House Bill 1517

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    Florida House of Representatives - 1999                HB 1517

        By Representative Minton






  1                      A bill to be entitled

  2         An act relating to certificates of need;

  3         amending s. 408.036, F.S.; eliminating from

  4         certificate-of-need requirements projects

  5         involving an addition of beds by new

  6         construction or alteration or an increase in

  7         licensed bed capacity; eliminating nursing home

  8         facilities from certificate-of-need

  9         requirements; amending s. 408.039, F.S.;

10         eliminating provisions relating to preferences

11         in the certificate-of-need review process for

12         nursing homes in geographically underserved

13         areas; amending s. 408.040, F.S.; conforming

14         provisions relating to certificate-of-need

15         applications; amending ss. 430.705 and 400.702,

16         F.S.; conforming provisions relating to

17         calculation of nursing home bed needs;

18         repealing s. 400.071(8), F.S., relating to

19         certificate-of-need requirement for licensure

20         of nursing homes; repealing s. 408.032(17),

21         F.S., relating to definition of "nursing home

22         geographically underserved area"; repealing ss.

23         408.034(4) and 430.708, F.S., relating to

24         calculation of nursing home bed needs;

25         providing an effective date.

26

27  Be It Enacted by the Legislature of the State of Florida:

28

29         Section 1.  Section 408.036, Florida Statutes, 1998

30  Supplement, is amended to read:

31         408.036  Projects subject to review.--

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  1         (1)  APPLICABILITY.--Unless exempt under subsection

  2  (3), all health-care-related projects, as described in

  3  paragraphs (a)-(i) (a)-(k), are subject to review and must

  4  file an application for a certificate of need with the agency.

  5  The agency is exclusively responsible for determining whether

  6  a health-care-related project is subject to review under ss.

  7  408.031-408.045.

  8         (a)  The addition of beds by new construction or

  9  alteration.

10         (a)(b)  The new construction or establishment of

11  additional health care facilities, including a replacement

12  health care facility when the proposed project site is not

13  located on the same site as the existing health care facility.

14         (b)(c)  The conversion from one type of health care

15  facility to another, including the conversion from one level

16  of care to another, in a skilled or intermediate nursing

17  facility, if the conversion effects a change in the level of

18  care of 10 beds or 10 percent of total bed capacity of the

19  skilled or intermediate nursing facility within a 2-year

20  period.  If the nursing facility is certified for both skilled

21  and intermediate nursing care, the provisions of this

22  paragraph do not apply.

23         (d)  Any increase in licensed bed capacity.

24         (c)(e)  Subject to the provisions of paragraph (3)(g)

25  (3)(i), the establishment of a Medicare-certified home health

26  agency, the establishment of a hospice, or the direct

27  provision of such services by a health care facility or health

28  maintenance organization for those other than the subscribers

29  of the health maintenance organization; except that this

30  paragraph does not apply to the establishment of a

31

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  1  Medicare-certified home health agency by a facility described

  2  in paragraph (3)(f) (3)(h).

  3         (d)(f)  An acquisition by or on behalf of a health care

  4  facility or health maintenance organization, by any means,

  5  which acquisition would have required review if the

  6  acquisition had been by purchase.

  7         (e)(g)  The establishment of inpatient institutional

  8  health services by a health care facility, or a substantial

  9  change in such services.

10         (f)(h)  The acquisition by any means of an existing

11  health care facility by any person, unless the person provides

12  the agency with at least 30 days' written notice of the

13  proposed acquisition, which notice is to include the services

14  to be offered and the bed capacity of the facility, and unless

15  the agency does not determine, within 30 days after receipt of

16  such notice, that the services to be provided and the bed

17  capacity of the facility will be changed.

18         (g)(i)  An increase in the cost of a project for which

19  a certificate of need has been issued when the increase in

20  cost exceeds 20 percent of the originally approved cost of the

21  project, except that a cost overrun review is not necessary

22  when the cost overrun is less than $20,000.

23         (h)(j)  An increase in the number of psychiatric or

24  rehabilitation beds.

25         (i)(k)  The establishment of tertiary health services.

26         (2)  PROJECTS SUBJECT TO EXPEDITED REVIEW.--Unless

27  exempt pursuant to subsection (3), projects subject to an

28  expedited review shall include, but not be limited to:

29         (a)  Cost overruns, as defined in paragraph (1)(g)

30  (1)(i).

31         (b)  Research, education, and training programs.

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  1         (c)  Shared services contracts or projects.

  2         (d)  A transfer of a certificate of need.

