Certificate of Need (CON) Overview

Like many other states, Florida has an extensive CON process in place for healthcare services and facilities. Winning approval for a CON application is often a time-consuming and difficult undertaking. Working with RPC provides clients with a team of consultants with experience working to develop state applications for new health services.

When working on a CON project, RPC can prepare the entire CON application or sections of the application as the client prefers. When the client is defining the project and deciding whether to file an application, RPC can help assess the market and regulatory situation to determine the relative likelihood of success for a project. RPC not only works to create a thorough market, need and financial analysis, but also works seamlessly with the client’s staff, architects, engineers and, other outside consultants to create a solid CON application.

RPC is led by Ron Luke, JD, PhD, who has prepared applications for health care facilities and services and presented testimony in related hearings since 1981 in more than 20 states, including Florida. RPC’s work on these projects includes the opening of new acute care hospitals, hospices, physical rehabilitation and psychiatric specialty hospitals, nursing homes, the relocation and addition of beds, ambulatory surgery facilities, and the acquisition of major medical equipment. Working with RPC during the CON process gives the applicant the advantage of a skilled, experienced team that can provide expert advice and produce an effective CON application.

Key CON Parties

Florida Agency for Healthcare Administration (AHCA)
AHCA publishes bed need, and also reviews CON applications.

Bureau of Health Facility Regulation

Certificate of Need and Commercial Managed Care Unit

2727 Mahan Drive, MS #28

Tallahassee, FL 32308

(850) 412-4401

 

Services that Require CON

  • Hospice
  • Skilled nursing facilities
  • Intermediate care facilities for the developmentally disabled
  • New construction or expanded health care facilities, except for replacement facilities with no change in the number of licensed beds
  • Conversion of a facility type

What Criteria are Used to Review a CON?

Florida Statute 408.035 outlines the ten criteria by which all CON applications will be reviewed:

  1. Need for proposed health care service* (see below for more detail)
  2. The availability, quality of care, accessibility and extent of utilization of existing health care facilities in the service area
  3. Record of previous quality care and ability to provide future quality care
  4. Funds and resources available for completing the project
  5. The extent that proposed service will enhance access to health care for all residents of the service area
  6. Immediate and long-term financial feasibility of the project
  7. The extent to which the project will foster competition that promotes cost-effectiveness
  8. The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction
  9. The applicant’s past and proposed provision of care to Medicaid, Medicare and medically indigent patients
  10. The applicant’s designation as a Gold Seal Program nursing facility, when the applicant is requesting additional nursing home beds

*AHCA publishes fixed need pools by planning district for two separate service categories, Hospice and Nursing Homes. If need is not shown, the review criteria for some services provide for special circumstances under which a CON can be granted.

In addition, Florida Administrative Code 59-C1.030 requires the CON application to meet the “Healthcare Access Criteria,” which seeks to ensure medically underserved persons receive treatment from the new health service. The following criteria are used to determine whether or not the proposed service is “accessible”:

  1. The extent to which medically underserved patients have historically used the proposed services, and the extent to which they are projected to use them in the future.
  2. Applicant’s performance in meeting federal regulations for uncompensated care or care of minority/disabled persons, including any civil rights access complaints against applicant.
  3. Service to Medicare, Medicaid and indigent patients.
  4. Applicant offers a range of means for patients to access its services.

Additionally, there are service-specific criteria for different project types that address issues specific to certain service lines and project types.

