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The Florida Senate

2015 Florida Statutes

Title XXIX PUBLIC HEALTH
Chapter 408 HEALTH CARE ADMINISTRATION Entire Chapter
SECTION 036
Projects subject to review; exemptions.
F.S. 408.036
408.036 Projects subject to review; exemptions.—
(1) APPLICABILITY.—Unless exempt under subsection (3), all health-care-related projects, as described in paragraphs (a)-(f), are subject to review and must file an application for a certificate of need with the agency. The agency is exclusively responsible for determining whether a health-care-related project is subject to review under ss. 408.031-408.045.
(a) The addition of beds in community nursing homes or intermediate care facilities for the developmentally disabled by new construction or alteration.
(b) The new construction or establishment of additional health care facilities, including a replacement health care facility when the proposed project site is not located on the same site as or within 1 mile of the existing health care facility, if the number of beds in each licensed bed category will not increase.
(c) The conversion from one type of health care facility to another, including the conversion from a general hospital, a specialty hospital, or a long-term care hospital.
(d) The establishment of a hospice or hospice inpatient facility, except as provided in s. 408.043.
(e) An increase in the number of beds for comprehensive rehabilitation.
(f) The establishment of tertiary health services, including inpatient comprehensive rehabilitation services.
(2) PROJECTS SUBJECT TO EXPEDITED REVIEW.—Unless exempt pursuant to subsection (3), the following projects are subject to expedited review:
(a) Transfer of a certificate of need, except that when an existing hospital is acquired by a purchaser, all certificates of need issued to the hospital which are not yet operational shall be acquired by the purchaser without need for a transfer.
(b) Replacement of a nursing home, if the proposed project site is within a 30-mile radius of the replaced nursing home. If the proposed project site is outside the subdistrict where the replaced nursing home is located, the prior 6-month occupancy rate for licensed community nursing homes in the proposed subdistrict must be at least 85 percent in accordance with the agency’s most recently published inventory.
(c) Replacement of a nursing home within the same district, if the proposed project site is outside a 30-mile radius of the replaced nursing home but within the same subdistrict or a geographically contiguous subdistrict. If the proposed project site is in the geographically contiguous subdistrict, the prior 6-month occupancy rate for licensed community nursing homes for that subdistrict must be at least 85 percent in accordance with the agency’s most recently published inventory.
(d) Relocation of a portion of a nursing home’s licensed beds to another facility or to establish a new facility within the same district or within a geographically contiguous district, if the relocation is within a 30-mile radius of the existing facility and the total number of nursing home beds in the state does not increase.
(e) New construction of a community nursing home in a retirement community as further provided in this paragraph.
1. Expedited review under this paragraph is available if all of the following criteria are met:
a. The residential use area of the retirement community is deed-restricted as housing for older persons as defined in s. 760.29(4)(b).
b. The retirement community is located in a county in which 25 percent or more of its population is age 65 and older.
c. The retirement community is located in a county that has a rate of no more than 16.1 beds per 1,000 persons age 65 years or older. The rate shall be determined by using the current number of licensed and approved community nursing home beds in the county per the agency’s most recent published inventory.
d. The retirement community has a population of at least 8,000 residents within the county, based on a population data source accepted by the agency.
e. The number of proposed community nursing home beds in an application does not exceed the projected bed need after applying the rate of 16.1 beds per 1,000 persons aged 65 years and older projected for the county 3 years into the future using the estimates adopted by the agency reduced by the agency’s most recently published inventory of licensed and approved community nursing home beds in the county.
2. No more than 120 community nursing home beds shall be approved for a qualified retirement community under each request for expedited review. Subsequent requests for expedited review under this process may not be made until 2 years after construction of the facility has commenced or 1 year after the beds approved through the initial request are licensed, whichever occurs first.
3. The total number of community nursing home beds which may be approved for any single deed-restricted community pursuant to this paragraph may not exceed 240, regardless of whether the retirement community is located in more than one qualifying county.
4. Each nursing home facility approved under this paragraph must be dually certified for participation in the Medicare and Medicaid programs.
5. Each nursing home facility approved under this paragraph must be at least 1 mile, as measured over publicly owned roadways, from an existing approved and licensed community nursing home.
6. A retirement community requesting expedited review under this paragraph shall submit a written request to the agency for expedited review. The request must include the number of beds to be added and provide evidence of compliance with the criteria specified in subparagraph 1.
7. After verifying that the retirement community meets the criteria for expedited review specified in subparagraph 1., the agency shall publicly notice in the Florida Administrative Register that a request for an expedited review has been submitted by a qualifying retirement community and that the qualifying retirement community intends to make land available for the construction and operation of a community nursing home. The agency’s notice must identify where potential applicants can obtain information describing the sales price of, or terms of the land lease for, the property on which the project will be located and the requirements established by the retirement community. The agency notice must also specify the deadline for submission of the certificate-of-need application, which may not be earlier than the 91st day or later than the 125th day after the date the notice appears in the Florida Administrative Register.
8. The qualified retirement community shall make land available to applicants it deems to have met its requirements for the construction and operation of a community nursing home but may sell or lease the land only to the applicant that is issued a certificate of need by the agency under this paragraph.
a. A certificate-of-need application submitted under this paragraph must identify the intended site for the project within the retirement community and the anticipated costs for the project based on that site. The application must also include written evidence that the retirement community has determined that both the provider submitting the application and the project satisfy its requirements for the project.
b. If the retirement community determines that more than one provider satisfies its requirements for the project, it may notify the agency of the provider it prefers.
9. The agency shall review each submitted application. If multiple applications are submitted for a project published pursuant to subparagraph 7., the agency shall review the competing applications.

