Proposed Legislative Language

DRAFT BILL

Notes/Explanation

Definitions relating to Health Facility and Services Development: "Tertiary health service" means a health service which, due to its high level of intensity, complexity, specialized or limited applicability, and cost, should be limited to, and concentrated in, a limited number of hospitals to ensure the quality, availability, and cost-effectiveness of such service. Examples of such service include, but are not limited to, organ transplantation, adult and pediatric open heart surgery, specialty burn units, neonatal intensive care units, comprehensive rehabilitation, and medical or surgical services which are experimental or developmental in nature to the extent that the provision of such services is not yet contemplated within the commonly accepted course of diagnosis or treatment for the condition addressed by a given service. The agency shall establish by rule a list of all tertiary health services.

page 2, lines6-17

 

408.032(17)

This change specifically adds open heart surgery programs to the statutory list of tertiary hospital services.  While open heart surgery programs are not included in the statutory definition of tertiary services, they are defined as tertiary services in administrative rules that cover CON review of open heart surgery programs.

The Legislature intends that the cost of local health councils be borne by application fees for certificates of need and by assessments on selected health care facilities subject to facility licensure by the Agency for Health Care Administration …

 

The motion as written failed.  The workgroup voted unanimously that any incremental increase in CON fees would not result in an incremental increase in funding support for the local health councils.  Funding for the support of local health councils should continue from CON fees and should be frozen at the current level of $150,000/year/council until such time as the Legislature identifies some other funding source within the state’s budget for the continuation of local health councils..

page 10, line 28 through p 11 line 10

 

408.038(3)

This change would require the Legislature to find a source of funds other than CON fees for local health councils.  This would also affect two or three positions at the Department of Health where the local health council contracts are managed.  A similar proposal is made by Workgroup Chairman Rich Morrison.

 

 

PROJECTS SUBJECT TO EXPEDITED REVIEW.-- …
Shared services contracts or projects.

page 3, line 13

 

408.036(2) delete(b)

This change eliminates the notion of shared services programs among CON-reviewable services.  It would require any hospital to get a CON in order to have the ability to operate a program that is subject to CON review.  Any sharing or cooperation that they then wished to engage in would be subject only to licensure requirements — not CON review.

A transfer of a certificate of need except when an existing hospital is acquired by a purchaser, all pending certificates of need filed by the existing hospital and all approved certificates of need owned by that hospital would be acquired by the purchaser. 

page 3 lines 14-17

and

page 10 lines 22-27

 

408.036(2)new(b)

and 408.037(2)

This change would allow the purchaser of a hospital to acquire any CONs that had already been obtained but not yet developed or implemented by the hospital.  Currently, since undeveloped CONs are issued to the license holder, and the license holder would change in the event of a sale, the new owner would have to re-apply for any undeveloped CONs. The change would also transfer any pending CONs to the purchaser.  This does not apply to beds that have already been licensed or services that are already operational — these assets would be part of the sale.

 

 

The conversion of mental health services beds licensed under chapter 395 or hospital-based distinct part skilled nursing unit beds to general acute care beds; the conversion of mental health services beds between or among the licensed bed categories defined as beds for mental health services; or the conversion of general acute care beds to beds for mental health services.

page 3 line 28 through page 4 line 9

 

408.036(2)(e)

The 2000 Legislature slightly streamlined the process to allow hospitals to convert beds among acute care, mental health and skilled nursing services.  This was done by shifting the process from full batched CON review to expedited CON review.  This proposed change would revert back to full batched review for the conversion of skilled nursing beds to acute care beds and, coupled with the change below, allow hospitals to convert beds among categories of mental health with a simple exemption request Conversion of SNU to acute became exempt in 2001 (this paragrph should have beed revised then); changes within mental health would be exempt rather than expedited

EXEMPTIONS.—Upon request, the following projects are subject to exemption from the provisions of subsection (1):

 

 

For the conversion of mental health services beds between or among the licensed bed categories defined as beds for mental health services.

page 7 lines 21-25

 

408.036(3)(r)

This change would allow hospitals to convert between adult or pediatric inpatient psychiatric or substance abuse beds through a simple exemption letter.  It would not change the hospital licensure requirements associated with these different categories.

