whose treatment needs cannot be met in an ambulatory care setting, Level I psychiatric residential treatment facility, or other less restrictive environment;
(6) "Qualified mental health personnel" means a staff member who operates under the supervision of a qualified mental health professional; and
(7) "Qualified mental health professional" has the same meaning as in KRS 202A.011.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 7, sec. 1, effective July 15, 2010. — Amended 2005 Ky. Acts ch. 99, sec. 510, effective June 20, 2005. — Amended 2004 Ky. Acts ch. 132, sec. 1, effective July 13, 2004. — Amended 1998 Ky. Acts ch. 426, sec. 455, effective July 15, 1998. — Created 1992 Ky. Acts ch. 332, sec. 1, effective April 9, 1992.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.455 Certificate-of-need requirement for Level I psychiatric residential treatment facilities — Licensure — Certification — Restriction on location — Restriction on number of beds — Care and services for persons discharged from Level I and Level II facilities.
(1) A certificate of need shall be required for all Level I psychiatric residential treatment facilities. The application for a certificate of need shall include formal written agreements of cooperation that identify the nature and extent of the proposed working relationship between the proposed Level I psychiatric residential treatment facility and each of the following agencies, organizations, or facilities located in the service area of the proposed facility:
(a) Regional interagency council for children with emotional disability or severe emotional disability as defined in KRS 200.509;
(b) Department for Community Based Services;
(c) Local school districts;
(d) At least one (1) psychiatric hospital; and
(e) Any other agency, organization, or facility deemed appropriate by the cabinet.
(2) Notwithstanding provisions for granting of a nonsubstantive review of a certificate of need application under KRS 216B.095, the cabinet shall review and approve the nonsubstantive review of an application seeking to increase the number of beds as permitted by KRS 216B.450 if the application is submitted by an eight (8) bed or sixteen (16) bed Level I psychiatric residential treatment facility licensed and operating or holding an approved certificate of need on July 13, 2004. The cabinet shall base its approval of expanded beds upon the Level I psychiatric residential treatment facility’s ability to meet standards designed by the cabinet to provide stability of care. The standards shall be promulgated by the cabinet in an administrative regulation in accordance with KRS Chapter 13A. An application under this subsection shall not be subject to any moratorium relating to certificate of need.
(3) All Level I psychiatric residential treatment facilities shall comply with the licensure requirements as set forth in KRS 216B.105.
(4) All Level I psychiatric residential treatment facilities shall be certified by the Joint Commission on Accreditation of Healthcare Organizations, or the Council on Accreditation of Services for Families and Children, or any other accrediting body with comparable standards that is recognized by the state.
(5) A Level I psychiatric residential treatment facility shall not be located in or on the grounds of a psychiatric hospital. More than one (1) freestanding Level I psychiatric residential treatment facility may be located on the same campus that is not in or on the grounds of a psychiatric hospital.
(6) The total number of Level I psychiatric residential treatment facility beds shall not exceed three hundred and fifteen (315) beds statewide.
(7)
(a) The Cabinet for Health and Family Services shall investigate the need for specialty foster care and post-treatment services for persons discharged from Level I and Level II psychiatric residential treatment facilities.
(b) The cabinet shall report to the Governor and the Legislative Research Commission by August 1, 2011, detailing information on specialty foster care and post-treatment services for persons discharged from Level I and Level II psychiatric residential treatment facilities.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 7, sec. 2, effective July 15, 2010. — Amended 2005 Ky. Acts ch. 99, sec. 511, effective June 20, 2005; and ch. 126, sec. 1, effective June 20, 2005. — Amended 2004 Ky. Acts ch. 132, sec. 2, effective July 13, 2004. — Amended 2000 Ky. Acts ch. 14, sec. 48, effective July 14, 2000; and ch. 318, sec. 4, effective July 14, 2000. — Amended 1996 Ky. Acts ch. 371, sec. 59, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 512, Part 7, sec. 45, effective July 15, 1994. – Created 1992 Ky. Acts ch. 332, sec. 2, effective April 9, 1992.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
KRS 216B.457 Certificate-of-need requirement for Level II psychiatric residential treatment facilities — Beds and locations permitted — Contents of certificate application — Criteria — Staffing requirements — Criminal records check — Treatment plan — Duties of Level II facility — Administrative regulations — Annual report.
(1) A certificate of need shall be required for all Level II psychiatric residential treatment facilities. The need criteria for the establishment of Level II psychiatric residential treatment facilities shall be in the state health plan.