The agency shall develop rules to implement the expedited review process, including time schedule, application content that may be reduced from the full requirements of s. 408.037(1), and application processing.

(3) EXEMPTIONS.—Upon request, the following projects are subject to exemption from the provisions of subsection (1):
(a) For hospice services or for swing beds in a rural hospital, as defined in s. 395.602, in a number that does not exceed one-half of its licensed beds.
(b) For the conversion of licensed acute care hospital beds to Medicare and Medicaid certified skilled nursing beds in a rural hospital, as defined in s. 395.602, so long as the conversion of the beds does not involve the construction of new facilities. The total number of skilled nursing beds, including swing beds, may not exceed one-half of the total number of licensed beds in the rural hospital as of July 1, 1993. Certified skilled nursing beds designated under this paragraph, excluding swing beds, shall be included in the community nursing home bed inventory. A rural hospital that subsequently decertifies any acute care beds exempted under this paragraph shall notify the agency of the decertification, and the agency shall adjust the community nursing home bed inventory accordingly.
(c) For the addition of nursing home beds at a skilled nursing facility that is part of a retirement community that provides a variety of residential settings and supportive services and that has been incorporated and operated in this state for at least 65 years on or before July 1, 1994. All nursing home beds must not be available to the public but must be for the exclusive use of the community residents.
(d) For an inmate health care facility built by or for the exclusive use of the Department of Corrections as provided in chapter 945. This exemption expires when such facility is converted to other uses.
(e) For mobile surgical facilities and related health care services provided under contract with the Department of Corrections or a private correctional facility operating pursuant to chapter 957.
(f) For the addition of nursing home beds licensed under chapter 400 in a number not exceeding 30 total beds or 25 percent of the number of beds licensed in the facility being replaced under paragraph (2)(b), paragraph (2)(c), or paragraph (p), whichever is less.
(g) For state veterans’ nursing homes operated by or on behalf of the Florida Department of Veterans’ Affairs in accordance with part II of chapter 296 for which at least 50 percent of the construction cost is federally funded and for which the Federal Government pays a per diem rate not to exceed one-half of the cost of the veterans’ care in such state nursing homes. These beds shall not be included in the nursing home bed inventory.
(h) For combination within one nursing home facility of the beds or services authorized by two or more certificates of need issued in the same planning subdistrict. An exemption granted under this paragraph shall extend the validity period of the certificates of need to be consolidated by the length of the period beginning upon submission of the exemption request and ending with issuance of the exemption. The longest validity period among the certificates shall be applicable to each of the combined certificates.
(i) For division into two or more nursing home facilities of beds or services authorized by one certificate of need issued in the same planning subdistrict. An exemption granted under this paragraph shall extend the validity period of the certificate of need to be divided by the length of the period beginning upon submission of the exemption request and ending with issuance of the exemption.
(j) For the addition of hospital beds licensed under chapter 395 for comprehensive rehabilitation in a number that may not exceed 10 total beds or 10 percent of the licensed capacity, whichever is greater.
1. In addition to any other documentation otherwise required by the agency, a request for exemption submitted under this paragraph must:
a. Certify that the prior 12-month average occupancy rate for the licensed beds being expanded meets or exceeds 80 percent.
b. Certify that the beds have been licensed and operational for at least 12 months.
2. The timeframes and monitoring process specified in s. 408.040(2)(a)-(c) apply to any exemption issued under this paragraph.
3. The agency shall count beds authorized under this paragraph as approved beds in the published inventory of hospital beds until the beds are licensed.
(k) For the addition of nursing home beds licensed under chapter 400 in a number not exceeding 10 total beds or 10 percent of the number of beds licensed in the facility being expanded, whichever is greater; or, for the addition of nursing home beds licensed under chapter 400 at a facility that has been designated as a Gold Seal nursing home under s. 400.235 in a number not exceeding 20 total beds or 10 percent of the number of licensed beds in the facility being expanded, whichever is greater.
1. In addition to any other documentation required by the agency, a request for exemption submitted under this paragraph must certify that:
a. The facility has not had any class I or class II deficiencies within the 30 months preceding the request.
b. The prior 12-month average occupancy rate for the nursing home beds at the facility meets or exceeds 94 percent.
c. Any beds authorized for the facility under this paragraph before the date of the current request for an exemption have been licensed and operational for at least 12 months.
2. The timeframes and monitoring process specified in s. 408.040(2)(a)-(c) apply to any exemption issued under this paragraph.
3. The agency shall count beds authorized under this paragraph as approved beds in the published inventory of nursing home beds until the beds are licensed.
(l) For the establishment of:
1. A Level II neonatal intensive care unit with at least 10 beds, upon documentation to the agency that the applicant hospital had a minimum of 1,500 births during the previous 12 months;
2. A Level III neonatal intensive care unit with at least 15 beds, upon documentation to the agency that the applicant hospital has a Level II neonatal intensive care unit of at least 10 beds and had a minimum of 3,500 births during the previous 12 months; or
3. A Level III neonatal intensive care unit with at least 5 beds, upon documentation to the agency that the applicant hospital is a verified trauma center pursuant to s. 395.4001(14), and has a Level II neonatal intensive care unit,