 

1.  For the provision of percutaneous coronary intervention for patients presenting with emergency myocardial infarctions in a hospital without an approved adult open heart surgery program. 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:

2.  The applicant must certify that it will meet and continuously maintain the requirements adopted by the agency for the provision of these services. These licensure requirements are to be adopted by rule and are to be consistent with the guidelines published by the American College of Cardiology and the American Heart Association for the provision of percutaneous coronary interventions in hospitals without adult open heart services. At a minimum, the rules shall require the following:

a. Cardiologists must be experienced interventionalists who have performed a minimum of 75 interventions within the previous 12 months;

b. The hospital must provide a minimum of 36 emergency interventions annually, in order to continue to provide the service;

c.  The hospital must offer sufficient physician, nursing and laboratory staff to provide the services twenty four hours daily, seven days a week;

d.  Nursing and technical staff must have demonstrated experience in handling acutely ill patients requiring intervention based on previous experience in dedicated interventional laboratories or surgical centers;

e.  Cardiac care nursing staff must be adept in hemodynamic monitoring and IABP management;

f.  Formalized written transfer agreements must be developed with a hospital with an adult open heart surgery program and written transport protocols must be in place to ensure safe and efficient transfer of a patient within 60 minutes . Transfer and transport agreements must reviewed and tested, with appropriate documentation maintained at least every 3 months;

g.  Hospitals implementing the service, must first undertake a 3 to 6 month training program which includes establishing standards, testing logistics, creating quality assessment and error management practices and formalizing patient selection criteria. 

3..The applicant must certify that it will utilize at all times the patient selection criteria for the performance of primary angioplasty at hospitals without adult open heart surgery programs issued by the American College of Cardiology and the American Heart Association. At a minimum, these criteria would provide for the following:

a.  Avoidance of interventions in hemodynamically stable patients presenting with identified symptoms or medical histories;

b.  Transfer of patients presenting with a history of coronary disease and clinical presentation of hemodaynamic instability.  

4. The applicant must agree to submit a quarterly report to the agency detailing patient characteristics, treatment and outcomes for all patients receiving emergency percutaneous coronary interventions pursuant to this exemption. This report must be submitted within 15 days of the close of each calendar quarter.

The exemption provided by the paragraph shall not apply unless the agency determines that the hospital has taken all necessary steps to be in compliance with these paragraphs, including the training program required pursuant to paragraph (1) subsection (g).

5.  Failure of the hospital to continuously comply with the rules adopted pursuant to paragraph 1.sub-paragraphs c.d.e.f. and paragraphs 2 and 3 will result in the immediate expiration of this exemption.

6.   Failure of the hospital to meet the volume requirements of paragraph1. subparagraphs a and b within 18monts after the programs begins offering the service will result in the immediate expiration of this exemption.

page 7 line 26 through page 9 line 21

 

408.036(3)(s)

This change would allow hospitals to begin offering emergency angioplasty services without obtaining a CON for a back-up open heart surgery program.

The Agency for Health Care Administration would be required to develop hospital licensure rules for the provision of angioplasty and related procedures in emergency situations.

Currently, hospitals cannot legally provide angioplasty and related procedures in emergency situations unless they have CON-approved open heart surgery programs.

 

WORKGROUP STAFF ASKED TO VERY CLEARLY DEFINE “EMERGENCY” AND SPECIFY THE SOURCE OF ANY EMERGENCY.  ISSUE IS ER INTAKE VS EMERGENCIES THAT ARISE IN OTHER DEPARTMENTS, SUCH AS RADIOLOGY OR CATH LAB.

 

 

For the addition of hospital beds licensed under chapter 395 for acute care, mental health services, or a hospital-based distinct part skilled nursing unit in a number that may not exceed 30 10 total beds or 10 percent of the licensed capacity of the bed category being expanded whichever if greater; for the addition of medical rehabilitation beds licensed under chapter 395 in a number that may not exceed 8 total beds or 10 percent of capacity whichever is greater; or for the addition of mental health services beds licensed under chapter 395 in a number that may not exceed 10 total beds or 10 percent of the licensed capacity of the bed category being expanded, whichever is greater. Beds for specialty burn units, neonatal intensive care units, or comprehensive rehabilitation, or at a long-term care hospital, may not be increased under this paragraph.

 

In addition to any other documentation otherwise required by the agency, a request for exemption submitted under this paragraph must: 

Certify that the prior 12-month average occupancy rate for the category of licensed beds being expanded at the facility meets or exceeds 75 80 percent or, for a hospital-based distinct part skilled nursing unit, the prior 12-month average occupancy rate meets or exceeds 96 percent.

 

AMENDED TO RAISE THE OCCUPANCY RATE TO 90 PERCENT FOR INPATIENT REHAB.

page 4 line 26 through page 6 line 5

 

408.036(3)(n)

This change would expand hospitals’ ability to add beds through a CON exemption for highly utilized services.  The proposal increases the number of acute care beds that could be added in smaller hospitals from10 to 30. Larger hospitals with high utilization could add more beds if they have more than 300 licensed acute care beds.

This change would also expand the flexibility to add comprehensive inpatient medical rehabilitation beds and mental health beds through a CON exemption when the hospital experiences very high occupancy. 

Similar proposals are presented by Mr. Morrison and Mr. Panza.

