§ 63-1-852. Long-term care facility certificate of need – Requirements - Exemptions.

A.  Every entity desiring to establish a new long-term care facility, to expand an existing facility whether through construction or conversion of facilities, or to acquire an existing long-term care facility shall make application to the State Department of Health for a certificate of need.  The application for a certificate of need shall be in such form as the State Commissioner of Health shall prescribe.

B.  A certificate of need shall be required for:

1.  Any capital investment or lease of One Million Dollars ($1,000,000.00) or more, including predevelopment activities such as arrangements and commitments for financing, architectural designs, plans, working drawings, specifications, and site acquisition; provided, that this dollar limit shall not apply to a change in bed capacity;

2.  Acquisition of the ownership or operation of a facility whether by purchase, lease, donation, transfer of stock or interest, management contract, corporate merger, assignment, or through foreclosure; and

3.  An increase in licensed beds, whether through establishment of a new facility or expansion of an existing facility.

C.  The Department within fifteen (15) days after receipt of an application, shall issue an exemption from certificate of need requirements upon written request and demonstration that applicable exemption criteria have been met, for any of the following activities:

1.  An increase of no more than ten beds or ten percent (10%) of the facility’s licensed beds, whichever is greater, per calendar year if:

a.              the total capital cost of the increase is less than One Million Dollars ($1,000,000.00), and

b.              the facility’s occupancy rate averaged ninety-three percent (93%) or more during the twelve (12) months preceding the filing of the exemption request;

2.  Construction of a long-term care facility to replace or relocate all or part of the licensed bed capacity of an existing facility if:

a.              the project involves no increase in licensed beds;

b.              the facility shall be constructed no farther than three (3) miles for rural areas and seven and one-half (7 1/2) miles for urban areas, as defined by the Standard Metropolitan Statistical Area (SMSA), from the facility it is replacing or relocating, and

c.              a plan for the use of the facility to be replaced or relocated is provided that ensures continuity of services; and

3.  A management agreement if:

a.              the management entity discloses all persons with controlling interest in the management entity and discloses all experience in long-term care facility management or operation in any state during the preceding thirty-six (36) months,

b.              the management entity and any person with controlling interest if the management entity has less than thirty-six (36) months experience in management or operation of facilities, does not have a history of noncompliance, and

c.              the licensed entity remains responsible for facility operation, financial performance, staffing and delivery of resident services required under the Nursing Home Care Act.

D.  A certificate of need shall not be required for:

1.  Any changes of ownership resulting from the operation of law, including but not limited to divorce, probate, reversions and bankruptcy if the transfer of interest is to any already existing stockholder or person or entity listed on the license application disclosure statement.  This shall also include cancellations and expirations of leases.  Operational law ownership changes shall be reported to the Department within five (5) working days of the change;

2.  Ownership changes for estate planning purposes, treasury stock purchases, and transfers between existing owners and/or family members; increases in the amount of common stock or partnership interest for any individual who already owns fifty percent (50%) of the common stock or corporate entity involved or controls fifty percent (50%) or more of the interest in the partnership involved; and

3.  New purchases of common stock or partnership interest by any legal entity if such new purchaser will own, in total, less than fifty percent (50%) of the corporate entity involved or partnership involved.

E.  All applicants for the issuance of a certificate of need, at such time and in such manner as required by the Department, shall file:

1.  A disclosure statement with their applications unless the applicant is a publicly held company required to file periodic reports under the Securities and Exchange Act of 1934, or a wholly owned subsidiary of a publicly held company.  In such case, the applicant shall not be required to submit a disclosure statement, but shall submit the most recent annual and quarterly reports required by the Securities and Exchange Commission, which provide information regarding legal proceedings in which the applicant has been involved;

2.  Copies of residents council minutes and family council minutes, if any, and the facility's written response to the councils' requests or grievances, for the three (3) months prior to the date of application, for each of the applicant's current holdings in the State of Oklahoma; and

3.  Such other relevant information required by the Department pursuant to the Long-term Care Certificate of Need Act that relates to the competency, reliability, or responsibility of the applicant and affiliated persons.

