59C-1.036. Nursing Facility Beds

(1) Agency Intent. This rule implements Section 408.034(3), F.S., which requires the Agency to develop uniform need methodologies for Certificate of Need (CON) review of proposals, and Section 408.036(1)(a), F.S., which requires Certificate of Need review of proposals for the addition of nursing facility beds licensed under Chapter 400, F.S. The rule regulates the construction of new nursing facilities, the addition of new nursing facility beds, and conversion of other health care facility bed types to nursing facility beds, including conversion of licensed sheltered nursing facility beds in continuing care facilities regulated under Section 651.118, F.S. Projects for the addition of sheltered nursing home beds are excluded from this rule and regulated under Rule 59C-1.037, F.A.C. It is the intent of the Agency to ensure the availability of nursing facility services to all persons needing such services, regardless of ability to pay. Nothing in this rule is intended to interpret, modify, limit or expand Florida law regarding standing, or the right of an existing health care provider to initiate or intervene in a formal Administrative Hearing challenging intended Agency action on a Certificate of Need application for nursing facility beds regulated under this rule.

(2) CON Reviews. Proposals for nursing facility beds seeking licensure under Chapter 400, F.S., will be comparatively reviewed to each other. This rule contains a methodology for determining the numeric need for nursing facility beds proposed to be licensed under Chapter 400, F.S. An application for nursing facility beds seeking licensure under Chapter 400, F.S., will not be approved in the absence or insufficiency of a numeric need indicated by the formula in subsection (4) of this rule, unless the absence or insufficiency of numeric need is outweighed by other information presented in a Certificate of Need application showing special circumstances consistent with applicable and relevant criteria in Section 408.035, F.S.

(3) General Provisions.

(a) Planning Horizon. The future need for nursing facility beds shall be determined twice a year and published by the Agency as a Fixed Bed Need Pool for the applicable planning horizon. The planning horizon for applications submitted between January 1 and June 30 is January of the year 3 years subsequent to the year the application is submitted; the planning horizon for applications submitted between July 1 and December 31 is July of the year 3 years subsequent to the year the application is submitted.

(b) Batching Cycles. Proposals for nursing facility beds seeking licensure under Chapter 400, F.S., will be reviewed in the batching cycles for “Other Beds and Programs” described in paragraph 59C-1.008(1)(g), F.A.C.

(c) Population Estimates. The estimates of current and projected population used in this rule shall be the most recent estimates published by the Executive Office of the Governor and available to the Agency at least 3 weeks prior to publication of the Fixed Bed Need Pool. The estimate of projected population is the estimate for the planning horizon. The estimate of current population is the estimate for January of the year the application is submitted when the planning horizon is January; the estimate of current population is the estimate for July of the year the application is submitted when the planning horizon is July.

(d) Subdistrict Need Determination. The Agency will use the subdistrict designation shown in Rule 59C-2.200, F.A.C., for Agency service Districts 1 through 11 respectively in projecting need for nursing facility beds licensed under Chapter 400, F.S.

(e) Geographically Contiguous Subdistricts within a District. If nursing home need is determined by the bed need formula contained in this rule in continguous subdistricts within a District, the applicant may aggregate the subdistrict’s need for a new community nursing home pursuant to Section 408.034(6), F.S.

1. If need is aggregated from two subdistricts, the proposed nursing home site must be located in the subdistrict with the greatest published need as determined by the bed need formula contained in this rule.

2. 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 aggregated subdistricts given the relative bed need in each subdistrict.

(f) Geographically Underserved Areas. In a competitive Certificate of Need review within the nursing facility subdistrict as defined in Rule 59C-2.200, F.A.C., the Agency shall award a Certificate of Need if the applicant meets all applicable criteria for a geographically underserved area as specified in Section 408.032(15), F.S., and if the applicant meets applicable statutory Certificate of Need review criteria specified in Section 408.035, F.S., including bed need according to the relevant bed need formula contained in this rule. If an applicant is awarded a Certificate of Need based on the provisions of this paragraph, the applicant shall agree that the nursing facility will be located in a county without a nursing facility, or in the center of an area within the subdistrict with a radius of at least 20 miles which meets the definition of a geographically underserved area. The center of the geographically underserved area shall be the proposed nursing facility location in the application.

