Request By:
Mason C. Rudd, Chairman
Certificate of Need and Licensure Board
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask whether the Kentucky Health Facilities and Health Services Certificate of Need and Licensure Board (hereinafter "Board") has authority to eliminate hospital beds which the Board has previously approved but which have either not been made available or are available but are chronically under-utilized.
The Board is created pursuant to KRS 216.405 et seq. The purpose of this act is:
". . . [T]o provide for the orderly development of all health facilities and health services in accordance with the needs of the various regions of the Commonwealth through a certificate of need program. Further, it is the intent of [the act] to combine and coordinate the licensure and regulation of health facilities and health services in order to insure the availability and delivery of quality health care to the citizens of the Commonwealth. " KRS 216.415 (Emphasis added).
In accordance with this purpose, the Board is given three functions by KRS 216.425(4):
(a) To issue certificates of need in accordance with the provisions of [the act].
(b) To issue licenses, regulate and inspect health facilities and health services.
(c) To enforce, through legal actions on its own motion, the provisions of such certificates, licenses and regulations. (Emphasis added).
In the exercise of these duties, the Board is given certain powers:
"The board shall . . . [adopt] . . . regulations . . . for the maintenance and operation of health facilities and health services which shall be designed to insure that the quality of care offered by the facility or service is satisfactory. . . ." KRS 216.425(6) (Emphasis added).
Based upon these statutes, we are of the opinion that if the existence of authorized but unavailable or under-utilized hospital beds affects "the quality of care offered by the health facility or health service, " see KRS 216.425(6), supra, or detracts from "the availability and delivery of quality health care to the citizens of the Commonwealth," KRS 216.415, supra, the Board may regulate the health facility or health service, KRS 216.425(4)(b) supra, and delete the number of authorized beds for the particular facility or service. This decrease could be accomplished through adoption of a regulation. If, however, there is no nexus between the existence of such beds, i.e. authorized but not available or under-utilized, and the delivery of or quality of health care, the Board could not validly adopt a regulation decreasing the number of authorized beds, 1 cf.
Lavern v. Brown, Ky., 390 S.W.2d 448 (1965).
Footnotes
Footnotes
1 The number of authorized beds could also be decreased if an application is made to modify the health facility or service, KRS 216.405(3),(4).