  3         (e)  A 50-percent increase in nursing home beds for a

  4  facility incorporated and operating in this state for at least

  5  60 years on or before July 1, 1988, which has a licensed

  6  nursing home facility located on a campus providing a variety

  7  of residential settings and supportive services.  The

  8  increased nursing home beds shall be for the exclusive use of

  9  the campus residents.  Any application on behalf of an

10  applicant meeting this requirement shall be subject to the

11  base fee of $5,000 provided in s. 408.038.

12         (f)  Combination within one nursing home facility of

13  the beds or services authorized by two or more certificates of

14  need issued in the same planning subdistrict.

15         (g)  Division into two or more nursing home facilities

16  of beds or services authorized by one certificate of need

17  issued in the same planning subdistrict.  Such division shall

18  not be approved if it would adversely affect the original

19  certificate's approved cost.

20         (e)(h)  Replacement of a health care facility when the

21  proposed project site is located in the same district and

22  within a 1-mile radius of the replaced health care facility.

23

24  The agency shall develop rules to implement the provisions for

25  expedited review, including time schedule, application

26  content, and application processing.

27         (3)  EXEMPTIONS.--Upon request, supported by such

28  documentation as the agency requires, the agency shall grant

29  an exemption from the provisions of subsection (1):

30         (a)  For the initiation or expansion of obstetric

31  services.

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  1         (b)  For any expenditure to replace or renovate any

  2  part of a licensed health care facility, provided that the

  3  number of licensed beds will not increase and, in the case of

  4  a replacement facility, the project site is the same as the

  5  facility being replaced.

  6         (c)  For providing respite care services. An individual

  7  may be admitted to a respite care program in a hospital

  8  without regard to inpatient requirements relating to admitting

  9  order and attendance of a member of a medical staff.

10         (d)  For hospice services or home health services

11  provided by a rural hospital, as defined in s. 395.602, or for

12  swing beds in such rural hospital in a number that does not

13  exceed one-half of its licensed beds.

14         (e)  For the conversion of licensed acute care hospital

15  beds to Medicare and Medicaid certified skilled nursing beds

16  in a rural hospital as defined in s. 395.602, so long as the

17  conversion of the beds does not involve the construction of

18  new facilities. The total number of skilled nursing beds,

19  including swing beds, may not exceed one-half of the total

20  number of licensed beds in the rural hospital as of July 1,

21  1993. Certified skilled nursing beds designated under this

22  paragraph, excluding swing beds, shall be included in the

23  community nursing home bed inventory.  A rural hospital which

24  subsequently decertifies any acute care beds exempted under

25  this paragraph shall notify the agency of the decertification,

26  and the agency shall adjust the community nursing home bed

27  inventory accordingly.

28         (f)  For the addition of nursing home beds at a skilled

29  nursing facility that is part of a retirement community that

30  provides a variety of residential settings and supportive

31  services and that has been incorporated and operated in this

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  1  state for at least 65 years on or before July 1, 1994. All

  2  nursing home beds must not be available to the public but must

  3  be for the exclusive use of the community residents.

  4         (g)  For an increase in the bed capacity of a nursing

  5  facility licensed for at least 50 beds as of January 1, 1994,

  6  under part II of chapter 400 which is not part of a continuing

  7  care facility if, after the increase, the total licensed bed

  8  capacity of that facility is not more than 60 beds and if the

  9  facility has been continuously licensed since 1950 and has

10  received a superior rating on each of its two most recent

11  licensure surveys.

12         (f)(h)  For the establishment of a Medicare-certified

13  home health agency by a facility certified under chapter 651;

14  a retirement community, as defined in s. 400.404(2)(g); or a

15  residential facility that serves only retired military

16  personnel, their dependents, and the surviving dependents of

17  deceased military personnel. Medicare-reimbursed home health

18  services provided through such agency shall be offered

19  exclusively to residents of the facility or retirement

20  community or to residents of facilities or retirement

21  communities owned, operated, or managed by the same corporate

22  entity. Each visit made to deliver Medicare-reimbursable home

23  health services to a home health patient who, at the time of

24  service, is not a resident of the facility or retirement

25  community shall be a deceptive and unfair trade practice and

26  constitutes a violation of ss. 501.201-501.213.

27         (g)(i)  For the establishment of a Medicare-certified

28  home health agency. This paragraph shall take effect 90 days

29  after the adjournment sine die of the next regular session of

30  the Legislature occurring after the legislative session in

31  which the Legislature receives a report from the Director of

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  1  Health Care Administration certifying that the federal Health

  2  Care Financing Administration has implemented a per-episode

  3  prospective pay system for Medicare-certified home health

  4  agencies.

