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`Certificates Of Need' Could Land On Ballot

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Sarasota Herald-Tribune
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Free-market advocates for years have tried unsuccessfully to convince the Florida Legislature to eliminate requirements for the state to approve the construction of new nursing homes and hospitals and the provision of new services such as organ transplants or pediatric open-heart surgery.
Unable to get lawmakers to go along, supporters of eliminating the requirements now hope to accomplish their goal by convincing the 37 members of the Constitution Revision Commission that Florida voters should decide next year whether to repeal the so-called “certificate of need” requirements.

The commission's General Provisions Committee on Thursday will discuss a proposed constitutional amendment, filed by Commissioner Frank Kruppenbacher, that would eliminate CON requirements. The proposal would prohibit the state from limiting the number of hospitals, nursing homes, hospices, or intermediate care facilities for individuals with disabilities.

As filed, the proposal wouldn't limit the state's ability to require certificates of need for services provided at the facilities, but Commissioner Brecht Heuchan has offered a potential change that would broaden the proposal to also include services.

Attempts to contact Kruppenbacher were unsuccessful Wednesday, but Heuchan told The News Service of Florida that he filed the potential change as a courtesy to Kruppenbacher, who doesn't serve on the committee that is considering the proposal.

Despite the change of venue from the Legislature to the 37-member Constitutional Revision Commission, the CON repeal proposal remains controversial.

Florida Hospital Association President Bruce Rueben told The News Service of Florida that certificate of need requirements have ensured that low-income communities and rural communities have access to inpatient, acute-care health services. With the requirements, he said, that could be jeopardized.

“CON deregulation would allow a proliferation of these services in affluent communities and undermine hospitals serving communities with high numbers of uninsured and underinsured Floridians,” Rueben said.

Mayo Clinic in Jacksonville still is considering the merits of the proposed constitutional amendment and has not taken an official position, said Layne Smith, director of state governmental affairs.

Mayo Clinic Jacksonville has, in the past, supported legislative proposals to eliminate CON requirements for certain services, such as transplant programs.

“If it goes away for services, we're OK,” Smith said, adding that Mayo Clinic Jacksonville's support stems in part from its own challenges in securing a certificate of need for liver transplants. Smith said Mayo Clinic Jacksonville accrued about $1 million in legal bills in the 1990s wrangling with competitors that didn't want Mayo Clinic Jacksonville performing the procedures.

“That's a lot of money,” he said.

Mayo has not, though, taken a position on legislative proposals to eliminate CONs for new facility construction, as Kruppenbacher's proposal seeks.

“We absolutely understand the concerns with eliminating it for new construction,” he said.

In addition to being considered by the Constitution Revision Commission, an elimination of certificate of need requirements also is being sought by House Speaker Richard Corcoran, R-Land O' Lakes, and other House Republican leaders.

Rep. Heather Fitzenhagen, R-Fort Myers, has filed a bill (HB 27) that would eliminate CONs for hospitals and hospital services. The bill passed its only committee and is ready to be heard by the full House after the 2018 legislative session starts in January.

Unlike the proposal being considered by the Constitutional Revision Commission, the House bill could maintain the requirements for nursing homes.

That's just fine with the Florida Health Care Association, a statewide nursing-home association. The association is asking Kruppenbacher to amend his proposal to exempt nursing homes, arguing that removing the CON requirements for long-term care would lead to a proliferation of nursing homes. More nursing homes means the occupancy rates at existing homes would dip, which would lead to operational inefficiencies, according to a statement put out by the association.