HB 1105 2003
1	A bill to be entitled
2	An act relating to health care facilities; amending s.
3	408.032, F.S.; revising the definition of "tertiary health
4	service" under the Health Facility and Services
5	Development Act; amending s. 408.036, F.S., relating to
6	health-care-related projects subject to review for a
7	certificate of need; removing certain projects from
8	expedited review and revising requirements for other
9	projects subject to expedited review; removing the
10	exemption from review for certain projects; revising
11	requirements for certain projects that are exempt from
12	review; exempting certain projects from review; amending
13	s. 408.038, F.S.; increasing fees to fund the activities
14	of the certificate-of-need program; amending s. 408.039,
15	F.S.; providing for approval of recommended orders of the
16	Division of Administrative Hearings when the Agency for
17	Health Care Administration fails to take action on an
18	application for a certificate of need within a specified
19	time period; creating s. 400.244, F.S.; allowing nursing
20	homes to convert beds to alternative uses as specified;
21	providing restrictions on uses of funding under assisted-
22	living Medicaid waivers; providing procedures; providing
23	for the applicability of certain fire and life-safety
24	codes; providing applicability of certain laws; requiring
25	a nursing home to submit a request to the Agency for
26	Health Care Administration; providing conditions for
27	disapproving such a request; providing for periodic
28	review; providing for retention of nursing-home licensure
29	for converted beds; providing for reconversion of the
30	beds; providing an effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1. Subsection (17) of section 408.032, Florida
35	Statutes, is amended to read:
36	408.032 Definitions relating to Health Facility and
37	Services Development Act.--As used in ss. 408.031-408.045, the
38	term:
39	(17) "Tertiary health service" means a health service
40	which, due to its high level of intensity, complexity,
41	specialized or limited applicability, and cost, should be
42	limited to, and concentrated in, a limited number of hospitals
43	to ensure the quality, availability, and cost-effectiveness of
44	such service. Examples of such service include, but are not
45	limited to, organ transplantation, adult and pediatric open
46	heart surgery,specialty burn units, neonatal intensive care
47	units, comprehensive rehabilitation, and medical or surgical
48	services which are experimental or developmental in nature to
49	the extent that the provision of such services is not yet
50	contemplated within the commonly accepted course of diagnosis or
51	treatment for the condition addressed by a given service. The
52	agency shall establish by rule a list of all tertiary health
53	services.
54	Section 2. Section 408.036, Florida Statutes, is amended
55	to read:
56	408.036 Projects subject to review; exemptions.--
57	(1) APPLICABILITY.--Unless exempt under subsection (3),
58	all health-care-related projects, as described in paragraphs
59	(a)-(h), are subject to review and must file an application for
60	a certificate of need with the agency. The agency is exclusively
61	responsible for determining whether a health-care-related
62	project is subject to review under ss. 408.031-408.045.
63	(a) The addition of beds by new construction or
64	alteration.
65	(b) The new construction or establishment of additional
66	health care facilities, including a replacement health care
67	facility when the proposed project site is not located on the
68	same site as the existing health care facility.
69	(c) The conversion from one type of health care facility
70	to another.
71	(d) An increase in the total licensed bed capacity of a
72	health care facility.
73	(e) The establishment of a hospice or hospice inpatient
74	facility, except as provided in s. 408.043.
75	(f) The establishment of inpatient health services by a
76	health care facility, or a substantial change in such services.
77	(g) An increase in the number of beds for acute care,
78	nursing home care beds, specialty burn units, neonatal intensive
79	care units, comprehensive rehabilitation, mental health
80	services, or hospital-based distinct part skilled nursing units,
81	or at a long-term care hospital.
82	(h) The establishment of tertiary health services.
83	(2) PROJECTS SUBJECT TO EXPEDITED REVIEW.--Unless exempt
84	pursuant to subsection (3), projects subject to an expedited
85	review shall include, but not be limited to:
86	(a) Research, education, and training programs.
87	(b) Shared services contracts or projects.
88	(b)(c) A transfer of a certificate of need, except when an
89	existing hospital is acquired by a purchaser, in which case all
90	pending certificates of need filed by the existing hospital and
91	all approved certificates of need owned by that hospital would
92	be acquired by the purchaser.