F.  An application for a certificate of need shall be signed under oath by the applicant.

G.  Promptly upon receipt of any such application, the Department shall examine and transmit the application to reviewing bodies selected by the Department to assist the Department in determining whether the application is complete.  Once the Department has determined that the application is complete, it shall notify the affected parties and other reviewing bodies and cause a thorough investigation to be made of the need for and appropriateness of the new or any long-term care service acquisition, expansion, or establishment of a new facility.

H.  Except as provided by Section 1-853.1 of this title, the investigation made pursuant to an application for a certificate of need shall include the following:

1.  The adequacy of long-term care facilities in relation to an optimal target ratio of long-term care beds per thousand persons seventy-five (75) years of age or older in the state;

2.  The availability of long-term care which may serve as alternatives or substitutes;

3.  The adequacy of financial resources for the acquisition, expansion, or establishment of a new long-term care facility and for the continued operation thereof;

4.  The availability of sufficient staff to properly operate the proposed acquisition, expansion, or establishment of a new long-term care facility;

5.  The record of the applicant's current and prior ownership, operation and management of similar facilities in this state and in any other state.  The investigation of such record shall include, but not be limited to, inquiry to the State Long-Term Care Ombudsman Office, the state Medicaid Fraud Control Unit, and the state licensure and certification agency;

6.  Review of minutes of family councils and residents councils, and the facilities' responses, from each of the applicant's holdings in Oklahoma; and

7.  Any other matter which the Department deems appropriate.

I.  Before making a final determination on an acquisition application, the Commissioner shall cause paid public notices to be published in a newspaper of general circulation near the facility and in a newspaper of general circulation in the area where the application is available for public inspection.  A notice in a form prescribed by the Department also shall be posted by the applicant in a public area in each facility operated by the applicant in Oklahoma, to inform residents and families of the applicant's proposed action.  The public notices shall offer participating parties an opportunity to submit written comments.

J.  The Commissioner's decision to approve or deny the proposed acquisition, expansion, or establishment of a new facility shall be made within forty-five (45) days following the deadline for submitting written comments, or the proposed acquisition or establishment shall be automatically approved, unless otherwise prohibited pursuant to the provisions of the Long-term Care Certificate of Need Act.

K.  If the Commissioner finds that a proposed acquisition, expansion, or establishment of a new facility is consistent with the criteria and standards for review of such projects, and is otherwise in compliance with the provision of the Long-term Care Certificate of Need Act, then the Commissioner shall issue a certificate of need.  If the Commissioner finds that the proposed acquisition, expansion, or establishment of a new facility is not consistent with the criteria and standards, or is otherwise not in compliance with the provisions of the Long-term Care Certificate of Need Act, the Commissioner shall deny the certificate of need.

Added by Laws 1971, c. 64, § 2, emerg. eff. April 8, 1971.  Amended by Laws 1980, c. 188, § 3, eff. July 1, 1980; Laws 1983, c. 285, § 5, operative July 1, 1983; Laws 1984, c. 238, § 4, operative July 1, 1984; Laws 1986, c. 149, § 13, emerg. eff. April 29, 1986; Laws 1987, c. 206, § 43, operative July 1, 1987; Laws 1987, c. 236, § 27, emerg. eff. July 20, 1987; Laws 1988, c. 282, § 4, operative July 1, 1988; Laws 1989, c. 227, § 10, operative July 1, 1989; Laws 1993, c. 269, § 14, eff. Sept. 1, 1993; Laws 1996, c. 336, § 4, eff. Nov. 1, 1996; Laws 2001, c. 285, § 2, eff. Nov. 1, 2001; Laws 2004, c. 436, § 3, emerg. eff. June 4, 2004.