STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLOBAL HOME HEALTH SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 78-1013

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, conducted a final hearing in this case on November 2, 1978, in St. Petersburg, Florida.

The following appearances were entered: Guy M. Burns, of the firm Jacobs, Robbins & Gaynor, St. Petersburg, Florida, for the Petitioner, Global Home Health Services, Inc.; and Barbara Dell McPherson, Clearwater, Florida, and Steven Huss, Tallahassee, Florida, for the Respondent, Florida Department of Health and Rehabilitative Services.

Global Home Health Services, Inc. ("Petitioner" hereafter) was originally seeking authority to provide home health care services to patients in Pinellas, Pasco, Hillsborough, and Manatee Counties. By letter dated May 1, 1978, the Respondent, Department of Health and Rehabilitative Services ("Department" hereafter), concluded that Petitioner could provide services only in Pinellas County, and to patients in Pasco County who had received care in Pinellas County hospitals. Petitioner requested a hearing, and the Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on July 26, 1978. That, and one other scheduling of the hearing were continued upon request of the parties. The final hearing was scheduled to be conducted on November 2, 1978 by Order entered October 9, 1978.

At the final hearing, the Petitioner called the following witnesses: Gary Silvers, the Director of Project Review of the Florida Gulf Health Systems Agency; and Ruth T. Kovach, the Administrator and Director of Patient Services of the Petitioner. Petitioner's Exhibits 1-16, and Respondent's Exhibit 1 were received into evidence. The parties have submitted post-hearing legal memoranda.

FINDINGS OF FACT

1. The Petitioner is a corporation in the business of providing home health care services. The Department of Health and Rehabilitative Services is responsible for licensing home health care agencies. The Petitioner applied for a license to operate such a business by filing an application with the

   Department on May 13, 1976. In its application the Petitioner indicated that it would serve Pinellas County. The Florida Gulf Health Systems Agency, a private entity created in accordance with Federal Public Law 93-641, was asked by the Department to consider the need for the services that the Petitioner proposed to provide. The Florida Gulf Health Systems Agency ("HSA" hereafter) submitted the application to a Pinellas County subcommittee. Need for the services was considered only in relation to Pinellas County. The HSA issued a "Statement of Need" indicating that there was a need for the services. The Department issued a license to the Petitioner on September 16, 1976. The license, by its terms, did not set any geographic limitation for the Petitioner; however, the Petitioner's application related only to Pinellas County.

   
   

2. On April 20, 1977, the Petitioner sent a letter to the Department which provided as follows:

   
   

   We have received numerous requests from our upper Pinellas County hospitals to care for their patients in Pasco County. We are cur- rently licensed to serve only Pinellas County and I am therefore requesting our license be extended to include Pasco County. Our office for that area would be located in Tarpon Springs, which is in Pinellas County.

   
   

   On June 1, representatives of the Petitioner and the Department had a telephone conversation. The Petitioner confirmed the conversation with the following language:

   
   

   Thank you for your attention in the matter of license for the extension of service into Pasco County.

   
   

   It is my understanding, from your conversa- tion with Ms. Schreck, our Director of Nursing, that we can now service patients in Pasco County.

   
   

   It is also my understanding that we must abide by the following specifications:

   
   

   "That our office remain in Pinellas County and that we can prove ade- quate supervision of personnel".

   
   

   The Department confirmed the conversation as follows:

   
   

   This is to confirm our telephone conversation of June 1st. After talking with Ms. Gage, it was decided that it would be permissible for an office to be open in Tarpon Springs if

   the staff were supervised daily and the super- vision was documented. Should an office be opened in another county, a license would be necessary.

   
   

   Shortly thereafter the Petitioner began serving patients in Pasco County without regard to whether the patients had been hospitalized at Pinellas County

   hospitals. Petitioner made capital expenditures, added employees, and expanded their operations in order to provide such services.

   
   

3. By application dated June 13, 1977, the Petitioner applied for a license for its second year of operation. The application provided that the geographic area served would be Pinellas and Pasco Counties. The application was not submitted to the Florida Gulf Health Systems Agency, and a license was issued by the Department which contained no geographical limitation.