(2) An application for a certificate of need for Level II psychiatric residential treatment facilities shall not exceed fifty (50) beds. Level II facility beds may be located in a separate part of a psychiatric hospital, a separate part of an acute care hospital, or a Level I psychiatric residential treatment facility if the Level II beds are located on a separate floor, in a separate wing, or in a separate building. A Level II facility shall not refuse to admit a patient who meets the medical necessity criteria and facility criteria for Level II facility services. Nothing in this section and KRS 216B.450 and 216B.455 shall be interpreted to prevent a psychiatric residential treatment facility from operating both a Level I psychiatric residential treatment facility and a Level II psychiatric residential treatment facility.
(3) The application for a Level II psychiatric residential treatment facility certificate of need shall include formal written agreements of cooperation that identify the nature and extent of the proposed working relationship between the proposed Level II psychiatric residential treatment facility and each of the following agencies, organizations, or entities located in the service area of the proposed facility:
(a) Regional interagency council for children with emotional disability or severe emotional disability created under KRS 200.509;
(b) Community board for mental health or individuals with an intellectual disability established under KRS 210.380;
(c) Department for Community Based Services;
(d) Local school districts;
(e) At least one (1) psychiatric hospital; and
(f) Any other agency, organization, or entity deemed appropriate by the cabinet.
(4) The application for a certificate of need shall include:
(a) The specific number of beds proposed for each age group and the specific, specialized program to be offered;
(b) An inventory of current services in the proposed service area; and
(c) Clear admission and discharge criteria, including age, sex, and other limitations.
(5) All Level II psychiatric residential treatment facilities shall comply with the licensure requirements as set forth in KRS 216B.105.
(6) All Level II psychiatric residential treatment facilities shall be certified by the Joint Commission on Accreditation of Healthcare Organizations, or the Council on Accreditation of Services for Families and Children, or any other accrediting body with comparable standards that are recognized by the Centers for Medicare and Medicaid Services.
(7) A Level II psychiatric residential treatment facility shall be under the clinical supervision of a qualified mental health professional with training or experience in mental health treatment of children and youth.
(8) Treatment services shall be provided by qualified mental health professionals or qualified mental health personnel. Individual staff who will provide educational programs shall meet the employment standards outlined by the Kentucky Board of Education and the Education Professional Standards Board.
(9) A Level II psychiatric residential treatment facility shall meet the following requirements with regard to professional staff:
(a) A licensed psychiatrist, who is board-eligible or board-certified as a child or adult psychiatrist, shall be employed or contracted to meet the treatment needs of the residents and the functions that shall be performed by a psychiatrist;
(b) If a Level II psychiatric residential treatment facility has residents ages twelve (12) and under, the licensed psychiatrist shall be a board-eligible or board-certified child psychiatrist; and
(c) The licensed psychiatrist shall be present in the facility to provide professional services to the facility’s residents at least weekly.
(10) A Level II psychiatric residential treatment facility shall:
(a) Prepare a written staffing plan that is tailored to meet the needs of the specific population of children and youth that will be admitted to the facility based on the facility’s admission criteria. The written staffing plan shall include but not be limited to the following:
1. Specification of the direct care per-patient staffing ratio that the facility shall adhere to during waking hours and during sleeping hours;
2. Delineation of the number of direct care staff per patient, including the types of staff and the mix and qualifications of qualified mental health professionals and qualified mental health personnel, that shall provide direct care and will comprise the facility’s per-patient staffing ratio;
3. Specification of appropriate qualifications for individuals included in the per-patient staffing ratio by job description, education, training, and experience;
4. Provision for ensuring compliance with its written staffing plan, and specification of the circumstances under which the facility may deviate from the per-patient staffing ratio due to patient emergencies, changes in patient acuity, or changes in patient census; and
5. Provision for submission of the written staffing plan to the cabinet for approval as part of the facility’s application for initial licensure.
No initial license to operate as a Level II psychiatric residential treatment facility shall be granted until the cabinet has approved the facility’s written staffing plan. Once a facility is licensed, it shall comply with its approved written staffing plan and, if the facility desires to change its approved per-patient staffing ratio, it shall submit a revised plan and have the plan approved by the cabinet prior to implementation of the change;
(b) Require full-time professional and direct care staff to meet the continuing education requirements of their profession or be provided with forty (40) hours per year of in-service training; and
(c) Develop and implement a training plan for all staff that includes but is not limited to the following:
1. Behavior-management procedures and techniques;
2. Physical-management procedures and techniques;
3. First aid;
4. Cardiopulmonary resuscitation;
5. Infection-control procedures;
6. Child and adolescent growth and development;
7. Training specific to the specialized nature of the facility;
8. Emergency and safety procedures; and
9. Detection and reporting of child abuse and neglect.
(11) A Level II psychiatric residential treatment facility shall require a criminal records check to be completed on all employees and volunteers. The employment or volunteer services of an individual shall be governed by KRS 17.165, with regard to a criminal records check. A new criminal records check shall be completed at least every two (2) years on each employee or volunteer.
