Category Archives: Nursing Homes

FLORIDA BOARD OF NURSING RULE DEVELOPMENT WORKSHOP

The Department of Health, Board of Nursing has given notice of an upcoming Rule Development Workshop. On July 1, 2023, a new law went into effect that amended Florida Statutes 400.211, 400.23, 464.0156, and 464.2035. Chapter 400 of the Florida Statutes regulates nursing homes and Chapter 464 regulates the practice of nursing.

The legislature created a new designation of “qualified medication aide” (QMA) for certified nursing assistants (CNA) who work in a nursing home and meet specified additional licensure and training requirements. With this new law, a nursing home is authorized to allow a registered nurse (RN) working in the nursing home to delegate medication administration and associated tasks to a QMA who is working under the direct supervision of the RN. Prior to the new law, CNAs were authorized to administer oral, transdermal, ophthalmic, otic, rectal, inhaled, enteral, or topical prescription medication to a patient of a home health agency or to a patient in a county detention facility. This new law has now authorized administration of the above medications and associated tasks by a QMA, except for rectal and enteral, to a resident in a nursing home facility.

In order to be designated as a QMA, a CNA must hold a clear and active certification as a CNA for at least one year preceding the delegation; complete 40 hours of training that consists of the six-hour training course currently required for a CNA to administer medication in a home health setting and a 34-hour course developed by the Board of Nursing (BON) specific to QMAs; and successfully complete a supervised clinical practice in medication administration conducted in the nursing home.
The Board proposes that the following Florida Administrative Code Rules will require amendment to implement the statutory changes:

Chapter 14: Delegation to Unlicensed Assistive Personnel
Rule 64B9-14.0015 Delegated Tasks

Chapter 15: Certified Nursing Assistants
Rule 64B9-15.001 Definitions
Rule 64B9-15.002 Certified Nursing Assistant Authorized Duties
Rule 64B9-15.0025 CNA Medication Administration
Rule 64B9-15.0026 Medication Administration Outside the Scope of Practice of a CNA

Chapter 16: LPN Supervision in Nursing Home Facilities
Rule 64B9-16.001 Definitions
Rule 64B9-16.002 Supervision by Licensed Practical Nurses in Nursing Home Facilities
Rule 64B9-16.004 Delegation of Tasks Prohibited

The Florida Health Care Association has submitted a proposed training curriculum for certification to become a QMA as well as suggestions for the revisions to the above Rules to implement the statutory changes. The submission can be found in the public book available on the Board of Nursing’s website along with the proposed agenda at the below link.
https://floridasnursing.gov/meeting-information/

The preliminary text of the proposed rule is not available.
The workshop is scheduled for Thursday, October 26, 2023, 9:00 a.m., E.D.T., or as soon thereafter as can be heard.
Toll Free Number 1(888)585-9008, Conference Room ID: 275-112-502#

PROPOSED FEDERAL RULE AMENDMENT

The Department of Health and Human Services (“HHS”) and The Centers for Medicare and Medicaid Services (“CMS”)

As part of the Biden-Harris Administration’s Nursing Home Reform initiative, and because Federal nursing home staffing laws have not been updated since 1987, HHS and CMS have announced a proposed rule amendment to 42 CFR parts 438, 442, and 483 to ensure safe and quality care in long-term care facilities. This focuses on the proposed amendments to 42 CFR 483 regarding minimum nurse staffing requirements.

Minimum Staffing Standards for Long-Term Care Facilities (42 CFR 483)
The proposed rule establishes minimum nurse staffing standards in nursing homes as follows:
- Minimum nurse staffing standards of 0.55 hours per resident day (“HPRD”) for Registered Nurses (“RN”s).
- HHS evaluated State nurse staffing requirements and noted that the proposed RN requirement is higher than every State and only lower than the District of Colombia based on September 2022 data.
- Minimum of 2.45 HPRD for Nurse Aides (“NA”s).
- HHS noted that the proposed NA staffing requirement also is higher than every State and only lower than the District of Colombia based on September 2022 data.
- A requirement to have an RN onsite 24 hours a day, seven days a week.
HHS expects facilities to staff above these minimum baseline levels to address the specific needs of their unique resident population based on the facility assessment and resident acuity levels.
- Federal regulations currently require LTC facilities to use the services of an RN for at least 8 consecutive hours a day, 7 days a week (§483.35(b)(1)).
- The LTC facility must also designate an RN to serve as the Director of Nursing (“DON”) on a full-time basis (§483.35(b)(2)).
These Federal requirements specify a number of hours that these licensed nurses and other nursing personnel must be available; however, there is no requirement that those hours be specifically dedicated to direct resident care.
To meet these proposed new standards HHS estimates that approximately three quarters of nursing homes would have to strengthen staffing in their facilities in order to comply. HHS is proposing options for exemptions and a staggered implementation of the proposed requirements to alleviate challenges due to the nursing workforce.
HHS is seeking public comments regarding the proposed rules, including viable alternatives to the proposed staffing standards that will ensure safe and quality care for the over 1.2 million residents receiving care in Medicare and Medicaid-certified LTC facilities each day.
Florida’s minimum staffing requirements.
The Florida minimum staffing requirements include “direct care staff” as defined in F.S. 400.23 (3)(a)1. a. “Direct care staff” means persons who, through interpersonal contact with residents or resident care management, provide care and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being, including, but not limited to, disciplines and professions … in the categories of direct care services of nursing, dietary, therapeutic, and mental health. The term does not include a person whose primary duty is maintaining the physical environment of the facility, including, but not limited to, food preparation, laundry, and housekeeping.
It must be noted that Federal rule §442.43(a)(2) defines “Direct Care Worker” in a somewhat similar fashion; however, these direct care workers are not included in the proposed minimum nurse staffing numbers.
Pursuant to F.S. 400.23(3)(b), the minimum staffing requirements are as follows:
- A minimum weekly average of 3.6 hours of care by direct care staff per resident per day.
- A minimum of 2.0 hours of direct care by a certified nursing assistant per resident per day. A facility may not staff below one certified nursing assistant per 20 residents. (It must be noted that Florida revised the CNA standard from 2.45 to 2.0 in April 2022.)
- A minimum of 1.0 hour of direct care by a licensed nurse per resident per day. A facility may not staff below one licensed nurse per 40 residents. (It must be noted that Florida’s requirements only specify “licensed” nurse (which would include RNs and LPNs) rather than specifying an RN as required by the proposed Federal rule (which HHS purposefully proposed so that facilities do not have the flexibility to decide between types of licensed nurses to meet the minimum)).
- Nursing assistants employed under s. 400.211(2) (reflected in Federal rule §483.35(d)(1)) may be included in computing the hours of direct care provided by certified nursing assistants and may be included in computing the staffing ratio for certified nursing assistants if their job responsibilities include only nursing-assistant-related duties.
- Certified nursing assistants performing the duties of a qualified medication aide under s. 400.211(5) may not be included in computing the hours of direct care provided by, or the staffing ratios for, certified nursing assistants or licensed nurses.
Additionally, Rule 59A-4.108, Florida Administrative Code, requires the following with regard to nursing services in nursing homes:
- There shall be a DON who shall be responsible and accountable for the supervision and administration of the total nursing services program.
- The DON must designate one licensed nurse on each shift to be responsible for the delivery of nursing services during that shift.
Effect of Proposed Federal Rule to Florida LTC Facilities
To meet the proposed requirement that the facility have an RN on duty 24 hours a day 7 days a week:
- HHS has estimated that Florida will require an additional 8 nurses in rural areas and an additional 21 nurses in urban areas to meet this requirement.
- To meet the proposed requirement of 0.55 HPRD for RNs:
- HHS has estimated that Florida will require an additional 51 RNs in rural areas and an additional 390 RNs in urban areas.
- To meet the proposed requirement of 2.45 HPRD for NAs:HHS has estimated that Florida will require an additional 23 NAs in rural areas and an additional 414 NAs in urban areas.
Comment Submission for the CMS Proposed Rule.
There are varying staffing models that are available and different approaches that HHS could have adopted for the proposed minimum nurse staffing requirement such as separate requirements for RNs, LVNs/LPNs, and NAs or defining requirements for licensed nurse staffing, that is, combining RNs and LVNs/LPNs or creating standards for NAs only. Alternatively, HHS could have adopted non-nurse staffing requirements such as social workers, therapists, feeding assistants and other non-nurse staffing types in the minimum staffing requirement.
Ultimately HHS chose the comprehensive 24/7 RN and 0.55 RN and 2.45 NA HPRD requirements to strike a balance between ensuring resident health and safety, while preserving access to care, including discharge to community-based services.
HHS welcomes comments, and specifically on the following questions:
- Does your facility, or one you are aware of, have an RN onsite 24 hours a day, 7 days a week? If not, how does the facility ensure that staff with the appropriate skill sets and competencies are available to assess and provide care as needed?
- If a requirement for a 24 hour, 7 day a week onsite RN who is available to provide direct resident care does not seem feasible, could a requirement more feasibly be imposed for a RN to be “available” for a certain number of hours during a 24 hour period to assess and provide necessary care or consultation provide safe care for residents? If so, under what circumstances and using what definition of “available”?
- Should the DON be counted towards the 24/7 RN requirement or should the DON only count in particular circumstances or with certain guardrails? Please explain why or why not.
- Are there alternative policy strategies that we should consider to address staffing supply issues such as nursing shortages?
- The comment period is open for a sixty-day period that expires on November 6, 2023. More information on how to submit comments or to review the entire rule, can be found at this link: https://www.federalregister.gov/documents/2023/09/06/2023-18781/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid

AHCA PROPOSED RULE CHANGES FOR NURSE REGISTRIES

AHCA Notice of Rule Changes

On August 15, 2023, the Agency for Health Care Administration (“AHCA”) published notice of a proposed rule amendment regarding Florida Administrative Code (F.A.C.) Rule 59A-18.0081 which applies to regulation of licensed Nurse Registries in Florida. A copy of the AHCA Notice of Proposed Rule Amendment can be accessed here. Licensed Nurse Registries in Florida should review the proposed changes to determine how these changes to the Rule will affect their future operations, and if there are any concerns that should be addressed prior to the Rule becoming final. Nurse Registries affected by the Rule have certain rights, as described below, to participate in a public hearing or in a formal Rule Protest proceeding to seek changes or modifications to the proposed Rule amendments.

Overview of Rule Amendments

The current Rule 59A-18.0081, F.A.C. sets forth general requirements governing Nurse Registries including Rules that set forth requirements for certified nursing assistants (“CNAs”) and home health aides (“HHAs”) who provide health care services to patients in the home or place of residence and specifies the services that a CNA or HHA can perform. The main purpose of the proposed Rule amendments is to incorporate changes based upon changes recently made to Florida Statute 400.488, “Assistance with self-administration of medication and with other tasks.” This statute was updated in 2022 to add that CNAs and HHAs may assist with other tasks other than just self-administration of medication. This Rule amendment clarifies for CNAs and HHAs what can be performed, and it also clarifies some tasks that cannot be performed.

The proposed rule amendment reflects the additional tasks that CNAs and HHAs may now perform as taught and documented by a registered nurse (“RN”). Many of the proposed changes to the rule are reorganizing the language; however, it does specify both additional tasks that are now allowed, as well as specify some tasks that are not allowed. These proposed changes will assist in clarification for CNAs, HHAs, and the RNs that supervise them. The specific rule changes that include the additional tasks are as follows (underlined additions, strike through deletions):

(a) Assisting with the placement and removal change of a colostomy bag, excluding the removal of the flange or manipulation of the stoma’s site reinforcement of dressing;
(b) Assisting with the application and removal of anti- embolism stockings and hosiery prescribed for therapeutic treatment of the legs.
(b) through (d) renumbered (c) through (e) No Change.
(f) (e) Administer Doing simple urine tests for sugar, acetone or albumin;
(g) Assisting with the use of a glucometer to perform blood glucose testing;
(h) (f) Measuring and preparing special diets;
(i) (g) Measuring intake and output of fluids; and,
(j) (h) Measuring vital signs, including temperature, pulse, respiration or blood pressure;
(k) Assisting with oxygen nasal cannulas and continuous positive airway pressure (CPAP) devices, excluding the titration of the prescribed oxygen levels; and
(l) Assisting with the reinforcement of dressing.

The proposed rule amendment regarding the tasks that cannot be performed by a CNA or Home Health Aide are as follows:

(a) Administer any nursing or therapeutic service that requires licensure as a health care professional;
(b) Change sterile dressings.
(c) Irrigate body cavities such as giving an enema;
(d) Perform irrigation of any wounds (such as vascular ulcers, diabetic ulcers, pressure ulcers, surgical wounds) or apply agents used in the debridement of necrotic tissues in wounds of any type;
(e) Perform a gastric irrigation or enteral feeding;
(f) Catheterize a patient;
(g) Administer medications;
(h) Apply heat by any method;
(i) Care for a tracheotomy tube;
(j) Provide any service which has not been included in the plan of care; or,
(k) Providing assistance with a pill organizer, such as removing medication from a pill organizer and placing the medication in the patient’s hand or filling a pill organizer with the patient’s medication(s).

Other proposed changes to the rule worth mentioning are that when it comes to assistance with self-administration of medications, previously it was required that a review of the medications for which assistance is to be provided was to be conducted by a registered nurse or a licensed practical nurse (“LPN”). The proposed rule will change this and require that an assessment of the patient and patient’s medications for which assistance is to be provided must be conducted by an RN to ensure that a patient receiving such assistance is medically stable and has regularly scheduled medications that are intended to be self-administered. This assessment may not be conducted by an LPN.

Right to Participate in Public Hearing or Formal Rule Challenge Proceedings

Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency such as AHCA is required to give notice of its intended action as required by Section 120.54(3)(a), Florida Statutes. The notice must be published in the Florida Administrative Register not less than 28 days prior to the intended action. Any person who will be substantially affected by a rule or a proposed rule may request a Public Hearing on the Rule changes and may seek an administrative determination of the invalidity of the rule on the grounds that the rule is an invalid exercise of delegated legislative authority pursuant to F.S. 120.56. There are strict time restraints for challenging a proposed rule that are delineated in F.S. 120.56(2) as follows:

A petition alleging the invalidity of a proposed rule shall be filed within 21 days after the date of publication of the notice required by s. 120.54(3)(a); within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(e)2.; within 20 days after the statement of estimated regulatory costs or revised statement of estimated regulatory costs, if applicable, has been prepared and made available as provided in s. 120.541(1)(d); or within 20 days after the date of publication of the notice required by s. 120.54(3)(d).