   
   

4. In January or February, 1978, the Department advised the Petitioner that it could not serve all patients in Pinellas County, but rather only those who had been discharged from Pinellas County hospitals. The Department's position was reflected in a letter dated February 7, 1978. The Petitioner accordingly indicated that it would file an application for certificate of need (a certificate of need was not required at the time the Petitioner was originally licensed, but was required at this later date). The Department further clarified this position in a letter dated May 1, 1978, and invited the Petitioner to request a hearing. This proceeding ensued. The Petitioner was originally seeking authorization to serve patients in Hillsborough, Manatee, and Pasco Counties in addition to those in Pinellas County. At the hearing the Petitioner dropped its efforts to receive approval to serve patients in Hillsborough and Manatee Counties.

   
   

5. On September 1, 1978, the Petitioner was issued a license by the Respondent for the 1978-79 year. The license limited the providing of services to Pinellas County.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes, (1977)

   
   

7. When the Petitioner initially requested permission to serve patients in Pasco County, the Department was required to obtain a statement from the local health planning council prior to attesting to the need for a home health agency. Section 400.471(3), Florida Statutes (1975). The Department did not request a statement of need from the Florida Gulf Health Systems, Inc. before it approved the Petitioner's request. The Health Systems Agency had issued such a statement in connection with the Petitioner's original application. The statement was not on its face limited to Pinellas County (Pasco County was also within the Health Services Agency's area of concern) , but it is apparent that the Health Services Agency considered only needs in Pinellas County when it issued its statement of need. Under these circumstances it is concluded that although prudence would have dictated it, the Department was not required to obtain a new statement of need when it approved the Petitioner's request.

   
   

8. The Department has contended that the Petitioner's request was limited to patients in Pasco County who had been discharged from Pinellas County hospitals. This contention is without merit. In its request the Petitioner indicated that there was a need for them to service patients in Pasco County because of requests that had come from Pinellas County hospitals. The request was not, however, limited to such patients, but requested that the license be extended to include Pasco County. The Department did not limit its granting of the request to patients in Pasco County who had been discharged from Pinellas County hospitals.

9. When the Petitioner applied for licensure for the 1977-78 year, it was already serving patients in Pinellas and Pasco Counties in accordance with the Department's authorization. Accordingly, in its application the Petitioner requested authority to continue to serve patients in Pasco and Pinellas Counties. The Department approved the application by issuing a license. When the 1977-78 license was issued, Section 400.471(3) Florida Statutes had been amended to require that a certificate of need be obtained in accordance with the provisions of Sections 381.493 - 381.497, Florida Statutes, before the Department issued a license. The Petitioner had not obtained a certificate of need; however, in view of the fact that it had already been authorized to service patients in Pinellas and Pasco Counties, the new statute would not have applied.

   
   

10. The Petitioner was validly granted authority by the Department to service patients in Pasco County. The authorization was not limited to patients who had been discharged from Pinellas County hospitals. Even assuming that the Department erroneously granted this permission without obtaining the requisite statements from the Regional Health Services Agency, the Department would be estopped from preventing the Petitioner from serving patients in Pasco County under the facts of this case. The Petitioner expended large sums of money opening an office and establishing business connections so that it could adequately serve such patients. These expenditures were made in reliance upon the Department's approving the request to serve patients in Pasco County. It would be unconscionable for the Department to withdraw the approval after the expenditures have been made by the Petitioner.

    
    

11. The Department should issue an amended license to the Petitioner for the 1978-79 year, authorizing the Petitioner to serve patients in Pinellas and Pasco Counties.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Florida, Department of Health and Rehabilitative Services issue an amended license to Global Home Health Services, Inc. authorizing Global Home Health Services, Inc. to provide home health care services to patients in Pinellas and Pasco Counties.

RECOMMENDED this 5th day of December, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Guy M. Burns, Esquire

45 31st Street North

St. Petersburg, Florida 33713

Barbara Dell McPherson, Esquire Department of Health and Rehabilitative Services

Post Office Box 5046 Clearwater, Florida 33518

Steven W. Huss, Esquire Department of Health and Rehabilitative Services Central Operations Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 78-001013

Orders for Case No: 78-001013