59C-1.005. Certificate of Need Exemption Procedure

(1) Request for Exemption. Certain projects are subject to exemption from batched or expedited Certificate of Need review pursuant to Sections 408.036(3) and (4), F.S., provided the conditions specified in this rule are met. To receive an exemption, the applicant shall file a Certificate of Need exemption request with the Agency and provide documentation to justify the request. A request for exemption may be submitted at any time, and must be submitted to:

Agency for Health Care Administration

Certificate of Need

2727 Mahan Drive, Mail Stop #28

Tallahassee, Florida 32308

(2) General Requirements. In the case of any applicant filing a Certificate of Need exemption request, the request shall include:

(a) The type of exemption requested, with reference to the authorizing paragraph in Section 408.036(3), F.S. Except as provided in paragraph (6)(a) or (b) of this rule, an exemption request must be limited to a single type of exemption.

(b) The name of the health care facility involved, and the name of the licensee. A request for exemption affecting an existing licensed health care facility must be submitted by the current licensee.

(c) The location and service area of the project.

(d) The costs of the project.

(e) The gross square footage of the project, if applicable.

(f) The proposed licensed bed capacity of the health care facility, if applicable.

(g) A non-refundable fee of two hundred and fifty dollars ($250) payable to the Agency for Health Care Administration in accordance with Section 408.036(4), F.S. Exemption requests shall not be accepted by the Agency at the time of receipt unless accompanied by the $250 fee. Checks that are returned by the bank for insufficient funds will be processed consistent with the procedures for expedited review applications specified in subparagraph 59C-1.008(3)(c)1., F.A.C.

(h) The applicable project specific information required by subsection (6) of this rule.

(3) Agency Approval Required. No project shall be implemented until the Agency’s approval has been rendered.

(4) Agency Action. The Agency shall determine if a proposed project is exempted from Certificate of Need review within 30 days of receipt of all documentation required by this rule. The Agency shall forward its written decision to the applicant, and shall provide the applicant with specific reasons in the event that the request is denied. The Agency shall publish its notice of exemptions in the Florida Administrative Register within 30 days of the decision date.

(5) Limitation on Validity. An exemption, when granted, is valid only for the project for which it was issued and for the health care facility on whose behalf the exemption was granted and, for projects subject to the monitoring requirements of Section 408.040, F.S., only for the time frame stated in the Agency’s decision letter approving the exemption project.

(6) Project Specific Exemption Requests. In addition to meeting the requirements of subsections (1) and (2) of this rule, requests for exemption of certain projects must meet the additional requirements specified below:

(a) Combination within one nursing home facility of the beds authorized by two or more certificates of need issued in the same planning subdistrict. A request for exemption of a proposed combination of authorized nursing home beds shall specify:

1. The number of beds authorized by each Certificate of Need that is being combined.

2. The current holder of each Certificate of Need that is being combined.

3. The financial impact of combining the certificates of need.

4. The intended licensee for the beds included in the combined certificates of need.

5. An exemption granted under this paragraph extends the validity period of the certificates to be combined by the length of the period starting with submission of the exemption request and ending with issuance of the exemption.

6. The longest validity period among the certificates that are combined will be the validity period for the combined certificates.

7. An exemption granted under this paragraph does not authorize transfer of the combined Certificates of Need to another entity. Such transfer requires a Certificate of Need consistent with the provisions of Sections 408.036(2)(a) and 408.042, F.S. and Rule 59C-1.0085, F.A.C.

(b) Division into two or more nursing home facilities of the beds authorized by one Certificate of Need issued in the same planning subdistrict. A request for exemption of a proposed division of authorized nursing home beds shall specify:

1. The number of beds to be included in each component of the divided Certificate of Need.

2. The financial impact of dividing the Certificate of Need.

3. The intended licensee for the beds included in each component of a divided Certificate of Need, if known.

4. An exemption granted under this paragraph extends the validity period of the certificate to be divided by the length of the period starting with submission of the exemption request and ending with issuance of the exemption. The extension is applicable to each component of the divided Certificate of Need.

