The Florida Senate

408.036  Projects subject to review.--

(1)  APPLICABILITY.--Unless exempt under subsection (3), all health-care-related projects, as described in paragraphs (a)-(k), 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 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 the existing health care facility.

(c)  The conversion from one type of health care facility to another, including the conversion from one level of care to another, in a skilled or intermediate nursing facility, if the conversion effects a change in the level of care of 10 beds or 10 percent of total bed capacity of the skilled or intermediate nursing facility within a 2-year period. If the nursing facility is certified for both skilled and intermediate nursing care, the provisions of this paragraph do not apply.

(d)  Any increase in licensed bed capacity.

¹(e)  Subject to the provisions of paragraph (3)(i), the establishment of a Medicare-certified home health agency, the establishment of a hospice, or the direct provision of such services by a health care facility or health maintenance organization for those other than the subscribers of the health maintenance organization; except that this paragraph does not apply to the establishment of a Medicare-certified home health agency by a facility described in paragraph (3)(h).

(f)  An acquisition by or on behalf of a health care facility or health maintenance organization, by any means, which acquisition would have required review if the acquisition had been by purchase.

(g)  The establishment of inpatient institutional health services by a health care facility, or a substantial change in such services.

(h)  The acquisition by any means of an existing health care facility by any person, unless the person provides the agency with at least 30 days' written notice of the proposed acquisition, which notice is to include the services to be offered and the bed capacity of the facility, and unless the agency does not determine, within 30 days after receipt of such notice, that the services to be provided and the bed capacity of the facility will be changed.

(i)  An increase in the cost of a project for which a certificate of need has been issued when the increase in cost exceeds 20 percent of the originally approved cost of the project, except that a cost overrun review is not necessary when the cost overrun is less than $20,000.

(j)  An increase in the number of psychiatric or rehabilitation beds.

(k)  The establishment of tertiary health services.

(2)  PROJECTS SUBJECT TO EXPEDITED REVIEW.--Unless exempt pursuant to subsection (3), projects subject to an expedited review shall include, but not be limited to:

(a)  Cost overruns, as defined in paragraph (1)(i).

(b)  Research, education, and training programs.

(c)  Shared services contracts or projects.

(d)  A transfer of a certificate of need.

(e)  A 50-percent increase in nursing home beds for a facility incorporated and operating in this state for at least 60 years on or before July 1, 1988, which has a licensed nursing home facility located on a campus providing a variety of residential settings and supportive services. The increased nursing home beds shall be for the exclusive use of the campus residents. Any application on behalf of an applicant meeting this requirement shall be subject to the base fee of $5,000 provided in s. 408.038.

(f)  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.

(g)  Division into two or more nursing home facilities of beds or services authorized by one certificate of need issued in the same planning subdistrict. Such division shall not be approved if it would adversely affect the original certificate's approved cost.

(h)  Replacement of a health care facility when the proposed project site is located in the same district and within a 1-mile radius of the replaced health care facility.

The agency shall develop rules to implement the provisions for expedited review, including time schedule, application content, and application processing.

(3)  EXEMPTIONS.--Upon request, supported by such documentation as the agency requires, the agency shall grant an exemption from the provisions of subsection (1):

(a)  For the initiation or expansion of obstetric services.

(b)  For any expenditure to replace or renovate any part of a licensed health care facility, provided that the number of licensed beds will not increase and, in the case of a replacement facility, the project site is the same as the facility being replaced.

(c)  For providing respite care services. An individual may be admitted to a respite care program in a hospital without regard to inpatient requirements relating to admitting order and attendance of a member of a medical staff.

¹(d)  For hospice services or home health services provided by a rural hospital, as defined in s. 395.602, or for swing beds in such rural hospital in a number that does not exceed one-half of its licensed beds.

(e)  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 which 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.

(f)  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.

(g)  For an increase in the bed capacity of a nursing facility licensed for at least 50 beds as of January 1, 1994, under part II of chapter 400 which is not part of a continuing care facility if, after the increase, the total licensed bed capacity of that facility is not more than 60 beds and if the facility has been continuously licensed since 1950 and has received a superior rating on each of its two most recent licensure surveys.

(h)  For the establishment of a Medicare-certified home health agency by a facility certified under chapter 651; a retirement community, as defined in s. 400.404(2)(g); or a residential facility that serves only retired military personnel, their dependents, and the surviving dependents of deceased military personnel. Medicare-reimbursed home health services provided through such agency shall be offered exclusively to residents of the facility or retirement community or to residents of facilities or retirement communities owned, operated, or managed by the same corporate entity. Each visit made to deliver Medicare-reimbursable home health services to a home health patient who, at the time of service, is not a resident of the facility or retirement community shall be a deceptive and unfair trade practice and constitutes a violation of ss. 501.201-501.213.

(i)  For the establishment of a Medicare-certified home health agency. This paragraph shall take effect 90 days after the adjournment sine die of the next regular session of the Legislature occurring after the legislative session in which the Legislature receives a report from the Director of Health Care Administration certifying that the federal Health Care Financing Administration has implemented a per-episode prospective pay system for Medicare-certified home health agencies.