  5         (h)(j)  For an inmate health care facility built by or

  6  for the exclusive use of the Department of Corrections as

  7  provided in chapter 945. This exemption expires when such

  8  facility is converted to other uses.

  9         (i)(k)  For an expenditure by or on behalf of a health

10  care facility to provide a health service exclusively on an

11  outpatient basis.

12         (j)(l)  For the termination of a health care service.

13         (k)(m)  For the delicensure of beds. An application

14  submitted under this paragraph must identify the number, the

15  classification, and the name of the facility in which the beds

16  to be delicensed are located.

17         (l)(n)  For the provision of adult inpatient diagnostic

18  cardiac catheterization services in a hospital.

19         1.  In addition to any other documentation otherwise

20  required by the agency, a request for an exemption submitted

21  under this paragraph must comply with the following criteria:

22         a.  The applicant must certify it will not provide

23  therapeutic cardiac catheterization pursuant to the grant of

24  the exemption.

25         b.  The applicant must certify it will meet and

26  continuously maintain the minimum licensure requirements

27  adopted by the agency governing such programs pursuant to

28  subparagraph 2.

29         c.  The applicant must certify it will provide a

30  minimum of 2 percent of its services to charity and Medicaid

31  patients.

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  1         2.  The agency shall adopt licensure requirements by

  2  rule which govern the operation of adult inpatient diagnostic

  3  cardiac catheterization programs established pursuant to the

  4  exemption provided in this paragraph. The rules shall ensure

  5  that such programs:

  6         a.  Perform only adult inpatient diagnostic cardiac

  7  catheterization services authorized by the exemption and will

  8  not provide therapeutic cardiac catheterization or any other

  9  services not authorized by the exemption.

10         b.  Maintain sufficient appropriate equipment and

11  health personnel to ensure quality and safety.

12         c.  Maintain appropriate times of operation and

13  protocols to ensure availability and appropriate referrals in

14  the event of emergencies.

15         d.  Maintain appropriate program volumes to ensure

16  quality and safety.

17         e.  Provide a minimum of 2 percent of its services to

18  charity and Medicaid patients each year.

19         3.a.  The exemption provided by this paragraph shall

20  not apply unless the agency determines that the program is in

21  compliance with the requirements of subparagraph 1. and that

22  the program will, after beginning operation, continuously

23  comply with the rules adopted pursuant to subparagraph 2.  The

24  agency shall monitor such programs to ensure compliance with

25  the requirements of subparagraph 2.

26         b.(I)  The exemption for a program shall expire

27  immediately when the program fails to comply with the rules

28  adopted pursuant to sub-subparagraphs 2.a., b., and c.

29         (II)  Beginning 18 months after a program first begins

30  treating patients, the exemption for a program shall expire

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  1  when the program fails to comply with the rules adopted

  2  pursuant to sub-subparagraphs 2.d. and e.

  3         (III)  If the exemption for a program expires pursuant

  4  to sub-sub-subparagraph (I) or sub-sub-subparagraph (II), the

  5  agency shall not grant an exemption pursuant to this paragraph

  6  for an adult inpatient diagnostic cardiac catheterization

  7  program located at the same hospital until 2 years following

  8  the date of the determination by the agency that the program

  9  failed to comply with the rules adopted pursuant to

10  subparagraph 2.

11         4.  The agency shall not grant any exemption under this

12  paragraph until the adoption of the rules required under this

13  paragraph, or until March 1, 1998, whichever comes first.

14  However, if final rules have not been adopted by March 1,

15  1998, the proposed rules governing the exemptions shall be

16  used by the agency to grant exemptions under the provisions of

17  this paragraph until final rules become effective.

18         (m)(o)  For any expenditure to provide mobile surgical

19  facilities and related health care services under contract

20  with the Department of Corrections or a private correctional

21  facility operating pursuant to chapter 957.

22         (p)  For state veterans' nursing homes operated by or

23  on behalf of the Florida Department of Veterans' Affairs in

24  accordance with part II of chapter 296 for which at least 50

25  percent of the construction cost is federally funded and for

26  which the Federal Government pays a per diem rate not to

27  exceed one-half of the cost of the veterans' care in such

28  state nursing homes. These beds shall not be included in the

29  nursing home bed inventory.

30

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  1  A request for exemption under this subsection may be made at

  2  any time and is not subject to the batching requirements of

  3  this section.

