CHAPTER 408

408.031 Short title. Sections 408.031-408.045 shall be known and may be cited as the “Health Facility and Services Development Act.” History. — s. 18, ch. 87-92; s. 15, ch. 92-33; s. 7, ch. 95-144. Note. — Former s. 381.701. 408.032 Definitions relating to Health Facility and Services Development Act. As used in ss. 408.031-408.045, the term: (1) “Agency” means the Agency for Health Care Administration. (2) “Capital expenditure” means an expenditure, including an expenditure for a construction project undertaken by a health care facility as its own contractor, which, under generally accepted accounting principles, is not properly chargeable as an expense of operation and maintenance, which is made to change the bed capacity of the facility, or substantially change the services or service area of the health care facility, health service provider, or hospice, and which includes the cost of the studies, surveys, designs, plans, working drawings, specifications, initial financing costs, and other activities essential to acquisition, improvement, expansion, or replacement of the plant and equipment. (3) “Certificate of need” means a written statement issued by the agency evidencing community need for a new, converted, expanded, or otherwise significantly modified health care facility or hospice. (4) “Commenced construction” means initiation of and continuous activities beyond site preparation associated with erecting or modifying a health care facility, including procurement of a building permit applying the use of agency-approved construction documents, proof of an executed owner/contractor agreement or an irrevocable or binding forced account, and actual undertaking of foundation forming with steel installation and concrete placing. (5) “District” means a health service planning district composed of the following counties: District 1. — Escambia, Santa Rosa, Okaloosa, and Walton Counties. District 2. — Holmes, Washington, Bay, Jackson, Franklin, Gulf, Gadsden, Liberty, Calhoun, Leon, Wakulla, Jefferson, Madison, and Taylor Counties. District 3. — Hamilton, Suwannee, Lafayette, Dixie, Columbia, Gilchrist, Levy, Union, Bradford, Putnam, Alachua, Marion, Citrus, Hernando, Sumter, and Lake Counties. District 4. — Baker, Nassau, Duval, Clay, St. Johns, Flagler, and Volusia Counties. District 5. — Pasco and Pinellas Counties. District 6. — Hillsborough, Manatee, Polk, Hardee, and Highlands Counties. District 7. — Seminole, Orange, Osceola, and Brevard Counties. District 8. — Sarasota, DeSoto, Charlotte, Lee, Glades, Hendry, and Collier Counties. District 9. — Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties. District 10. — Broward County. District 11. — Miami-Dade and Monroe Counties. (6) “Exemption” means the process by which a proposal that would otherwise require a certificate of need may proceed without a certificate of need. (7) “Expedited review” means the process by which certain types of applications are not subject to the review cycle requirements contained in s. 408.039(1), and the letter of intent requirements contained in s. 408.039(2). (8) “Health care facility” means a skilled nursing facility, hospice, or intermediate care facility for the developmentally disabled. A facility relying solely on spiritual means through prayer for healing is not included as a health care facility. (9) “Hospice” or “hospice program” means a hospice as defined in part IV of chapter 400. (10) “Intermediate care facility for the developmentally disabled” means a residential facility licensed under part VIII of chapter 400. (11) “Nursing home geographically underserved area” means: (a) A county in which there is no existing or approved nursing home; (b) An area with a radius of at least 20 miles in which there is no existing or approved nursing home; or (c) An area with a radius of at least 20 miles in which all existing nursing homes have maintained at least a 95 percent occupancy rate for the most recent 6 months or a 90 percent occupancy rate for the most recent 12 months. (12) “Skilled nursing facility” means an institution, or a distinct part of an institution, which is primarily engaged in providing, to inpatients, skilled nursing care and related services for patients who require medical or nursing care, or rehabilitation services for the rehabilitation of injured, disabled, or sick persons. History. — s. 19, ch. 87-92; s. 19, ch. 88-294; s. 2, ch. 89-308; s. 7, ch. 89-354; s. 21, ch. 91-158; s. 54, ch. 91-221; s. 1, ch. 91-282; ss. 15, 16, ch. 92-33; s. 10, ch. 92-58; s. 22, ch. 93-214; s. 8, ch. 95-144; s. 28, ch. 95-210; s. 2, ch. 95-394; s. 1, ch. 97-270; s. 3, ch. 2000-256; s. 4, ch. 2000-318; s. 2, ch. 2004-383; s. 74, ch. 2006-197; s. 111, ch. 2008-4; s. 13, ch. 2013-162; ss. 6, 7, ch. 2019-136. Note. — Former s. 381.702. 