2023 Florida Statutes › Title XXIX - Public Health › Chapter 408 - Health Care Administration › Part I - Health Facility and Services Planning (Ss. 408.031-408.7071) › 408.036 - Projects subject to review; exemptions.

408.036 Projects subject to review; exemptions.—
(1) APPLICABILITY.—Unless exempt under subsection (3), all health-care-related projects, as described in this subsection, are subject to review and must file an application for a certificate of need with the agency. The agency is exclusively responsible for determining whether a health-care-related project is subject to review under ss. 408.031-408.045.
(a) The addition of beds in community nursing homes or intermediate care facilities for the developmentally disabled by new construction or alteration.
(b) The new construction or establishment of additional health care facilities, except for a replacement health care facility when the proposed project site is 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.
(c) The conversion from one type of health care facility to another.
(d) The establishment of a hospice or hospice inpatient facility, except as provided in s. 408.043.
(2) PROJECTS SUBJECT TO EXPEDITED REVIEW.—Unless exempt pursuant to subsection (3), the following projects are subject to expedited review:
(a) Transfer of a certificate of need.
(b) Replacement of a nursing home, if the proposed project site is within a 30-mile radius of the replaced nursing home. If the proposed project site is outside the subdistrict where the replaced nursing home is located, the prior 6-month occupancy rate for licensed community nursing homes in the proposed subdistrict must be at least 85 percent in accordance with the agency’s most recently published inventory.
(c) Replacement of a nursing home within the same district, if the proposed project site is outside a 30-mile radius of the replaced nursing home but within the same subdistrict or a geographically contiguous subdistrict. If the proposed project site is in the geographically contiguous subdistrict, the prior 6-month occupancy rate for licensed community nursing homes for that subdistrict must be at least 85 percent in accordance with the agency’s most recently published inventory.
(d) Relocation of a portion of a nursing home’s licensed beds to another facility or to establish a new facility within the same district or within a geographically contiguous district, if the relocation is within a 30-mile radius of the existing facility and the total number of nursing home beds in the state does not increase.
(e) New construction of a community nursing home in a retirement community as further provided in this paragraph.
1. Expedited review under this paragraph is available if all of the following criteria are met:
a. The residential use area of the retirement community is deed-restricted as housing for older persons as defined in s. 760.29(4)(b).
b. The retirement community is located in a county in which 25 percent or more of its population is age 65 and older.
c. The retirement community is located in a county that has a rate of no more than 16.1 beds per 1,000 persons age 65 years or older. The rate shall be determined by using the current number of licensed and approved community nursing home beds in the county per the agency’s most recent published inventory.
d. The retirement community has a population of at least 8,000 residents within the county, based on a population data source accepted by the agency.
e. The number of proposed community nursing home beds in an application does not exceed the projected bed need after applying the rate of 16.1 beds per 1,000 persons aged 65 years and older projected for the county 3 years into the future using the estimates adopted by the agency reduced by the agency’s most recently published inventory of licensed and approved community nursing home beds in the county.
2. No more than 120 community nursing home beds shall be approved for a qualified retirement community under each request for expedited review. Subsequent requests for expedited review under this process may not be made until 2 years after construction of the facility has commenced or 1 year after the beds approved through the initial request are licensed, whichever occurs first.
3. The total number of community nursing home beds which may be approved for any single deed-restricted community pursuant to this paragraph may not exceed 240, regardless of whether the retirement community is located in more than one qualifying county.
4. Each nursing home facility approved under this paragraph must be dually certified for participation in the Medicare and Medicaid programs.
5. Each nursing home facility approved under this paragraph must be at least 1 mile, as measured over publicly owned roadways, from an existing approved and licensed community nursing home.
6. A retirement community requesting expedited review under this paragraph shall submit a written request to the agency for expedited review. The request must include the number of beds to be added and provide evidence of compliance with the criteria specified in subparagraph 1.
7. After verifying that the retirement community meets the criteria for expedited review specified in subparagraph 1., the agency shall publicly notice in the Florida Administrative Register that a request for an expedited review has been submitted by a qualifying retirement community and that the qualifying retirement community intends to make land available for the construction and operation of a community nursing home. The agency’s notice must identify where potential applicants can obtain information describing the sales price of, or terms of the land lease for, the property on which the project will be located and the requirements established by the retirement community. The agency notice must also specify the deadline for submission of the certificate-of-need application, which may not be earlier than the 91st day or later than the 125th day after the date the notice appears in the Florida Administrative Register.
