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Effective: 8-18-05
59C-1.005 Certificate of Need Exemption Procedure
(1) Request for Exemption. Certain projects are subject to exemption from batched or expedited Certificate of Need review pursuant to subsections 408.036(3) and 408.036(4), F.S., provided the conditions specified in this rule are met. To receive an exemption, the applicant shall file a Certificate of Need exemption request with the agency and provide documentation to justify the request. A request for exemption may be submitted at any time, and must be submitted to:
Agency for Health Care Administration
Certificate of Need
2727 Mahan Drive, Building 1
Tallahassee, Florida 32308
(2) General Requirements. In the case of any applicant filing a Certificate of Need exemption request, the request shall include:
(a) The type of exemption requested, with reference to the authorizing paragraph in s. 408.036(3), F.S. Except as provided in paragraphs (6)(a) or (b) of this rule, an exemption request must be limited to a single type of exemption.
(b) The name of the health care facility involved, and the name of the licensee. A request for exemption affecting an existing licensed health care facility must be submitted by the current licensee.
(c) The location and service area of the project.
(d) The costs of the project.
(e) The gross square footage of the project, if applicable.
(f) The proposed licensed bed capacity of the health care facility, if applicable.
(g) A non-refundable fee of two hundred and fifty dollars ($250) payable to the Agency for Health Care Administration in accordance with s. 408.036(4), F.S. Exemption requests shall not be accepted by the agency at the time of receipt unless accompanied by the $250 fee. Checks that are returned by the bank for insufficient funds will be processed consistent with the procedures for expedited review applications specified in s. 59C-1.008(3)(c)1., F.A.C.
(h) The applicable project specific information required by subsection (6) of this rule.
(3) Agency Approval Required. No project shall be implemented until the agency's approval has been rendered.
(4) Agency Action. The agency shall determine if a proposed project is exempted from certificate of need review within 30 days of receipt of all documentation required by this rule. The agency shall forward its written decision to the applicant, and shall provide the applicant with specific reasons in the event that the request is denied. The agency shall publish its notice of exemptions in the F.A.W. within 30 days of the decision date.
(5) Limitation on Validity. An exemption, when granted, is valid only for the project for which it was issued and for the health care facility on whose behalf the exemption was granted and, for projects subject to the monitoring requirements of section 408.040, F.S., only for the time frame stated in the Agency’s decision letter approving the exemption project.
(6) Project Specific Exemption Requests. In addition to meeting the requirements of subsections (1) and (2) of this rule, requests for exemption of certain projects must meet the additional requirements specified below:
(a) Combination within one nursing home facility of the beds authorized by two or more certificates of need issued in the same planning subdistrict. A request for exemption of a proposed combination of authorized nursing home beds shall specify:
1. The number of beds authorized by each certificate of need that is being combined.
2. The current holder of each certificate of need that is being combined.
3. The financial impact of combining the certificates of need.
4. The intended licensee for the beds included in the combined certificates of need.
5. An exemption granted under this paragraph extends the validity period of the certificates to be combined by the length of the period starting with submission of the exemption request and ending with issuance of the exemption.
6. The longest validity period among the certificates that are combined will be the validity period for the combined certificates.
7. An exemption granted under this paragraph does not authorize transfer of the combined certificates of need to another entity. Such transfer requires a certificate of need consistent with the provisions of ss. 408.036(2)(c) and 408.042, F.S., and Rule 59C-1.0085, F.A.C.
(b) Division into two or more nursing home facilities of the beds authorized by one certificate of need issued in the same planning subdistrict. A request for exemption of a proposed division of authorized nursing home beds shall specify:
1. The number of beds to be included in each component of of the divided certificate of need.
2. The financial impact of dividing the certificate of need.
3. The intended licensee for the beds included in each component of a divided certificate of need, if known.
4. An exemption granted under this paragraph extends the validity period of the certificate to be divided by the length of the period starting with submission of the exemption request and ending with issuance of the exemption. The extension is applicable to each component of the divided certificate of need.
5. An exemption granted under this paragraph does not authorize transfer of the component or components of a divided certificate of need to another entity. Such transfer requires a certificate of need consistent with the provisions of ss. 408.036(2)(c) and 408.042, F.S., and Rule 59C-1.0085, F.A.C.