408.033 Local and state health planning. (1) LOCAL HEALTH COUNCILS. — (a) Local health councils are hereby established as public or private nonprofit agencies serving the counties of a district. The members of each council shall be appointed in an equitable manner by the county commissions having jurisdiction in the respective district. Each council shall be composed of a number of persons equal to 1 1 / 2 times the number of counties which compose the district or 12 members, whichever is greater. Each county in a district shall be entitled to at least one member on the council. The balance of the membership of the council shall be allocated among the counties of the district on the basis of population rounded to the nearest whole number; except that in a district composed of only two counties, no county shall have fewer than four members. The appointees shall be representatives of health care providers, health care purchasers, and nongovernmental health care consumers, but not excluding elected government officials. The members of the consumer group shall include a representative number of persons over 60 years of age. A majority of council members shall consist of health care purchasers and health care consumers. The local health council shall provide each county commission a schedule for appointing council members to ensure that council membership complies with the requirements of this paragraph. The members of the local health council shall elect a chair. Members shall serve for terms of 2 years and may be eligible for reappointment. (b) Each local health council may: 1. Develop a district area health plan that permits each local health council to develop strategies and set priorities for implementation based on its unique local health needs. 2. Advise the agency on health care issues and resource allocations. 3. Promote public awareness of community health needs, emphasizing health promotion and cost-effective health service selection. 4. Collect data and conduct analyses and studies related to health care needs of the district, including the needs of medically indigent persons, and assist the agency and other state agencies in carrying out data collection activities that relate to the functions in this subsection. 5. Monitor the onsite construction progress, if any, of certificate-of-need approved projects and report council findings to the agency on forms provided by the agency. 6. Advise and assist any regional planning councils within each district that have elected to address health issues in their strategic regional policy plans with the development of the health element of the plans to address the health goals and policies in the State Comprehensive Plan. 7. Advise and assist local governments within each district on the development of an optional health plan element of the comprehensive plan provided in chapter 163, to assure compatibility with the health goals and policies in the State Comprehensive Plan and district health plan. To facilitate the implementation of this section, the local health council shall annually provide the local governments in its service area, upon request, with: a. A copy and appropriate updates of the district health plan; b. A report of nursing home utilization statistics for facilities within the local government jurisdiction; and c. Applicable agency rules and calculated need methodologies for health facilities and services regulated under s. 408.034 for the district served by the local health council. 8. Monitor and evaluate the adequacy, appropriateness, and effectiveness, within the district, of local, state, federal, and private funds distributed to meet the needs of the medically indigent and other underserved population groups. 9. In conjunction with the Department of Health, plan for services at the local level for persons infected with the human immunodeficiency virus. 10. Provide technical assistance to encourage and support activities by providers, purchasers, consumers, and local, regional, and state agencies in meeting the health care goals, objectives, and policies adopted by the local health council. 11. Provide the agency with data required by rule for the review of certificate-of-need applications and the projection of need for health facilities in the district. (c) Local health councils may conduct public hearings pursuant to s. 408.039(3)(b). (d) Each local health council shall enter into a memorandum of agreement with each regional planning council in its district that elects to address health issues in its strategic regional policy plan. In addition, each local health council shall enter into a memorandum of agreement with each local government that includes an optional health element in its comprehensive plan. Each memorandum of agreement must specify the manner in which each local government, regional planning council, and local health council will coordinate its activities to ensure a unified approach to health planning and implementation efforts. (e) Local health councils may employ personnel or contract for staffing services with persons who possess appropriate qualifications to carry out the councils’ purposes. However, such personnel are not state employees. (f) Personnel of the local health councils shall provide an annual orientation to council members about council member responsibilities. (g) Each local health council may accept and receive, in furtherance of its health planning functions, funds, grants, and services from governmental agencies and from private or civic sources and to perform studies related to local health planning in exchange for such funds, grants, or services. Each council shall, no later than January 30 of each year, render an accounting of the receipt and disbursement of such funds received by it