STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERSONNEL POOL OF PENSACOLA, INC., ) d/b/a MEDICAL PERSONNEL POOL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1748

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, beginning at 10:00 am. (Central Daylight Saving Time), September 27, 1979. This case was presented as a part of a consolidated hearing in which the above-styled case was heard simultaneously with the case of Upjohn Healthcare Home Health Agency, Petitioner vs. State of Florida, Department of Health and Rehabilitative Services, Respondent, D.O.A.H. No. 79-1747. Although the hearing in this matter and the case of Upjohn healthcare Home Health Agency were consolidated for hearing, separate orders are being entered. Those aspects of the consolidated presentation which would have application to the two cases will be reflected in each order. This approach to entering the Recommended Order in this cause and in the companion case has been utilized to facilitate the entry of final orders directed to the individual requests for certificates of need filed by the Petitioners in the case at issue and in the companion case, while effectively complying with the requirements for comparative hearing between the prospective competing applicants for certificate of need. See Bio-medical Applications of Clearwater, Inc. v. Dept. of Health & Rehabilitative Services, Office of Community Medical Facilities, 370 So.2d 19 (Fla. 2d DCA).

This Recommended Order is being entered within thirty (30) days of the date of receipt of the transcript, that receipt date being October 16, 1979.

APPEARANCES

For Petitioner: Sherrill E. Phelps

Governmental Affairs Representative Personnel Pool of America, Inc.

303 Southeast 17th Street Fort Lauderdale, Florida

For Respondent: Charles T. Collette, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

For Upjohn Health- Vivian Krumel, R.N. care Home Health Service Director

Agency: Upjohn Healthcare Services

15 West Strong Street Old Townhouse Square

Pensacola, Florida 32501 ISSUES

1. Is the Petitioner, Personnel Pool of Pensacola, Inc., d/b/a Medical Personnel Pool, entitled to a certificate of need to be issued by the Respondent, State of Florida, Department of Health and Rehabilitative Services. The application for such certificate, extant at the time of the hearing and discussed in this Recommended Order, was a request to provide home health care on an intermittent basis in Escambia County, Florida.

   
   

2. As stated above, there is pending an application for certificate of need by Upjohn Healthcare Home Health Agency as considered in D.O.A.H. Case No. 79-1747. One of the features of the Upjohn application is the request to operate and offer similar services to that of the current Petitioner and to operate and offer those services in Escambia County, Florida. Consequently, should the determination be made that there is a need for one additional servicing unit it would be necessary to decide which of the two current applicants would be entitled to the certificate of need. This Recommended Order discusses and resolves the contingency set out in this second point of the issue statement.

FINDINGS OF FACT

1. On March 12, 1979, Personnel Pool of Pensacola, Inc., d/b/a Medical Personnel Pool, filed its application for certificate of Need with the Florida Panhandle Health Systems Agency, Inc. This application was deemed complete on April 2, 1979. The application as originally filed sought to receive a certificate of need which would entitle the Petitioner to offer home health care on an intermittent basis in Escambia, Santa Rosa, Okaloosa, and Walton Counties, Florida. This application was subsequently amended by dropping the request for certificate related to Santa Rosa, Okaloosa and Walton Counties, leaving at issue only Escambia County, Florida.

   
   

2. The Petitioner, hereinafter referred to as "Personnel Pool", is a solely owned corporation of Thomas S. Siler, 1800 North Palafox Street, Pensacola, Florida 32501. His corporation was established as a franchise issued by Personnel Pool of America, Inc., a subsidiary of H & R Block Company. The State of Florida, Department of Health and Rehabilitative Services, is an agency of the State of Florida, charged with the duty to evaluate the applications for certificate of need and to issue such certificates as would be appropriate under the terms of Chapter 381, Florida Statutes, and Rule 10-5, Florida Administrative Cede. This application for certificate of need and that of the companion case of Upjohn Healthcare Home Health Agency, hereinafter referred to as "Upjohn", are also considered in accordance with the Health Systems Plan of the Florida Panhandle, effective December 15, 1978. A copy of that document may be found as the Joint Exhibit No. 2 admitted into evidence.

   
   

3. After receiving the application for certificate of need, that application was reviewed by the staff of the Florida Panhandle Health Systems Agency, Inc. That staff recommended disapproval of the certificate of need in a

   report issued on April 23, 1979. This report was supplemented by a further report of May 15, 1979, and this additional report of the staff continued to recommend disapproval of the application:

   
   

4. On May 2, 1979, the project review committee of the Northwest Florida Sub-district recommended to the Northwest Florida Sub-district Advisory Council that the certificate of need be granted. A public hearing on the issue was held on May 8, 1979. The Northwest Florida Sub-district recommended disapproval of the project by action of May 17, 1979.

