Panel Backs Plan To Circumvent ‘Certificates Of Need’

Mar 22, 2018

With the sponsor taking aim at Florida’s controversial “certificate of need” law, the Constitution Revision Commission on Wednesday advanced a proposal that would tie new hospital growth in the state to hospital-acquired infection rates at existing facilities.

Though the proposed constitutional amendment doesn’t mention the words “certificate of need,” it would have the effect of circumventing the regulatory process that has required hospitals to get state approval before adding facilities or offering expanded services. The proposal (Proposal 54) would only impact so-called CONs for hospitals and wouldn’t affect regulations for nursing homes or hospices.

Before the commission voted 19-14 to approve the measure, sponsor Frank Kruppenbacher assured the panel that he would continue to work on it, including clarifying which infection rates would be used as the measuring stick and how those rates would be determined. The measure still will be subject to another vote by the commission before it could go on the November ballot.

Kruppenbacher said the constitutional amendment is necessary because it’s the only way the state will ever be able to scrap certificates of need, a process that Gov. Rick Scott has long wanted to eliminate.

“It’s not going to get fixed in this building,” Kruppenbacher said, referring to the Capitol where the Constitution Revision Commission has met this week. “It’s just not. The history and the record of the lobbying and the hold on the Legislature that health care has is going to prevent it.”

But his comments weren’t enough to assuage former Senate President Don Gaetz, a millionaire who made his fortune by operating a for-profit hospice and then selling it. Gaetz often notes that he helped write federal and state certificate-of-need laws.

In his 30-year health care career, Gaetz jokingly said, he had a consistent view of CON: “In those places where I have it, it’s enlightened public policy. In those places that I don’t, it’s a Communist plot to restrain trade. I have never deviated from that view.”

Gaetz said he supports changes to the regulatory program and recalled one year sponsoring a bill in the Senate that would have eliminated CON.

“You would have thought we were hoisting the hammer and sickle over the Capitol,” Gaetz said, recalling the ruckus the bill caused among hospital lobbyists. “We got chewed up. It’s just an industry food fight.”

But Gaetz said Kruppenbacher’s methodology was “flawed” and said it needed more work and shouldn’t be supported.

Kruppenbacher initially proposed a version that would have more directly addressed certificates of need. It would have prevented the state from limiting hospitals, nursing homes, hospices or intermediate-care facilities for individuals with intellectual disabilities through the granting of certificates of need.

But the commission agreed Wednesday to a revised version that included limiting the reach of the proposed constitutional amendment to hospitals. Also, under the revised version, the state could not prevent hospitals from entering into any county where an existing facility has higher-than-average infection rates. The proposal no longer contains the words “certificate of need.”

The Constitution Revision Commission meets every 20 years and has the power to place proposed constitutional amendments directly on the November ballot. It has met this week to try to narrow a list of ballot proposals. Ultimately, 60 percent of voters would have to approve any constitutional amendments.

Commission Chairman Carlos Beruff spoke in support of Kruppenbacher’s proposal. Beruff chaired a hospital commission Scott assembled in 2015 and said that after holding 10 months of hearings, he learned that competition and price transparency were needed to improve Florida’s health-care system.

“Certificate of need is one of the things that reduces competition in the state of Florida,” Beruff said, encouraging members to support Kruppenbacher’s proposal.

But commission member and state Sen. Tom Lee said that, while he understands competition and price transparency are important, circumventing the CON process could adversely affect community-owned hospitals in areas such as Tampa, Miami and Jacksonville.

“It’s too much too quick,” Lee, a Thonotosassa Republican, said.

Moreover, he said the Constitution may not be the best avenue to address CON.

“I fear that we will live to regret it. As much as I support the spirit of what’s trying to be done here,” he said.