to the Department of Health. (2) FUNDING. — (a) The Legislature intends that the cost of local health councils be borne by assessments on selected health care facilities subject to facility licensure by the Agency for Health Care Administration, including abortion clinics, assisted living facilities, ambulatory surgical centers, birth centers, home health agencies, hospices, hospitals, intermediate care facilities for the developmentally disabled, nursing homes, and health care clinics and by assessments on organizations subject to certification by the agency pursuant to chapter 641, part III, including health maintenance organizations and prepaid health clinics. Fees assessed may be collected prospectively at the time of licensure renewal and prorated for the licensure period. (b)1. A hospital licensed under chapter 395, a nursing home licensed under chapter 400, and an assisted living facility licensed under chapter 429 shall be assessed an annual fee based on number of beds. 2. All other facilities and organizations listed in paragraph (a) shall each be assessed an annual fee of $150. 3. Facilities operated by the Department of Children and Families, the Department of Health, or the Department of Corrections and any hospital which meets the definition of rural hospital pursuant to s. 395.602 are exempt from the assessment required in this subsection. (c)1. The agency shall, by rule, establish fees for hospitals and nursing homes based on an assessment of $2 per bed. However, no such facility shall be assessed more than a total of $500 under this subsection. 2. The agency shall, by rule, establish fees for assisted living facilities based on an assessment of $1 per bed. However, no such facility shall be assessed more than a total of $150 under this subsection. 3. The agency shall, by rule, establish an annual fee of $150 for all other facilities and organizations listed in paragraph (a). (d) The agency shall, by rule, establish a facility billing and collection process for the billing and collection of the health facility fees authorized by this subsection. (e) A health facility which is assessed a fee under this subsection is subject to a fine of $100 per day for each day in which the facility is late in submitting its annual fee up to the maximum of the annual fee owed by the facility. A facility which refuses to pay the fee or fine is subject to the forfeiture of its license. (f) The agency shall deposit in the Health Care Trust Fund all health care facility assessments that are assessed under this subsection and shall transfer such funds to the Department of Health for funding of the local health councils. The remaining certificate-of-need application fees shall be used only for the purpose of administering the certificate-of-need program. (3) DUTIES AND RESPONSIBILITIES OF THE AGENCY. — (a) The agency is responsible for the coordinated planning of health care services in the state. (b) The agency shall develop and maintain a comprehensive health care database for the purpose of health planning and for certificate-of-need determinations. The agency or its contractor is authorized to require the submission of information from health facilities, health service providers, and licensed health professionals which is determined by the agency, through rule, to be necessary for meeting the agency’s responsibilities as established in this section. (c) The Department of Health shall contract with the local health councils for the services specified in subsection (1). All contract funds shall be distributed according to an allocation plan developed by the department. The department may withhold funds from a local health council or cancel its contract with a local health council which does not meet performance standards agreed upon by the department and local health councils. History. — s. 20, ch. 87-92; s. 40, ch. 88-380; s. 35, ch. 88-394; s. 1, ch. 89-104; s. 24, ch. 89-294; s. 2, ch. 89-296; s. 15, ch. 89-527; s. 2, ch. 91-48; s. 22, ch. 91-158; ss. 2, 104, ch. 91-282; s. 5, ch. 91-429; ss. 15, 17, ch. 92-33; s. 2, ch. 92-174; s. 66, ch. 92-289; s. 22, ch. 93-120; s. 11, ch. 93-129; s. 33, ch. 93-206; s. 8, ch. 93-267; s. 9, ch. 95-144; s. 29, ch. 95-210; s. 3, ch. 95-394; s. 11, ch. 97-79; s. 1, ch. 97-91; s. 35, ch. 97-103; s. 62, ch. 97-237; s. 175, ch. 99-8; s. 4, ch. 2000-256; s. 5, ch. 2000-318; s. 3, ch. 2004-383; s. 75, ch. 2006-197; s. 114, ch. 2010-102; s. 18, ch. 2012-160; s. 162, ch. 2014-19; s. 60, ch. 2018-24; s. 8, ch. 2019-136; s. 20, ch. 2020-156. Note. — Former s. 381.703. 