(c) Addition of comprehensive medical rehabilitation beds, licensed under chapter 395 and located within a unit of an acute care hospital or within a freestanding rehabilitation hospital in a number not exceeding 10 beds or 10 percent of the licensed capacity whichever is greater. A request for exemption of a proposed addition of comprehensive medical rehabilitation hospital beds shall specify:
1. The current number of licensed comprehensive medical rehabilitation beds.
2. The exact number of beds proposed to be added.
3. Any inpatient beds of another type proposed to be delicensed or terminated in conjunction with the proposed increase.
4. The request shall certify that:
a. The average occupancy rate for the 12-month period ending 1 month prior to the exemption request, meets or exceeds 80 percent. For the purpose of calculating average occupancy under this sub-subparagraph, the 12-month total of patient days shall be divided by 365 to determine an average daily census, and the average daily census shall then be divided by the total of licensed and approved beds located at the premises of the facility within the category of beds being expanded as of the end of the 12-month period. Approved beds are beds authorized for the facility consistent with the provisions of Rule 59C-1.008(2)(b).
b. Any beds of the same type previously authorized for the facility by an exemption under this paragraph have been licensed and operational for at least 12 months.
5. An exemption granted under this paragraph is subject to the project monitoring requirements of s. 408.040(2)(a)-(c), F.S., and Rule 59C-1.013(2) and (3), F.A.C., including project progress reports, an 18-month validity period for the exemption, and the circumstances for extension of the validity period.
6. Beds authorized under this paragraph shall be inventoried as approved beds until the beds are licensed.
(d) Addition of nursing home beds in a number not exceeding 10 beds or 10 percent of the licensed capacity of the nursing home being expanded, whichever is greater. A request for exemption of a proposed addition of nursing home beds shall specify:
1. The licensed bed capacity of the nursing home proposed to be expanded.
2. The current number of sheltered beds, if any, included within the licensed bed capacity.
3. The exact number of beds proposed to be added.
4. The number of sheltered beds, if any, proposed to be included within the total to be added.
5. The request shall certify that:
a. The facility has not had any class I or class II deficiencies within the 30 months preceding the request for an addition
b. The average occupancy rate for the nursing home beds at the facility, for the 12-month period ending 1 month prior to the exemption request, meets or exceeds 96 percent. For the purpose of calculating average occupancy under this sub-subparagraph, the 12-month total of patient days shall be divided by 365 to determine an average daily census, and the average daily census shall then be divided by the total of licensed and approved beds as of the end of the 12-month period. Approved beds are beds authorized for the facility consistent with the provisions of Rule 59C-1.008(2)(b).
c. Any beds previously authorized for the facility by an exemption under this paragraph have been licensed and operational for at least 12 months.
6. An exemption granted under this paragraph is subject to the project monitoring requirements of s. 408.040(2)(a)-(c), F.S., and Rule 59C-1.013(2) and (3), F.A.C., including project progress reports, an 18-month validity period for the exemption, and the circumstances for extension of the validity period.
7. Beds authorized under this paragraph shall be inventoried as approved beds until the beds are licensed.
(e) Addition of nursing home beds to a facility that has been designated as a Gold Seal nursing home under s. 400.235, F.S., in a number not exceeding 20 beds or 10 percent of the licensed capacity of the nursing home being expanded, whichever is greater. A request for exemption of a proposed addition of nursing home beds shall specify:
1. The licensed bed capacity of the nursing home proposed to be expanded.
2. The current number of sheltered beds, if any, included within the licensed bed capacity.
3. The exact number of beds proposed to be added.
4. The number of sheltered beds, if any, proposed to be included within the total to be added.
5. The request shall certify that:
a. The facility has not had any class I or class II deficiencies within the 30 months preceding the request for an addition.
b. The average occupancy rate for the nursing home beds at the facility, for the 12-month period ending 1 month prior to the exemption request, meets or exceeds 96 percent. For the purpose of calculating average occupancy under this sub-subparagraph, the 12-month total of patient days shall be divided by 365 to determine an average daily census, and the average daily census shall then be divided by the total of licensed and approved beds as of the end of the 12-month period. Approved beds are beds authorized for the facility consistent with the provisions of Rule 59C-1.008(2)(b).
c. Any beds previously authorized for the facility by an exemption under this paragraph have been licensed and operational for at least 12 months.
6. An exemption granted under this paragraph is subject to the project monitoring requirements of s. 408.040(2)(a)-(c), F.S., and Rule 59C-1.013(2) and (3), F.A.C., including project progress reports, an 18-month validity period for the exemption, and the circumstances for extension of the validity period.
7. Beds authorized under this paragraph shall be inventoried as approved beds until the beds are licensed.
(f) Provision of adult inpatient diagnostic cardiac catheterization services.