 

 

For the addition of acute care beds, as authorized by rule consistent with s. 395.003(4), in a number that may not exceed 30 10 total beds or 10 percent of licensed bed capacity, whichever is greater, for temporary beds in a hospital that has experienced high seasonal occupancy within the prior 12-month period or in a hospital that must respond to emergency circumstances.

page 6 lines 6-11

 

408.036(3)(o)

This change would expand hospitals’ ability to add beds through a CON exemption for beds that are highly utilized during a specific season (normally the winter quarter.)  The proposal increases the number of acute care beds that could be added in smaller hospitals from10 to 30. Larger hospitals with high utilization could add more beds if they have more than 300 licensed acute care beds.

For establishment of a specialty hospital offering a range of medical service restricted to a defined age or gender group of the population or a restricted range of services appropriate to the diagnosis, care, and treatment of patients with specific categories of medical illnesses or disorders, through the transfer of beds and services from an existing hospital in the same county.

page 7 lines 4-9

 

408.036(3)(q)

This change would eliminate the CON exemption that allows a hospital to establish an age or gender-specific specialty hospital by transferring some of its beds to a new facility in the same county.  The proposed change does not specify whether CON review should be full-batched or expedited. Eliminates an exemption voided by subsequent legislation.

For the replacement of a statutory rural hospital when the proposed project site is located in the same district and within 10 miles of the existing facility and within the current primary service area, defined as the least number of zip codes comprising 75 percent of the hospital’s inpatient admissions.

page 9 lines 22-26

 

408.036(3)(t)

This change would allow a CON exemption for statutory rural hospitals to build replacement facilities within 10 miles of their present location when the new  location is within their primary service area.

 

For the creation of at least a 10 bed Level II neonatal intensive care unit upon demonstrating to the agency that the applicant hospital had a minimum of 1500 births during the previous 12 months.

page 9 lines 27-29

 

408.036(3)(u)

This change would allow hospitals that have a large OB program to add a NICU through a CON exemption.

For the addition of Level II or Level III neonatal intensive care beds in a number not to exceed 6 beds or 10 percent of licensed capacity in that category whichever is greater, provided that the hospital certifies that the prior 12-month average occupancy rate for the category of licensed neonatal intensive care beds meets or exceeds 75 percent.

included in page 4 line 26 through page 6 line 5

This change would allow hospitals with highly utilized NICU services to add 6 beds through a CON exemption.

FEES.--The agency shall assess fees on certificate-of-need applications. Such fees shall be for the purpose of funding the functions of the local health councils and the activities of the agency and shall be allocated as provided in s. 408.033. The fee shall be determined as follows:

 A minimum base fee of $10,000 $5,000.    NOTE: AMENDMENT TO EXEMPT NURSING HOMES FAILED

page 10 lines 28 through page 11 line 10

 

408.038

This change would raise the minimum CON fee from $5,000 to $10,000.

Compare the proposal by Mr. Morrison.

In addition to the base fee of $10,000 $5,000, 0.015 of each dollar of proposed expenditure, except that a fee may not exceed $50,000 $22,000.

same

This change would increase the maximum CON fee from $22,000 to $50,000.

ADMINISTRATIVE HEARINGS.—

The agency shall issue its final order within 45 days after receipt of the recommended order. If the agency fails to take action within 45 days, the Division of Administrative Hearing recommended order is deemed approved. such time, or as otherwise agreed to by the applicant and the agency, the applicant may take appropriate legal action to compel the agency to act. When making a determination on an application for a certificate of need, the agency is specifically exempt from the time limitations provided in s. 120.60(1).

page 11 lines 14-21

 

408.039(5)(e)

In cases of CON appeals, this change would require the Agency for Health Care Administration to issue a final order within 45 days of a recommended order forwarded from the Division of Administrative Hearings.

 

 

The court, in its discretion, may award reasonable attorney's fees and costs to the prevailing party if the court finds that there was a complete absence of a justiciable issue of law or  fact raised by the losing party. If the losing party is a hospital,  the court shall order it to pay the reasonable attorney’s fees and costs, which shall include fees and costs incurred as a result of the administrative hearing and the judicial appeal,  of the prevailing hospital party.

AMENDMENT TO INCLUDE ALL PROVIDER TYPES FAILED.  INTENDED TO APPLY TO HOSPITALS ONLY AT THE DCA ONLY.

page 11 line 25 through page 12 line 2

 

408.039(6)(c)

This change would require the challenger in a CON appeal to pay the attorney’s fees and costs of the approved CON applicant if the court finds in favor of the approved applicant.

 

page 13 lines 16-18

ENTIRE MORRISON PROPOSAL FAILED DUE TO LACK OF A SECOND.  LATER PROPOSAL DIRECTS AHCA TO DEVELOP LICENSURE STANDARDS FOR INTERVENTIONAL CARDIOLOGY

The agency shall establish by rule a nursing-home-bed-need methodology that reduces the community nursing home bed need for the areas of the state where the agency establishes pilot community diversion programs through the Title XIX aging waiver program.   The bed need methodology formula shall utilize an  have a goal of maintaining a statewide average occupancy threshold of 94 percent.