   
   

5. When the application was presented to the Regional Council, Florida Panhandle Health Systems Agency, Inc., on May 31, 1977, that organization recommended the approval of the certificate of need to serve Escambia County, Florida, only.

   
   

6. On June 29, 1979, after review by the Respondent, Art Forehand, the Administrator of the Office of Community Medical Facilities, wrote the Petitioner in the person of Mr. Siler and advised Mr. Siler that the application for certificate of need had been denied. On August 2, 1979, Mr. Siler appealed the decision of denial and the case was assigned to the Division of Administrative Hearings for consideration which resulted in the hearing which is the subject of this Recommended Order.

   
   

   (The details of the various items discussed in developing the chronology of this application may be found in the Joint Composite Exhibit No. 1 admitted into evidence.)

   
   

7. In presenting its case, the Petitioner principally attempted to refute the Department of Health and Rehabilitative Services', hereinafter referred to as "Department", letter of June 29, 1979, which gave three reasons for denying the certificate of need. Those reasons were:

   
   

   1. The proposal is not consistent with standards and criteria established in Chapter 10-5.11(14), Rules of the Department of Health and Rehabili- tative Services.

   2. Extenuating and mitigating circumstances which may be considered in approving a Certificate of Need for a new home health agency have not been demonstrated.

      
      

   3. There are other available and adequate home health care service providers in the proposed service area which could serve as an alterative to the proposed project and

      prevent unnecessary duplication of resources.

      
      

8. The first in the series of stated reasons for denying the certificate of need deals with Rule 10-5.11(14), Florida Administrative Code. The language of that provision being:

   
   

   (14)(a) A Certificate of Need for a proposed new home health agency or subunit shall not be issued until the daily census of each of the existing home health agencies or subunits pro viding services within the health service area

   of the proposed new home health agency or subunit has reached an average of 300 patients for the immediate preceding calendar quarter unless the need for the proposed new hose health agency or subunit can be demonstrated by application of

   the mitigating and extenuating circumstances in rule 10-5.11(14)(b) herein.

   (b) Mitigating and extenuating circumstances which must be met for the department to issue a certificate of need for a proposed new home health agency or subunit even though the previously des cribed need determination procedure does not clearly indicate need are:

   1. Documentation that the population of of the proposed service area is being denied

      access to home health care services in that exist ing home health agencies or subunits within the proposed service area are unable to provide ser vice to all persons in need of home health care, or

   2. Documentation that approval of such proposed new home health agency or subunit would foster cost containment for all providers in the health service area.

   
   

   What the Petitioner tried to do in the hearing was to attack the efficacy of the above-cited rule by claiming that the required 300 average daily patient census was not reasonable. In aid of this argument, it offered its Exhibit No. 3 and Composite Exhibit No. 4, both documents being authored by Herb Traxler.

   Petitioner also offered its Exhibit No. 7 prepared by Mr. Traxler, which is a draft proposal establishing the methodology for estimating the need for home health care in the State of Arkansas. In addition, the Petitioner offered into evidence a letter of May 30, 1979, from Arthur H. Long, the Executive Director of the Northwest Florida Home Health Agency, Inc., one of the current agencies holding a certificate of need to deliver similar services to those for which this Petitioner has made its request. Mr. Long's corporation holds a certificate for Escambia County, Florida. That letter, which is the Petitioner's Exhibit No. 6, sets out statistical data related to census for Northwest Florida Home Health Agency, Inc., and the Escambia County, Florida, Health Department, operating through-the Visiting Nurses Association, Inc. These latter organizations are also involved in the delivery of health care of the type for which the Petitioner seeks a certificate of need to administer.

   
   

9. The true census for Northwest Florida Home Health Agency, Inc., in its last complete 1979 reporting quarter, shows that for Escambia County the patient census for April was 71; for Nay, 77; and for June, 73, totaling 221 patients with an average census of 74. This testimony was presented by Mr. Long. This organization serves only Medicare patients who are enrolled with the service group.

