TRATAMIENTO DE LA INFORMACIÓN

As of 1999, approximately half of all states have Certificate of that are applicable to ASCs.

CON Procedures and Issues

Certificate of need applications and procedures differ greatly fro In terms of procedure, most states require that a letter of intent be filing of the actual certificate of need application. In certain states, these letters of intent can be submitted at any time during the year. In other states, the state requires that a strict schedule be adhered to.12 For example, letters of intent must be filed by a certain date set forth in the calendar and then applications must be filed within a certain period of time thereafter. Hearings are held thereafter. For example, Virginia and Kentucky each adhere to a specific planning calendar. Illinois and Iowa allow filing at any time.

The letter of intent, depending upon the state, can either be very specific or can be quite general. For example, in certain states, the party applying for the certificate of need is

12 _{In some states, rather than waiting for applications, the state declares a need and seeks applications. “In}

keeping with the requirements of P.L. 93-641, as amended by EL. 96-79, Section 1523(a) (l)(B) the State Agency, in consultation with the Statewide Health Coordinating Council, has determined that there is statewide need for dedicated outpatient surgery facilities in locations throughout the State where there are sufficient number of surgical procedures to justify the existence of one or more dedicated outpatient surgery units.” See Washington Regional Medical Center v. Medical Care International, Inc. 711 S.W.2d 457, 460 (Ark. 1986).

required to set forth in detail such issues as the exact location of the intended surgery center, the exact number of operating rooms and the sources of financing. In other situations, a more general statement as to city location and preliminary plans can be set forth at the letter of intent stage. In each situation, at the application stage, it is usually required that much greater detail be provided and much greater specificity be provided regarding the plans.

The letter of intent, in addition to informing the planning board that an application will be forthcoming, also informs potential opposing parties to the certificate of need that an application will be submitted. Here, the letter of intent may lead parties to submit a competing application. Alternatively, it may lead opposing parties to either prepare to oppose the application or amend their own plans to make it more difficult to obtain the certificate of need. For example, a hospital not restricted by the CON law may announce a plan to expand or to open up operating rooms not being used to make it more difficult to show that CON criteria based on usage of operating rooms are met. Opening more operating rooms will decrease the average cases per operating room in the certificate of need area.

CON Criteria─ Objective Versus Subjective

The criteria used to judge a certificate of need application differs from state to state. Principally, it differs in that the states may employ an objective standard or a subjective set of criteria to judge applications. For example, in many states, the determination as to whether a certificate of need will be granted is a function of a numeric calculation. This calculation can relate to either population per operating room or per services in the community13 or to the number of cases being performed per operating room in the certificate of need area.

Alternatively, a state may use a more subjective set of criteria to judge CON. In Mississippi, for example, the 1992 State Health Plan at page 1-1-2 lists the following general certificate of need policies:

General Certificate of Need Policies: The general purposes of health planning in Mississippi are to: (1) Improve the health of Mississippi residents; (2) Increase the accessability acceptability, continuity, and quality of health services; (3) Prevent unnecessary duplication of health resources; and (4) Provide some cost containment.

Similarly, in Connecticut, the state traditionally has judged applications as follows:

13 _{For example, one court points to the objective criteria being used as follows: “It is clear from the record}

that a population base of approximately 200,000 to 300,000 is required before these type services may be approved and the facility proposing the service must prove that it has the referral network to ensure the caseload required.” Magnolia Hospital us. Mississippi State Department of Health, 559 So. 2d 1042,1044 (Miss. 1990).

In its deliberations...the commission shall take into consideration and make written findings concerning each of the following criteria:

(1) the relationship of the proposal to the State Health Plan;

(2) the relationship of the proposal to the applicant's long-range plan; (3) the financial feasibility of the proposal, and its impact on the applicant's

rates and financial condition;

(4) the proposal's contribution to quality, accessibility and cost- effectiveness in health care delivery in the region;

(5) the relationship of the proposed change to the applicant's current utilization statistics;

(6) the teaching and research responsibilities of the applicant;

(7) the special characteristics of the patient-physician mix of the applicant; (8) the voluntary efforts of the applicant in improving productivity and

containing costs;

(9) and any other facts which this commission deems relevant, including ... such factors as, but not limited to, the business interests of all owners, partners, associates, incorporators, directors, sponsors, stockholders and operators ....

CON Application─ Core Concepts

A proponent for a certificate of need should attempt to develop three or four core

concepts that will serve as the core arguments in the application and through the hearing process for the certificate of need. These core concepts will often relate to the ability to provide care at lower cost than in the hospital setting, the ability to ease overcrowding of area operating rooms and the ability to provide greater access and care to indigents. A mix of statistics, analysis and community support is used to make these arguments. Tools used to support applications often include:

 letters from payors

 letters from local businesses  support from doctors

 population data

 support from national health care and consulting experts  case volume data

 price data

 indigent care service commitments  maps demonstrating service area.

Data is often obtained from private entities as well as state and local government sources (e.g., HCFA, SMG, Marketing Group, Inc., etc.).

Reduced Costs

To make the case as to lower costs to patients and payors, one may attempt to support the position of lower cost by showing such items as:

 A comparison of invoices at local hospitals for outpatient procedures for the last couple of years versus the expected price of services at the pro- posed ambulatory surgery center;

 Showing the difference in co-payments for Medicare patients for procedures performed at a hospital as opposed to procedures performed in an ambulatory surgery center. Because the co-payment at the hospital is based on a charges calculation or a cost calculation, and the co-payment at the ASC is based on the Medicare groupings, the co-payment paid by the patient is usually significantly lower at an ASC. Note that this difference is expected to continue for comparisons of hospital outpatient departments versus ASCs even with the development of APCs, because of the difference in the method by which the APCs for ASCs as opposed to outpatient departments are being calculated.

 Letters from payors and community groups indicating their expectation that an ambulatory surgery center will be able to provide lower-cost ser- vices than the current hospital providers.

An example of one table detailing the differences in costs is as follows:

AVERAGE FACILITY FEE AND AVERAGE FEE OF ALL HOSPITAL-AREA