Florida Senate - 2014                       CS for CS for SB 268
       By the Committees on Children, Families, and Elder Affairs; and
       Health Policy; and Senators Grimsley and Diaz de la Portilla
       586-02761-14                                           2014268c2
    1                        A bill to be entitled                      
    2         An act relating to certificates of need; amending s.
    3         408.034, F.S.; decreasing the subdistrict average
    4         occupancy rate that the Agency for Health Care
    5         Administration is required to maintain as a goal of
    6         its nursing-home-bed-need methodology; conforming a
    7         provision to changes made by the act; authorizing an
    8         applicant to aggregate the need of geographically
    9         contiguous subdistricts within a district for a
   10         proposed community nursing home under certain
   11         circumstances; requiring the proposed nursing home
   12         site to be located in the subdistrict with the greater
   13         need under certain circumstances; recognizing an
   14         additional positive application factor for an
   15         applicant who voluntarily relinquishes certain nursing
   16         home beds; requiring the applicant to demonstrate that
   17         it meets certain requirements; amending s. 408.036,
   18         F.S.; providing that, under certain circumstances,
   19         replacement of a nursing home and relocation of a
   20         portion of a nursing home’s licensed beds to another
   21         facility, or to establish a new facility, is a health
   22         care-related project subject to expedited review;
   23         conforming a cross-reference; revising the
   24         requirements for projects that are exempted from
   25         applying for a certificate of need; repealing s.
   26         408.0435, F.S., relating to the moratorium on the
   27         approval of certificates of need for additional
   28         community nursing home beds; creating s. 408.0436,
   29         F.S.; prohibiting the agency from approving a
   30         certificate-of-need application for new community
   31         nursing home beds under certain circumstances;
   32         defining the term “batching cycle”; providing a
   33         repeal; providing an effective date.
   35  Be It Enacted by the Legislature of the State of Florida:
   37         Section 1. Subsection (5) of section 408.034, Florida
   38  Statutes, is amended, present subsection (6) of that section is
   39  redesignated as subsection (8), and a new subsection (6) and
   40  subsection (7) are added to that section, to read:
   41         408.034 Duties and responsibilities of agency; rules.—
   42         (5) The agency shall establish by rule a nursing-home-bed
   43  need methodology that has a goal of maintaining a subdistrict
   44  average occupancy rate of 92 94 percent and that reduces the
   45  community nursing home bed need for the areas of the state where
   46  the agency establishes pilot community diversion programs
   47  through the Title XIX aging waiver program.
   48         (6) If nursing home bed need is determined to exist in
   49  geographically contiguous subdistricts within a district, an
   50  applicant may aggregate the subdistricts’ need for a new
   51  community nursing home in one of the subdistricts. If need is
   52  aggregated from two subdistricts, the proposed nursing home site
   53  must be located in the subdistrict with the greater need as
   54  published by the agency in the Florida Administrative Register.
   55  However, if need is aggregated from more than two subdistricts,
   56  the location of the proposed nursing home site must provide
   57  reasonable geographic access for residents in the respective
   58  subdistricts given the relative bed need in each.
   59         (7) If nursing home bed need is determined to exist in a
   60  subdistrict, an additional positive application factor may be
   61  recognized in the application review process for an applicant
   62  who agrees to voluntarily relinquish licensed nursing home beds
   63  in one or more subdistricts where there is no calculated need.
   64  The applicant must demonstrate that it operates, controls, or
   65  has an agreement with another licensed community nursing home to
   66  ensure that beds are voluntarily relinquished if the application
   67  is approved and the applicant is licensed.
   68         Section 2. Subsection (2) and paragraphs (f), (k), (p), and
   69  (q) of subsection (3) of section 408.036, Florida Statutes, are
   70  amended to read:
   71         408.036 Projects subject to review; exemptions.—
   72         (2) PROJECTS SUBJECT TO EXPEDITED REVIEW.—Unless exempt
   73  pursuant to subsection (3), the following projects are subject
   74  to an expedited review shall include, but not be limited to:
   75         (a) A Transfer of a certificate of need, except that when
   76  an existing hospital is acquired by a purchaser, all
   77  certificates of need issued to the hospital which are not yet
   78  operational shall be acquired by the purchaser, without need for
   79  a transfer.
   80         (b) Replacement of a nursing home within the same district,
   81  if the proposed project site is located within a geographic area
   82  that contains at least 65 percent of the facility’s current
   83  residents and is within a 30-mile radius of the replaced nursing
   84  home. If the proposed project site is outside the subdistrict
   85  where the replaced nursing home is located, the prior 6-month
   86  occupancy rate for licensed community nursing homes in the
   87  proposed subdistrict must be at least 85 percent in accordance
   88  with the agency’s most recently published inventory.