AMENDED TO MAINTAIN DISTRICT AVERAGE AT 94% RATHER THAN STATEWIDE.

page 2 lines 21-25

 

408.034(5)

This change would raise the occupancy standard in the CON bed need methodology from 91 to 94 percent.  This would result in very small bed need calculations in selected planning areas.

Statewide nursing home occupancy is 85.76 percent as of June 2002.

There is a legislatively-mandated moratorium on CONs for new community nursing home beds scheduled to remain in effect until June 30, 2006.

 

 

There is hereby created a Certificate of Need Nursing Home Advisory Panel to serve as a body of experts to guide the agency in its development of policy related to nursing home certificate of need issues.  The agency shall provide staff support to the Panel.

The Panel shall be composed of the following members:

(a) The designee of the Deputy Secretary of Managed Care and Health Quality,

(b) The designee of the Deputy Secretary of Medicaid,

(c) The designee of the Secretary of Department of Elder Affairs,

(d) Two representatives of the Local Health Councils,

(e) One representative of the Florida Association of Homes for the Aging,

(f) One representative of the Florida Health Care Association,

(g) One nonprofit nursing home representative, and

(h) One for profit nursing home representative.

The Panel shall meet at least quarterly and advise the agency regarding:

(a)  Long term care needs of Florida’s elderly,

(b) Issues specific to different Districts or subdistrict,

(c) Options for ensuring access to long term care for Medicaid eligible and other individuals,

(d) Reimbursement policy that will encourage development of alternative long term care initiatives,

(e) Development of a timely utilization reporting schedule for assisted living facilities and home and community based services,

Changes for a more viable nursing home bed formula which will ensure access, and takes into account the alternatives to nursing home care available in each District or subdistrict using information from the reports submitted by such providers. 

page 12 line 18 through page 13 line 15

This change would establish a panel to make recommendations on the future of CON review for nursing home beds in Florida.

The 2002 Legislature directed the Agency for Health Care Administration to create a plan to reduce Medicaid utilization of nursing homes by December 1, 2002.  The Agency was also directed to revise the CON nursing home bed need methodology in follow-up to the strategies recommended in the plan.  This activity, which has already begun, will draw from the recommendations of the above-mentioned plan.

When complete, this material will be provided to the Office of Long Term Care Policy in the Department of Elder Affairs.

 

 

 

PROJECTS SUBJECT TO EXPEDITED REVIEW

Replacement of a health care facility when the proposed project site is located within the geographic area that contains at least 65 percent of the facility’s current patients/residents in the same district and within a 1 30-mile radius of the replaced health care facility.

AMENDED TO APPLY ONLY TO NURSING HOMES.

page 4 lines 10-13

 

408.036(2)(f)

This change would expand the geographic area in which nursing homes could develop replacement facilities and apply to do so through the expedited review process.  Currently, replacement facilities are those that are rebuilt on-site (exempt) or within a mile of the current site (expedited).  The proposal would expand the potential area for replacement to a 30-mile radius within the same district.  This change could result in changes to the bed supply in some nursing home planning areas (subdistricts.)

 

 

The moving of a portion of a provider’s licensed beds to a replacement facility within the same nursing home district (not to exceed 30 mile radius) provided the total number of beds in the district does not increase.

page 4 lines 14-17

 

408.036(2)(g)

This change would expand the geographic area in which nursing homes could transfer beds to a new facility and apply to do so through the expedited review process.  The proposal would expand the potential area for transferred beds to a 30-mile radius within the same district as long as the total number of beds in the district does not increase.

Currently, the Agency only accepts CON applications to transfer nursing home beds when the proposal does not increase the number of beds in any planning area (subdistrict.)

EXEMPTIONS.--Upon request, the following projects are subject to exemption from the provisions of subsection (1):

 

For replacement of a licensed health care facility within the geographic area that contains at least 85 percent of the facility’s current residents on the same site, or within 3 miles of the same site, provided that the number of beds in each licensed bed category will not increase.

page 10 lines 1-3

 

408.036(3)(v)

This change would expand the geographic area in which nursing homes could develop replacement facilities and apply to do so through a CON exemption.  Currently, exempt replacement facilities are those that are rebuilt on-site or within a mile of the current site.  The proposal would expand the potential area for exempt replacement to a 3-mile radius within the same district.  AMENDED TO APPLY ONLY TO NURSING HOMES.

 

Providers that operate multiple nursing home facilities within the same nursing home district should be allowed to consolidate facilities, combine facilities or transfer beds between facilities provided the aforementioned action does not increase the net bed inventory in the district and the relocation does not exceed 30 miles from the original site.

page 10 lines 4-8