Miscellaneous

AGENCY FOR HEALTH CARE ADMINISTRATION
Health Facility and Agency Licensing
In Re Petition to Initiate Rulemaking 59A-5.005 (j),(k)
RULE NO: RULE TITLE
59A-5.005: Governing Body

NOTICE IS HEREBY GIVEN THAT the Agency for Health Care Administration has issued a response to a Petition to Initiate Rulemaking from Key West HMA, Inc. d/b/a Lower Keys Medical Center. The Petitioner requests that the Agency amend subsections 59A-5.005(1)(j), (k), Florida Administrative Code, to require ambulatory surgery centers (ASC) have a formalized written transfer agreement with a nearby acute care general hospital.

First, Petitioner has not shown that there is a need for the proposed amendment or that the current rules have caused injury to patients. Second, the Agency’s existing rule is effective in ensuring the safe and efficient transfer of patients in the event of an emergency. The existing rule envisions emergencies, and thus requires that all attending medical staff members at an ASC, who do not have admitting privileges at a hospital, to have a written agreement from a physician who has staff privileges with a hospital to accept any patient who requires continuing care, or to have a written transfer agreement with a hospital. Accordingly, a patient who requires emergency care is already protected by these provisions.

Additionally, acute care general hospitals and ASCs both provide outpatient surgery services. In many geographic markets, therefore, hospitals and ASCs are at times direct competitors with respect to outpatient surgery services. Under the proposed rule, if a hospital refused to enter into a written transfer agreement with an ASC, the hospital could prevent the ASC from satisfying one of its mandatory conditions for licensure. In other words, the proposed amendment effectively would give hospitals a form of “veto power” over the licensure of ASCs. That type of system could negatively affect competition and diminish access to healthcare. Even if a hospital were to enter into a contract with an ASC, the proposed rule would appear to allow the hospital to dictate highly favorable terms (e.g., requiring the ASC in advance to obtain permission from the hospital before undertaking certain procedures).

A copy of the Order may be obtained from: Zaynab Salman, Assistant General Counsel, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, FL 32308-5403.