The agency is proposing to amend the rule that outlines assessment of administrative fines for noncompliance with conditions placed on a Certificate of Need (CON)or Certificate of Need Exemption. The amendment adds a formula to be used in ...

AGENCY FOR HEALTH CARE ADMINISTRATION

RULE NO.: RULE TITLE:

59C-1.021 Certificate of Need Penalties

PURPOSE AND EFFECT: The agency is proposing to amend the rule that outlines assessment of administrative fines for noncompliance with conditions placed on a Certificate of Need (CON)or Certificate of Need Exemption. The amendment adds a formula to be used in calculating the dollar amount of the fine for noncompliance.

SUMMARY: The rule is amended to include a formula for the assessment of administrative fines for failure to comply with conditions placed on a Certificate of Need (CON) or Certificate of Need Exemption.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST:  No statement of estimated regulatory cost has been prepared.

Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative, must do so in writing within 21 days of this notice.

SPECIFIC AUTHORITY: 408.034(6) FS., 408.15(8) FS.

LAW IMPLEMENTED: 408.040(1)(b),(1)(d),(2)(a) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE. A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: April 18, 2006, 2:00 p.m. EST.

PLACE: Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Conference Room C, Tallahassee, Florida

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Rommel Bain, Certificate of Need, 2727 Mahan Drive, Building 1, MS 28, Tallahassee, Florida 32308

THE FULL TEXT OF THE PROPOSED RULE IS:

 

59C-1.021 Certificate of Need Penalties

(1) through (2) No change

(3) Penalties for Failure to Ccomply with Certificate of Need or Certificate of Need Exemption Conditions. The agency shall review the annual compliance report submitted by the health care providers who are licensed and operate the facilities or services and other pertinent data to assess compliance with certificate of need or certificate of need exemption conditions. Providers who are not in compliance with certificate of need or certificate of need exemption conditions may be subject to a fine pursuant to paragraph 408.040(1)(d), Florida Statutes shall be fined.  Failure to report compliance with any condition upon which the issuance of the certificate of need or certificate of need exemption was predicated constitutes noncompliance.  For community nursing homes or hospital-based skilled nursing units certified as such by Medicare, the first compliance report on the status of conditions must be submitted 30 calendar days following the eighteenth month of operation or the first month where an 85 percent occupancy is achieved, whichever comes first. The schedule of fines is as follows:

(a) Facilities failing to comply with any conditions or failing to provide the certificate of need office with a report on its compliance with conditions set forth on the cCertificate of nNeed or certificate of need exemption, will be assessed a fine, not to exceed $1,000 per failure per day. In assessing the penalty the agency shall take into account the degree of noncompliance.  Fines for non-compliance with an indigent care condition may be assessed using the following formula unless the provider profited from that non-compliance in an amount that exceeded the fine amount calculated for any given reporting year:

CAGP = the service condition agreed to by certificate of need or certificate of need exemption holder

ACTP = the actual percentage of service provided by the certificate of need or the certificate of need exemption holder during the reporting year

FAMT = dollar amount of the fine

FAMT = $365,000 x (CAGP – ACTP) / CAGP

Indigent care includes charity care and Medicaid. Charity care is defined, for purposes of condition compliance, as the portion of the facility charges reported to the Agency for Health Care Administration for which there is no compensation, other than restricted or unrestricted revenues provided to a facility by local governments or tax districts regardless of the method of payment, for care provided to a patient whose family income for the twelve months preceding the determination is less than or equal to 200 percent of the federal poverty level unless the amount of charges due from the patient exceed 25 percent of the annual family income. However, in no case shall the facility charges for a patient whose family income exceeds four times the federal poverty level for a family of four be considered charity. Medicaid patient days is defined, for purposes of condition compliance, as the patient days reimbursed by Medicaid.

(b) A provider who profited from its non-compliance in an amount that exceeds the fine amount calculated under the formula in paragraph (3)(a) of this rule may be assessed the fine calculated in paragraph (3)(a) plus the profit derived from non-compliance, but the total fine shall not exceed $365,000.

(c) Mitigating factors to be considered before assessing a fine may include but are not limited to the following:

1. The CON or CON exemption holder’s history of condition compliance.

2. The CON or CON exemption holder’s overall indigent care service.

3 The CON or CON exemption holder’s level of indigent care relative to all other similar providers in the relevant planning area.

4. The conditioned facility showing an operating loss or negative total margin on its most recent audited financial statement. 

(3)(b) renumbered (3)(d) No change.

(4) No change.

Specific Authority 408.15(8) FS., 408.034(6)(5) FS. Law Implemented 408.040(1)(b),(1)(d),(2)(a),408.061(6), 408.08(2), 408.044 FS. History–New 7-25-89. Amended 12-13-04, Formerly 10-5.021, Amended________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Rommel Bain, Health Services and Facilities Consultant

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Karen Rivera, Consultant Supervisor

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 3, 2006

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 9, 2005

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