(12)
(a) Any employee or volunteer who has committed or is charged with the commission of a violent offense as specified in KRS 439.3401, a sex crime specified in KRS 17.500, or a criminal offense against a victim who is a minor as specified in KRS 17.500 shall be immediately removed from contact with a child within the residential treatment center until the employee or volunteer is cleared of the charge.
(b) An employee or volunteer under indictment, legally charged with felonious conduct, or subject to a cabinet investigation shall be immediately removed from contact with a child.
(c) The employee or volunteer shall not be allowed to work with the child until a prevention plan has been written and approved by the cabinet, the person is cleared of the charge, or a cabinet investigation reveals an unsubstantiated finding, if the charge resulted from an allegation of child abuse, neglect, or exploitation.
(d) Each employee or volunteer shall submit to a check of the central registry. An individual listed on the central registry shall not be a volunteer at or be employed by a Level II psychiatric residential treatment facility.
(e) Any employee or volunteer removed from contact with a child pursuant to this subsection may, at the discretion of the employer, be terminated, reassigned to a position involving no contact with a child, or placed on administrative leave with pay during the pendency of the investigation or proceeding.
(13) An initial treatment plan of care shall be developed and implemented for each resident, and the plan of care shall be based on initial history and ongoing assessment of the resident’s needs and strengths, with an emphasis on active treatment, transition planning, and after-care services, and shall be completed within seventy-two (72) hours of admission.
(14) A comprehensive treatment plan of care shall be developed and implemented for each resident, and the plan of care shall be based on initial history and ongoing assessment of the resident’s needs and strengths, with an emphasis on active treatment, transition planning, and after-care services, and shall be completed within ten (10) calendar days of admission.
(15) A review of the treatment plan of care shall occur at least every thirty (30) days following the first ten (10) days of treatment and shall include the following documentation:
(a) Dated signatures of appropriate staff, parent, guardian, legal custodian, or conservator;
(b) An assessment of progress toward each treatment goal and objective with revisions as indicated; and
(c) A statement of justification for the level of services needed, including suitability for treatment in a less-restrictive environment and continued services.
(16) A Level II psychiatric residential treatment facility shall provide or arrange for the provision of qualified dental, medical, nursing, and pharmaceutical care for residents. The resident’s parent, guardian, legal custodian, or conservator may choose a professional for nonemergency services.
(17) A Level II psychiatric residential treatment facility shall ensure that opportunities are provided for recreational activities that are appropriate and adapted to the needs, interests, and ages of the residents.
(18) A Level II psychiatric residential treatment facility shall assist residents in the independent exercise of health, hygiene, and grooming practices.
(19) A Level II psychiatric residential treatment facility shall assist each resident in securing an adequate allowance of personally owned, individualized, clean, and seasonal clothes that are the correct size.
(20) A Level II psychiatric residential treatment facility shall assist, educate, and encourage each resident in the use of dental, physical, or prosthetic appliances or devices and visual or hearing aids.
(21) The cabinet shall promulgate administrative regulations that include but are not limited to the following:
(a) Establishing requirements for tuberculosis skin testing for staff of a Level II psychiatric residential treatment facility;
(b) Ensuring that accurate, timely, and complete resident assessments are conducted for each resident of a Level II psychiatric residential treatment facility;
(c) Ensuring that accurate, timely, and complete documentation of the implementation of a resident’s treatment plan of care occurs for each resident of a Level II psychiatric residential treatment facility;
(d) Ensuring that an accurate, timely, and complete individual record is maintained for each resident of a Level II psychiatric residential treatment facility;
(e) Ensuring that an accurate, timely, and complete physical examination is conducted for each resident of a Level II psychiatric residential treatment facility;
(f) Ensuring accurate, timely, and complete access to emergency services is available for each resident of a Level II psychiatric residential treatment facility; and
(g) Ensuring that there is accurate, timely, and complete administration of medications for each resident of a Level II psychiatric residential treatment facility.
(22) The cabinet shall, within ninety (90) days of July 15, 2010, promulgate administrative regulations in accordance with KRS Chapter 13A to implement this section and KRS 216B.450 and 216B.455. When promulgating the administrative regulations, the cabinet shall not consider only staffing ratios when evaluating the written staffing plan of an applicant, but shall consider the applicant’s overall ability to provide for the needs of patients.