408.034 Duties and responsibilities of agency; rules. (1) The agency is designated as the single state agency to issue, revoke, or deny certificates of need and to issue, revoke, or deny exemptions from certificate-of-need review in accordance with present and future federal and state statutes. The agency is designated as the state health planning agency for purposes of federal law. (2) In the exercise of its authority to issue licenses to health care facilities, as provided under chapter 393 and parts II, IV, and VIII of chapter 400, the agency may not issue a license to any health care facility that fails to receive a certificate of need or an exemption for the licensed facility. (3) The agency shall establish, by rule, uniform need methodologies for health facilities. In developing uniform need methodologies, the agency shall, at a minimum, consider the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, geographic accessibility, and market economics. (4) Prior to determining that there is a need for additional community nursing facility beds in any area of the state, the agency shall determine that the need cannot be met through the provision, enhancement, or expansion of home and community-based services. In determining such need, the agency shall examine nursing home placement patterns and demographic patterns of persons entering nursing homes and the availability of and effectiveness of existing home-based and community-based service delivery systems at meeting the long-term care needs of the population. The agency shall recommend to the Legislature changes that could be made to existing home-based and community-based delivery systems to lessen the need for additional nursing facility beds. (5) The agency shall establish by rule a nursing-home-bed-need methodology that has a goal of maintaining a subdistrict average occupancy rate of 92 percent. (6) If nursing home bed need is determined to exist in geographically contiguous subdistricts within a district, an applicant may aggregate the subdistricts’ need for a new community nursing home in one of the subdistricts. If need is aggregated from two subdistricts, the proposed nursing home site must be located in the subdistrict with the greater need as published by the agency in the Florida Administrative Register. However, if need is aggregated from more than two subdistricts, the location of the proposed nursing home site must provide reasonable geographic access for residents in the respective subdistricts given the relative bed need in each subdistrict. (7) If nursing home bed need is determined to exist in a subdistrict, an additional positive application factor may be recognized in the application review process for an applicant who agrees to voluntarily relinquish licensed nursing home beds in one or more subdistricts where there is no calculated need. The applicant must demonstrate that it operates, controls, or has an agreement with another licensed community nursing home to ensure that beds are voluntarily relinquished if the application is approved and the applicant is licensed. (8) The agency may adopt rules necessary to implement ss. 408.031-408.045. History. — s. 21, ch. 87-92; s. 8, ch. 89-354; s. 1, ch. 91-263; s. 15, ch. 92-33; s. 18, ch. 93-214; s. 10, ch. 95-144; s. 2, ch. 98-85; s. 5, ch. 2000-256; s. 6, ch. 2000-318; s. 13, ch. 2002-223; s. 9, ch. 2004-298; s. 4, ch. 2004-383; s. 3, ch. 2005-60; s. 76, ch. 2006-197; s. 19, ch. 2012-160; s. 1, ch. 2014-110; ss. 9, 10, ch. 2019-136. Note. — Former s. 381.704. 408.035 Review criteria. The agency shall determine the reviewability of applications and shall review applications for certificate-of-need determinations for health care facilities in context with the following criteria: (1) The need for the health care facilities being proposed. (2) The availability, quality of care, accessibility, and extent of utilization of existing health care facilities in the service district of the applicant. (3) The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care. (4) The availability of resources, including health personnel, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. (5) The extent to which the proposed services will enhance access to health care for residents of the service district. (6) The immediate and long-term financial feasibility of the proposal. (7) The extent to which the proposal will foster competition that promotes quality and cost-effectiveness. (8) The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction. (9) The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent. (10) The applicant’s designation as a Gold Seal Program nursing facility pursuant to s. 400.235, when the applicant is requesting additional nursing home beds at that facility. History. — s. 22, ch. 87-92; s. 20, ch. 88-294; s. 15, ch. 92-33; ss. 37, 50, ch. 93-217; s. 30, ch. 95-210; s. 36, ch. 97-103; s. 39, ch. 97-264; s. 2, ch. 97-270; s. 20, ch. 99-394; s. 6, ch. 2000-256; s. 7, ch. 2000-318; s. 5, ch. 2004-383; s. 1, ch. 2008-29; ss. 11, 12, ch. 2019-136. Note. — Former s. 381.705. 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 the construction cost is state or 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. (n) For the consolidation or combination of licensed skilled nursing facilities or the transfer of beds between licensed skilled nursing facilities which are for the sole use of veterans, their spouses, or surviving spouses in accordance with s. 296.415. The original licensed skilled nursing facility must have a shared controlling interest in the receiving licensed skilled nursing facility, and the site of the receiving licensed skilled nursing facility may not be located more than 100 miles from the site of the original licensed skilled nursing facility. (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; s. 2, ch. 2025-129. Note. — Former s. 381.706. 