Certificate of Need Project
The Certificate of Need (CON) program is a mechanism used by some states to restrain or control health care facility costs and to allow for the coordinated planning of new services and construction. The CON program was created by the National Health Planning and Resource Development Act (“NHPRDA”) in 1974. After the passage of NHPRDA states not having a CON process begin establishing rules for the CON process at the state level. In 1986 the Federal CON mandate was repealed, allowing states to determine its own CON process, if any at all. This paper will discuss Florida’s CON process to include facilities requiring CON, steps in the CON process, appeals process, and exempt geographic locations.
The CON program began in Florida in the year of 1973 with a primary reason for establishment being the promotion of cost containment by controlling unnecessary duplication of health care services and facilities. Florida’s CON regulatory process is governed by the Florida Statutes sections 408.031 through 408.045 and the Florida Administrative Code Chapter 59C-1. Since 1992 Florida’s CON program has been administered by the Agency for Health Care Administration (AHCA). Florida’s CON regulatory process requires certain health care providers to obtain state approval before offering new or modified services.
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Facilities that require a CON (FS 408.036)
Currently Florida’s CON program regulates acute care hospitals, long-term care facilities, nursing homes, hospices, intermediate care facilities; services include neo-natal intensive care services, organ transplant services, open heart surgery, substance/drug abuse services, and psychiatric services—requiring these healthcare facilities and service areas to go through the CON process. Florida Statutes section 408.036 identifies the following healthcare related projects subject to CON review by way of an application with AHCA: (1) addition of beds in community nursing homes or intermediate care facilities for the developmentally disabled by new construction or alteration; (2) 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 or within 1 mile of the existing health care facility, if the number of beds in each licensed bed category will not increase; (3) conversion from one type of health care facility to another, including the conversion from a general hospital, a specialty hospital, or a long-term care hospital; (4) establishment of a hospice or hospice inpatient facility; (5) increase in the number of beds for comprehensive rehabilitation; and (6) establishment of tertiary health services, including inpatient comprehensive rehabilitation services.
Steps in Florida’s CON process (FS 408.039)
The CON application steps are inclusive of a letter of intent, application review, and staff recommendation and decision from AHCA. The CON review process is funded through the collection of fees assessed to the CON applicant—minimum base fee of $10,000 and an additional 0.015 of each dollar of proposed expenditure with the total fee not exceed $50,000.
A letter of intent is to be filed at least 30 days prior to the published application deadline due date for the particular batching cycle. The letter of intent must contain a description of the proposed project; specify the number of beds sought, if any; identify the services to be provided; the location; and identify the applicant. Within 21 days after the letter of intent is received, AHCA publishes notice of letters of intent filed in the Florida Administrative Register. Following the letter of intent, the applicant has to file an application to the agency along with the $10,000 fee.
Within 15 days after the application filing deadline, AHCA has to determine if the application is complete. If the application is incomplete, AHCA can provide a one-time written response to the applicant indicating the section(s) of the application that are incomplete and request specific information from the applicant that would be necessary to complete the application. AHCA’s requested information has to be filed within 21 days after the applicant’s receipt of the request. Requested information not timely received, the application will be deemed incomplete and deemed withdrawn from consideration. Fourteen days after the notice of application has been filed, the applicant or a substantially affected person can request a public hearing which may be held at the agency’s discretion. Twenty one days after the application is deemed complete, a local-level public hearing has to be held. A public hearing allows all parties to present their positions and any rebuttal information. The public hearing has to have a verbatim record of the hearing.
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Within 60 days after all the applications in the batching cycle are deemed complete, AHCA will issue a State Agency Action Report and Notice of Intent to (1) grant a CON in its entirety, (2) grant a CON for identifiable portions of the project, or (3) deny the CON. AHCA shall publish its proposed decision within 14 days after the Notice of Intent is issued. If an administrative hearing is not requested, the State Agency Action Report and the Notice of Intent will become the agency’s final order with a copy provided to the appropriate local health council.
Appeal process once the CON is granted (FS 408.039)
The administrative appeals process ensures that all applicants are entitled to challenge the initial decision of the Agency through the administrative hearing process. Any party requesting an administrative hearing must do so within 21 days after AHCA’s Notice of Intent is published in the Florida Administrative Register. Hearings shall be held in Tallahassee unless the administrative law judge (ALJ) determines that changing the location will facilitate the proceedings. Unless an ALJ issues a continuance, hearings will be held within 60 days of the ALJ being assigned to the case. A recommended order will be issued by the judge. After the recommended order is issued, AHCA must issue its final order within 45 days. Any party to an administrative hearing has the right to seek a judicial review from the District Court of Appeals within 30 days of the date of the final order. AHCA is party to all such proceedings. During the review, the court will affirm the final order unless it is arbitrary, capricious or not in compliance with applicable Statutes.
Geographic location exempt from CON (FS 408.036)
With the exception of eligible rural geographic locations, the Florida Statues did not address locations exempt from CON process. When exemptions are allowed, AHCA has the authority to exempt eligible services from the CON project review process. Exemptions includes hospice services or swing beds in a rural hospital when one-half of its licensed beds is not exceeded and also conversion of licensed acute care hospital beds to Medicare and Medicaid certified skilled nursing beds in a rural hospital when construction of new facility is not involved and/or the total number of skilled nursing beds do not exceed one-half of the total number of licensed beds in the rural hospital. Other services exempt from CON process includes inmate health care facilities built by or for the exclusive use of the Department of Corrections and also state veterans’ nursing homes operated by or on behalf of the Florida Department of Veterans’ Affairs.
The 2014 Florida Statutes, sections 408.031 through 408.045. Retrieved October 22, 2014 from