(23) The cabinet shall report, no later than August 1 of each year, to the Interim Joint Committee on Health and Welfare regarding the implementation of this section and KRS 216B.450 and 216B.455. The report shall include but not be limited to information relating to resident outcomes, such as lengths of stay in the facility, locations residents were discharged to, and whether residents were readmitted to a Level II psychiatric residential treatment facility within a twelve (12) month period.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 146, sec. 108, effective July 12, 2012. — Created 2010 Ky. Acts ch. 7, sec. 3, effective July 15, 2010. History: Created 2010 Ky. Acts ch. 7, sec. 3, effective July 15, 2010.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
KRS 216B.459 Medicaid reimbursement.
The rate of reimbursement for Medicaid eligibles residing in nine (9) bed psychiatric residential treatment facilities shall not exceed the rate of reimbursement for Medicaid eligibles residing in eighteen (18) bed psychiatric residential treatment facilities.
Effective: July 13, 2004
History: Amended 2004 Ky. Acts ch. 132, sec. 3, effective July 13, 2004. – Created 1992 Ky. Acts ch. 332, sec. 3, effective April 9, 1992.
 
NO ANNOTATION FOR THIS STATUTE:
 
 
 
Penalties
 
KRS 216B.990 Penalties.
(1) Any person who, in willful violation of this chapter, operates a health facility or abortion facility without first obtaining a license or continues to operate a health facility or abortion facility after a final decision suspending or revoking a license shall be fined not less than five hundred dollars ($500) nor more than ten thousand dollars ($10,000) for each violation.
(2) Any person who, in willful violation of this chapter, acquires major medical equipment, establishes a health facility, or obligates a capital expenditure without first obtaining a certificate of need, or after the applicable certificate of need has been withdrawn, shall be fined one percent (1%) of the capital expenditure involved but not less than five hundred dollars ($500) for each violation.
(3) Any hospital acting by or through its agents or employees which violates any provision of KRS 216B.400 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
(4) Any health facility which willfully violates KRS 216B.250 shall be fined one hundred dollars ($100) per day for failure to post required notices and one hundred dollars ($100) per instance for willfully failing to provide an itemized statement within the required time frames.
(5) In addition to the civil penalties established under KRS 216B.306(1) and (4), any person who advertises, solicits boarders, or operates a boarding home without first obtaining a registration as required by KRS 216B.305 and any person who aids or abets the operation of a boarding home that is not registered shall be imprisoned for no more than twelve (12) months.
(6) Any person or entity establishing, managing, or operating an abortion facility or conducting the business of an abortion facility which otherwise violates any provision of this chapter or any administrative regulation promulgated thereunder regarding abortion facilities shall be subject to revocation or suspension of the license of the abortion facility. In addition, any violation of any provision of this chapter regarding abortion facilities or any administrative regulation related thereto by intent, fraud, deceit, unlawful design, willful and deliberate misrepresentation, or by careless, negligent, or incautious disregard for the statute or administrative regulation, either by persons acting individually or in concert with others, shall constitute a violation and shall be punishable by a fine not to exceed one thousand dollars ($1,000) for each offense. Each day of continuing violation shall be considered a separate offense. The venue for prosecution of the violation shall be in any county of the state in which the violation, or any portion thereof, occurred.
(7) Any hospital acting by or through its agents or employees that violates any provision of KRS 216B.150 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 161, sec. 34, effective July 15, 2010. — Amended 2004 Ky. Acts ch. 170, sec. 3, effective July 13, 2004. — Amended 1998 Ky. Acts ch. 503, sec. 2, effective July 15, 1998; and ch. 582, sec. 8, effective July 15, 1998. — Amended 1992 Ky. Acts ch. 63, sec. 6, effective July 14, 1992. — Amended 1990 Ky. Acts ch. 439, sec. 6, effective July 13, 1990. — Amended 1986 Ky. Acts ch. 19, sec. 5, effective July 15, 1986; and ch. 288, sec. 2, effective July 15, 1986. — Amended 1982 Ky. Acts ch. 347, sec. 26, effective July 15, 1982. — Created 1980 Ky. Acts ch. 135, secs. 25, 26, and 34, effective July 15, 1980.  Formerly codified, in part, as KRS 216.990.  History for former KRS 216.990: Amended 1980 Ky. Acts ch. 135, sec. 34, effective July 15, 1980. — Amended 1974 Ky. Acts ch. 352, sec. 1(2). — Amended 1972 Ky. Acts ch. 149, sec. 9. — Amended 1962 Ky. Acts ch. 112, sec. 9. — Amended 1960 Ky. Acts ch. 87, sec. 10. — Amended 1952 Ky. Acts ch. 16, sec. 110. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2094.
 
 
NO ANNOTATION FOR THIS STATUTE:
 
 
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