According to published Notice, a Rule Workshop on the proposed Nurse Registry rule changes is scheduled for September 14, 2023, 2:00 p.m. to 3:00 p.m. at the Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Conference Room C, Tallahassee, FL 32308. Individuals may also participate by dialing the Open Voice conference line, 1(888)585-9008, then enter the conference room number followed by the pound sign, 998-518-088#. The agenda and related materials can be found on the web at:
https://ahca.myflorida.com/MCHQ/Health_Facility_Regulatio n/Rulemaking.shtml.
Any affected party may participate in the Workshop to offer comments, ask questions, or suggest modifications. Any Petition to Challenge Proposed Rule Amendments would need to be filed with the Division of Administrative Hearings within 10 days after the final public hearing is held.

Legal Standards in a Rule Challenge

In a formal hearing the Party filing a Rule Challenge has the burden to prove by a preponderance of the evidence that they would be substantially affected by the proposed rule. The Agency then has the burden of proving by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. According to Section 120.52(8), Florida Statutes, a rule is deemed to be an “invalid exercise of delegated legislative authority” if any of the following apply:

(a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
(e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
(f) The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.

An example of a recent finding where a rule was found to be an invalid exercise of legislative power was in Fla. Dep’t of Bus. & Pro. Regul., Div. of Alcoholic Beverages & Tobacco v. Walmart Inc., No. 1D19-4599, 2021 WL 1996361 (Fla. Dist. Ct. App. May 19, 2021), reh’g denied (Aug. 19, 2021), wherein the Court held:

Plain meaning of “restaurant” as term was used in statute governing eligibility for consumption-on-premises liquor licenses, whether term’s meaning was “public eating place” or “public food service establishment” or “business establishment where meals or refreshments may be purchased,” supported that restaurants customarily sold food prepared offsite and that restaurants were not limited to selling food prepared onsite, and, thus, rule interpreting statute and defining items “customarily sold in a restaurant” to exclude food prepared offsite was invalid for enlarging, modifying, or contravening statute.

Affected Parties Should Review the Proposed Rule Changes

Nurse Registries affected by the proposed rule amendment should review the proposed amendments carefully. If you feel there is a need for clarification, or that a rule is not warranted or is in conflict with statute, you should exercise your legal rights to participate in the Workshop and any future Public Hearing to seek modification of the proposed rule amendments, or to challenge proposed Rule amendments that may be invalid.

If you have questions or concerns about this new rule, you can contact an experienced healthcare attorney at Smith & Associates for a free consultation.

COVID-19 FACILITY SURVEYS

During this challenging and uncertain time in the fight against COVID-19, the Agency for Health Care Administration (“AHCA”) has been working closely with the Florida Department of Health (“DOH”) and health care providers on COVID-19 prevention and response efforts to ensure that facilities across Florida have the knowledge and training to take every precaution to ensure the health and safety of patients, residents and health care staff. AHCA shares key guidance from the Centers for Disease Control and Prevention (“CDC”) and DOH on the importance of restricting visitors, infection control protocols, and hygiene best practices. All licensees need to be vigilant in the protection against the spread of COVID-19 at their facilities. In facilities such as Assisted Living Facilities (“ALFs”) and Skilled Nursing Facilities (“SNFs”), it is extremely important to follow prevention guidelines because once COVID-19 appears in a facility it is a quick battle to isolate it and prevent others from being infected. Unfortunately, sometimes the battle is not quickly won, and the good guy suffers despite following detailed recommendations released by the CDC and the DOH.

Although AHCA and the DOH provide information on training, prevention, and response efforts, it must be noted that they are the policing agencies that are responsible for making sure that the Florida facilities protect their residents. Alerts released through AHCA require that facilities must report the positive COVID-19 cases in their facilities on a daily basis through the Emergency Status System (“ESS”). The ESS is the approved database for all licensees providing residential or inpatient services to report their emergency status. The number of COVID-19 cases in a facility is considered emergency status and must be reported daily.

AHCA and other state survey agencies are under extreme pressure to survey facilities to ensure compliance with COVID-19 directives. In fact, on January 4, 2021, the Centers for Medicare and Medicaid (“CMS”) issued a revised memorandum detailing new triggers for focused infection control surveys. The original CMS memorandum from June 1, 2020 identified two triggers for an infection control survey: nursing homes that report three or more new COVID-19 cases in the past week or one new resident case in a nursing home that was previously COVID-free as reported to National Healthcare Safety Network (“NHSN”). These surveys must be initiated by the state survey agency within three to five days of identification.

The January 4, 2021 update has outlined five more triggers for a focused infection control survey which went into effect immediately. Now nursing homes must meet one of the original case criterion plus at least one of the following new criteria: multiple weeks with new COVID-19 cases, low staffing, selection as a Special Focus Facility (a facility identified by CMS to have a documented pattern of providing poor care), concerns related to conducting outbreak testing per CMS requirements, or allegations or complaints that pose a risk of harm or immediate jeopardy to the health or safety or that are related to certain areas such as abuse or quality of care (e.g., pressure ulcers, weight loss, depression, decline in functioning). A survey may not be necessary for nursing homes meeting the above criteria if the nursing home received an onsite focused infection control survey in the three weeks prior to meeting the criteria, either as a stand-alone survey or as part of a recertification survey. However, in the event that a nursing home continues to meet the above criteria in the fourth week following the prior focused infection control survey, a new survey should be initiated. It must be noted that the original June 1, 2020 memorandum directed that state survey agencies must conduct a focused infection control survey of a minimum of 20% of the nursing homes in the state during the fiscal year 2021. Additionally, to meet this minimum of 20% of state nursing homes surveyed, only stand-alone focused infection control surveys may be counted.

In February 2021, AHCA issued its most recent emergency rules regarding mandatory entry for testing: 59AER21-3 Mandatory Entry for Testing and Infection Control for Nursing Homes and 59AER21-2 Mandatory Entry for Testing and Infection Control for Assisted Living Facilities. These rules provide updated DOH infection control directives and infection control duties concerning staff and resident testing, including making off-shift staff available at the facility for testing.

AHCA’s Field Operations Offices are responsible for conducting facility surveys. When deficiencies are found, a report called a Statement of Deficiencies (“SOD”), is generated to the facility for corrective action. The SOD issued to the facility will specify which rules or statutes the facility is deficient in following. In a situation where a facility is the subject of a focused COVID survey, the SOD may contain a deficiency for Resident Care – Rights & Facility Procedures pursuant to F.A.C. 59A-36.007(6) and F.S. 429.27 and F.S. 429.28 for failure to adhere to recognized standards from the CDC. Such failure may be in the form of failing to ensure social distancing and/or, failure to ensure residents and staff wore personal protective equipment (“PPE”) to prevent the spread of COVID-19. Additionally, it may include facility’s failure to ensure that the staff were knowledgeable about the prevention of the spread of COVID-19 and failure to screen staff and residents appropriately.