  4         Section 2.  Paragraph (a) of subsection (4) of section

  5  408.039, Florida Statutes, is amended to read:

  6         408.039  Review process.--The review process for

  7  certificates of need shall be as follows:

  8         (4)  STAFF RECOMMENDATIONS.--

  9         (a)  The department's review of and final agency action

10  on applications shall be in accordance with the district plan,

11  and statutory criteria, and the implementing administrative

12  rules. In the application review process, the department shall

13  give a preference, as defined by rule of the department, to an

14  applicant which proposes to develop a nursing home in a

15  nursing home geographically underserved area.

16         Section 3.  Paragraph (a) of subsection (1) and

17  paragraph (d) of subsection (2) of section 408.040, Florida

18  Statutes, 1998 Supplement, are amended to read:

19         408.040  Conditions and monitoring.--

20         (1)(a)  The agency may issue a certificate of need

21  predicated upon statements of intent expressed by an applicant

22  in the application for a certificate of need.

23         1.  Any certificate of need issued for construction of

24  a new hospital or for the addition of beds to an existing

25  hospital shall include a statement of the number of beds

26  approved by category of service, including rehabilitation or

27  psychiatric service, for which the agency has adopted by rule

28  a specialty-bed-need methodology. All beds that are approved,

29  but are not covered by any specialty-bed-need methodology,

30  shall be designated as general.

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  1         2.  The agency may consider, in addition to the other

  2  criteria specified in s. 408.035, a statement of intent by the

  3  applicant to designate a percentage of the beds of the

  4  facility for use by patients eligible for care under Title XIX

  5  of the Social Security Act. Any certificate of need issued to

  6  a nursing home in reliance upon an applicant's statements to

  7  provide a specified number of beds for use by residents

  8  eligible for care under Title XIX of the Social Security Act

  9  must include a statement that such certification is a

10  condition of issuance of the certificate of need. The

11  certificate-of-need program shall notify the Medicaid program

12  office and the Department of Elderly Affairs when it imposes

13  conditions as authorized in this subparagraph in an area in

14  which a community diversion pilot project is implemented.

15         (2)

16         (d)  If an application is filed to consolidate two or

17  more certificates as authorized by s. 408.036(2)(f) or to

18  divide a certificate of need into two or more facilities as

19  authorized by s. 408.036(2)(g), the validity period of the

20  certificate or certificates of need to be consolidated or

21  divided shall be extended for the period beginning upon

22  submission of the application and ending when final agency

23  action and any appeal from such action has been concluded.

24  However, no such suspension shall be effected if the

25  application is withdrawn by the applicant.

26         Section 4.  Subsection (5) of section 430.705, Florida

27  Statutes, 1998 Supplement, is amended to read:

28         430.705  Implementation of the long-term care community

29  diversion pilot projects.--

30         (5)  In selecting the pilot project area, the

31  department shall consider the following factors in the area:

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  1         (a)  The nursing home occupancy level.

  2         (b)  The number of certificates of need awarded for

  3  nursing home beds for which renovation, expansion, or

  4  construction has not begun.

  5         (b)(c)  The annual number of additional nursing home

  6  beds.

  7         (c)(d)  The annual number of nursing home admissions.

  8         (d)(e)  The adequacy of community-based long-term care

  9  service providers.

10         Section 5.  The introductory paragraph and paragraph

11  (d) of subsection (1) of section 400.702, Florida Statutes,

12  are amended to read:

13         400.702  Development of intermediate care facilities.--

14         (1)  The Department of Children and Family Health and

15  Rehabilitative Services is directed to issue a request for

16  proposals, pursuant to the provisions of chapter 287, for a

17  pilot program of intermediate-level care facilities.  The

18  development of intermediate-level care facilities under this

19  pilot program shall be limited to four projects in geographic

20  locations distributed in the south, north, and central part of

21  the state and shall not exceed a total of 120 beds in each

22  location.  None of the projects may accept residents prior to

23  July 1, 1990.  The intermediate-level care facilities shall:

24         (d)  Be exempt from all requirements to obtain a

25  certificate of need pursuant to ss. 408.031-408.045; however,

26  the beds so utilized will be counted in the total bed supply

27  for determination of nursing home bed needs.

28         Section 6.  Subsection (8) of section 400.071 and

29  subsection (4) of section 408.034, Florida Statutes, 1998

30  Supplement, and subsection (17) of section 408.032 and section

31  430.708, Florida Statutes, are repealed.

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  1         Section 7.  This act shall take effect July 1, 1999.

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  4                          HOUSE SUMMARY

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      Eliminates certificate-of-need requirements for nursing
  6    homes and for health-care-related projects involving
      either an addition of beds by new construction or
  7    alteration or an increase in licensed bed capacity.

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