if the applicant demonstrates that it meets the requirements for quality of care, nurse staffing, physician staffing, physical plant, equipment, emergency transportation, and data reporting found in agency certificate-of-need rules for Level II and Level III neonatal intensive care units and if the applicant commits to the provision of services to Medicaid and charity patients at a level equal to or greater than the district average. Such a commitment is subject to s. 408.040.

(m)1. For the provision of adult open-heart services in a hospital located within the boundaries of a health service planning district, as defined in s. 408.032(5), which has experienced an annual net out-migration of at least 600 open-heart-surgery cases for 3 consecutive years according to the most recent data reported to the agency, and the district’s population per licensed and operational open-heart programs exceeds the state average of population per licensed and operational open-heart programs by at least 25 percent. All hospitals within a health service planning district which meet the criteria reference in sub-subparagraphs 2.a.-h. shall be eligible for this exemption on July 1, 2004, and shall receive the exemption upon filing for it and subject to the following:
a. A hospital that has received a notice of intent to grant a certificate of need or a final order of the agency granting a certificate of need for the establishment of an open-heart-surgery program is entitled to receive a letter of exemption for the establishment of an adult open-heart-surgery program upon filing a request for exemption and complying with the criteria enumerated in sub-subparagraphs 2.a.-h., and is entitled to immediately commence operation of the program.
b. An otherwise eligible hospital that has not received a notice of intent to grant a certificate of need or a final order of the agency granting a certificate of need for the establishment of an open-heart-surgery program is entitled to immediately receive a letter of exemption for the establishment of an adult open-heart-surgery program upon filing a request for exemption and complying with the criteria enumerated in sub-subparagraphs 2.a.-h., but is not entitled to commence operation of its program until December 31, 2006.
2. A hospital shall be exempt from the certificate-of-need review for the establishment of an open-heart-surgery program when the application for exemption submitted under this paragraph complies with the following criteria:
a. The applicant must certify that it will meet and continuously maintain the minimum licensure requirements adopted by the agency governing adult open-heart programs, including the most current guidelines of the American College of Cardiology and American Heart Association Guidelines for Adult Open Heart Programs.
b. The applicant must certify that it will maintain sufficient appropriate equipment and health personnel to ensure quality and safety.
c. The applicant must certify that it will maintain appropriate times of operation and protocols to ensure availability and appropriate referrals in the event of emergencies.
d. The applicant can demonstrate that it has discharged at least 300 inpatients with a principal diagnosis of ischemic heart disease for the most recent 12-month period as reported to the agency.
e. The applicant is a general acute care hospital that is in operation for 3 years or more.
f. The applicant is performing more than 300 diagnostic cardiac catheterization procedures per year, combined inpatient and outpatient.
g. The applicant’s payor mix at a minimum reflects the community average for Medicaid, charity care, and self-pay patients or the applicant must certify that it will provide a minimum of 5 percent of Medicaid, charity care, and self-pay to open-heart-surgery patients.
h. If the applicant fails to meet the established criteria for open-heart programs or fails to reach 300 surgeries per year by the end of its third year of operation, it must show cause why its exemption should not be revoked.
3. By December 31, 2004, and annually thereafter, the agency shall submit a report to the Legislature providing information concerning the number of requests for exemption it has received under this paragraph during the calendar year and the number of exemptions it has granted or denied during the calendar year.