93	(c)(d)A 50-percent increase in nursing home beds for a
94	facility incorporated and operating in this state for at least
95	60 years on or before July 1, 1988, which has a licensed nursing
96	home facility located on a campus providing a variety of
97	residential settings and supportive services. The increased
98	nursing home beds shall be for the exclusive use of the campus
99	residents. Any application on behalf of an applicant meeting
100	this requirement shall be subject to the base fee of $5,000
101	provided in s. 408.038.
102	(d)(e)Replacement of a health care facility when the
103	proposed project site is located in the same district and within
104	a 1-mile radius of the replaced health care facility.
105	(e)(f)The conversion of mental health services beds
106	licensed under chapter 395 or hospital-based distinct part
107	skilled nursing unit beds to general acute care beds; the
108	conversion of mental health services beds between or among the
109	licensed bed categories defined as beds for mental health
110	services;or the conversion of general acute care beds to beds
111	for mental health services.
112	1. Conversion under this paragraph shall not establish a
113	new licensed bed category at the hospital but shall apply only
114	to categories of beds licensed at that hospital.
115	2. Beds converted under this paragraph must be licensed
116	and operational for at least 12 months before the hospital may
117	apply for additional conversion affecting beds of the same type.
118
119	The agency shall develop rules to implement the provisions for
120	expedited review, including time schedule, application content
121	which may be reduced from the full requirements of s.
122	408.037(1), and application processing.
123	(3) EXEMPTIONS.--Upon request, the following projects are
124	subject to exemption from the provisions of subsection (1):
125	(a) For replacement of a licensed health care facility on
126	the same site, provided that the number of beds in each licensed
127	bed category will not increase.
128	(b) For hospice services or for swing beds in a rural
129	hospital, as defined in s. 395.602, in a number that does not
130	exceed one-half of its licensed beds.
131	(c) For the conversion of licensed acute care hospital
132	beds to Medicare and Medicaid certified skilled nursing beds in
133	a rural hospital, as defined in s. 395.602, so long as the
134	conversion of the beds does not involve the construction of new
135	facilities. The total number of skilled nursing beds, including
136	swing beds, may not exceed one-half of the total number of
137	licensed beds in the rural hospital as of July 1, 1993.
138	Certified skilled nursing beds designated under this paragraph,
139	excluding swing beds, shall be included in the community nursing
140	home bed inventory. A rural hospital which subsequently
141	decertifies any acute care beds exempted under this paragraph
142	shall notify the agency of the decertification, and the agency
143	shall adjust the community nursing home bed inventory
144	accordingly.
145	(d) For the addition of nursing home beds at a skilled
146	nursing facility that is part of a retirement community that
147	provides a variety of residential settings and supportive
148	services and that has been incorporated and operated in this
149	state for at least 65 years on or before July 1, 1994. All
150	nursing home beds must not be available to the public but must
151	be for the exclusive use of the community residents.
152	(e) For an increase in the bed capacity of a nursing
153	facility licensed for at least 50 beds as of January 1, 1994,
154	under part II of chapter 400 which is not part of a continuing
155	care facility if, after the increase, the total licensed bed
156	capacity of that facility is not more than 60 beds and if the
157	facility has been continuously licensed since 1950 and has
158	received a superior rating on each of its two most recent
159	licensure surveys.
160	(f) For an inmate health care facility built by or for the
161	exclusive use of the Department of Corrections as provided in
162	chapter 945. This exemption expires when such facility is
163	converted to other uses.
164	(g) For the termination of an inpatient health care
165	service, upon 30 days' written notice to the agency.
166	(h) For the delicensure of beds, upon 30 days' written
167	notice to the agency. A request for exemption submitted under
168	this paragraph must identify the number, the category of beds,
169	and the name of the facility in which the beds to be delicensed
170	are located.
171	(i) For the provision of adult inpatient diagnostic
172	cardiac catheterization services in a hospital.
173	1. In addition to any other documentation otherwise
174	required by the agency, a request for an exemption submitted
175	under this paragraph must comply with the following criteria:
176	a. The applicant must certify it will not provide
177	therapeutic cardiac catheterization pursuant to the grant of the
178	exemption.