   89         (c) Replacement of a nursing home within the same district,
   90  if the proposed project site is outside a 30-mile radius of the
   91  replaced nursing home but within the same subdistrict or a
   92  geographically contiguous subdistrict. If the proposed project
   93  site is in the geographically contiguous subdistrict, the prior
   94  6-month occupancy rate for licensed community nursing homes for
   95  that subdistrict must be at least 85 percent in accordance with
   96  the agency’s most recently published inventory.
   97         (d)(c) Relocation of a portion of a nursing home’s licensed
   98  beds to another a facility or to establish a new facility within
   99  the same district or within a geographically contiguous
  100  district, if the relocation is within a 30-mile radius of the
  101  existing facility and the total number of nursing home beds in
  102  the state district does not increase.
  103         (e)(d)The New construction of a community nursing home in
  104  a retirement community as further provided in this paragraph.
  105         1. Expedited review under this paragraph is available if
  106  all of the following criteria are met:
  107         a. The residential use area of the retirement community is
  108  deed-restricted as housing for older persons as defined in s.
  109  760.29(4)(b).
  110         b. The retirement community is located in a county in which
  111  25 percent or more of its population is age 65 and older.
  112         c. The retirement community is located in a county that has
  113  a rate of no more than 16.1 beds per 1,000 persons age 65 years
  114  or older. The rate shall be determined by using the current
  115  number of licensed and approved community nursing home beds in
  116  the county per the agency’s most recent published inventory.
  117         d. The retirement community has a population of at least
  118  8,000 residents within the county, based on a population data
  119  source accepted by the agency.
  120         e. The number of proposed community nursing home beds in an
  121  application does not exceed the projected bed need after
  122  applying the rate of 16.1 beds per 1,000 persons aged 65 years
  123  and older projected for the county 3 years into the future using
  124  the estimates adopted by the agency reduced by, after
  125  subtracting the agency’s most recently published inventory of
  126  licensed and approved community nursing home beds in the county
  127  per the agency’s most recent published inventory.
  128         2. No more than 120 community nursing home beds shall be
  129  approved for a qualified retirement community under each request
  130  for application for expedited review. Subsequent requests for
  131  expedited review under this process may shall not be made until
  132  2 years after construction of the facility has commenced or 1
  133  year after the beds approved through the initial request are
  134  licensed, whichever occurs first.
  135         3. The total number of community nursing home beds which
  136  may be approved for any single deed-restricted community
  137  pursuant to this paragraph may shall not exceed 240, regardless
  138  of whether the retirement community is located in more than one
  139  qualifying county.
  140         4. Each nursing home facility approved under this paragraph
  141  must shall be dually certified for participation in the Medicare
  142  and Medicaid programs.
  143         5. Each nursing home facility approved under this paragraph
  144  must shall be at least 1 mile, as measured over publicly owned
  145  roadways, from an existing approved and licensed community
  146  nursing home, measured over publicly owned roadways.
  147         6. Section 408.0435 does not apply to this paragraph.
  148         6.7. A retirement community requesting expedited review
  149  under this paragraph shall submit a written request to the
  150  agency for an expedited review. The request must shall include
  151  the number of beds to be added and provide evidence of
  152  compliance with the criteria specified in subparagraph 1.
  153         7.8. After verifying that the retirement community meets
  154  the criteria for expedited review specified in subparagraph 1.,
  155  the agency shall publicly notice in the Florida Administrative
  156  Register that a request for an expedited review has been
  157  submitted by a qualifying retirement community and that the
  158  qualifying retirement community intends to make land available
  159  for the construction and operation of a community nursing home.
  160  The agency’s notice must shall identify where potential
  161  applicants can obtain information describing the sales price of,
  162  or terms of the land lease for, the property on which the
  163  project will be located and the requirements established by the
  164  retirement community. The agency notice must shall also specify
  165  the deadline for submission of the any certificate-of-need
  166  application, which may shall not be earlier than the 91st day or
  167  and not be later than the 125th day after the date the notice
  168  appears in the Florida Administrative Register.
  169         8.9. The qualified retirement community shall make land
  170  available to applicants it deems to have met its requirements
  171  for the construction and operation of a community nursing home
  172  but may will sell or lease the land only to the applicant that
  173  is issued a certificate of need by the agency under the
  174  provisions of this paragraph.
  175         a. A certificate-of-need certificate of need application
  176  submitted under pursuant to this paragraph must shall identify
  177  the intended site for the project within the retirement
  178  community and the anticipated costs for the project based on
  179  that site. The application must shall also include written
  180  evidence that the retirement community has determined that both
  181  the provider submitting the application and the project satisfy
  182  proposed by that provider satisfies its requirements for the
  183  project.
