Effective: 12-13-04

59C-1.021 Certificate of Need Penalties

(1) General Provisions. The agency shall initiate administrative proceedings for revocation of a certificate of need for violation of paragraphs 408.040(2)(a) and (b), Florida Statutes or the assessment of administrative fines for failure to comply with conditions placed on a certificate of need as specified under section 59C-1.013, F.A.C.

(2) Certificate of Need Revocation. The agency shall issue an administrative complaint seeking revocation of a certificate of need if the agency determines that the certificate of need holder has not made a good faith effort to undertake the project as approved or to meet the approved project timetables. A holder shall be deemed to have made a "good faith effort" if the following requirements are met.

(a) Projects which cease continuous construction for a period in excess of 30 calendar days shall perform the following steps:

1. Within 35 calendar days of work stoppage, notify the agency in writing of a break in construction and submit for approval, documentation verifying the holder's inability to control the break in construction.

2. Within 45 calendar days of work stoppage, submit to the agency for approval, a plan for recommencement of construction not to exceed 90 calendar days. The revised dates may increase the amount of time elapsed within and among the steps set forth in the original application for completion of the project.

3. Within 15 calendar days of the projected restart time, the holder shall submit to the agency a letter from the project's architect certifying that the project has restarted construction in accordance with the approved plan submitted under this paragraph.

(b) Projects which are more than 30 calendar days behind on any time frame set forth in the approved timetable shall perform the following steps:

1. Within 5 calendar days of not having met the construction phase identified in the approved timetable, notify the agency by telephone followed by a letter within 2 calendar days of the telephone call, or by letter of the delay.

2. Within 10 calendar days of notification, submit to the agency for approval, documentation of the holder's inability to control the situation which has caused the slow-down in the specific construction phase.

3. Within 5 calendar days of approval by the agency of documents submitted in accordance with subsection 59C-1.021(2)(a) and (b), the certificate of need holder shall submit a revised timetable for project completion to the agency for approval. The revised dates may increase the amount of time elapsed within and among the steps set forth in the original application for completion of the project.

(3) Penalties for Failure to comply with Certificate of Need or Exemption Conditions. The agency shall review the annual compliance report submitted by the health care providers who are licensed and operate the facilities or services and other pertinent data to assess compliance with certificate of need or exemption conditions. Providers who are not in compliance with certificate of need or exemption conditions shall be fined. Failure to report compliance with any condition upon which the issuance of the certificate of need or exemption was predicated constitutes noncompliance. For community nursing homes or hospital-based skilled nursing units certified as such by Medicare, the first compliance report on the status of conditions must be submitted 30 calendar days following the eighteenth month of operation or the first month where an 85 percent occupancy is achieved, whichever comes first. The schedule of fines is as follows:

(a) Facilities failing to comply with any conditions or failing to provide the Certificate of Need office with a report on its compliance with conditions set forth on the Certificate of Need or exemption, will be assessed a fine, not to exceed $1,000 per failure per day. In assessing the penalty the agency shall take into account the degree of noncompliance.

(b) The assessed fine shall be paid to the agency within 45 calendar days after written notification of assessment by certified mail or within 30 calendar days after final agency action if an administrative hearing has been requested. If a health care provider desires it may remit payment according to a payment schedule accepted by the agency. The health care provider must submit the schedule of payments to the agency within 30 calendar days after the date of receipt of the notification of assessment or 21 calendar days after final agency action. The final balance will be due no later than 6 months after the health care provider has been notified in writing by the agency of the amount of the assessed fine or 6 months after final agency action.

(4) The agency will investigate any person who constructs a facility or operates a service without a certificate of need as required under the Health Facility and Services Development Act.

(a) The agency will notify the person of the allegations in writing. The person may respond in writing to the agency as to the merits of the alleged violation within 10 calendar days of receipt of the notice of complaint. If an investigation is conducted, a written preliminary report will be prepared by the agency.

(b) The agency will prepare a final report and will provide a copy to the person and the complainant, if there is one, within a period not to exceed 90 calendar days of the preliminary report.

(c) Upon substantiation of the complaint, the agency shall take appropriate action to resolve the complaint. Action may include but is not limited to:

1. Recourse described in section 408.044, Florida Statutes;

2. Referring the complaint to the State Attorney's office for relief as defined under section 775.082, 775.083 or 775.084 Florida Statutes; or,

3. Seeking revocation of the license as appropriate.

Specific Authority: 408.15(8), 408.034(5), F.S.
Law Implemented: 408.040(1)(b),(1)(d)(2)(a), 408.061(6), 408.08(2), 408.044, F.S.
History: New 7-25-89. Amended 12-13-04.
Formerly 10-5.021.