179	b. The applicant must certify it will meet and
180	continuously maintain the minimum licensure requirements adopted
181	by the agency governing such programs pursuant to subparagraph
182	2.
183	c. The applicant must certify it will provide a minimum of
184	2 percent of its services to charity and Medicaid patients.
185	2. The agency shall adopt licensure requirements by rule
186	which govern the operation of adult inpatient diagnostic cardiac
187	catheterization programs established pursuant to the exemption
188	provided in this paragraph. The rules shall ensure that such
189	programs:
190	a. Perform only adult inpatient diagnostic cardiac
191	catheterization services authorized by the exemption and will
192	not provide therapeutic cardiac catheterization or any other
193	services not authorized by the exemption.
194	b. Maintain sufficient appropriate equipment and health
195	personnel to ensure quality and safety.
196	c. Maintain appropriate times of operation and protocols
197	to ensure availability and appropriate referrals in the event of
198	emergencies.
199	d. Maintain appropriate program volumes to ensure quality
200	and safety.
201	e. Provide a minimum of 2 percent of its services to
202	charity and Medicaid patients each year.
203	3.a. The exemption provided by this paragraph shall not
204	apply unless the agency determines that the program is in
205	compliance with the requirements of subparagraph 1. and that the
206	program will, after beginning operation, continuously comply
207	with the rules adopted pursuant to subparagraph 2. The agency
208	shall monitor such programs to ensure compliance with the
209	requirements of subparagraph 2.
210	b.(I) The exemption for a program shall expire immediately
211	when the program fails to comply with the rules adopted pursuant
212	to sub-subparagraphs 2.a., b., and c.
213	(II) Beginning 18 months after a program first begins
214	treating patients, the exemption for a program shall expire when
215	the program fails to comply with the rules adopted pursuant to
216	sub-subparagraphs 2.d. and e.
217	(III) If the exemption for a program expires pursuant to
218	sub-sub-subparagraph (I) or sub-sub-subparagraph (II), the
219	agency shall not grant an exemption pursuant to this paragraph
220	for an adult inpatient diagnostic cardiac catheterization
221	program located at the same hospital until 2 years following the
222	date of the determination by the agency that the program failed
223	to comply with the rules adopted pursuant to subparagraph 2.
224	(j) For the provision of percutaneous coronary
225	intervention for patients presenting with emergency myocardial
226	infarctions in a hospital without an approved adult open heart
227	surgery program. In addition to any other documentation required
228	by the agency, a request for an exemption submitted under this
229	paragraph must comply with the following:
230	1. The applicant must certify that it will meet and
231	continuously maintain the requirements adopted by the agency for
232	the provision of these services. These licensure requirements
233	are to be adopted by rule pursuant to ss. 120.536(1) and 120.54
234	and are to be consistent with the guidelines published by the
235	American College of Cardiology and the American Heart
236	Association for the provision of percutaneous coronary
237	interventions in hospitals without adult open heart services. At
238	a minimum, the rules shall require the following:
239	a. Cardiologists must be experienced interventionalists
240	who have performed a minimum of 75 interventions within the
241	previous 12 months.
242	b. The hospital must provide a minimum of 36 emergency
243	interventions annually in order to continue to provide the
244	service.
245	c. The hospital must offer sufficient physician, nursing,
246	and laboratory staff to provide the services 24 hours a day, 7
247	days a week.
248	d. Nursing and technical staff must have demonstrated
249	experience in handling acutely ill patients requiring
250	intervention based on previous experience in dedicated
251	interventional laboratories or surgical centers.
252	e. Cardiac care nursing staff must be adept in hemodynamic
253	monitoring and Intra-aortic Balloon Pump (IABP) management.
254	f. Formalized written transfer agreements must be
255	developed with a hospital with an adult open heart surgery
256	program, and written transport protocols must be in place to
257	ensure safe and efficient transfer of a patient within 60
258	minutes. Transfer and transport agreements must be reviewed and
259	tested, with appropriate documentation maintained at least every
260	3 months.
261	g. Hospitals implementing the service must first undertake
262	a training program of 3 to 6 months which includes establishing
263	standards, testing logistics, creating quality assessment and
264	error management practices, and formalizing patient selection
265	criteria.