1. A request for exemption of a proposed adult inpatient diagnostic cardiac catheterization program shall include certifications by the applicant that:
a. The applicant will not provide therapeutic cardiac catheterization pursuant to the grant of the exemption;
b. The applicant will meet and continuously maintain the minimum licensure requirements specified in rule 59A-3.2085(13), F.A.C.; and,
c. At least 2 percent of the applicant's annual adult diagnostic cardiac catheterization admissions will be charity and Medicaid patients.
2. An exemption granted for provision of adult inpatient diagnostic catheterization services remains in effect while the requirements specified in s. 408.036(3)(i), F.S., and Rule 59A-3.2085(13), F.A.C., are met.
3. Annual reports of compliance with standards for minimum program volume and minimum services to charity and Medicaid patients, as specified in Rule 59A-3.2085(13)(d) and (i), F.A.C., shall be forwarded to the agency's Certificate of Need Office. The total volume reported shall include both inpatient and outpatient admissions to the adult diagnostic cardiac catheterization program. A single admission is equal to one patient visit to the cardiac catheterization program. The first annual report for the exempted program shall be forwarded within 30 days of the end of the first 12 month period completed subsequent to the 18th month of operation. Annual reports thereafter shall be forwarded within 30 days after the anniversary of the first annual report. The reports should be submitted to the address shown in subsection (1) of this rule.
4. The agency shall provide written notification to the exempted hospital of a determination of non-compliance with the annual compliance requirements of subparagraph (h)3. of this rule. Action upon a finding of non-compliance shall be consistent with the provisions of s. 408.036(3)(i)3.b., F.S.
(g) Establishment of a Level II neonatal intensive care unit (NICU) within a licensed acute care facility if the facility can document that it has had a minimum of 1,500 births during the 12 months preceding the month the Certificate of Need exemption request was submitted and agrees to establish at least 10 Level II NICU beds.
1. The total licensed bed capacity of the hospital
2. The total licensed bed capacity if the Certificate of Need exemption request is granted.
3. Applicants for exemption under this paragraph must certify that the NICU unit will provide a level of charity care or Medicaid patient days equal to or greater than the district average. The district average will be determined by averaging all Medicaid, Medicaid HMO, and charity care reported to the State Center for Health Statistics for the most recent 12-month period in which data has been cleared by the State Center for Health Statistics.
a. Applicants seeking exemption under this paragraph will verify the district average with the State Center for Health Statistics and certify to provide a certain percentage of patient days to either Medicaid, including Medicaid HMO, or charity care patients or a combination of Medicaid, including Medicaid HMO, and charity care patients.
b. Applicants granted exemption under this paragraph shall report annually, pursuant to s. 408.040, F.S. and Rule 59C-1.013, F.A.C.
4. Applicants for exemption under this paragraph shall demonstrate that it meets the requirements for quality of care, nurse staffing, physician staffing, physical plant, equipment, emergency transportation, and data reporting found in Rule 59C-1.042, F.A.C.
a. Documentation of staffing patterns shall be submitted in a clearly organized format and certified to be correct by the applicant or its authorized representative.
b. Physical plant requirements shall be presented in a clearly organized format and certified to be correct by the applicant or its authorized representative and must indicate the establishment of at least a 10-bed unit.
c. A listing of equipment and equipment specifications should be presented and the applicant or its authorized representative must certify that listed equipment will be purchased.
d. Documentation from authorized emergency transportation providers must be presented attesting to the availability of such transportation to the applicant and certifying that it will provide emergency transportation to the applicant’s NICU patients.
(h) Establishment of a Level III neonatal intensive care unit (NICU) within a licensed acute care facility if the facility has at least a 10-bed Level II NICU and can document that it has had a minimum of 3,500 births during the 12 months preceding the month the Certificate of Need exemption request was submitted and agrees to establish at least 15 Level III NICU beds.
1. The total licensed bed capacity of the hospital
2. The total licensed bed capacity if the Certificate of Need exemption request is granted.
3. Applicants for exemption under this paragraph must certify that the NICU unit will provide a level of charity care or Medicaid patient days equal to or greater than the district average. The district average will be determined by averaging all Medicaid, Medicaid HMO, and charity care reported to the State Center for Health Statistics for the most recent 12-month period in which data has been cleared by the State Center for Health Statistics.
a. Applicants seeking exemption under this paragraph will verify the district average with the State Center for Health Statistics and certify to provide a certain percentage of patient days to either Medicaid, including Medicaid HMO, or charity care patients or a combination of Medicaid, including Medicaid HMO, and charity care patients.
b. Applicants granted exemption under this paragraph shall report annually, pursuant to s. 408.040, F.S. and Rule 59C-1.013, F.A.C.