5. An exemption granted under this paragraph does not authorize transfer of the component or components of a divided Certificate of Need to another entity. Such transfer requires a Certificate of Need consistent with the provisions of Sections 408.036(2)(c) and 408.042, F.S. and Rule 59C-1.0085, F.A.C.

(c) Addition of nursing home beds in a number not exceeding 10 beds or 10 percent of the licensed capacity of the nursing home being expanded, whichever is greater. A request for exemption of a proposed addition of nursing home beds shall specify:

1. The licensed bed capacity of the nursing home proposed to be expanded.

2. The current number of sheltered beds, if any, included within the licensed bed capacity.

3. The exact number of beds proposed to be added.

4. The number of sheltered beds, if any, proposed to be included within the total to be added.

5. The request shall certify that:

a. The facility has not had any Class I or Class II deficiencies within the 30 months preceding the request for an addition.

b. The average occupancy rate for the nursing home beds at the facility, for the 12-month period ending 1 month prior to the exemption request, meets or exceeds 94 percent. For the purpose of calculating average occupancy under this sub-subparagraph, the 12-month total of patient days shall be divided by 365 to determine an average daily census, and the average daily census shall then be divided by the total of licensed and approved beds as of the end of the 12-month period. Approved beds are beds authorized for the facility consistent with the provisions of paragraph 59C-1.008(2)(b), F.A.C.

c. Any beds previously authorized for the facility by an exemption under this paragraph have been licensed and operational for at least 12 months.

6. An exemption granted under this subparagraph is subject to the project monitoring requirements of Sections 408.040(2)(a)-(c), F.S., and subsections 59C-1.013(2) and (3), F.A.C., including project progress reports, an 18-month validity period for the exemption, and the circumstances for extension of the validity period.

7. Beds authorized under this paragraph shall be inventoried as approved beds until the beds are licensed.

(d) Addition of nursing home beds to a facility that has been designated as a Gold Seal nursing home under Section 400.235, F.S., in a number not exceeding 20 beds or 10 percent of the licensed capacity of the nursing home being expanded, whichever is greater. A request for exemption of a proposed addition of nursing home beds shall specify:

1. The licensed bed capacity of the nursing home proposed to be expanded.

2. The current number of sheltered beds, if any, included within the licensed bed capacity.

3. The exact number of beds proposed to be added.

4. The number of sheltered beds, if any, proposed to be included within the total to be added.

5. The request shall certify that:

a. The facility has not had any Class I or Class II deficiencies within the 30 months preceding the request for an addition.

b. The average occupancy rate for the nursing home beds at the facility, for the 12-month period ending 1 month prior to the exemption request, meets or exceeds 94 percent. For the purpose of calculating average occupancy under this sub-subparagraph, the 12-month total of patient days shall be divided by 365 to determine an average daily census, and the average daily census shall then be divided by the total of licensed and approved beds as of the end of the 12-month period. Approved beds are beds authorized for the facility consistent with the provisions of paragraph 59C-1.008(2)(b), F.A.C.

c. Any beds previously authorized for the facility by an exemption under this paragraph have been licensed and operational for at least 12 months.

6. An exemption granted under this subparagraph is subject to the project monitoring requirements of Sections 408.040(2)(a)-(c), F.S. and subsections 59C-1.013(2) and (3), F.A.C., including project progress reports, an 18-month validity period for the exemption, and the circumstances for extension of the validity period.

7. Beds authorized under this subparagraph shall be inventoried as approved beds until the beds are licensed.

(e) Addition of nursing home beds licensed under Chapter 400, F.S., for a replacement nursing home not to exceed 30 total beds or 25 percent of the number of licensed and approved beds in the facility being replaced according to the provisions in Sections 408.036(2)(b), (2)(c) or (3)(j), F.S., whichever is less. A request for exemption of a proposed expansion of authorized nursing home beds must specify:

1. The licensed bed capacity of the nursing home proposed to be expanded.

2. The exact number of beds proposed to be added.

3. The subdistrict location of the facility as defined in Rule 59C-2.200, F.A.C.

(f) The consolidation or combination of licensed nursing homes or transfer of beds between licensed nursing homes within the same planning district, by providers that operate multiple nursing homes within that same planning district, if there is no increase in the planning district total number of nursing home beds as a result of this project and the site of the relocation is not more than 30 miles from the original location. A request for exemption under this paragraph shall specify:

1. For transfer requests:

a. The name and licensed bed capacity of nursing home from which beds will be transferred.

b. The name and licensed beds capacity of the nursing home to which beds will be transferred.

c. The exact number of beds proposed to be added.

d. The total number of licensed beds at each facility should this exemption be granted.

e. The subdistrict location of each facility as defined in Rule 59C-2.200, F.A.C.

f. The physical location of each facility.

