On April 29, 2019,
legislators passed regulations that repeal the Certificate of Need (CON) law. The new measure primarily affects
hospitals. The law prohibited health care providers from venturing into new
business markets unless a need went unmet in an underserved community.
Unfortunately, the CON law
also limited innovations in the health care space. Moreover, lawmakers
agreed. As of July 1, 2019, statutes no
longer limit hospitals and tertiary service providers to the services they
provide. CON laws still apply to nursing homes and convalescent centers;
however, that may change over time as well.
The idea behind the CON
method was to place checks-and-balances on healthcare services available to the
general public within a given geographic area. Health care costs tend to be
unpredictable in the free market, but fair competition is the main tenet of
History of Florida’s Con Laws
The Agency for Health Care
Administration (AHCA) oversees Florida’s CON program. One way in which they accomplish
their purpose is to approve or deny new construction for or expansion on health
care facilities located in the state of Florida.
Under Florida CON laws, the
AHCA based its decisions on the need of a particular community within a region.
This geographic area is known as a ‘fixed need pool.’ Ultimately, it required health care facilities
to demonstrate that the new facility or expansion would fulfill an unmet need
in the fixed need pool to obtain a license.
CON laws have applied to
health care service facilities and providers for more than fifty years. It
historically applied to hospice centers, hospitals, immediate care facilities,
and nursing homes. The application process includes a three-tiered level of
review. Roughly half of all applications that go before the board receive approval.
Research Improved the Availability of Healthcare Services in Florida
The Department of Health
and Human Serves (HHS)
issued a report in 2018 to encourage federal and state lawmakers to repeal CON
laws. It cited that patient choices for health care services limited their
access to healthcare and actually increased the cost of healthcare in
states that use this method.
Lawmakers around the
country, including Florida, took note. As of the date of this blog post, twelve
states do not have CON laws in place. There are four other states that enact a
limited CON program. Florida is the fifth state to join the ranks of states with
limited CON laws.
The Limited Repeal of Florida’s CON Requirement
Under the new Florida CON
requirements, the AHCA no longer requires general and specialty hospitals to
receive approval to open or expand their facilities. That means new
construction and expansions only face existing licensure requirements without
the additional red-tape. It also ensures that competitors do not have the
opportunity to oppose the growth of competing facilities.
Specialty Hospitals Have a Two-Year Delay
Specialty hospitals are
also free from CON laws as well. However, legislation delays their lifted
restrictions until July 1, 2021. Florida statutes define specialty hospitals as:
- regular medical services provided to a
particular age or gender group
- services used to treat patients with mental or
- programs that utilize an intensive residential
treatment program for minors
As previously mentioned in
this article, HB 21 does not remove restrictions and limitations
from nursing homes, hospice centers, and restricted facilities. The AHCA still
requires these providers to complete the formal approval process in proving an
unmet need exists in a fixed need pool.
Florida Lawmakers Continue to Evaluate the CON Program
HB 21 also requires the Office of Program Policy Analysis and Government Accountability (OPPAGA) to
keep tabs on the program for tertiary hospitals. OPPAGA will compile program
research into a formal study by November 1, 2019. The outcome of its findings
may impact CON requirements on these facilities down the road.
Summary of Florida’s Limited Repeal to the CON Program
Healthcare law is shifting
across the country. To meet healthcare access needs for all, several states,
including Florida, have partially repealed their Certificate of Need (CON)
requirements. This action allows for fair market competition, lower healthcare
costs, and increased access to medical care.
General hospital and
tertiary service providers are free from restrictions as of July 1, 2019.
Specialty hospitals will no longer be bound by CON requirements beginning July
1, 2021. Nursing homes and convalescent centers must obey CON laws indefinitely
or until repeal takes place.
Hospitals have a difficult
time staffing hospitals. There is a shortage of quality nurses and medical
professionals. Allowing facilities to
“open up” will exacerbate the existing shortage and surely lead to medical errors and more medical malpractice
About Kaire Heffernan, LLC
Kaire Heffernan, LLC is a personal injury and Medical Malpractice law firm located in Miami, FL. Firm founder, Mark Kaire, has been serving negligently injured residents of Miami-Dade County and surrounding areas since 1997. If you need to speak with a member of our legal team, please call305-376-7860.
Mark Kaire has been practicing law in Miami for nearly 15 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for 4 years.