  184         b. If the retirement community determines community’s
  185  determination that more than one provider satisfies its
  186  requirements for the project, it may notify does not preclude
  187  the retirement community from notifying the agency of the
  188  provider it prefers.
  189         9.10.The agency shall review each submitted application
  190  submitted shall be reviewed by the agency. If multiple
  191  applications are submitted for a the project as published
  192  pursuant to subparagraph 7. 8., then the agency shall review the
  193  competing applications shall be reviewed by the agency.
  195  The agency shall develop rules to implement the provisions for
  196  expedited review process, including time schedule, application
  197  content that which may be reduced from the full requirements of
  198  s. 408.037(1), and application processing.
  199         (3) EXEMPTIONS.—Upon request, the following projects are
  200  subject to exemption from the provisions of subsection (1):
  201         (f) For the addition of nursing home beds licensed under
  202  chapter 400 in a number not exceeding 30 total beds or 25
  203  percent of the number of beds licensed in the facility being
  204  replaced under paragraph (2)(b), paragraph (2)(c), or paragraph
  205  (p), whichever is less For the creation of a single nursing home
  206  within a district by combining licensed beds from two or more
  207  licensed nursing homes within such district, regardless of
  208  subdistrict boundaries, if 50 percent of the beds in the created
  209  nursing home are transferred from the only nursing home in a
  210  county and its utilization data demonstrate that it had an
  211  occupancy rate of less than 75 percent for the 12-month period
  212  ending 90 days before the request for the exemption. This
  213  paragraph is repealed upon the expiration of the moratorium
  214  established in s. 408.0435(1).
  215         (k) For the addition of nursing home beds licensed under
  216  chapter 400 in a number not exceeding 10 total beds or 10
  217  percent of the number of beds licensed in the facility being
  218  expanded, whichever is greater; or, for the addition of nursing
  219  home beds licensed under chapter 400 at a facility that has been
  220  designated as a Gold Seal nursing home under s. 400.235 in a
  221  number not exceeding 20 total beds or 10 percent of the number
  222  of licensed beds in the facility being expanded, whichever is
  223  greater.
  224         1. In addition to any other documentation required by the
  225  agency, a request for exemption submitted under this paragraph
  226  must certify that:
  227         a. Certify that The facility has not had any class I or
  228  class II deficiencies within the 30 months preceding the request
  229  for addition.
  230         b. Certify that The prior 12-month average occupancy rate
  231  for the nursing home beds at the facility meets or exceeds 94 96
  232  percent.
  233         c. Certify that Any beds authorized for the facility under
  234  this paragraph before the date of the current request for an
  235  exemption have been licensed and operational for at least 12
  236  months.
  237         2. The timeframes and monitoring process specified in s.
  238  408.040(2)(a)-(c) apply to any exemption issued under this
  239  paragraph.
  240         3. The agency shall count beds authorized under this
  241  paragraph as approved beds in the published inventory of nursing
  242  home beds until the beds are licensed.
  243         (p) For replacement of a licensed nursing home on the same
  244  site, or within 5 3 miles of the same site if within the same
  245  subdistrict, if the number of licensed beds does not increase
  246  except as allowed by paragraph (f).
  247         (q) For consolidation or combination of licensed nursing
  248  homes or transfer of beds between licensed nursing homes within
  249  the same planning district subdistrict, by providers that
  250  operate multiple nursing homes with any shared controlled
  251  interest within that planning district subdistrict, if there is
  252  no increase in the planning district subdistrict total number of
  253  nursing home beds and the site of the relocation is not more
  254  than 30 miles from the original location.
  255         Section 3. Section 408.0435, Florida Statutes, is repealed.
  256         Section 4. Section 408.0436, Florida Statutes, is created
  257  to read:
  258         408.0436 Limitation on nursing home certificates of need.
  259  Notwithstanding the establishment of need as provided in this
  260  chapter, the agency may not approve a certificate-of-need
  261  application for new community nursing home beds following the
  262  batching cycle in which the cumulative number of new community
  263  nursing home beds approved from July 1, 2014 to June 30, 2017,
  264  equals or exceeds 3,750. As used in this section, the term
  265  “batching cycle” means the grouping for comparative review of
  266  certificate-of-need applications submitted for beds, services,
  267  or programs having a like certificate-of-need methodology or
  268  licensing category in the same planning horizon and the same
  269  applicable district or subdistrict. This section is repealed
  270  July 1, 2017.
  271         Section 5. This act shall take effect July 1, 2014.