(4) Numeric Need for Nursing Facility Beds Seeking Licensure under Chapter 400, F.S.

(a) Projected Need. In addition to the other relevant statutory and rule criteria used in considering the allocation of new or additional nursing facility beds to be licensed under Chapter 400, F.S., the Agency will determine if there is a projected need for new or additional beds at the planning horizon according to the definitions and methodology specified in this subsection.

(b) Summary of Need Formula. The need formula for nursing facility beds seeking licensure under Chapter 400, F.S., links the projected subdistrict need to a projected increase in the district need for beds licensed under Chapter 400, F.S. The District increase is based on the expected increase in the district population age 65 to 74 and age 75 and over, with the age group 75 and over given 6 times more weight in projecting the population increase. The projected district bed need total is then allocated to its subdistricts consistent with the current subdistrict distribution of the total. The result for a given subdistrict is adjusted to reflect the current subdistrict occupancy of beds licensed under Chapter 400, F.S., and a desired standard of 92 percent occupancy. This subdistrict total of allocated beds is then reduced by the current number of Chapter 400, F.S., beds in the subdistrict that are licensed or approved, resulting in the net need for additional nursing facility beds to be licensed under Chapter 400, F.S. The rule also provides that if current occupancy of beds licensed under Chapter 400, F.S., is less than 85 percent, the net need in the subdistrict is zero regardless of whether the formula otherwise would show a net need.

(c) Need Formula. The formula for determining the net need in a subdistrict for nursing facility beds licensed under Chapter 400, F.S., is as follows:

1. A = (POPA × BA) + (POPB × BB)

where:

A is the projected age-adjusted total number of nursing facility beds to be licensed under Chapter 400, F.S., at the planning horizon for the district in which the subdistrict is located.

POPA is the projected population age 65-74 years in the district.

POPB is the projected population age 75 years and older in the district.

BA is the estimated current bed rate for facilities licensed under Chapter 400, F.S., for the population age 65-74 years in the district.

BB is the estimated current bed rate for facilities licensed under Chapter 400, F.S., for the population age 75 years and over in the district.

2. BA = LB / (POPC + (6 × POPD))

where:

LB is the number of nursing facility beds licensed under Chapter 400, F.S., in the District as of January 1, for fixed bed need pools published between January 1 and June 30, or as of July 1 for fixed bed need pools published between July 1 and December 31.

POPC is the current population age 65-74 years in the district.

POPD is the current population age 75 years and over in the district.

3. BB = 6 × BA

4. SA = A × (LBD/LB) × (OR/.92)

where:

SA is the subdistrict allocation of community nursing facility beds to be licensed under Chapter 400, F.S., at the planning horizon.

LBD is the number of nursing facility beds licensed under Chapter 400, F.S., in the subdistrict as of January 1, for fixed bed need pools published between January 1 and June 30, or as of July 1 for fixed bed need pools published between July 1 and December 31.

Or is the average 6 month occupancy rate for nursing facility beds licensed in the subdistrict under Chapter 400, F.S. For fixed bed need pools published between January 1 and June 30, occupancy rates shall be based upon patient days in nursing facilities licensed under Chapter 400, F.S., for the 6 month period from July 1 through December 31 of the previous year; for fixed bed need pools published between July 1 and December 31, occupancy rates shall be based upon patient days in nursing facilities licensed under Chapter 400, F.S., for the 6 month period from January 1 through June 30 of the year the fixed bed need pool is published.

.92 equals the desired average 6 month occupancy rate for nursing facility beds licensed under Chapter 400, F.S., in the subdistrict.