4. Applicants for exemption under this paragraph shall demonstrate that it meets the requirements for qualify of care, nurse staffing, physician staffing, physical plant, equipment, emergency transportation, and data reporting found in Rule 59C-1.042, F.A.C.
a. Documentation of staffing patterns shall be submitted in a clearly organized format and certified to be correct by the applicant or its authorized representative.
b. Physical plant requirements shall be presented in a clearly organized format and certified to be correct by the applicant or its authorized representative and must indicate the establishment of at least a 15-bed unit.
c. A listing of equipment and equipment specifications should be presented and the applicant or its authorized representative must certify that listed equipment will be purchased.
d. Documentation from authorized emergency transportation providers must be presented attesting to the availability of such transportation to the applicant and certifying that it will provide emergency transportation to the applicant’s NICU patients.
(i) The addition of mental health services or beds, as defined in Rule 59C-1.002, to licensed acute care or mental health facilities if the applicant commits to providing services to Medicaid or charity care patients at a level equal to or greater than the district average. A request for exemption of a proposed addition of mental health beds or services shall specify:
1. The licensed bed capacity of the mental health facility or unit to be expanded.
2. The current number of mental health beds by bed category as defined in Rule 59C-1.002 .
3. The exact number of beds proposed to be added.
4. The total number of mental health beds, by category, should this exemption be granted.
5. The request shall certify that the level of charity care or Medicaid patient days will be no less than the district average. The district average will be determined by averaging all Medicaid, Medicaid HMO, and charity care reported to the State Center for Health Statistics for the most recent 12-month period in which data has been cleared by the State Center for Health Statistics.
6. Mitigating evidence of compliance under this paragraph may include care provided to and state sponsored patients at a reduced rate and Baker Acted patients. Documentation to demonstrate this care shall be produced annually with the condition compliance report pursuant to s. 408.040, F.S. and Rule 59C-1.013, F.A.C.
7. Beds authorized under this paragraph shall be inventoried as approved beds until the beds are licensed.
8. Notification to the CON office of the conversion of beds from one type of mental health bed to another as defined in Rule 59C-1.002, F.A.C., does not require a Certificate of Need exemption request and satisfies the requirements of s. 408.036 (5) (c), F.S.
(j) The consolidation or combination of licensed nursing homes or transfer of beds between licensed nursing homes within the same planning subdistrict, by providers that operate multiple nursing homes within that same planning subdistrict, if there is no increase in the planning subdistrict total number of nursing home beds and the site of the relocation is not more than 30 miles from the original location. A request for exemption under this paragraph shall specify:
1. For transfer requests:
a. The name and licensed bed capacity of nursing home from which beds will be transferred.
b. The name and licensed beds capacity of the nursing home to which beds will be transferred.
c. The exact number of beds proposed to be added.
d. The total number of licensed beds at each facility should this exemption be granted.
e. The subdistrict location of each facility as defined in Rule 59C-2.200 F.A.C.
f. The physical location of each facility.
2. For consolidation or combination requests:
a. The name and licensed bed capacity of each nursing home to be consolidated
b. The name of the resulting consolidated nursing home.
c. The total number of licensed beds at the consolidated facility should this exemption be granted.
3. Verification that the providers operate the nursing homes from which beds will either be transferred, consolidated, or combined. Certificate of Need exemption requests under this provision shall require verification that providers operate the nursing facilities in question under a common ownership or control. Verification may include copies of nursing home licenses showing common ownership or appropriate documentation that establishes the subject nursing homes are affiliates through a shared common ownership or controlling interest as defined in section 400.021(5), Florida Statutes. If agency records indicate information inconsistent with that presented by the requesting parties, then agency records create a rebuttable presumption as to the correctness of those records and the request for exemption will be denied.
Specific Authority: 408.034(6), 408.15(8) F.S.
Law Implemented: 400.071,408.036(3),408.036(4), 408.0361(2) F.S.
History: New 1-1-77, Amended 6-5-79, 2-1-81,
Formerly 10-5.05, Amended 11-17-87,
3-23-88, 1-31-91, Formerly 10-5.005-,
Amended 7-13-98, 4-2-01, 11-12-01,
8-18-05.
Note-- Cardiac catheterization services shall be reviewable pursuant to 408.0361(2) F.S.
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