266	2. The applicant must certify that it will utilize at all
267	times the patient selection criteria for the performance of
268	primary angioplasty at hospitals without adult open heart
269	surgery programs issued by the American College of Cardiology
270	and the American Heart Association. At a minimum, these criteria
271	would provide for the following:
272	a. Avoidance of interventions in hemodynamically stable
273	patients presenting with identified symptoms or medical
274	histories.
275	b. Transfer of patients presenting with a history of
276	coronary disease and clinical presentation of hemodynamic
277	instability.
278	3. The applicant must agree to submit a quarterly report
279	to the agency detailing patient characteristics, treatment, and
280	outcomes for all patients receiving emergency percutaneous
281	coronary interventions pursuant to this paragraph. This report
282	must be submitted within 15 days after the close of each
283	calendar quarter.
284	4. The exemption provided by this paragraph shall not
285	apply unless the agency determines that the hospital has taken
286	all necessary steps to be in compliance with all requirements of
287	this paragraph, including the training program required pursuant
288	to sub-subparagraph 1.g.
289	5. Failure of the hospital to continuously comply with the
290	requirements of sub-subparagraphs 1.c.-f. and subparagraphs 2.
291	and 3. will result in the immediate expiration of this
292	exemption.
293	6. Failure of the hospital to meet the volume requirements
294	of sub-subparagraphs 1.a.-b. within 18 months after the program
295	begins offering the service will result in the immediate
296	expiration of the exemption.
297	7. If the exemption for this service expires pursuant to
298	subparagraph 5. or subparagraph 6., the agency shall not grant
299	another exemption for this service to the same hospital for a
300	period of 2 years and then only upon a showing that the hospital
301	will remain in compliance with the requirements of this
302	paragraph through a demonstration of corrections to the
303	deficiencies which caused expiration of the exemption.
304	Compliance with the requirements of this paragraph includes
305	compliance with the rules adopted pursuant to this paragraph.
306	(k)(j)For mobile surgical facilities and related health
307	care services provided under contract with the Department of
308	Corrections or a private correctional facility operating
309	pursuant to chapter 957.
310	(l)(k)For state veterans' nursing homes operated by or on
311	behalf of the Florida Department of Veterans' Affairs in
312	accordance with part II of chapter 296 for which at least 50
313	percent of the construction cost is federally funded and for
314	which the Federal Government pays a per diem rate not to exceed
315	one-half of the cost of the veterans' care in such state nursing
316	homes. These beds shall not be included in the nursing home bed
317	inventory.
318	(m)(l)For combination within one nursing home facility of
319	the beds or services authorized by two or more certificates of
320	need issued in the same planning subdistrict. An exemption
321	granted under this paragraph shall extend the validity period of
322	the certificates of need to be consolidated by the length of the
323	period beginning upon submission of the exemption request and
324	ending with issuance of the exemption. The longest validity
325	period among the certificates shall be applicable to each of the
326	combined certificates.
327	(n)(m)For division into two or more nursing home
328	facilities of beds or services authorized by one certificate of
329	need issued in the same planning subdistrict. An exemption
330	granted under this paragraph shall extend the validity period of
331	the certificate of need to be divided by the length of the
332	period beginning upon submission of the exemption request and
333	ending with issuance of the exemption.
334	(o)(n)For the addition of hospital beds licensed under
335	chapter 395 for acute care, mental health services,or a
336	hospital-based distinct part skilled nursing unit in a number
337	that may not exceed 10 total beds or 10 percent of the licensed
338	capacity of the bed category being expanded, whichever is
339	greater; for the addition of medical rehabilitation beds
340	licensed under chapter 395 in a number that may not exceed eight
341	total beds or 10 percent of capacity, whichever is greater; or
342	for the addition of mental health services beds licensed under
343	chapter 395 in a number that may not exceed 10 total beds or 10
344	percent of the licensed capacity of the bed category being
345	expanded, whichever is greater. Beds for specialty burn units
346	or, neonatal intensive care units, or comprehensive
347	rehabilitation, or at a long-term care hospital, may not be
348	increased under this paragraph.