(n) For the provision of percutaneous coronary intervention for patients presenting with emergency myocardial infarctions in a hospital without an approved adult open-heart-surgery program. In addition to any other documentation required by the agency, a request for an exemption submitted under this paragraph must comply with the following:
1. The applicant must certify that it will meet and continuously maintain the requirements adopted by the agency for the provision of these services. These licensure requirements shall be adopted by rule and must be consistent with the guidelines published by the American College of Cardiology and the American Heart Association for the provision of percutaneous coronary interventions in hospitals without adult open-heart services. At a minimum, the rules must require the following:
a. Cardiologists must be experienced interventionalists who have performed a minimum of 75 interventions within the previous 12 months.
b. The hospital must provide a minimum of 36 emergency interventions annually in order to continue to provide the service.
c. The hospital must offer sufficient physician, nursing, and laboratory staff to provide the services 24 hours a day, 7 days a week.
d. Nursing and technical staff must have demonstrated experience in handling acutely ill patients requiring intervention based on previous experience in dedicated interventional laboratories or surgical centers.
e. Cardiac care nursing staff must be adept in hemodynamic monitoring and Intra-aortic Balloon Pump (IABP) management.
f. Formalized written transfer agreements must be developed with a hospital with an adult open-heart-surgery program, and written transport protocols must be in place to ensure safe and efficient transfer of a patient within 60 minutes. Transfer and transport agreements must be reviewed and tested, with appropriate documentation maintained at least every 3 months. However, a hospital located more than 100 road miles from the closest Level II adult cardiovascular services program does not need to meet the 60-minute transfer time protocol if the hospital demonstrates that it has a formalized, written transfer agreement with a hospital that has a Level II program. The agreement must include written transport protocols that ensure the safe and efficient transfer of a patient, taking into consideration the patient’s clinical and physical characteristics, road and weather conditions, and viability of ground and air ambulance service to transfer the patient.
g. Hospitals implementing the service must first undertake a training program of 3 to 6 months’ duration, which includes establishing standards and testing logistics, creating quality assessment and error management practices, and formalizing patient-selection criteria.
2. The applicant must certify that it will use at all times the patient-selection criteria for the performance of primary angioplasty at hospitals without adult open-heart-surgery programs issued by the American College of Cardiology and the American Heart Association. At a minimum, these criteria would provide for the following:
a. Avoidance of interventions in hemodynamically stable patients who have identified symptoms or medical histories.
b. Transfer of patients who have a history of coronary disease and clinical presentation of hemodynamic instability.
3. The applicant must agree to submit a quarterly report to the agency detailing patient characteristics, treatment, and outcomes for all patients receiving emergency percutaneous coronary interventions pursuant to this paragraph. This report must be submitted within 15 days after the close of each calendar quarter.
4. The exemption provided by this paragraph does not apply unless the agency determines that the hospital has taken all necessary steps to be in compliance with all requirements of this paragraph, including the training program required under sub-subparagraph 1.g.
5. Failure of the hospital to continuously comply with the requirements of sub-subparagraphs 1.c.-f. and subparagraphs 2. and 3. will result in the immediate expiration of this exemption.
6. Failure of the hospital to meet the volume requirements of sub-subparagraphs 1.a. and b. within 18 months after the program begins offering the service will result in the immediate expiration of the exemption.

