State delays start of ‘negotiated rulemaking’ for neonatal intensive care beds

Neonatal abstinence syndrome baby
The process was delayed by nearly a month.

A top health care official told members of a House health care panel the state wants to “aggressively” move forward with new rules governing the establishment and operation of neonatal intensive care units in Florida.

But the Agency for Health Care Administration delayed by several weeks the start of its “negotiated rulemaking” on the controversial rules pushing back a two-day meeting that was scheduled Sept. 30-Oct. 1 to Oct. 25-26, instead.

AHCA Deputy Secretary for Health Quality Assurance Kim Smoak did not tell members of the House Finance & Facilities Subcommittee the agency delayed the meeting by several weeks.

“We really want to move aggressively on this, frankly,” Smoak said Wednesday morning.

After the meeting, though, an AHCA official attributed the delay, in part, to the need for the agency to hire a mediator to help negotiate rules that competing hospitals can agree upon. Moreover, the agency also needs time to review applications that have been submitted by people who want to be part of the negotiated rulemaking panel, the AHCA official said, though he could not say how many applications had been received at press time.

AHCA announced in June it would use what’s called the “negotiated rulemaking process” to craft NICU rules after the proposed rules previously drafted were challenged by Tampa General Hospital and the North Broward Hospital District, whose President and CEO is Shane Strum, former chief of staff for Gov. Ron DeSantis.

Florida law allows agencies to enter into a negotiated rulemaking process “when complex rules are being drafted or strong opposition to the rules is anticipated.” The law requires the agency to appoint a “committee of interested persons” and to publicly post the list of representatives. Anyone who is not invited to serve on the committee who feels like their interests aren’t represented has 30 days to apply to participate. Though authorized in statutes, the negotiated rulemaking process is rarely, if ever, used.

“We will be taking some lessons learned from that process to see how we can move more aggressively forward,” Smoak testified.

AHCA needs to develop new NICU rules after Florida lawmakers in 2018 passed legislation requiring the state to adopt rules governing approval of pediatric cardiac programs and tertiary services, such as NICU beds. And in 2019 the Legislature eliminated the certificate of need program for hospitals.

Members of the panel were told the state had received 28 notices of intent to construct new hospitals.

But not all of those notices have been acted on. To date AHCA has received 19 plans for the construction of new hospitals to review. There have been 10 plans submitted to the state for rehabilitation hospitals; six plans for acute care hospitals; two plans for post acute care hospitals and one plan for a behavioral health hospital.

Christine Jordan Sexton

Tallahassee-based health care reporter who focuses on health care policy and the politics behind it. Medicaid, health insurance, workers’ compensation, and business and professional regulation are just a few of the things that keep me busy.


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