408.037 Application content. (1) An application for a certificate of need must contain: (a) A detailed description of the proposed project and statement of its purpose and need in relation to the district health plan. (b) A statement of the financial resources needed by and available to the applicant to accomplish the proposed project. This statement must include: 1. A complete listing of all capital projects, including new health facility development projects and health facility acquisitions applied for, pending, approved, or underway in any state at the time of application, regardless of whether or not that state has a certificate-of-need program or a capital expenditure review program pursuant to s. 1122 of the Social Security Act. The agency may, by rule, require less-detailed information from major health care providers. This listing must include the applicant’s actual or proposed financial commitment to those projects and an assessment of their impact on the applicant’s ability to provide the proposed project. 2. A detailed listing of the needed capital expenditures, including sources of funds. 3. A detailed financial projection, including a statement of the projected revenue and expenses for the first 2 years of operation after completion of the proposed project. This statement must include a detailed evaluation of the impact of the proposed project on the cost of other services provided by the applicant. (c) An audited financial statement of the applicant or the applicant’s parent corporation if audited financial statements of the applicant do not exist. In an application submitted by an existing health care facility, health maintenance organization, or hospice, financial condition documentation must include, but need not be limited to, a balance sheet and a profit-and-loss statement of the 2 previous fiscal years’ operation. (2) The applicant must certify that it will license and operate the health care facility. For an existing health care facility, the applicant must be the licenseholder of the facility. History. — s. 24, ch. 87-92; s. 15, ch. 92-33; s. 4, ch. 97-270; s. 8, ch. 2000-256; s. 9, ch. 2000-318; s. 2, ch. 2008-29; s. 42, ch. 2012-160; s. 16, ch. 2019-136. Note. — Former s. 381.707. 408.038 Fees. The agency shall assess fees on certificate-of-need applications. Such fees shall be for the purpose of funding the activities of the agency and shall be allocated as provided in s. 408.033. The fee shall be determined as follows: (1) A minimum base fee of $10,000. (2) In addition to the base fee of $10,000, 0.015 of each dollar of proposed expenditure, except that a fee may not exceed $50,000. History. — s. 25, ch. 87-92; s. 2, ch. 89-104; s. 16, ch. 89-527; s. 4, ch. 91-282; s. 15, ch. 92-33; s. 11, ch. 95-144; s. 17, ch. 97-79; s. 9, ch. 2000-256; s. 10, ch. 2000-318; s. 8, ch. 2004-383. Note. — Former s. 381.708. 408.039 Review process. The review process for certificates of need shall be as follows: (1) REVIEW CYCLES. — The agency by rule shall provide for applications to be submitted on a timetable or cycle basis; provide for review on a timely basis; and provide for all completed applications pertaining to similar types of services or facilities affecting the same service district to be considered in relation to each other no less often than annually. (2) LETTERS OF INTENT. — (a) At least 30 days prior to filing an application, a letter of intent shall be filed by the applicant with the agency, respecting the development of a proposal subject to review. No letter of intent is required for expedited projects as defined by rule by the agency. (b) The agency shall provide a mechanism by which applications may be filed to compete with proposals described in filed letters of intent. (c) Letters of intent must describe the proposal; specify the number of beds sought, if any; identify the services to be provided and the specific subdistrict location; and identify the applicant. (d) Within 21 days after filing a letter of intent, the agency shall publish notice of the filing of letters of intent in the Florida Administrative Register and notice that, if requested, a public hearing shall be held at the local level within 21 days after the application is deemed complete. Notices under this paragraph must contain due dates applicable to the cycle for filing applications and for requesting a hearing. (3) APPLICATION PROCESSING. — (a) An applicant shall file an application with the agency and shall furnish a copy of the application to the agency. Within 15 days after the applicable application filing deadline established by agency rule, the staff of the agency shall determine if the application is complete. If the application is incomplete, the staff shall request specific information from the applicant necessary for the application to be complete; however, the staff may make only one such request. If the requested information is not filed with the agency within 21 days after the receipt of the staff’s request, the application shall be deemed incomplete and deemed withdrawn from consideration. (b) Upon the request of any applicant or substantially affected person within 14 days after notice that an application has been filed, a public hearing may be held at the agency’s discretion if the agency determines that a proposed project involves issues of great local public interest. In such cases, the agency shall attend the public hearing. The public hearing shall