2. For consolidation or combination requests:

a. The name and licensed bed capacity of each nursing home to be consolidated.

b. The name of the resulting consolidated nursing home.

c. The total number of licensed beds at the consolidated facility should this exemption be granted.

3. Verification that the providers have shared controlled interest in operating the nursing homes from which beds will either be transferred, consolidated, or combined. Certificate of Need exemption requests under this provision shall require verification that providers operate the nursing facilities in question under a common ownership or control. Verification may include copies of nursing home licenses showing common ownership or appropriate documentation that establishes the subject nursing homes are affiliates through a shared common ownership or controlling interest as defined in Section 408.803(7), F.S. If Agency records indicate information inconsistent with that presented by the requesting parties, then Agency records create a rebuttable presumption as to the correctness of those records and the request for exemption will be denied.

(g) The reestablishment of a health care facility or service. A request for exemption under this paragraph shall specify:

1. Documentation that the exemption applicant was previously licensed within the past 21 days as a health care facility or provider pursuant to Section 408.036(1), F.S.

2. The request shall certify that the exemption applicant failed to submit a renewal application.

3. The request shall certify that the exemption applicant does not have a license denial or revocation action pending with the Agency.

4. The service type, district, service area and site for the reestablished health care facility or service.

5. If applicable, the number and type of beds for the reestablished health care facility.

6. If applicable, identify the conditions that were previously imposed on the certificate of need or exemption related to the exemption applicant’s previously licensed health care facility or service.

7. The request shall certify that the exemption applicant agrees to the conditions that were previously imposed on the certificate of need or exemption related to the exemption applicant’s previously licensed health care facility or service.

8. An exemption granted under this paragraph will expire on the 22nd day following the Agency’s approval if the exemption applicant does not apply for an initial license as required under Section 408.806, F.S.

(h) The establishment of a hospice program by a entity that shares a controlling interest with a not-for-profit retirement community that offers independent living, assisted living and skilled nursing services provided in facilities on the same premises as the not-for-profit retirement community. A request for exemption under this paragraph shall specify:

1. Documentation that the skilled nursing home on premise is designated by the Agency as teaching nursing home in accordance with Section 430.80, F.S., and that the facility has been designated as such for at least five years prior to the exemption request.

2. Verification that the applicant and the not-for-profit retirement community and the licensed skilled nursing facility have shared controlled interest. Requests under this provision shall require verification that the providers operate the facilities under a common ownership or control. Verification may include copies of licenses as well as a copy of the certificate of authority showing common ownership or appropriate documentation that establishes the subject nursing homes are affiliates through a shared common ownership or controlling interest as defined in Section 408.803(7), F.S. If Agency records indicate information inconsistent with that presented by the requesting parties, then Agency records create a rebuttable presumption as to the correctness of those records and the request for exemption will be denied.

3. The request shall certify that the exemption applicant does not operate another hospice granted under this provision.

4. The request shall certify that the exemption applicant wil only serve hospice patients residng in communites located within the not-for-profit retirement community, including home and community-based service providers.

5. A service authorized under this paragraph shall be inventoried as an approved program until the service is licensed.

(7) This rule is in effect for five years from its effective date.

Rulemaking Authority 408.034(8), 408.15(8) FS. Law Implemented 408.036(3), (4) FS. History–New 1-1-77, Amended 6-5-79, 2-1-81, Formerly 10-5.05, Amended 11-17-87, 3-23-88, 1-31-91, Formerly 10-5.005, Amended 7-13-98, 4-2-01, 11-12-01, 8-18-05, 3-16-16, 9-24-18, 8-8-21.