Another potential violation of the above rule and statutes that the SOD may contain is for failure to properly abide by the Division of Emergency Management (“DEM”) Order No. 20-011 (signed October 20, 2020) regarding the prohibition of entry of individuals to the facility except in certain circumstances as follows:

1. Every facility must continue to prohibit the entry of any individual to the facility, except in the following circumstances:
…
K. General visitors, i.e. individuals other than compassionate care visitors, under the criteria detailed below:
…
iii. Before allowing general visitors, the facility shall:
1. Set a policy to prohibit visitation if the resident receiving general visitors is quarantined, positive for COVID-19 and not recovered (as defined by most recent CDC guidance), or symptomatic for COVID-19;
2. Screen general visitors to prevent possible introduction of COVID-19;
3. Establish limits on the total number of visitors allowed in the facility, or with a resident at one time based on the ability of staff to safely screen and monitor visitation;
4. Establish limits on the length of visits, days, hours, and number of visits allowed per week;
5. Schedule visitors by appointment only;
6. Maintain a visitor log for signing in and out;
7. Immediately cease general visitation if a resident—other than in a dedicated wing or unit that accepts COVID-19 cases from the community—tests positive for COVID-19, or is exhibiting symptoms indicating that he or she is presumptively positive for COVID-19, or a staff person who was in the facility in the prior ten (10) days tests positive for COVID-19;
8. Monitor visitor adherence to appropriate use of masks, PPE, and social distancing;
9. Notify and inform residents and their representatives of any changes in the facility’s visitation policy;
10. Clean and disinfect visiting areas between visitors and maintain handwashing or sanitation stations; and
11. Designate staff to support infection-prevention and control education of visitors on use of PPE, use of masks, hand sanitation, and social distancing.

2. Individuals seeking entry to the facility, under the above section 1, will not be allowed to enter if they meet any of the screening criteria listed below:
A. Any person infected with COVID-19 who does not meet the most recent criteria from the CDC to end isolation.
B. Any person showing, presenting signs or symptoms of, or disclosing the presence of a respiratory infection, including cough, fever, shortness of breath, sore throat, chills, headache, muscle pain, repeated shaking with chills, new loss of taste or smell, or any other COVID-19 symptoms identified by the CDC.
C. Any person who has been in close contact with any person(s) known to be infected with COVID-19, who does not meet the most recent criteria from the CDC to end quarantine.

Clearly, this Order is very detailed on when and how a facility can admit visitors into the facility and it can easily be found that a facility failed to follow it precisely.

Another possible deficiency that a facility may be cited for is failure to follow the Comprehensive Emergency Plan that is required by F.S. 408.821. This statute requires that any licensee providing residential or inpatient services must utilize an online database approved by AHCA to report information to AHCA regarding the provider’s emergency status, planning, or operations. As stated above, all facilities are required to report their COVID-19 positive cases through the ESS on a daily basis. If a facility fails to report a positive case on any day, it can be cited for failure to follow the Comprehensive Emergency Plan violating the statute.

AHCA imposes administrative fines for violations according to a classification system in statute, based on the nature of the violation and the gravity of its probable effect on facility residents. ALFs’ (governed by Chapter 429, Part I, Florida Statutes, in addition to Chapter 408, Florida Statutes) deficiencies are classified as a Class I, Class II, Class III, or Class IV violation. The core licensing statutes for the facility type determine the Class and the fine that AHCA is authorized to charge the provider. SNFs are governed by Chapter 400, Part II, Florida Statutes, as well as Chapter 408, Part II, Florida Statutes. The “classification” system and applicable penalties for SNFs are found in section 400.23(8), Florida Statutes, and while similar to those of ALFs have striking differences. Specifically, the SNF statute provides for different levels of fines depending on whether the deficiency was isolated, patterned, or widespread. Additionally, for Class I, II, and III deficiencies, section 400.23(8), Florida Statutes, provides that “The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection.” (emphasis added).

As part of a survey that results in deficiencies due to COVID-19, AHCA may request a facility to enter a Voluntary Limitation on Admissions in order to help control the spread of COVID-19 in the facility. Many facilities will agree to the voluntary limitation in the best interests of their residents. Unfortunately, the facility cannot begin readmitting former residents or admitting new residents until AHCA issues a letter lifting the voluntary limitation. When the facility finally gets the green light on admissions it is possible that they will have lost numerous readmissions and initial admissions and therefore face a steep financial challenge.

Additionally, even though a facility agrees to a voluntary limitation and then quickly contains the COVID-19 outbreak, they are still at risk for being the subject of an Administrative Complaint. The Administrative Complaint will seek administrative fines, a survey fee, and will sometimes seek to take action against the facility license (e.g., license suspension or revocation). Once served with an Administrative Complaint, the facility has the option to file a Petition for Formal Administrative Hearing to challenge the validity of AHCA’s action or proposed action on the license. Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings. Such hearings are an opportunity to prove that the true facts do not support the sought fines, and suspension or revocation of the facility license.

If your facility has received an Administrative Complaint resulting from COVID-19 issues, we can help. Contact an attorney at Smith & Associates today to discuss your rights and options. For additional information on challenging a statement of deficiency or on classification of violations, please see our article Defending Alleged Survey Deficiencies At Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs).

Update on Return of Nursing Home CON in Florida

View PDF Version here.

The “post moratorium era” continues for the Nursing Home Certificate of Need (“CON”), with twenty-eight Letters of Intent filed in response to published Fixed Need Pools for an additional 493 nursing home beds statewide. Since the lifting of the moratorium on nursing home CON by the Legislature last year, the Agency for Health Care Administration (“AHCA “) has approved a total of 3,198 needed nursing home beds. Under the legislation, AHCA cannot approve any more CONs for nursing home beds equal to or greater than 3,750 (until June 30, 2017). Assuming AHCA awards all of the published need to these applicants, the total approvals by AHCA since the legislation was passed will be 3,691 beds. This would mean that there would only be 59 beds left before the 3,750 statutory cap is reached. Other deadlines are fast approaching, as well. Any provider that wishes to file a competing Grace Period Letter of Intent has until May 6, 2015 to file for a competing proposal.

The following tables show the Fixed Need Pool in each subdistrict where AHCA has received one or more letters of intent. The tables reflect the number of beds published in the Fixed Need Pool and a summary of the Letters of Intent received in each subdistrict to date. Additional notations are made as to any observations regarding the number of beds sought in relation to the fixed need pool.

Subdistrict 1-1
(Escambia and Santa Rosa)
Need: 61

Escambia	FL HUD Pensacola/Specialty Health and Rehabilitation Center	Add 30 community nursing home beds
Escambia	NF Bay, LLC	Establish a new 90-bed community nursing home
Escambia	PruittHealth – Escambia County, LLC	Establish a new community nursing home of up to 120 beds

*Note: Two applicants have filed for a number greater than published need; and one less.

Subdistrict 2-1
(Gadsden, Holmes, Jackson and Washington)
Need: 41
No LOIs received despite published need.

Subdistrict 3-1
(Columbia, Hamilton and Suwannee)
Need: 113

Columbia	MF Orange, LLC	Establish a new 113-bed community nursing home
Columbia	Palm Garden of Lake City, LLC	Establish a new community nursing home of up to 113 beds
Columbia	PruittHealth – Alachua County, LLC	Establish a new community nursing home of up to 113 beds
Columbia	Terrace Enterprises, LLC	Establish a new community nursing home of up to 113 beds

Subdistrict 3-2
(Alachua, Bradford, Dixie, Gilchrist, Lafeyette, Union, and Levy)
Need: 47

Alachua	Innovative Medical Management Solutions, LLC	Establish a new 47-bed community nursing home
Alachua	Oak Hammock at the University of Florida	Add 17 community nursing home beds through the conversion of 17 sheltered nursing home beds
Alachua	Palm Garden of Gainesville, LLC	Add up to 47 community nursing home beds

Subdistrict 3-3
(Putnam)
Need: 34

Putnam	Crestwood Nursing Center, Inc.	Add up to 34 community nursing home beds
Putnam	Lakewood Nursing Center, Inc.	Add up to 34 community nursing home beds

Subdistrict 3-4
(Marion)
Need: 0

Marion

Ocala SNF, LLC

Establish a new community nursing home of up to 120 beds

*Note: No published need, but an LOI was received.