349	1. In addition to any other documentation otherwise
350	required by the agency, a request for exemption submitted under
351	this paragraph must:
352	a. Certify that the prior 12-month average occupancy rate
353	for the category of licensed beds being expanded at the facility
354	meets or exceeds 7580percent or, for a hospital-based distinct
355	part skilled nursing unit, the prior 12-month average occupancy
356	rate meets or exceeds 96 percent.
357	b. Certify that any beds of the same type authorized for
358	the facility under this paragraph before the date of the current
359	request for an exemption have been licensed and operational for
360	at least 12 months.
361	2. The timeframes and monitoring process specified in s.
362	408.040(2)(a)-(c) apply to any exemption issued under this
363	paragraph.
364	3. The agency shall count beds authorized under this
365	paragraph as approved beds in the published inventory of
366	hospital beds until the beds are licensed.
367	(p)(o)For the addition of acute care beds, as authorized
368	by rule consistent with s. 395.003(4), in a number that may not
369	exceed 3010total beds or 10 percent of licensed bed capacity,
370	whichever is greater, for temporary beds in a hospital that has
371	experienced high seasonal occupancy within the prior 12-month
372	period or in a hospital that must respond to emergency
373	circumstances.
374	(q)(p)For the addition of nursing home beds licensed
375	under chapter 400 in a number not exceeding 10 total beds or 10
376	percent of the number of beds licensed in the facility being
377	expanded, whichever is greater.
378	1. In addition to any other documentation required by the
379	agency, a request for exemption submitted under this paragraph
380	must:
381	a. Effective until June 30, 2001, certify that the
382	facility has not had any class I or class II deficiencies within
383	the 30 months preceding the request for addition.
384	b. Effective on July 1, 2001, certify that the facility
385	has been designated as a Gold Seal nursing home under s.
386	400.235.
387	c. Certify that the prior 12-month average occupancy rate
388	for the nursing home beds at the facility meets or exceeds 96
389	percent.
390	d. Certify that any beds authorized for the facility under
391	this paragraph before the date of the current request for an
392	exemption have been licensed and operational for at least 12
393	months.
394	2. The timeframes and monitoring process specified in s.
395	408.040(2)(a)-(c) apply to any exemption issued under this
396	paragraph.
397	3. The agency shall count beds authorized under this
398	paragraph as approved beds in the published inventory of nursing
399	home beds until the beds are licensed.
400	(q) For establishment of a specialty hospital offering a
401	range of medical service restricted to a defined age or gender
402	group of the population or a restricted range of services
403	appropriate to the diagnosis, care, and treatment of patients
404	with specific categories of medical illnesses or disorders,
405	through the transfer of beds and services from an existing
406	hospital in the same county.
407	(r) For the conversion of hospital-based Medicare and
408	Medicaid certified skilled nursing beds to acute care beds, if
409	the conversion does not involve the construction of new
410	facilities.
411	(s) For the replacement of a statutory rural hospital when
412	the proposed project site is located in the same district and
413	within 10 miles of the existing facility and within the current
414	primary service area, defined as the least number of zip codes
415	comprising 75 percent of the hospital's inpatient admissions.
416	For fiscal year 2001-2002 only, for transfer by a health care
417	system of existing services and not more than 100 licensed and
418	approved beds from a hospital in district 1, subdistrict 1, to
419	another location within the same subdistrict in order to
420	establish a satellite facility that will improve access to
421	outpatient and inpatient care for residents of the district and
422	subdistrict and that will use new medical technologies,
423	including advanced diagnostics, computer assisted imaging, and
424	telemedicine to improve care. This paragraph is repealed on July
425	1, 2002.
426	(t) For the conversion of mental health services beds
427	between or among the licensed bed categories defined as beds for
428	mental health services.
429	(u) For the creation of at least a 10-bed Level II
430	neonatal intensive care unit upon demonstrating to the agency
431	that the applicant hospital had a minimum of 1,500 live births
432	during the previous 12 months.
433	(v) For the addition of Level II or Level III neonatal
434	intensive care beds in a number not to exceed six beds or 10
435	percent of licensed capacity in that category, whichever is
436	greater, provided that the hospital certifies that the prior 12-
437	month average occupancy rate for the category of licensed
438	neonatal intensive care beds meets or exceeds 75 percent.