5. The net bed need allocation for a subdistrict at the planning horizon is determined by subtracting the total number of licensed and approved beds for facilities licensed under Chapter 400, F.S., in the subdistrict from the bed allocation determined under subparagraphs (c)1. through (c)4. unless, as defined in subparagraph (c)4. is less than 85% percent, in which case the net bed need allocation is zero. The number of licensed beds that is subtracted from the bed need allocation shall be the number licensed under Chapter 400, F.S., as of the most recent published deadline for Agency initial decisions prior to publication of the Fixed Bed Need Pool. The number of approved beds that is subtracted shall be the number for which the Agency has issued a Certificate of Need, a letter stating the Agency’s intent to issue a Certificate of Need, a signed stipulated agreement, or a final order granting a Certificate of Need, as of the most recent published deadline for Agency initial decisions prior to publication of the Fixed Bed Need Pool.

(d) Proposed Services. Applicants proposing the establishment of Medicare-certified nursing facility beds to be licensed under Chapter 400, F.S., shall provide a detailed description of the services to be provided, staffing pattern, patient characteristics, expected average length of stay, ancillary services, patient assessment tools, admission policies, and discharge policies.

(e) Quality of Care. In assessing the applicant’s ability to provide quality of care pursuant to Section 408.035(1)(c), F.S., the Agency shall evaluate the following facts and circumstances:

1. Whether the applicant has had a Chapter 400, F.S., nursing facility license denied, revoked, or suspended within the 36 months prior to the application.

2. Whether the applicant has had a nursing facility placed into receivership at any time during the period of ownership, management, or leasing of a nursing facility in the 36 months prior to the current application.

3. The extent to which the conditions identified within subparagraphs 1. and 2. threatened or resulted in direct, significant harm to the health, safety or welfare of the nursing facility residents.

4. The extent to which the conditions identified within subparagraph 3. were corrected within the time frames allowed by the appropriate state Agency in each respective state and in a manner satisfactory to the Agency.

(f) Harmful Conditions. The Agency shall question the ability of the applicant to provide quality of care within any nursing facility when the conditions identified in subparagraphs (e)1. and (e)2. resulted in direct, significant harm to the health, safety or welfare of a nursing facility resident, and were not corrected within the time frames allowed by the appropriate state Agency in each respective state and in a manner satisfactory to the Agency.

(g) Other Factors to be Considered in the Review of Certificate of Need Applications for nursing facility beds. An applicant who agrees to voluntarily relinquish licensed community nursing home beds in one or more subdistricts where there is no calculated need, may be recognized as a postitive application factor when applying for nursing facility beds in a subdistrict with published need. The applicant must demonstrate that it operates or has a controlled interest as defined in subparagraph 59C-1.005(6)(j)3., F.A.C., or has an agreement with another licensed community nursing home to ensure that beds are voluntarily relinquished if the application is approved. The nursing home from which the beds are being relinquished must submit a letter certifying that the identified number of beds at its facility will be delicensed no later than initial licensure of the proposed facility should the CON be awarded to the applicant. The relocation of beds under this paragraph must be limited to a portion of beds such that the occupancy rate of the remaining licensed beds of the facility from which the beds are being relinquished does not exceed 92 percent.

(5) Utilization Reports. Within 45 days after the end of each calendar quarter, facilities with nursing facility beds licensed under Chapter 400 or 395, F.S., shall report to the Agency, or its designee, the total number of patient days which occurred in each month of the quarter and the number of such days which were Medicaid patient days.

Rulemaking Authority 408.034(3), (5), (8), 408.15(8) FS. Law Implemented 408.034(3), (5), (6), (7), 408.036(1)(a), (b), (c) FS. History–New 1-1-77, Amended 11-1-77, 6-5-79, 4-24-80, 2-1-81, 4-1-82, 11-9-82, 2-14-83, 4-7-83, 6-9-83, 6-10-83, 12-12-83, 3-5-84, 5-14-84, 7-16-84, 8-30-84, 10-15-84, 12-25-84, 4-9-85, Formerly 10-5.11, Amended 6-19-86, 11-24-86, 1-25-87, 3-2-87, 3-12-87, 8-11-87, 8-7-88, 8-28-88, 9-12-88, 4-19-89, 10-19-89, 5-30-90, 7-11-90, 8-6-90, 10-10-90, 12-23-90, Formerly 10-5.011(1)(k), Amended 8-9-92, Formerly 10-5.036, Amended 10-6-92, 8-24-93, 6-11-98, 4-7-02, 8-1-05, 3-16-16.