allow applicants and other interested parties reasonable time to present their positions and to present rebuttal information. A recorded verbatim record of the hearing shall be maintained. The public hearing shall be held at the local level within 21 days after the application is deemed complete. (4) STAFF RECOMMENDATIONS. — (a) The agency’s review of and final agency action on applications shall be in accordance with statutory criteria and the implementing administrative rules. In the application review process, the agency shall give a preference, as defined by rule of the agency, to an applicant which proposes to develop a nursing home in a nursing home geographically underserved area. (b) Within 60 days after all the applications in a review cycle are determined to be complete, the agency shall issue its State Agency Action Report and Notice of Intent to grant a certificate of need for the project in its entirety, to grant a certificate of need for identifiable portions of the project, or to deny a certificate of need. The State Agency Action Report shall set forth in writing its findings of fact and determinations upon which its decision is based. If the agency intends to grant a certificate of need, the State Agency Action Report or the Notice of Intent shall also include any conditions which the agency intends to attach to the certificate of need. The agency shall designate by rule a senior staff person, other than the person who issues the final order, to issue State Agency Action Reports and Notices of Intent. (c) The agency shall publish its proposed decision set forth in the Notice of Intent in the Florida Administrative Register within 14 days after the Notice of Intent is issued. (d) If no administrative hearing is requested pursuant to subsection (5), the State Agency Action Report and the Notice of Intent shall become the final order of the agency. The agency shall provide a copy of the final order to the appropriate local health council. (5) ADMINISTRATIVE HEARINGS. — (a) Within 21 days after publication of notice of the State Agency Action Report and Notice of Intent, any person authorized under paragraph (c) to participate in a hearing may file a request for an administrative hearing; failure to file a request for hearing within 21 days of publication of notice shall constitute a waiver of any right to a hearing and a waiver of the right to contest the final decision of the agency. A copy of the request for hearing shall be served on the applicant. (b) Hearings shall be held in Tallahassee unless the administrative law judge determines that changing the location will facilitate the proceedings. The agency shall assign proceedings requiring hearings to the Division of Administrative Hearings of the Department of Management Services within 10 days after the time has expired for requesting a hearing. Except upon unanimous consent of the parties or upon the granting by the administrative law judge of a motion of continuance, hearings shall commence within 60 days after the administrative law judge has been assigned. All parties, except the agency, shall bear their own expense of preparing a transcript. In any application for a certificate of need which is referred to the Division of Administrative Hearings for hearing, the administrative law judge shall complete and submit to the parties a recommended order as provided in ss. 120.569 and 120.57. The recommended order shall be issued within 30 days after the receipt of the proposed recommended orders or the deadline for submission of such proposed recommended orders, whichever is earlier. The division shall adopt procedures for administrative hearings which shall maximize the use of stipulated facts and shall provide for the admission of prepared testimony. (c) In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need, whether reviewed under s. 408.036(1) or (2), to a competing proposed facility or program within the same district. (d) The applicant’s failure to strictly comply with the requirements of s. 408.037(1) or paragraph (2)(c) is not cause for dismissal of the application, unless the failure to comply impairs the fairness of the proceeding or affects the correctness of the action taken by the agency. (e) The agency shall issue its final order within 45 days after receipt of the recommended order. If the agency fails to take action within 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). (6) JUDICIAL REVIEW. — (a) A party to an administrative hearing for an application for a certificate of need has the right, within not more than 30 days after the date of the final order, to seek judicial review in the District Court of Appeal pursuant to s. 120.68. The agency shall be a party in any such proceeding. (b) In such judicial review, the court shall affirm the final order of the agency, unless the decision is arbitrary, capricious, or not in compliance with ss. 408.031-408.045. (c) 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. History. — s. 26, ch. 87-92; s. 9, ch. 89-354; s. 15, ch. 92-33; s. 125, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 95-144; s. 190, ch. 96-410; s. 18, ch. 97-79; s. 5, ch. 97-270; s. 10, ch. 2000-256; s. 11, ch. 2000-318; s. 9, ch. 2004-383; s. 3, ch. 2008-29; s. 46, ch. 2013-14; s. 17, ch. 2019-136. Note. — Former s. 381.709. 