Subdistrict 3-5
(Citrus)
Need: 23
Need published but no LOIs filed.

Subdistrict 3-6
(Hernando)
Need: 5
Need published but no LOIs filed.

Subdistrict 4-1
(Nassau and North Duval)
Need: 14

Duval	Edgewood Nursing Center, Inc.	Add up to 14 community nursing home beds
Duval	Innovative Medical Management Solutions, LLC	Establish a new 14-bed community nursing home

Subdistrict 4-3
(St. Johns and Southeast Duval)
Need: 0

St. Johns

Saint Johns SNF LLC

Establish a new community nursing home of up to 120 beds

*Note: No published need, but an LOI was received.

Subdistrict 5-1
(Pasco)
Note: 44

Pasco	Innovative Medical Management Solutions, LLC	Establish a new 44-bed community nursing home
Pasco	LP New Port Richey, LLC/Southern Pines Healthcare Center	Add 44 community nursing home beds

Subdistrict 6-4
(Highlands)
Need: 11
Need published but no LOIs filed.

Subdistrict 7-2
(Orange)
Need: 0

Orange

Orange SNF, LLC

Establish a new community nursing home of up to 120 beds

*Note: No published need, but an LOI was received.

Subdistrict 7-4
(Seminole)
Need: 33

Seminole	Innovative Medical Management Solutions, LLC	Establish a new 33-bed community nursing home
Seminole	Lifespace Communities, Inc./Village on the Green	Add up to 33 community nursing home beds
Seminole	Seminole SNF LLC	Establish a new community nursing home of up to 120 beds

*One applicant exceeds published need.

Subdistrict 8-2
(Collier)
Need: 0

Collier

Pelican Bay Retirement Services/Premier Place at the Glenview

Add up to 14 community nursing home beds through the conversion of up to 14 sheltered beds

*Note: No published need, but an LOI was received.

Subdistrict 9-1
(Indian River)
Need: 9

Indian River

Palm Garden of Vero Beach, LLC

Add up to nine community nursing home beds

Subdistrict 9-2
(Martin)
Need: 9
Need published but no LOIs filed.

Subdistrict 9-3
(Okeechobee)
Need: 4
Need published but no LOIs filed.

Subdistrict 11-1
(Miami Dade)
45

Miami Dade	CC-Aventura, Inc./VI at Aventura	Add up to 40 community nursing home beds
Miami Dade	Florida Medical Systems, LLC/Florida Medical Systems, LLC	Add up to 45 community nursing home beds and a partial of 15 beds
Miami Dade	Palm Garden of Aventura, LLC/Palm Garden of Aventura, LLC	Add up to 45 community nursing home beds
Miami Dade	Pediatric Specialty Care of Florida, LLC/Pediatric Specialty Care of Florida, LLC	Establish a new community nusing home of up to 45 beds

Total Statewide: 493

Any provider that has been contemplating an opportunity to seek a CON for a new facility or additional beds at an existing facility should review the currently filed Letters of Intent carefully, and decide if now is the time to seek approval for a competing project. Existing providers should also carefully consider their options, and decide whether to oppose a project that may have a negative impact on existing operations. Please feel free to call me for any additional information.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law and CON regulation for over 20 years.

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Update on Return of Nursing Home CON in Florida

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The deadline is looming to challenge AHCA’s preliminary Decisions. March 16, 2015, is the final day for competing CON Applicants to file challenges to AHCA’s State Agency Action Reports (“SAAR”). Existing Providers wanting full party status to challenge preliminary decisions should also file challenges by March 16, 2015. AHCA’s preliminary decisions that are not challenged by March 16, 2015, will become final and the preliminary approved Applicants will be issued CONs.

If a challenge is filed by a substantially affected party demonstrating that there are material disputed issues of fact, the matter will be referred to the Division of Administrative Hearings (“DOAH”) and assigned to an Administrative Law Judge (“ALJ”) for a quasi-judicial proceeding (“Final Hearing”). At the Final Hearing, AHCA’s preliminary decision is not entitled to any deference. The Applicants have the burden of proving the information contained in their CON Applications, and the Florida Evidence Code is applicable, with limited exceptions such as a more lenient rule on admissibility of hearsay evidence. For more information on the DOAH Final Hearing process, see our newsletter published February 11, 2015, posted at: http://smithlawtlh.com/update-on-return-of-nursing-home-con-in-florida/.

DISTRICTS RIPE FOR CHALLENGES

The chart below indicates sub-districts where AHCA’s preliminary approvals were less than the published fixed need determinations, which is one basis to argue a different provider or combination of providers might be a better fit.

Sub-district	Deficit/Surplus
1-1	40 Bed Surplus
3-2	60 Bed Surplus
4-4	47 Bed Surplus
5-2	56 Bed Surplus
7-4	78 Bed Surplus
8-5	40 Bed Surplus

WHO CAN CHALLENGE

Existing Providers in the same district or competing CON Applicants in the same sub-district can challenge the preliminary decisions. Once challenged, an approved CON Applicant should challenge the other CON Applicants in their sub-district within 10 days of the Notice of Litigation being filed in the Florida Administrative Register, or they could be left merely defending their approval without being able to raise flaws in competitors’ CON Applications.

UNCERTAIN APPLICANTS AND PROVIDERS SHOULD CHALLENGE

With March 16, 2015, rapidly approaching, many CON Applicants and Existing Providers may not have had the opportunity to fully comprehend the potential implications of AHCA’s preliminary decisions. If you are in this position, it is best to go ahead and file a challenge. A challenge can always be dismissed if you decide not to proceed, but if you miss the opportunity to challenge, you may have missed the only window of opportunity.

In some instances, denied CON Applicants have been able to reach settlements that resulted in their approval in addition to the approval of the preliminarily approved Applicant. In other instances, denied CON Applicants have been able to recoup some of their costs through settlements.

Existing Providers may have enhanced reasons to participate in challenges to avoid settlements that allow multiple approvals of preliminarily denied Applicants in addition to preliminarily approved Applicants. While this potential is always present in CON cases, it seems particularly likely in this batching cycle because there are so many potential sub-districts that may have litigation, several sub-districts have more fixed need for beds than have been preliminarily approved, and the Legislature has predetermined a limited window for the total number of beds that will be approved statewide before the moratorium is reactivated, and this number may be reached before need is triggered in the specific sub-district at issue in the future.

Further, a recent circuit court case provides additional reasons why Existing Providers should stay engaged in the process. In that case, a preliminarily denied CON Applicant challenged its denial. There was no competing CON Applicant. AHCA settled and approved the CON, including giving the CON Applicant several years beyond the time where the CON should have expired to begin construction. Several years later, when the project was about to commence construction, the Existing Provider tried to challenge the CON arguing it should have expired 18 months after it was issued, instead of several years after it was issued. The circuit court held the Existing Provider waived its rights to challenge by not filing a challenge within 21 days, even though the Existing Provider had no reason to assume AHCA would have extended the CON for several years beyond the statutory validity period. This case stands for the position that if an Existing Provider fails to challenge a CON, it could be strapped with far reaching consequences.

CONCLUSION

March 16, 2015, is an important deadline to file challenges to AHCA’s preliminary approvals. Failure to timely file a challenge could waive your rights to any future challenges, even if the litigation ultimately results in settlements that go beyond expectations.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law and CON regulation for over 20 years.

