The Florida Senate

¹651.118  Agency for Health Care Administration; certificates of need; sheltered beds; community beds.--

(1)  The provisions of this section shall control in the case of conflict with the provisions of the Health Facility and Services Development Act, ss. 408.031-408.045; the provisions of chapter 395; or the provisions of parts II and III of chapter 400.

(2)  The Agency for Health Care Administration shall issue a certificate of need to any holder of a provisional certificate of authority pursuant to s. 651.022 to construct nursing home beds for the exclusive use of the prospective residents of the proposed continuing care facility if the holder of the provisional certificate of authority meets the agency's applicable review criteria, utilizing the bed need provisions of subsection (4).

(3)  Nursing home beds located within a continuing care facility for which a certificate of need is issued pursuant to subsection (2) shall be known as sheltered nursing home beds.

(4)  The Agency for Health Care Administration shall approve one sheltered nursing home bed for every four proposed residential units, including those that are licensed under part III of chapter 400, in the continuing care facility unless the provider demonstrates the need for a lesser number of sheltered nursing home beds based on proposed utilization by prospective residents or demonstrates the need for additional sheltered nursing home beds based on actual utilization and demand by current residents.

(5)  Construction on any sheltered nursing home beds may not begin until the holder of the provisional certificate of authority has been issued a certificate of authority under s. 651.021 and a certificate of need from the Agency for Health Care Administration.

(6)  Unless the provider already has a component that is to be a part of the continuing care facility and that is licensed under chapter 395, or part II or part III of chapter 400 at the time of construction of the continuing care facility, the provider must construct the nonnursing home portion of the facility and the nursing home portion of the facility at the same time. If a provider constructs less than the number of residential units approved in the certificate of authority, the number of licensed sheltered nursing home beds shall be reduced by a proportionate share.

(7)  Notwithstanding the provisions of subsection (2), at the discretion of the continuing care provider, sheltered nursing home beds may be used for persons who are not residents of the facility and who are not parties to a continuing care contract for a period of up to 5 years after the date of issuance of the initial nursing home license. A provider whose 5-year period has expired or is expiring may request the Agency for Health Care Administration for an extension, not to exceed 30 percent of the total sheltered nursing home beds, if the utilization by residents of the facility in the sheltered beds will not generate sufficient income to cover facility expenses, as evidenced by one of the following:

(a)  The facility has a net loss for the most recent fiscal year as determined under generally accepted accounting principles, excluding the effects of extraordinary or unusual items, as demonstrated in the most recently audited financial statement; or

(b)  The facility would have had a pro forma loss for the most recent fiscal year, excluding the effects of extraordinary or unusual items, if revenues were reduced by the amount of revenues from persons in sheltered beds who were not residents, as reported on by a certified public accountant.

The agency shall be authorized to grant an extension to the provider based on the evidence required in this subsection. The agency may request a facility to use up to 25 percent of the patient days generated by new admissions of nonresidents during the extension period to serve Medicaid recipients for those beds authorized for extended use if there is a demonstrated need in the respective service area and if funds are available. A provider who obtains an extension is prohibited from applying for additional sheltered beds under the provision of subsection (2), unless additional residential units are built or the provider can demonstrate need by facility residents to the Agency for Health Care Administration. The 5-year limit does not apply to up to five sheltered beds designated for inpatient hospice care as part of a contractual arrangement with a hospice licensed under part VI of chapter 400. A facility that uses such beds after the 5-year period shall report such use to the Agency for Health Care Administration. For purposes of this subsection, "resident" means a person who, upon admission to the facility, initially resides in a part of the facility not licensed under part II of chapter 400.

(8)  A provider may petition the Agency for Health Care Administration to use a designated number of sheltered nursing home beds to provide extended congregate care as defined in s. 400.402 if the beds are in a distinct area of the nursing home which can be adapted to meet the requirements for extended congregate care. The provider may subsequently use such beds as sheltered beds after notifying the agency of the intended change. Any sheltered beds used to provide extended congregate care pursuant to this subsection may not qualify for funding under the Medicaid waiver. Any sheltered beds used to provide extended congregate care pursuant to this subsection may share common areas, services, and staff with beds designated for nursing home care, provided that all of the beds are under common ownership. For the purposes of this subsection, fire and life safety codes applicable to nursing home facilities shall apply.