Certificate of Need Process Milestones

  1. File Letter of Intent
    A letter of intent (LOI) must be filed at least 30 days prior to the published application deadline due date for the particular batching cycle. The letter must contain a description of the proposed project, number of beds requested (if applicable), location, and applicant identification and contact information. Within 21 days after the LOI is received, AHCA publishes notice of all LOIs filed in the Florida Administrative Register. An accepted letter of intent generates a “grace period” where other applicants may submit a competing letter of intent to establish a project with a LOI for a particular service area. A grace period LOI is due to the Agency within sixteen days of the original LOI date.
  2. Initial Application
    The initial application must include the minimum fee of $10,000. AHCA provide a written response to the applicant within fifteen days of the filing deadline indicating the sections of the application that are incomplete, and request specific information from the applicant. Because Florida’s CON application is very in-depth and often requires extensive research and data manipulation, many applicants choose to hire a consulting firm, such as RPC, to assist with the research, calculations and assembly required for submitting a CON.
  3. Submission of Application Omissions
    The applicant must respond to AHCA’s request for additional information within 21 days of receipt. Otherwise, the application is withdrawn from review. This process often requires refinement of arguments, data analysis and the physical production of a large document to be submitted to AHCA.
  4. Public Hearing
    At the request of an applicant or any other interested party, a public hearing may be held within 21 days after the application(s) in question is deemed complete. This allows all parties to present their positions and any rebuttal information. The public hearing request must be received within 14 days after the Agency has published notification in the Florida Administrative Register that an application has been received.
  5. Staff Recommendations
    Within 60 days after all the applications in the batching cycle are deemed complete, AHCA will issue a State Agency Action Report and Notice of Intent to grant or deny a CON to the applicants, along with any conditions for an approved certificate.
  6. Administrative Hearings
    Any party requesting an administrative hearing must do so within 21 days after AHCA’s Notice of Intent is published in the Florida Administrative Register. Unless an administrative law judge (ALJ) issues a continuance, hearings will be held within 60 days of the ALJ being assigned to the case. A recommended order will be issued by the judge. After the recommended order is issued, AHCA must issue its final order within 45 days. Preparation for an administrative hearing often requires detailed review and analysis of opposing parties’ CON applications. In addition, exhibits, arguments and witnesses often have to be prepared for hearings. This type of time-intensive work is often done in conjunction with CON experts and consultants, such as the team at RPC.
  7. Judicial Review
    Any party to an administrative hearing has the right to seek review from the District Court of Appeals within 30 days of the date of the final order. AHCA is party to all such proceedings. During the review, the court will affirm the final order unless it is arbitrary, capricious or not in compliance with applicable statutes.

Certificate of Need Fees

The expense required to undertake a CON application depends on the scope of the project. The minimum base cost for any application is $10,000. In addition to this base fee, the applicant must pay $.015 for every dollar of proposed expenditure, not to exceed $50,000. Additionally, the applicant is likely to incur legal fees and additional labor expenses during the CON application process.

Additional Sources

(links good as of January 2022)

Florida Agency for Health Care Administration-CON
https://ahca.myflorida.com/MCHQ/CON_FA/

CON Statute
https://ahca.myflorida.com/MCHQ/CON_FA/Rules/statutes.shtml

CON Rules
http://ahca.myflorida.com/MCHQ/CON_FA/Rules/index.shtml

CON Application Forms
https://ahca.myflorida.com/MCHQ/CON_FA/Application/index.shtml

Fixed Need Pool Publications
https://ahca.myflorida.com/MCHQ/CON_FA/FNP/index.shtml

 

Contact RPC Consulting

RPC is led by Dr. Ronald Luke, who has presented testimony in CON hearings in more than 20 states. RPC has been involved in CON projects ranging from the opening of new hospitals, hospices, psychiatric facilities and nursing homes to relocation and addition of beds, as well as acquisition of major medical equipment. Should you or your client need an expert team to help you with the Florida Certificate of Need Process (CON), please contact Dr. Ron Luke at 512-371-8166.

Disclaimer: The information on this page has been compiled by RPC in October 2013 based on sources believed to be reliable. It was last updated in January 2022. Where possible we have had the material reviewed by state CON officials or others knowledgeable of the state’s CON program. The information is not offered as legal advice. A state may change its rules, forms and procedures at any time and RPC offers no assurance that the information will be correct on the date it is viewed. Therefore the reader is urged to use this information only as a starting point for any CON application and to speak with state officials or seek legal or consulting advice early in the process