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The FLSA and Nursing Care Facilities – Unique Challenges

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While most businesses are subject to the Fair Labor Standards Acts’ (“FLSA”) overtime and minimum wage requirements, skilled nursing facilities, assisted living facilities, and nursing homes (collectively “Nursing Care Facilities”) face unique challenges when attempting to comply with the FLSA’s requirements. In fact, a Department of Labor survey conducted in 2000 showed that 84% of nursing homes were in violation of the FLSA’s overtime provisions. See http://www.dol.gov/whd/healthcare/surveys/nursing2000.htm. Violations of the FLSA can be costly. If found to be in violation, an employer will be liable for all of the past overtime owed, liquidated damages (which effectively doubles the amount owed), and attorney fees. 29 U.S.C. § 216(b). If not handled quickly and effectively, oftentimes the attorney fees can far outweigh the actual damages. To avoid these costs, Nursing Care Facilities need to continually ensure that they are in compliance with the FLSA.

Live–In Care Staff

Recently, a Central Florida ALF, Alta HealthCare Group, Inc. (“Alta”), was sued by a live-in care provider for violations of the FLSA’s overtime provisions. “Florida regulations require ALFs to have at least one staff member certified in cardiopulmonary resuscitation (“CPR”) on-site at all times.” Maldonado v. Alta Healthcare Grp., Inc., No. 6:12-CV-1552-ORL-36, 2014 WL 1661265 (M.D. Fla. Mar. 26, 2014) citing Fla. Admin. Code Ann. r. 58A–5.0191(4). To comply with this requirement, Alta hired a staff member at each of its facilities to reside at the ALF. This staff member was expected to perform regular duties when scheduled during the day shift (8:00 a.m. to 8:00 p.m.), and, if an issue arose, provide services during the night shift (8:00 p.m. to 8:00 a.m.). Alta considered any night issues to be minor and non-compensable because the staff “benefited from the ‘implicit value’ of not having to pay living expenses.” I d. Due to these working conditions, Norma Maldonado, a live-in care staff member, filed a lawsuit alleging FLSA overtime violations.

The Court stated that, due to the fact-specific nature of arrangements involving residing on the employer’s premises, employers and employees were free to construct reasonable agreements regarding compensation. Id. citing 29 C.F.R. § 785.23. However, the Court stated, “to be reasonable, employees must be compensated for any actual interruptions in sleep and, moreover, no more than eight hours of sleep time may be deducted for each 24-hour on-duty period.” Id. Emphasis added. The Court held that because Alta’s agreement did not compensate Maldonado for the interrupted sleep and because it attempted to deduct more than 8 hours of sleep time, it was unreasonable and unenforceable. Id.

With the agreement unenforceable, the Court then went on to determine if there were any overtime violations. The Court found that, because Maldonado put notes in each resident’s file every time she had an issue during the night shift, Alta had constructive knowledge of her work and was required to pay for that time. Id. Further, while Alta could claim the value of the residence as compensation, its mere assertion that the value was worth $1,085.00 was not sufficient and it would need to provide more evidence as to the reasonable value of the residence if it wished to apply that amount towards compensation. Id.

Shortly after the Court made this ruling, the parties settled. There are three key lessons to be taken from this case. First, employers should always ensure that working hours are recorded and properly compensated. If a Nursing Care Provider knows or should know that an employee is working, that person is entitled to compensation. Second, if a Nursing Care Provider has live-in staff, it needs to have an agreement with the employee that complies with all of the applicable regulations to be enforceable. If a Court determines that the agreement is not enforceable, the Nursing Care Provider will be liable for all uncompensated time. Third and finally, if a Nursing Care Provider plans on compensating an employee in ways other than monetarily, it needs to have an objectively reasonable and factually supported basis to determine the value of that compensation.

8 and 80 Rule

In general, an employer is required to pay its employees one and one-half times their regular rate of pay for every hour worked over 40 hours in a work week. 29 U.S.C. § 207(a)(2). However, due to the unique issues faced by health care providers when it comes to staffing, the FLSA includes a second option for calculating overtime – the 8 and 80 rule. The 8 and 80 rule allows Nursing Care Facilities, with the agreement of the employee, to calculate overtime on a 14-day basis as opposed to a 7-day basis. While there are exceptions, the agreement should be in writing, signed by the employee, and kept in their file. See 29 C.F.R. § 778.601(c). When overtime is calculated under the 8 and 80 rule, an employee is entitled to one and one-half times their regular rate of pay for any hours worked over 8 in one day and any hours worked over 80 in the fourteen day period. See 29 U.S.C. § 207(j). Further, premium pay for daily overtime under the 8 and 80 system may be credited towards the overtime compensation due for hours worked in excess of 80 for that period. 29 C.F.R. § 778.601(d).

For example, take this employee’s two week timesheet:

During this two week period, the employee worked a total of 80 hours, 56 hours on Week 1 and 24 hours on Week 2. Under the standard overtime rules, the employee would be entitled to 16 hours of overtime pay for Week 1. However, under the 8 and 80 rule, the employee would only be entitled to 8 hours of daily overtime for Monday of Week 2 and, since the total number of hours worked for the two week period did not exceed 80 hours, the employee would not be entitled to any additional overtime for the two week period. In this situation, the 8 and 80 Rule saved the employer 8 hours of overtime pay.

The 8 and 80 rule can provide much needed flexibility to Nursing Care Providers when it comes to staffing. However, this rule adds another layer of complexity to an already complex system of rules that employers must follow. Nursing Care Providers that wish to implement the 8 and 80 rule should consult with an experienced employment law attorney to ensure that they are in compliance with the FLSA.

Conclusion

Complying with the FLSA can prove a difficult challenge for any organization. The unique situations presented by Nursing Care Facilities only amplify those challenges. Further, the cost of non-compliance is incredibly high. Not only will the facility be liable for double damages, it will be liable for the employees’ attorney’s fees. And, with 80% of Nursing Care Facilities out of compliance, the potential for liability is huge.

Many Nursing Care Facilities don’t want to incur the fees of an experienced FLSA attorney to ensure that they are in compliance. However, failure to comply with the FLSA can result in the facility paying not just their attorney fees, but the attorney fees of their employees. If you are a Nursing Care Facility and you need help understanding or dealing with a FLSA issue, contact us a Smith & Associates for a free consultation.

Susan C. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law for over 15 years.

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Update on Return of Nursing Home CON in Florida

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AHCA announced the preliminary winners and losers in the first nursing home CON batching cycle since the Legislature lifted the moratorium in 2014. The State Agency Action Reports (“SAARs”) released on February 20 had a few surprises, but perhaps the biggest surprise is not contained within the decisions on the 102 completed CON Applications, but instead in the significant number of areas that are still left with unmet need.

While most of the talk surround nursing home CON Applications filed in this batching cycle has been about the large number of CON Applications filed, perhaps the more interesting story is that in 9 sub-districts, where there was a combined published fixed need of 365 beds, no one applied. In 13 other sub-districts, AHCA’s preliminary decisions awarded less beds than the fixed need determination calculated despite having CON Applications that would have met the need, for a combined deficit of 443 beds. For example, in Lee County, sub-district 8-5, there was fixed need for 40 beds, yet AHCA denied the only CON Application filed in that sub-district, leaving the 40 bed fixed need determination unmet.