(9)  This section does not preclude a continuing care provider from applying to the Agency for Health Care Administration for a certificate of need for community nursing home beds or a combination of community and sheltered nursing home beds. Any nursing home bed located in a continuing care facility that is or has been issued for nonrestrictive use shall retain its legal status as a community nursing home bed unless the provider requests a change in status. Any nursing home bed located in a continuing care facility and not issued as a sheltered nursing home bed prior to 1979 must be classified as a community bed. The Agency for Health Care Administration may require continuing care facilities to submit bed utilization reports for the purpose of determining community and sheltered nursing home bed inventories based on historical utilization by residents and nonresidents.

(10)  Whenever the department has been appointed receiver of a provider pursuant to the provisions of part I of chapter 631, the receiver may petition, upon approval of the court having jurisdiction as being in the best interest of the residents, the Agency for Health Care Administration for the conversion of sheltered nursing home beds of the facility to community nursing home beds. The agency shall, upon petition of the receiver and through an expedited review, issue a certificate of need converting the sheltered nursing home beds to community nursing home beds. The court having jurisdiction of the delinquency proceeding shall enforce the provisions of this section.

(11)  For a provider issued a provisional certificate of authority after July 1, 1986, to operate a facility not previously regulated under this chapter, the following criteria shall be met in order to obtain a certificate of need for sheltered beds pursuant to subsections (2), (3), (4), (5), (6), and (7):

(a)  Seventy percent or more of the current residents hold continuing care agreements pursuant to s. 651.011(2) or, if the facility is not occupied, 70 percent or more of the prospective residents will hold continuing care agreements pursuant to s. 651.011(2) as projected in the feasibility study and demonstrated by the provider's marketing practices; and

(b)  The continuing care agreements entered into or to be entered into by 70 percent or more of the current residents or prospective residents pursuant to s. 651.011(2) shall provide nursing home care for a minimum of 360 cumulative days, and the holders of the continuing care agreements shall be charged at rates which are 80 percent or less than the rates charged by the provider to persons receiving nursing home care who have not entered into continuing care agreements pursuant to s. 651.011(2).

(12)  A facility that is under administrative supervision for financial problems pursuant to s. 651.018 may petition the Agency for Health Care Administration for the conversion of sheltered beds to community nursing home beds in accordance with the corrective action plan approved by the office. The agency shall, upon petition by the facility and through an expedited review, issue a certificate of need converting the sheltered nursing home beds to community nursing home beds.

(13)  Residents, as defined in this chapter, are not considered new admissions for the purpose of s. 400.141(15)(d).

History.--ss. 11, 12, ch. 86-209; s. 48, ch. 87-92; s. 12, ch. 93-22; s. 1, ch. 94-206; s. 4, ch. 96-363; s. 13, ch. 97-82; s. 24, ch. 97-229; s. 15, ch. 2000-256; s. 16, ch. 2000-318; s. 4, ch. 2002-222; s. 1692, ch. 2003-261.

¹Note.--Section 52, ch. 2001-45, as amended by s. 1693, ch. 2003-261, provides that "[n]otwithstanding the establishment of need as provided for in chapter 408, Florida Statutes, no certificate of need for additional community nursing home beds shall be approved by the agency until July 1, 2006. The Legislature finds that the continued growth in the Medicaid budget for nursing home care has constrained the ability of the state to meet the needs of its elderly residents through the use of less restrictive and less institutional methods of long-term care. It is therefore the intent of the Legislature to limit the increase in Medicaid nursing home expenditures in order to provide funds to invest in long-term care that is community-based and provides supportive services in a manner that is both more cost-effective and more in keeping with the wishes of the elderly residents of this state. This moratorium on certificates of need shall not apply to sheltered nursing home beds in a continuing care retirement community certified by the former Department of Insurance or by the Office of Insurance Regulation pursuant to chapter 651, Florida Statutes."