   
   

10. Ms. Marian Humphrey, a public health nursing supervisor for the Escambia County Health Department, established the census in Escambia County for that Health Department as serviced by the Visiting Nurses Association, Inc. Beginning in January, 1979, the census was 101 Medicare patients; 14 Medicaid patients; 2 CHAMPUS patients; 9 private patients and 71 free patients, the latter category being patients who did not pay for services. In February, 1979, there were 164 Medicare patients; 16 Medicaid patients; 2 CHAMPUS patients; 7

    private patients and 72 free patients. In March, 1979, there were 128 Medicare patients; 0 Medicaid patients; 2 CHAMPUS patients and 11 private patients. In April, 1979, there were 147 Medicare patients; 13 Medicaid patients, 2 CHAMPUS patients and 9 private patients. In May, 1979, there were 165 Medicare patients; 12 Medicaid patients; 3 CHAMPUS patients; 7 private patients and 88 free patients. In June, 1979, there were 148 Medicare patients; 10 Medicaid patients; 2 CHAMPUS patients; 10 private patients and 61 free patients. In July, 1979, there wore 150 Medicare patients; 10 Medicaid patients; 2 CHAMPUS patients; 10 private patients and 77 free patients. In August, 1979, there were

    134 Medicare patients; 11 Medicaid patients; 2 CHAMPUS patients; 14 private patients and 96 free patients.

    
    

11. These statistics indicate that the two current servicing agencies in the preceding full quarter of 1979 which would have been April, May and June, considered separately, did not exceed the average of 300 patients for that calendar quarter, nor did the statistics show an excess of 300 in other reported quarters.

    
    

12. The second reason for denying the certificate of need, as stated in the June 29, 1979, correspondence of Mr. Forehand, dealt with the possible extenuating and mitigating circumstances which would allow for issuance of a certificate of need even where the census for the existing service organizations had not exceeded 300 for the prior calendar quarter. Again, that provision of Rule 10-5.11(14)(b) states:

    
    

    (b) Mitigating and extenuating circumstances which must be met for the department to issue a certificate of need for a proposed new home health agency or subunit even though the previously described need determination procedure does not clearly indicate need are:

    1. Documentation that the population of the proposed service area is being denied access to home health care services in that existing home health agencies or subunits within the proposed service area are unable to provide service to all persons in need of home health care, or

    2. Documentation that approval of such pro posed new home health agency or subunit would foster cost containment for all providers in the health service area.

    
    

    The first of the provisions under that sub-subsection of the rule deals with inability of the existing home health agency to provide service to persons in need of the home health care. Northwest Florida Home Health Agency, Inc., requires that their patients be registered with the organization and their office is open Monday through Friday from 8:00 a.m. to 4:00 p.m. After 4:00

    p.m. on weekdays and on the entire weekend, a registered nurse is on call through the utilization of a "beeper" system. Again, this applies only to Medicare patients enrolled with the organization. To be enrolled, it is necessary for the enrollment to have been achieved through a request by a physician.

    
    

13. The Escambia County Health Department is open from 8:00 a.m. to 4:30

    p.m. Monday through Friday and serves all classes of patients. There are on- call nurses who work on weekends. The nurses are called by utilization of the Nurses Directory for Escambia County. The exception to this statement is that

    two days a year the services of the Escambia County Health Department are not available due to holidays. At night during the week those persons who are patients of the Escambia County Health Department are instructed to arrange for emergency treatment in the Emergency Room or ambulatory care at West Florida Hospital, assuming those patients cannot wait until the following morning for attention.

    
    

14. Neither the Northwest Florida Home Health Agency, Inc., nor the Escambia County Health Department's representatives indicated any inability to provide service for those in need of health care, noting that Northwest Florida Home Health Agency, Inc., only serves Medicare patients.

    
    

15. The Petitioner has asserted that the services spoken of in the preceding paragraph are not sufficient and examples of the lack of available services, according to the Petitioner, are as shown on pages 65 through 68 of the transcript of this hearing. Therein are cited several examples of persons unable to receive necessary care of the type which the Petitioner desires to deliver. These examples are taken from the presentation of Upjohn in their case, D.O.A.H. No. 79-1747, and are hearsay accounts made by the representative of Upjohn, Ms. Krumel, from information purportedly given to her on the subject of lack of service. This Petitioner made no further presentation on the question of lack of service.

    
    

16. The Petitioner then attempted to establish that the granting of a certificate of need, to it and to Upjohn would foster cost containment for all providers in the health service area within the meaning of the above-cited rule. For this proposition, it offered its Exhibits 5 and 9. After analyzing this testimony and the documents, at best it could be said that there is no increase or decrease in the cost of the delivery of services by the expansion of the number of certificate holders, and the Petitioner's presentation is not convincing in that attempt. The only real evidence offered on the cost estimates are as found in the Joint Exhibit No. 1 which outlines the cost charges of the various existing home health agencies and the current applicants, i.e., this Petitioner and Upjohn. These statistics were available for review and they did not indicate that the granting of one or more new certificates of need would foster cost containment for all providers in the subject health service area.