If the exemption for this service expires under subparagraph 5. or subparagraph 6., the agency may not grant another exemption for this service to the same hospital for 2 years and then only upon a showing that the hospital will remain in compliance with the requirements of this paragraph through a demonstration of corrections to the deficiencies that caused expiration of the exemption. Compliance with the requirements of this paragraph includes compliance with the rules adopted pursuant to this paragraph.

(o) For the addition of mental health services or beds if the applicant commits to providing services to Medicaid or charity care patients at a level equal to or greater than the district average. Such a commitment is subject to s. 408.040.
(p) For replacement of a licensed nursing home on the same site, or within 5 miles of the same site if within the same subdistrict, if the number of licensed beds does not increase except as permitted under paragraph (f).
(q) For consolidation or combination of licensed nursing homes or transfer of beds between licensed nursing homes within the same planning district, by nursing homes with any shared controlled interest within that planning district, if there is no increase in the planning district total number of nursing home beds and the site of the relocation is not more than 30 miles from the original location.
(r) For beds in state mental health treatment facilities defined in s. 394.455 and state mental health forensic facilities operated under chapter 916.
(s) For beds in state developmental disabilities centers as defined in s. 393.063.
(t) For the establishment of a health care facility or project that meets all of the following criteria:
1. The applicant was previously licensed within the past 21 days as a health care facility or provider that is subject to subsection (1).
2. The applicant failed to submit a renewal application and the license expired on or after January 1, 2015.
3. The applicant does not have a license denial or revocation action pending with the agency at the time of the request.
4. The applicant’s request is for the same service type, district, service area, and site for which the applicant was previously licensed.
5. The applicant’s request, if applicable, includes the same number and type of beds as were previously licensed.
6. The applicant agrees to the same conditions that were previously imposed on the certificate of need or on an exemption related to the applicant’s previously licensed health care facility or project.
7. The applicant applies for initial licensure as required under s. 408.806 within 21 days after the agency approves the exemption request. If the applicant fails to apply in a timely manner, the exemption expires on the 22nd day following the agency’s approval of the exemption.

Notwithstanding subparagraph 1., an applicant whose license expired between January 1, 2015, and the effective date of this act may apply for an exemption within 30 days of this act becoming law.

(4) REQUESTS FOR EXEMPTION.—A request for exemption under subsection (3) may be made at any time and is not subject to the batching requirements of this section. The request shall be supported by such documentation as the agency requires by rule. The agency shall assess a fee of $250 for each request for exemption submitted under subsection (3).
(5) NOTIFICATION.—Health care facilities and providers must provide to the agency notification of:
(a) Replacement of a health care facility when the proposed project site is located in the same district and on the existing site or within a 1-mile radius of the replaced health care facility, if the number and type of beds do not increase.
(b) The termination of a health care service, upon 30 days’ written notice to the agency.
(c) The addition or delicensure of beds.

Notification under this subsection may be made by electronic, facsimile, or written means at any time before the described action has been taken.

History.—s. 23, ch. 87-92; s. 21, ch. 88-294; s. 2, ch. 89-527; ss. 3, 16, ch. 91-282; s. 15, ch. 92-33; s. 67, ch. 92-289; s. 30, ch. 93-129; s. 19, ch. 93-214; s. 38, ch. 93-217; ss. 3, 4, ch. 94-206; s. 58, ch. 95-144; s. 143, ch. 95-418; s. 3, ch. 97-270; s. 4, ch. 97-290; s. 3, ch. 98-14; s. 22, ch. 98-80; s. 3, ch. 98-85; s. 8, ch. 98-303; s. 7, ch. 2000-256; s. 15, ch. 2000-305; s. 8, ch. 2000-318; s. 15, ch. 2001-104; s. 13, ch. 2003-2; s. 1, ch. 2003-274; s. 1, ch. 2003-289; s. 10, ch. 2004-298; s. 1, ch. 2004-382; s. 6, ch. 2004-383; s. 2, ch. 2006-161; s. 8, ch. 2006-192; s. 26, ch. 2006-195; s. 51, ch. 2006-227; s. 88, ch. 2007-5; s. 15, ch. 2008-244; s. 11, ch. 2009-20; s. 19, ch. 2010-4; s. 1, ch. 2011-195; s. 20, ch. 2012-160; s. 5, ch. 2013-153; s. 2, ch. 2014-110; s. 45, ch. 2015-2; s. 2, ch. 2015-33.
Note.—Former s. 381.706.