(j)  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.

(k)  For an expenditure by or on behalf of a health care facility to provide a health service exclusively on an outpatient basis.

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

(m)  For the delicensure of beds. An application submitted under this paragraph must identify the number, the classification, and the name of the facility in which the beds to be delicensed are located.

(n)  For the provision of adult inpatient diagnostic cardiac catheterization services in a hospital.

1.  In addition to any other documentation otherwise required by the agency, a request for an exemption submitted under this paragraph must comply with the following criteria:

a.  The applicant must certify it will not provide therapeutic cardiac catheterization pursuant to the grant of the exemption.

b.  The applicant must certify it will meet and continuously maintain the minimum licensure requirements adopted by the agency governing such programs pursuant to subparagraph 2.

c.  The applicant must certify it will provide a minimum of 2 percent of its services to charity and Medicaid patients.

2.  The agency shall adopt licensure requirements by rule which govern the operation of adult inpatient diagnostic cardiac catheterization programs established pursuant to the exemption provided in this paragraph. The rules shall ensure that such programs:

²a.  Perform only adult inpatient diagnostic cardiac catheterization services authorized by the exemption and will not provide therapeutic cardiac catheterization or any other services not authorized by the exemption.

²b.  Maintain sufficient appropriate equipment and health personnel to ensure quality and safety.

²c.  Maintain appropriate times of operation and protocols to ensure availability and appropriate referrals in the event of emergencies.

²d.  Maintain appropriate program volumes to ensure quality and safety.

e.  Provide a minimum of 2 percent of its services to charity and Medicaid patients each year.

3.a.  The exemption provided by this paragraph shall not apply unless the agency determines that the program is in compliance with the requirements of subparagraph 1. and that the program will, after beginning operation, continuously comply with the rules adopted pursuant to subparagraph 2. The agency shall monitor such programs to ensure compliance with the requirements of subparagraph 2.

b.(I)  The exemption for a program shall expire immediately when the program fails to comply with the rules adopted pursuant to sub-subparagraphs 2.a., b., and c.

(II)  Beginning 18 months after a program first begins treating patients, the exemption for a program shall expire when the program fails to comply with the rules adopted pursuant to sub-subparagraphs 2.d. and e.

(III)  If the exemption for a program expires pursuant to sub-sub-subparagraph (I) or sub-sub-subparagraph (II), the agency shall not grant an exemption pursuant to this paragraph for an adult inpatient diagnostic cardiac catheterization program located at the same hospital until 2 years following the date of the determination by the agency that the program failed to comply with the rules adopted pursuant to subparagraph 2.

4.  The agency shall not grant any exemption under this paragraph until the adoption of the rules required under this paragraph, or until March 1, 1998, whichever comes first. However, if final rules have not been adopted by March 1, 1998, the proposed rules governing the exemptions shall be used by the agency to grant exemptions under the provisions of this paragraph until final rules become effective.

³(o)  For any expenditure to provide mobile surgical facilities and related health care services under contract with the Department of Corrections or a private correctional facility operating pursuant to chapter 957.

(p)  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.

A request for exemption under this subsection may be made at any time and is not subject to the batching requirements of this section.

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.

¹Note.--Section 143, ch. 95-418, as amended by s. 4, ch. 97-290, provides that "[e]ffective upon this act becoming a law and notwithstanding any provision of law to the contrary, . . . paragraph (f) of subsection (1) and paragraph (h) of subsection (3) [redesignated as paragraph (1)(e) and paragraph (3)(d), respectively, by s. 3, ch. 97-270] of section 408.036, Florida Statutes, as amended by section 19 of chapter 93-214, Laws of Florida, shall not take effect on July 1, 1997, but shall take effect 90 days after the adjournment sine die of the next regular session of the Legislature occurring after the legislative session in which the Legislature receives a report from the Director of Health Care Administration certifying that the federal Health Care Financing Administration has implemented a per-episode prospective pay system for Medicare-certified home health agencies . . . ."

²Note.--Section 5, ch. 99-356, provides that "[e]ach provider of diagnostic cardiac catheterization services shall comply with the requirements of section 408.036(3)(n)2.a.-d., Florida Statutes, and rules of the Agency for Health Care Administration governing the operation of adult inpatient diagnostic cardiac catheterization programs, including the most recent guidelines of the American College of Cardiology and American Heart Association Guidelines for Cardiac Catheterization and Cardiac Catheterization Laboratories."

³Note.--Section 10, ch. 98-303, provides that "[m]obile surgical facilities in operation pursuant to a contract with the Department of Corrections entered into prior to [May 29, 1998] shall continue to operate pursuant to such contract and shall only be subject to the provisions of this act subsequent to the effective date of any rules promulgated by the Agency for Health Care Administration relating to mobile surgical facilities."

Note.--Former s. 381.706.