    
    

17. Personnel Pool and Upjohn were afforded an opportunity to offer their testimony to establish in what respects they might be superior to the other applicant for a certificate of need, assuming that only one certificate of need was to be granted. The two Petitioners did not wish to make any direct attack on the special qualifications of the collateral Petitioner. Both parties proceeded on the basis of offering their remarks to be available for comparison if the contingency were realized which required that only one certificate of need be issued. It is not necessary to detail the special qualifications of these Petitioners, because no certificate of need will be recommended for issuance in Escambia County, Florida, the location in which Personnel Pool and Upjohn are potential competitors for a sole certificate of need. Nonetheless, the facts offered in support of the special qualifications of Personnel Pool be found in the transcript of the hearing on pages 228 and 251 through 256. The testimony on Upjohn's special qualifications may be found in the transcript of record, pages 187 through 190.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties in this case.

    
    

19. Official recognition is taken of Rule 10-5.11(14)(a) and (b), Florida Administrative Code. The Rule spoken of is the rule which took effect June 5, 1979, and it is the rule which has application to the case.

    
    

20. At the beginning of the hearing the parties stipulated that all legal time requirements for review and hearing have been complied with and that stipulation is hereby accepted.

    
    

21. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Petitioner, Personnel Pool of Pensacola, Inc., d/b/a Medical Personnel Pool, is not entitled to a certificate of need as applied for to service Escambia County, Florida. This conclusion is reached on the basis that Rule 10-5.11(14)(a), Florida Administrative Code, does not allow a further certificate of need to be issued unless the health agencies or subunits now in service have reached a daily census for each of those agencies or subunits providing services in the service area, which exceed an average of 300 patients for the indicate preceding calendar quarter. An examination of the facts presented on the census shows that neither the Northwest Florida Home Health Agency, Inc., nor the Escambia County Health Department has achieved the 300- patient census spoken of.

    
    

22. The 300-patient census requirement can be overcome on the basis of mitigating and extenuating circumstances as found in Rule 10-5.11(14)(b), Florida Administrative Code; however, the Petitioner has failed to make an adequate showing that the existing agencies in Escambia County are unable to provide service to all persons in need of home health care and has similarly failed to demonstrate that the approval of the proposed new home health agency would foster cost containment for all the providers in the health service area.

RECOMMENDATION

This Recommendation is being entered in view of the Facts and Conclusions of Law in this case and those Facts and Conclusions of Law in the companion case, D.O.A.H. No. 79-1747, Upjohn Healthcare Home Health Agency v. State of Florida, Department of Health and Rehabilitative Services. Upon consideration of the Facts herein and the Conclusions of Law, it is recommended that the Petitioner, Personnel Pool of Pensacola, Inc. d/b/a Medical Personnel Pool, be denied its request for a certificate of need to serve Escambia County, Florida. It is further recommended that the agency in entering its final order do so by a process of simultaneous review of this Recommended Order and the Recommended Order entered in D.O.A.H. Case No. 79-1747, Upjohn Healthcare Home Health Agency v. State of Florida, Department of Health and Rehabilitative Services, and that final orders be entered on the same date with copies to be served on the representatives of each applicant in this case and in the companion case mentioned above.

DONE AND ENTERED this 5th day of November, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Vivian Krumel, R.N. Mr. Art Forehand, Administrator

Service Director, Office of Community Medical

Healthcare Facilities Department of Health and

15 West Strong Street Rehabilitative Services

Old Townhouse Square 1323 Winewood Boulevard Pensacola, Florida 32501 Tallahassee, Florida 32301

Mr. John Owens Mr. Joe Dowlesss

Zone Manager, West Florida Office of Licensure and Upjohn Health Care Services Certification

3118 Gulf to Bay Blvd., Department of Health and Suite 300 Rehabilitative Services Clearwater, Florida 33519 Post Office Box 210

Jacksonville, Florida 32202

Charles T. Collette, Esquire

Department of Health and Mr. Herbert E. Straughn Rehabilitative Services Office of Community Medical 1324 Winewood Blvd. Facilities

Tallahassee, Florida 32301 Department of Health and

Rehabilitative Services

Sherrell E. Pheps 1323 Winewood Boulevard

Governmental Affairs Tallahassee, Florida 32301 Representative

Personnel Pool of America, Inc. Mr. Thomas S. Siler

303 Southeast 17th Street Owner/Administrator

Fort Lauderdale, Florida 33316 Personnel Pool of Pensacola,

Inc.

1800 North Palafox Street Pensacola, Florida 32501

Docket for Case No: 79-001748

Orders for Case No: 79-001748