This article focuses on the fixed need determinations by sub-district and the net surplus or deficit that would be created if AHCA’s preliminary determinations stand. Note, however, that AHCA’s preliminary determinations may be overturned by legal challenges filed before March 16, 2015, so these numbers are subject to and will almost definitely change significantly before all of the legal challenges are completed. For a more detailed discussion on the legal challenge process and timeline, see our newsletter dated February 11, 2015.

SUB-DISTRICTS WITH FIXED NEED WITHOUT A CON APPLICANT

No one applied for a nursing home CON in 9 sub-districts where there was published fixed need in the Second Batching Cycle for Other Beds and Programs 2014. The chart below shows the sub-district, counties, and fixed need that was not applied for by any nursing home provider.

Sub-district	Counties	Unmet Need
2-1	Gadsden, Holmes, Jackson, and Washington	56
2-3	Calhoun, Franklin, Gulf, Liberty, and Wakulla	14
3-1	Columbia, Hamilton, and Suwannee	99
3-3	Putnam	43
5-1	Pasco	67
6-4	Highlands	25
9-1	Indian River	18
9-2	Martin	37
9-3	Okeechobee	6

While it is too late for anyone to apply for a CON in these sub-districts in this batching cycle, it is extremely likely that similar fixed need will be published for these sub-districts in the next batching cycle on April 3, 2015.

SUB-DISTRICTS WHERE NEED IS GREATER THAN AHCA AWARDS

In 13 sub-districts, AHCA preliminarily awarded CONs for less beds than the current projected need. The chart below provides the sub-district, counties, and deficit between the fixed need calculations and preliminary awards.

Sub-district	Counties	Unmet Need
1-1	Escambia and Santa Rosa	40
3-2	Alachua, Bradford, Dixie, Gilchrist, Lafayette, Levy and Union	60
3-5	Citrus	43
3-6	Hernando	16
3-7	Lake and Sumter	25
4-3	St. Johns and south-eastern Duval	47
5-2	Pinellas	56
7-2	Orange	18
7-3	Osceola	10
7-4	Seminole	78
8-1	Charlotte	3
8-2	Collier	7
8-5	Lee	40

Any Applicant that filed a CON in the current batching cycle has the right to challenge their denial or the approval of another CON in the same sub-district prior to March 16, 2015.

SUB-DISTRICTS WHERE AHCA AWARDS EXCEEDED FIXED NEED

There were 4 sub-districts where AHCA awarded more beds than the fixed need publications showed were needed. The chart below shows the sub-district, counties, and surplus of beds over the published fixed need.

Sub-district	Counties	Surplus Beds
2-2	Bay	14
3-4	Marion	12
4-2	Baker, Clay, and southwestern Duval	47
6-5	Polk	51

Any Applicant that filed a CON in the current batching cycle has the right to challenge their denial or the approval of another CON Application filed in the same sub-district prior to March 16, 2015.

RIGHTS OF EXISTING PROVIDERS

Existing providers in the same district that will be substantially affected by the approval of a competing proposed facility or program can initiate or intervene in a challenge pursuant to Fla. Stat. §408.039(5)(c) (2014). Thus, by way of example, an existing provider in sub-district 6-3 can challenge a preliminary approval of a proposed provider in sub-district 6-5 because they are both in district 6. This is different from competing Applicants that must be filing in the same sub-district to prove standing. Existing providers may also intervene in legal proceedings challenging preliminary approvals after March 16, 2015, however, they do so subject to the standing of the other parties to the proceeding, as discussed in our prior newsletter on February 11, 2015. Thus, existing providers that wait until after March 16, 2015, do so at the risk that no one else challenges the preliminary approval.

AREAS RIPE FOR CHALLENGES

At this point, any area where there is a pending CON approval is an opportunity for a legal challenge. Basis for challenges are unlimited and can include any combination of factors, such as a better fit for the market, technical flaws in an application, under or over filling the gap in need demonstrated by the fixed need publication, etc. There are literally countless basis for challenging a preliminary CON approval. Notably, final hearings are de novo proceedings, meaning AHCA’s preliminary decision is not given any weight or presumption of correctness.

Without a full detailed review of all of the competing Applications within a sub-district, it’s difficult to make any specific conclusions about where successful opportunities for challenges could be found. That said, there are some sub-districts that seem to stand out in a macro-analysis shown in the chart below.

Sub-district	Deficit/Surplus	Reason
1-1	40 Bed Surplus	Other Applicant met the published need
3-2	60 Bed Surplus	Other Applicants met the published need
4-4	47 Bed Surplus	Other Applicants met the published need
5-2	56 Bed Surplus	Denied 56 bed Applicant
7-4	78 Bed Surplus	Other Applicants met the published need
8-5	40 Bed Surplus	Denied 31 bed Applicant

If these preliminary approvals are not challenged, they become final approvals and CONs will be awarded in these sub-districts.

Thus, if you are uncertain about whether you want to challenge a denial or someone else’s approval, it’s best to go ahead and file a challenge. A challenge can always be dismissed if you decide not to proceed, but if you miss the opportunity to challenge, then you may have missed the window of opportunity. That said, we have conservatively used March 16, 2015, as the deadline to file challenges throughout this article. However, there are certain facts and subsequent notice that have occurred in this batching cycle that might extend the period of time to file such challenges. Thus, if you have not decided to file a challenge until after March 16, 2015, and are just now reading this article and thinking you are too late, please contact us to discuss whether there may be additional ways to challenge a preliminary denial or approval.

CONCLUSION

February 20, 2015, held a few surprises for the bountiful field of CON Applicants, particularly that there is still a significant amount of unmet need where either no one applied for a CON or where AHCA did not award the beds to the full amount projected by the need formula. It will be interesting to see on April 3, 2015, whether AHCA again publishes similar need for these unclaimed areas, and if so, whether any CON Applicants will jump into the arena to compete for these unclaimed areas. There are also many areas of the State that are potentially subject to legal challenges to AHCA’s preliminary approvals. It will be interesting to see how many of AHCA’s preliminary decisions ultimately remain after these legal challenges are completed.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law and CON regulation for over 20 years.

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Smith & Associates Lobby for ALF Changes

Watch Smith & Associates’ attorneys Geoff Smith and Susan Smith lobby the Florida Legislature for changes in the Nursing Home CON laws here. (Smith & Associates start at the 1:39 mark).

Currently, the CON rules, as they are applied to Nursing Homes, allow for one nursing home to obtain and hold a monopoly in a district. This leads to fewer options for nursing home patients. Smith & Associates is lobbying the Florida Legislature to change this law to protect nursing home patients.

Update on Return of Nursing Home CON in Florida

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AHCA will be releasing its State Agency Action Reports (“SAARs”) on February 20, 2015, announcing the preliminary decisions for approvals and denials of the 104 CON Applications filed in the first batching cycle since the Legislature lifted the moratorium on new nursing homes in Florida. But what happens next? What do you do if you don’t agree with AHCA’s preliminary decisions? Who has standing to challenge the decision if your CON has been preliminarily approved? This article will provide a basic overview of Fla. Stat. §120.569 and §120.57 (2014), including the timing of challenges, the basic laws regarding standing to bring a challenge, and an overview of the administrative process should you wish to file a challenge or find yourself defending against a challenge.

NOTIFICATION OF DECISIONS

AHCA notifies CON Applicants of its preliminary decisions by releasing SAARs for each subdistrict where there was one or more CON Applications filed. The SAARs contain an assessment of each Applicant’s proposal, and a determination ultimately of which applicant or applicants best meets the statutory and rule review criteria. There is no fixed weight applied to any criteria, and the analysis by AHCA involves a weighing and balancing of all the review criteria.