8. The qualified retirement community shall make land available to applicants it deems to have met its requirements for the construction and operation of a community nursing home but may sell or lease the land only to the applicant that is issued a certificate of need by the agency under this paragraph.
a. A certificate-of-need application submitted under this paragraph must identify the intended site for the project within the retirement community and the anticipated costs for the project based on that site. The application must also include written evidence that the retirement community has determined that both the provider submitting the application and the project satisfy its requirements for the project.
b. If the retirement community determines that more than one provider satisfies its requirements for the project, it may notify the agency of the provider it prefers.
9. The agency shall review each submitted application. If multiple applications are submitted for a project published pursuant to subparagraph 7., the agency shall review the competing applications.
The agency shall develop rules to implement the expedited review process, including time schedule, application content that may be reduced from the full requirements of s. 408.037(1), and application processing.
(3) EXEMPTIONS.—Upon request, the following projects are subject to exemption from subsection (1):
(a) For hospice services or for swing beds in a rural hospital, as defined in s. 395.602, in a number that does not exceed one-half of its licensed beds, or for a hospice program established by an entity that shares a controlling interest, as defined in s. 408.803, with a not-for-profit retirement community that offers independent living, assisted living, and skilled nursing services provided in a facility on the same premises and designated by the agency as a teaching nursing home for a minimum of 5 years, in accordance with s. 430.80. Only one hospice program per teaching nursing home may be established under the exemption in this paragraph, and such program shall be limited to serving patients residing in communities located within the not-for-profit retirement community, including home and community-based service providers.
(b) For the conversion of licensed acute care hospital beds to Medicare and Medicaid certified skilled nursing beds in a rural hospital, as defined in s. 395.602, so long as the conversion of the beds does not involve the construction of new facilities. The total number of skilled nursing beds, including swing beds, may not exceed one-half of the total number of licensed beds in the rural hospital as of July 1, 1993. Certified skilled nursing beds designated under this paragraph, excluding swing beds, shall be included in the community nursing home bed inventory. A rural hospital that subsequently decertifies any acute care beds exempted under this paragraph shall notify the agency of the decertification, and the agency shall adjust the community nursing home bed inventory accordingly.
(c) For the addition of nursing home beds at a skilled nursing facility that is part of a retirement community that provides a variety of residential settings and supportive services and that has been incorporated and operated in this state for at least 65 years on or before July 1, 1994. All nursing home beds must not be available to the public but must be for the exclusive use of the community residents.
(d) For an inmate health care facility built by or for the exclusive use of the Department of Corrections as provided in chapter 945. This exemption expires when such facility is converted to other uses.
(e) For the addition of nursing home beds licensed under chapter 400 in a number not exceeding 30 total beds or 25 percent of the number of beds licensed in the facility being replaced under paragraph (2)(b), paragraph (2)(c), or paragraph (j), whichever is less.
(f) For state veterans’ nursing homes operated by or on behalf of the Florida Department of Veterans’ Affairs in accordance with part II of chapter 296 for which at least 50 percent of the construction cost is federally funded and for which the Federal Government pays a per diem rate not to exceed one-half of the cost of the veterans’ care in such state nursing homes. These beds shall not be included in the nursing home bed inventory.
(g) For combination within one nursing home facility of the beds or services authorized by two or more certificates of need issued in the same planning subdistrict. An exemption granted under this paragraph shall extend the validity period of the certificates of need to be consolidated by the length of the period beginning upon submission of the exemption request and ending with issuance of the exemption. The longest validity period among the certificates shall be applicable to each of the combined certificates.
(h) For division into two or more nursing home facilities of beds or services authorized by one certificate of need issued in the same planning subdistrict. An exemption granted under this paragraph shall extend the validity period of the certificate of need to be divided by the length of the period beginning upon submission of the exemption request and ending with issuance of the exemption.
(i) For the addition of nursing home beds licensed under chapter 400 in a number not exceeding 10 total beds or 10 percent of the number of beds licensed in the facility being expanded, whichever is greater; or, for the addition of nursing home beds licensed under chapter 400 at a facility that has been designated as a Gold Seal nursing home under s. 400.235 in a number not exceeding 20 total beds or 10 percent of the number of licensed beds in the facility being expanded, whichever is greater.
