Florida Lawmakers Repeal CON Requirements for General Hospitals, Tertiary Service Providers

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 capitalism.

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 psychiatric disorders
• 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 claims.

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 call305-372-0123.