There are four ways to access SAARs. First, there is a link from AHCA’s home page where all of the SAARs will be posted on February 20, 2015: http://www.fdhc.state.fl.us/MCHQ/CON_FA/Batching/applications.shtml. Sometimes, it can be later in the afternoon before the SAARs are actually posted. Second, any person or company can sign up to be added to AHCA’s email notification list for all CON batching cycle public notices, which includes the notification of the preliminary decisions on CON Applications. Third, AHCA directly contacts CON Applicants via the information provided in the initial CON Applications. Finally, within a few days of the decisions being announced, AHCA will publish formal Notices of Decisions in the Florida Administrative Register (“FAR”).

DECISIONS AFFECTING SUBSTANTIAL INTERESTS

Anytime AHCA makes a decision affecting substantial interests, AHCA must provide a “point of entry” for challenging the decision in an administrative trial. The “point of entry” explains when, where, and how the affected person or entity can challenge AHCA’s preliminary decision. Pursuant to Rule 59C-1.012 within 21 days after publication of the Notice of Intent in the FAR, a CON Applicant can request an administrative hearing to challenge the decision. The failure to timely file a proper request for administrative hearing challenging the denial of a CON Application shall result in the denial becoming final.

If a valid request for an administrative hearing is timely filed by a denied competing CON Applicant, a granted CON Applicant in the same sub-district shall have 10 days from the Notice of Litigation being published in the FAR to file a Petition challenging any or all other co-batched CON Applications.

Nursing home CON Applicants can only challenge other Applications that were comparatively reviewed for the same services in the same sub-district. Existing providers in the same district that will be substantially affected by the approval of a competing proposed facility or program can initiate or intervene in a challenge pursuant to Fla. Stat. §408.039(5)(c) (2014). Thus, existing providers are given a wider geographic area to be allowed to challenge a CON than competing CON Applicants.

An existing provider that intervenes within 21 days of the publication of the Notice of Decisions has full party status; however, an intervenor that does not intervene within 21 days is only granted status that is contingent upon the standing of the other parties to the litigation. This comes into play where there is a problem with the original parties’ standing, where the original parties decide to dismiss their challenge, or where the original parties resolved certain substantive issues in the case, through stipulations or otherwise, before the intervenor came into the case. It is often said that unless an existing provider files a Petition with 21 days of the FAR Notice of Decisions, the intervenor takes the case as they find it and is at the mercy of the original parties when it comes to maintaining standing.

FILING A PETITION

Petitions are filed at AHCA. Sometimes, inexperienced attorneys inadvertently file at the Division of Administrative Hearings (“DOAH”), which could raise jurisdictional issues if there is inadequate time to correct the error prior to the 21 day deadline.

Petitions must comply with the uniform rules of procedure under §120.54 (5)(b), including at least the following:

Identify the Petitioner;
State when and how the Petitioner learned of the decision;
Explain how the Petitioner’s substantial Interest are affected by the proposed action;
A statement of all material disputed facts;
A statement of the ultimate facts that warrant the reversal of the decision;
A statement of the rules or statutes that require a reversal or modification of the decision; and
A statement of the relief sought.

FORMAL ADMINISTRATIVE HEARINGS

If timely Petitions are filed meeting all of the required substantive criteria, AHCA refers the cases to DOAH for assignment of an Administrative Law Judge (“ALJ”) to review the decisions being challenged. This hearing is considered a “de novo” proceeding, which means that the ALJ should not be influenced by AHCA’s preliminary decision set forth in the SAAR—and the SAAR is “not clothed with a presumption of correctness.” That said, statistically, AHCA preliminary decisions are more frequently upheld than overturned by the ALJs. Perhaps that is because AHCA becomes a party in the proceeding and typically presents expert witnesses to support its rationale for why it’s preliminary determination was correct. That said, there are a significant number of cases where AHCA’s preliminary decision to approve or deny a CON has been decided differently by the ALJ and AHCA has issued a Final Order upholding the ALJ’s determination.

An administrative hearing is similar to a civil court trial, with slightly relaxed rules of evidence. Parties conduct written discovery, and pre-trial depositions of witnesses. The parties then present their case through expert testimony, lay witness testimony, and submission of documentary evidence. There is an opening statement, direct examination and cross-examination of witnesses by attorneys, and legal arguments over admissibility of evidence.

One of the most common arguments in CON cases concerns whether the evidence being presented amounts to an “impermissible amendment” of a CON Application. By Rule and established case law, a CON Applicant cannot amend its Application to include new concepts or theories for approval that were not set forth in the CON Application. However, an Applicant may introduce new evidence, new or updated data, and testimony that elaborates and explains concepts or theories that were included in the CON Application.

By statute, a party requesting a hearing has a right to demand that the hearing be commenced within 60 days of assignment to an ALJ. As a practical matter, most hearings are not done on this expedited schedule. It is not unusual for the hearing process to take 4-6 months or longer. Hearings typically last about 2-3 days for each party involved. In multi-party proceedings a final hearing may last 3-4 weeks. Virtually all CON final hearings are held in Tallahassee.

Upon conclusion of a formal hearing, the parties are required to submit a Proposed Recommended Order (“PRO”) for the ALJ’s review and consideration. This is typically filed 30 days or so after the final hearing. The PRO includes proposed Findings of Fact as well as proposed Conclusions of Law. By Rule a PRO is supposed to be no longer than 40 pages, but is not unusual for an ALJ to expand the number of pages to 60 or 80 pages depending on the number of parties involved. The ALJ reviews all PROs submitted by the parties and then issues a decision in a Recommended Order.

EXCEPTIONS AND THE FINAL ORDER

Once the ALJ issues a Recommended Order, the case is remanded back to AHCA for issuance of a Final Order. Parties may file exceptions to the Recommended Order to explain why the ALJ’s decision is in error. In issuing a Final Order, AHCA may not reject an ALJ’s findings of fact, unless the Agency reviews the entire record, and finds that there is no “competent, substantial evidence” to support a specific finding. It is not the role of AHCA to reweigh the evidence, or judge the credibility of witnesses, or to substitute its balancing of the evidence for that of the ALJ. As to Conclusions of Law, AHCA cannot disturb a conclusion unless it is on a legal matter that is within AHCA’s expertise and jurisdiction (e.g., its governing statute and rules) and AHCA must state with particularity its reasons for rejecting or modifying the conclusion of the ALJ, and must make a finding that its substituted or modified conclusion of law is as or more reasonable than the ALJ’s conclusion.

The issuance of a Final Order by AHCA is the end of the formal hearing process, and unless a judicial appeal is taken, the CONs will be issued or denied as set forth in the Final Order.

FURTHER APPEALS

A party may appeal the Final Order to a District Court of Appeal. This appeal is limited only to a review of the record by a three judge panel based upon legal arguments submitted by the parties’ attorneys in legal briefs.

CONCLUSION

February 20, 2015, will be a historic date for nursing homes in Florida. No doubt there will be numerous preliminary approvals and numerous disappointed CON Applicants. The CON process also includes protections for those with existing operations that could be adversely impacted by a CON being issued to another facility. Thus, whether you are seeking approval for new a nursing home or are simply seeking to protect your existing operation, it’s important to stay engaged in the process and know your rights.

A nursing home wishing to compete in this batching cycle needs to begin preparing now. If you need help competing in this upcoming batching cycle, contact the experienced counsel at Smith & Associates.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law and CON regulation for over 20 years.

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