1. In addition to any other documentation required by the agency, a request for exemption submitted under this paragraph must certify that:
a. The facility has not had any class I or class II deficiencies within the 30 months preceding the request.
b. The prior 12-month average occupancy rate for the nursing home beds at the facility meets or exceeds 94 percent.
c. Any beds authorized for the facility under this paragraph before the date of the current request for an exemption have been licensed and operational for at least 12 months.
2. The timeframes and monitoring process specified in s. 408.040(2)(a)-(c) apply to any exemption issued under this paragraph.
3. The agency shall count beds authorized under this paragraph as approved beds in the published inventory of nursing home beds until the beds are licensed.
(j) For replacement of a licensed nursing home on the same site, or within 5 miles of the same site if within the same subdistrict, if the number of licensed beds does not increase except as permitted under paragraph (e).
(k) For consolidation or combination of licensed nursing homes or transfer of beds between licensed nursing homes within the same planning district, by nursing homes with any shared controlled interest within that planning district, if there is no increase in the planning district total number of nursing home beds and the site of the relocation is not more than 30 miles from the original location.
(l) For beds in state developmental disabilities centers as defined in s. 393.063.
(m) For the establishment of a health care facility or project that meets all of the following criteria:
1. The applicant was previously licensed within the past 21 days as a health care facility or provider that is subject to subsection (1).
2. The applicant failed to submit a renewal application and the license expired on or after January 1, 2015.
3. The applicant does not have a license denial or revocation action pending with the agency at the time of the request.
4. The applicant’s request is for the same service type, district, service area, and site for which the applicant was previously licensed.
5. The applicant’s request, if applicable, includes the same number and type of beds as were previously licensed.
6. The applicant agrees to the same conditions that were previously imposed on the certificate of need or on an exemption related to the applicant’s previously licensed health care facility or project.
7. The applicant applies for initial licensure as required under s. 408.806 within 21 days after the agency approves the exemption request. If the applicant fails to apply in a timely manner, the exemption expires on the 22nd day following the agency’s approval of the exemption.
(4) REQUESTS FOR EXEMPTION.—A request for exemption under subsection (3) may be made at any time and is not subject to the batching requirements of this section. The request shall be supported by such documentation as the agency requires by rule. The agency shall assess a fee of $250 for each request for exemption submitted under subsection (3).
(5) NOTIFICATION.—Health care facilities and providers must provide to the agency notification of replacement of a health care facility when the proposed project site is located in the same district and on the existing site or within a 1-mile radius of the replaced health care facility, if the number and type of beds do not increase. Notification may be made by electronic, facsimile, or written means at any time before the described action has been taken.
History.—s. 23, ch. 87-92; s. 21, ch. 88-294; s. 2, ch. 89-527; ss. 3, 16, ch. 91-282; s. 15, ch. 92-33; s. 67, ch. 92-289; s. 30, ch. 93-129; s. 19, ch. 93-214; s. 38, ch. 93-217; ss. 3, 4, ch. 94-206; s. 58, ch. 95-144; s. 143, ch. 95-418; s. 3, ch. 97-270; s. 4, ch. 97-290; s. 3, ch. 98-14; s. 22, ch. 98-80; s. 3, ch. 98-85; s. 8, ch. 98-303; s. 7, ch. 2000-256; s. 15, ch. 2000-305; s. 8, ch. 2000-318; s. 15, ch. 2001-104; s. 13, ch. 2003-2; s. 1, ch. 2003-274; s. 1, ch. 2003-289; s. 10, ch. 2004-298; s. 1, ch. 2004-382; s. 6, ch. 2004-383; s. 2, ch. 2006-161; s. 8, ch. 2006-192; s. 26, ch. 2006-195; s. 51, ch. 2006-227; s. 88, ch. 2007-5; s. 15, ch. 2008-244; s. 11, ch. 2009-20; s. 19, ch. 2010-4; s. 1, ch. 2011-195; s. 20, ch. 2012-160; s. 5, ch. 2013-153; s. 2, ch. 2014-110; s. 45, ch. 2015-2; s. 2, ch. 2015-33; s. 1, ch. 2017-144; s. 61, ch. 2018-24; s. 11, ch. 2018-66; s. 72, ch. 2019-3; ss. 13, 14, ch. 2019-136; s. 98, ch. 2020-2; s. 2, ch. 2020-60; s. 7, ch. 2020-71; s. 30, ch. 2021-51; s. 7, ch. 2023-9.
Note.—Former s. 381.706.