408.040 Conditions and monitoring. (1)(a) The agency may issue a certificate of need, or an exemption, predicated upon statements of intent expressed by an applicant in the application for a certificate of need or an exemption. Any conditions imposed on a certificate of need or an exemption based on such statements of intent shall be stated on the face of the certificate of need or in the exemption approval. (b) The agency may consider, in addition to the other criteria specified in s. 408.035, a statement of intent by the applicant that a specified percentage of the annual patient days at the facility will be utilized by patients eligible for care under Title XIX of the Social Security Act. Any certificate of need issued to a nursing home in reliance upon an applicant’s statements that a specified percentage of annual patient days will be utilized by residents eligible for care under Title XIX of the Social Security Act must include a statement that such certification is a condition of issuance of the certificate of need. The certificate-of-need program shall notify the Medicaid program office and the Department of Elderly Affairs when it imposes conditions as authorized in this paragraph in an area in which a community diversion pilot project is implemented. Effective July 1, 2012, the agency may not impose sanctions related to patient day utilization by patients eligible for care under Title XIX of the Social Security Act for nursing homes. (c) A certificateholder or an exemption holder may apply to the agency for a modification of conditions imposed under paragraph (a) or paragraph (b). If the holder of a certificate of need or an exemption demonstrates good cause why the certificate or exemption should be modified, the agency shall reissue the certificate of need or exemption with such modifications as may be appropriate. The agency shall by rule define the factors constituting good cause for modification. (d) If the holder of a certificate of need or an exemption fails to comply with a condition upon which the issuance of the certificate or exemption was predicated, the agency may assess an administrative fine against the certificateholder or exemption holder in an amount not to exceed $1,000 per failure per day. Failure to annually report compliance with any condition upon which the issuance of the certificate or exemption was predicated constitutes noncompliance. In assessing the penalty, the agency shall take into account as mitigation the degree of noncompliance. Proceeds of such penalties shall be deposited in the Public Medical Assistance Trust Fund. (2) 1 (a) Unless the applicant has commenced construction, if the project provides for construction, unless the applicant has incurred an enforceable capital expenditure commitment for a project, if the project does not provide for construction, or unless subject to paragraph (b), a certificate of need shall terminate 18 months after the date of issuance, except a certificate of need of an entity which was issued on or before April 1, 2009, shall terminate 36 months after the date of issuance. The agency shall monitor the progress of the holder of the certificate of need in meeting the timetable for project development specified in the application, and may revoke the certificate of need, if the holder of the certificate is not meeting such timetable and is not making a good-faith effort, as defined by rule, to meet it. (b) A certificate of need issued to an applicant holding a provisional certificate of authority under chapter 651 shall terminate 1 year after the applicant receives a valid certificate of authority from the Office of Insurance Regulation of the Financial Services Commission. (c) The certificate-of-need validity period for a project shall be extended by the agency, to the extent that the applicant demonstrates to the satisfaction of the agency that good-faith commencement of the project is being delayed by litigation or by governmental action or inaction with respect to regulations or permitting precluding commencement of the project. History. — s. 27, ch. 87-92; s. 22, ch. 88-294; s. 15, ch. 92-33; s. 13, ch. 95-144; s. 6, ch. 97-270; s. 4, ch. 98-85; s. 11, ch. 2000-256; s. 12, ch. 2000-318; s. 434, ch. 2003-261; s. 10, ch. 2004-383; s. 3, ch. 2006-161; s. 2, ch. 2007-82; s. 4, ch. 2008-29; s. 1, ch. 2009-45; s. 14, ch. 2009-223; s. 3, ch. 2011-135. 1 Note. — As amended by s. 14, ch. 2009-223. For a description of multiple acts in the same session affecting a statutory provision, see preface to the Florida Statutes , “Statutory Construction.” Paragraph (2)(a) was also amended by s. 1, ch. 2009-45, and that version reads: (2)(a) Unless the applicant has commenced construction, if the project provides for construction, unless the applicant has incurred an enforceable capital expenditure commitment for a project, if the project does not provide for construction, or unless subject to paragraph (b), a certificate of need shall terminate 3 years after the date of issuance. The agency shall monitor the progress of the holder of the certificate of need in meeting the timetable for project development specified in the application, and may revoke the certificate of need, if the holder of the certificate is not meeting such timetable and is not making a good-faith effort, as defined by rule, to meet it. Note. — Former s. 381.710. 