439	(4) A request for exemption under subsection (3) may be
440	made at any time and is not subject to the batching requirements
441	of this section. The request shall be supported by such
442	documentation as the agency requires by rule. The agency shall
443	assess a fee of $250 for each request for exemption submitted
444	under subsection (3).
445	Section 3. Section 408.038, Florida Statutes, is amended
446	to read:
447	408.038 Fees.--
448	(1)The agency shall assess fees on certificate-of-need
449	applications. Such fees shall be for the purpose of funding the
450	functions of the local health councils andthe activities of the
451	agency. Except as otherwise provided in subsection (2), such
452	feesandshall be allocated as provided in s. 408.033. The fee
453	shall be determined as follows:
454	(a)(1) A minimum base fee of $10,000$5,000.
455	(b)(2) In addition to the base fee of $10,000$5,000,
456	0.015 of each dollar of proposed expenditure, except that a fee
457	may not exceed $50,000$22,000.
458	(2) The proceeds from half of each minimum base fee under
459	paragraph (1)(a) and the proceeds from each additional amount
460	assessed under paragraph (1)(b) which is in excess of $22,000
461	shall be used to fund activities of the certificate-of-need
462	program.
463	Section 4. Paragraph (e) of subsection (5) and paragraph
464	(c) of subsection (6) of section 408.039, Florida Statutes, are
465	amended to read:
466	408.039 Review process.--The review process for
467	certificates of need shall be as follows:
468	(5) ADMINISTRATIVE HEARINGS.--
469	(e) The agency shall issue its final order within 45 days
470	after receipt of the recommended order. If the agency fails to
471	take action within 45 days, the recommended order of the
472	Division of Administrative Hearings is deemed approvedsuch
473	time, or as otherwise agreed to by the applicant and the agency,
474	the applicant may take appropriate legal action to compel the
475	agency to act. When making a determination on an application for
476	a certificate of need, the agency is specifically exempt from
477	the time limitations provided in s. 120.60(1).
478	(6) JUDICIAL REVIEW.--
479	(c) The court, in its discretion, may award reasonable
480	attorney's fees and costs to the prevailing party if the court
481	finds that there was a complete absence of a justiciable issue
482	of law or fact raised by the losing party. If the losing party
483	is a hospital, the court shall order it to pay the reasonable
484	attorney's fees and costs, which shall include fees and costs
485	incurred as a result of the administrative hearing and the
486	judicial appeal, of the prevailing hospital party.
487	Section 5. Section 400.244, Florida Statutes, is created
488	to read:
489	400.244 Alternative use of nursing home beds.--
490	(1) It is the intent of the Legislature to allow nursing
491	home facilities to take licensed nursing home beds out of
492	operation for alternative use for extended periods of time
493	exceeding 48 hours.
494	(2) Nursing homes may use a contiguous portion of the
495	nursing home facility to meet the needs of the elderly through
496	the use of less restrictive and less institutional methods of
497	long-term care, including, but not limited to, adult day care,
498	assisted living, extended congregate care, or limited nursing
499	services as defined in s. 400.402.
500	(3) Funding under assisted living Medicaid waivers for
501	nursing home beds used to provide extended congregate care or
502	limited nursing services pursuant to this section may only be
503	provided for residents who have resided in the nursing home
504	facility for a minimum of 90 consecutive days.
505	(4) Any nursing home beds used to provide alternative
506	services may share common areas, services, and staff with beds
507	designated for nursing home care. For purposes of this section,
508	fire and life safety codes applicable to nursing home facilities
509	shall apply. Any alternative use must meet other requirements as
510	specified in law for that alternative.
511	(5) A nursing home facility shall submit a request to the
512	agency to take nursing home beds out of operation for
513	alternative use. The agency shall approve the request unless it
514	determines such action will adversely impact access to nursing
515	home care in the nursing home facility's geographical area. The
516	agency shall review the alternative use request at each annual
517	license renewal.
518	(6) The nursing home facility shall retain its license for
519	all nursing home beds taken out of service in accordance with
520	this section and shall be allowed to return those beds to
521	nursing home facility operation upon notice to the agency.
522	Section 6. This act shall take effect July 1, 2003.
523