STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TARPON OAKS NURSING CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 79-124

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 a.m., on March 21, 1979, in the Third Floor Conference Room, 2255 East Bay Drive, Largo, Florida.

Petitioner was represented by James M. Stevens, Esquire, Post Office Box 818, Tarpon Springs, Florida, 33589. Respondent was represented by Barbara Ann Dell McPherson, Esquire, District V Legal Counsel, Post Office Box 5046, Clearwater, Florida, 33518.

Petitioner, Tarpon Oaks Nursing Center (hereafter Tarpon Oaks), challenges Respondent, Department of Health and Rehabilitative Services' denial of Tarpon Oaks' application for certificate of need to construct a new 120 bed skilled and intermediate care long term nursing care facility in Pinellas County, Florida.

The parties agree that the following statutory criteria for the issuance of a certificate of need are in issue:

The availability accessibility, extent of utilization, and adequacy of lack in existing health care services in the applicant's health service area.

That existing in-patient facilities providing in-patient services similar to those proposed by this project, within the proposed service area are being used in an appropriate and efficient manner.

That patients will experience serious problems in obtaining in-patient care of the type proposed, in the absence of the proposed new service.

FINDINGS OF FACT

1. Tarpon Oaks completed and signed its application for certificate of need approval for the construction of a 120 skilled intermediate bed long term nursing care facility in Tarpon Springs, Pinellas County, Florida, on August 31, 1978. The application was subsequently submitted to the Florida Gulf Health Systems Agency, Inc.

   
   

2. The facility was to be located on the East side of South Pinellas Avenue, approximately 300 yards South of Tarpon Springs General Hospital in Tarpon Springs, Pinellas County, Florida, and was to provide quality skilled and intermediate care seven days a week, 24 hours per day. Ancillary services were to include dietary, pharmacological and laboratory functions and physical and respiratory therapy. The total project cost was projected to be $1,644,000.00.

   
   

3. The application for certificate of need was reviewed by the Florida Gulf Health Systems Agency. While the staff recommended disapproval, the Project Review Committee, by a vote of 7 to 2, recommended approval, the Advisory Council, by a vote of 19 to 9, recommended approval, and the Board of Directors, by a vote of 12 to 9, recommended approval. Subsequently, the application was reviewed by HRS and the proposal was not favorably considered for the following reasons:

   
   

   1. In lieu of outstanding certificates of need for 680 long term nursing care beds in the proposed service area, 400

      of which are located in proximity to the site for the proposed project, and with consideration for the fact that the open- ing of all facilities approved will have a substantial mitigating effect on average utilization rates and availability of

      long term nursing care services, it has not been demonstrated that criteria set forth in Section 381.494(5)(c), Florida Statutes, and Chapter 10-5.11, Rules of the Department of Health and Rehabilita- tive Services, are satisfied by the pro- posed project.

   2. It is the finding of this office that the proposed project does not meet criteria set forth in Section 381.494(5)(e) Florida Statutes.

      
      

4. The State agency action report on the application for certificate of need dated December 14, 1978, indicated denial of the certificate of need application as final State agency action. The findings of the State agency action report relative to the criteria in issue are:

   
   

   Available data indicate the occupancy rates for existing long term nursing care facilities in the proposed service

   area have remained at 90 percent or slightly above for a period of more than one

   year. These statistics do not include, however, an accounting for 680 beds which have been approved but are not

   yet in operation, which is a substantial number. Existing bed need determination methodology, as previously noted, indicates a need for approximately 208 more beds in the proposed service area.

   The proposed project would be located in the proximity of 400 other long term

   nursing care beds which have been approved but are not yet in operation . . . .

   
   

   Occupancy rate for existing long term nursing care facilities in the proposed service area have averaged 90 percent or slightly above for a period of at

   least one year. However, 680 beds have been approved for the health service area which are not yet operational.

   
   

   Neither the applicant nor the Florida Gulf Health Systems Agency have satis- factorally demonstrated that patients in the proposed service area would experience serious problems in obtain- ing long term nursing care services

   in the absence of the proposed project, and it does not appear that they would.

   
   

5. Indeed the evidence in this case supports the quoted portions of the State agency action report. Tarpon Oaks did not submit competent substantial evidence to establish that the criteria in issue are satisfactorily met.

   
   

   CONCLUSIONS OF LAW

   
   

6. In administrative proceedings, the burden of proof is on the party asserting the affirmative of the issue. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Tarpon Oaks, as Petitioner, asserts the affirmative of the issue in this case, that is to say, seeks the issuance of a certificate of need. Accordingly, the burden of proof in this case is with Tarpon Oaks to establish its entitlement to the certificate of need. This has not been done.

   
   

7. Tarpon Oaks has submitted no competent substantial evidence bearing upon the appropriate and efficient use of existing in-patient facilities in the service area, bearing upon the issue of whether patients will experience serious problems in obtaining care in the absence of the proposed new service or bearing upon the adequacy of existing health care services. Accordingly, it is

RECOMMENDED that the application for certificate of need be denied.

DONE and ENTERED this 22nd day of June, 1979, in Tallahassee, Florida.

MICHAEL R. N. McDONNELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

James M. Stevens, Esquire Post Office Pox 818

Tarpon Springs, Florida 33589

Barbara Ann Dell McPherson, Esquire District V Legal Counsel

Post Office Box 5046 Clearwater, Florida 33518

Docket for Case No: 79-000124

Orders for Case No: 79-000124