408.041 Certificate of need required; penalties. It is unlawful for any person to undertake a project subject to review under ss. 408.031-408.045 without a valid certificate of need. Any person violating the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continuing violation shall be considered a separate offense. History. — s. 28, ch. 87-92; s. 62, ch. 91-224; s. 15, ch. 92-33; s. 14, ch. 95-144. Note. — Former s. 381.711. 408.042 Limitation on transfer. The holder of a certificate of need shall not charge a price for the transfer of the certificate of need to another person that exceeds the total amount of the actual costs incurred by the holder in obtaining the certificate of need. Such actual costs must be documented by an affidavit executed by the transferor under oath. A holder who violates this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, or by a fine not exceeding $10,000, or both. History. — s. 29, ch. 87-92; s. 15, ch. 92-33; s. 7, ch. 97-270. Note. — Former s. 381.712. 408.043 Special provisions. (1) HOSPICES. — When an application is made for a certificate of need to establish or to expand a hospice, the need for such hospice shall be determined on the basis of the need for and availability of hospice services in the community. The formula on which the certificate of need is based shall discourage regional monopolies and promote competition. The inpatient hospice care component of a hospice which is a freestanding facility, or a part of a facility, which is primarily engaged in providing inpatient care and related services and is not licensed as a health care facility shall also be required to obtain a certificate of need. Provision of hospice care by any current provider of health care is a significant change in service and therefore requires a certificate of need for such services. (2) RURAL HEALTH NETWORKS. — Preference shall be given in the award of a certificate of need to members of certified rural health networks, as provided for in s. 381.0406, subject to the following conditions: (a) Need must be shown pursuant to s. 408.035. (b) The proposed project must: 1. Strengthen health care services in rural areas through partnerships between rural care providers; or 2. Increase access to inpatient health care services for Medicaid recipients or other low-income persons who live in rural areas. (c) No preference shall be given under this section for the establishment of skilled nursing facility services by a hospital. (3) PRIVATE ACCREDITATION NOT REQUIRED. — Accreditation by any private organization may not be a requirement for the issuance or maintenance of a certificate of need under ss. 408.031-408.045. History. — s. 30, ch. 87-92; s. 15, ch. 91-282; s. 15, ch. 92-33; s. 31, ch. 93-129; s. 8, ch. 97-270; s. 1, ch. 2003-161; s. 11, ch. 2004-383; s. 18, ch. 2019-136. Note. — Former s. 381.713. 408.044 Injunction. Notwithstanding the existence or pursuit of any other remedy, the agency may maintain an action in the name of the state for injunction or other process against any person to restrain or prevent the pursuit of a project subject to review under ss. 408.031-408.045, in the absence of a valid certificate of need. History. — s. 31, ch. 87-92; s. 15, ch. 92-33; s. 15, ch. 95-144; s. 12, ch. 2000-256; s. 13, ch. 2000-318. Note. — Former s. 381.714. 408.045 Certificate of need; competitive sealed proposals. (1) The application, review, and issuance procedures for a certificate of need for an intermediate care facility for the developmentally disabled may be made by the agency by competitive sealed proposals. (2) The agency shall make a decision regarding the issuance of the certificate of need in accordance with the provisions of s. 287.057(17), rules adopted by the agency relating to intermediate care facilities for the developmentally disabled, and the criteria in s. 408.035, as further defined by rule. (3) Notification of the decision shall be issued to all applicants not later than 28 calendar days after the date responses to a request for proposal are due. (4) The procedures provided for under this section are exempt from the batching cycle requirements and the public hearing requirement of s. 408.039. (5) The agency may use the competitive sealed proposal procedure for determining a certificate of need for other types of health care facilities and services if the agency identifies an unmet health care need and when funding in whole or in part for such health care facilities or services is authorized by the Legislature. History. — s. 3, ch. 83-244; s. 42, ch. 85-81; s. 32, ch. 87-92; s. 3, ch. 89-308; s. 30, ch. 90-268; ss. 15, 18, ch. 92-33; s. 16, ch. 95-144; s. 13, ch. 2000-256; s. 14, ch. 2000-318; s. 67, ch. 2002-1; s. 37, ch. 2002-207; s. 33, ch. 2010-151; s. 14, ch. 2021-225. Note. — Former s. 381.4961; s. 381.715. 408.0455 Rules; pending proceedings. The rules of the agency in effect on June 30, 2004, shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency. Rules 59C-1.039 through 59C-1.044, Florida Administrative Code, remain in effect for the sole purpose of maintaining licensure requirements for the applicable services until the agency has adopted rules for the cor