STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANTATION GENERAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1838

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) NORTH BROWARD HOSPITAL DISTRICT, ) d/b/a NORTH BROWARD HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2630

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) HUMANA, INC., d/b/a CYPRESS )

COMMUNITY HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2632

)

BUREAU OF COMMUNITY MEDICAL ) FACILITIES, DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )

)

Respondent. )

) PLANTATION GENERAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2636

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on January 16 and 17, 1984, in Fort Lauderdale, Florida, and on January 19, 1984, in Tallahassee, Florida.

APPEARANCES

For Plantation General Thomas A. Sheehan, III, Esquire Hospital: 707 North Flagler Drive

West Palm Beach, Florida 33402

For North Broward John H. Parker, Jr., Esquire and Hospital District: Rufus T. Dorsey, IV, Esquire

1200 Carnegie Building

133 Carnegie Way Atlanta, Georgia 30303

For Cypress Community John H. French, Jr., Esquire and Hospital: James C. Hauser, Esquire

701 Lewis State Bank Building Tallahassee, Florida 32302

For Department of Jay Adams, Esquire Health and Rehabilitative 1323 Winewood Boulevard

Services: Tallahassee, Florida 32301

The Florida Department of Health and Rehabilitative Services ("HRS") has denied certificate of need ("CON") applications submitted by Plantation General Hospital ("Plantation"), North Broward Hospital District ("North Broward"), and Humana, Inc., d/b/a Cypress Community Hospital ("Cypress") to institute cardiac catheterization and open heart surgery services in their existing health care facilities in Broward County, Florida. This proceeding involves each applicant's contest of HRS' denial of their application.

HRS, while conceding that Plantation, North Broward, and Cypress each meet applicable statutory and rule criteria, contends only two additional cardiac catheterization laboratories are needed in Broward County, and that the applications of North Broward and Plantation best satisfy the applicable statutory and regulatory criteria. Additionally, HRS contends that none of the applications for open heart surgery should be approved, a position which both Plantation and Cypress concurred at final hearing.

Plantation, North Broward, and Cypress each take the position that their applications for cardiac catheterization services should be approved, and that evidence of record establishes a need for all three requested laboratories.

Each of the applicants also maintain, however, that should a need for less than three laboratories be shown, its application is superior to the others and best satisfies applicable statutory and regulatory review criteria. Additionally, North Broward contends that its application for open heart surgery services should be approved.

At the final hearing, North Broward submitted its Exhibits 1, 4 through 13, and 15 through 17, which were received into evidence. Plantation submitted its Exhibits 1 through 4, and Cypress submitted its Exhibits 1 through 17, all of which were received. North Broward called Robert Kennedy, Carol Reichbaum, John

Benz, Jeffrey S. Dennis, and Robert S. Barberite, as its witnesses. Plantation called Alfred Quartin, David E. Musgrave, and M. Ronald Everette, as its witnesses. Cypress called Jay W. Williams, Brad Sexauer, and Larry Hudson, as its witnesses. HRS called Mark Druash as its only witness.

Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues presented for determination, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. North Broward, Plantation, and Cypress are each existing acute care hospitals located in Broward County, Florida. Each has submitted CON applications to establish cardiac catheterization laboratories and open heart surgery facilities to HRS. There are presently five existing cardiac catheterization and open heart surgery units available in Broward County.

   
   

2. As indicated above, each of these applicants was denied a CON by HRS, which now takes the position that two of the three applications should be granted. Stipulations of the parties and evidence of record in this proceeding affirmatively establish that North Broward, Plantation, and Cypress each meet applicable statutory and rule criteria to entitle them to the issuance of the requested CON.

   
   

3. By promulgating Rule 10-5.11(15), Florida Administrative Code, HRS has established a need formula for calculating and predicting the gross and net need for cardiac catheterization laboratories two years into the future in each of the 11 department service districts through the State. The rule uses a two-year planning horizon, and each of the parties to this proceeding has conceded that 1986 is the appropriate year to consider need for the services proposed in these applications. In applying the formula, the number of catheterization procedures projected to be delivered in Broward County in 1986 is derived by multiplying the 1981 use rate in the service area by the projected population in that service area in 1986. This figure is then divided by 600 to project the total number of catheterization laboratories needed in 1986, which presumes a minimum of 600 procedures per laboratory as a threshold requirement.

   
   

4. Broward County comprises all of HRS District X. In applying the formula contained in Rule 10-5.11(15), the 1981 use rate for Broward County is determined by dividing the total number of procedures performed in that year into the 1981 district population. This step produces a 1981 use rate of 3.37 cardiac catheterization procedures per 1,000 population. When this use rate is divided into the 1986 projected population of District X, 4,013 procedures are projected for 1986. When divided by the required 600 average number of catheterizations performed per year by existing and approved laboratories, the total number of laboratories needed in 1986 is 6.68. Since, as indicated above, there are five existing laboratories in District X, the net need in 1986 is 1.68 laboratories. HRS department policy is to round the number of laboratories to 2.0, thereby demonstrating a need for an additional two laboratories in District X in 1986.

   
   

5. However, as conceded by HRS, a strict application of the need methodology contained in Rule 10-5.11(15) ". . . has not proven to be accurate in Broward County." In fact, need projections for cardiac catheterization laboratories for 1985 were, in fact, exceeded in 1982, because the utilization

   of cardiac catheterization services had increased faster than the population in Broward County. In 1981 there were 3,546 cardiac catheterization procedures performed in Broward County. By 1982, that figure had increased to 4,311, and, in 1983, 4,840 procedures were performed.

   
   

6. When 1982 actual data is substituted for 1981 data in the formula contained in Rule 10-5.11(15), a gross need of 7.96 laboratories, and a net need of 2.96 laboratories is shown. As indicated above this figure would be increased to 3.0 under existing HRS policy.

   
   

7. Utilizing actual 1983 data, Rule 10-5.11(15) shows a gross need of 8.71 laboratories and a net need of 3.71 laboratories in 1986.

   
   

8. The primary factors which appear to have contributed to a higher utilization rate in Broward than contemplated by Rule 10-5.11(15) are increased physician awareness of the potentialities of cardiac catheterization as a diagnostic tool, and a comparatively large elderly and middle age population requiring these services. There is no competent evidence of record to establish that the higher utilization rates experienced in Broward County can be attributed to out-of-county residents. While it is true that historical use data is extremely valuable as a planning tool, credible expert testimony of record in this proceeding establishes that actual use rates are a more accurate predictor of need, especially in a situation where, as here, a definitive trend exists markedly exceeding that shown by historical data.

   
   

9. It is, therefore, specifically concluded that evidence of record in this proceeding shows, at a minimum, a need for three additional cardiac catheterization laboratories in Broward County in 1986. As a result, issues between the parties concerning appropriate batching and a comparison of the merits of the applications is unnecessary.

   
   

10. North Broward, Plantation, and Cypress each applied for a CON to establish open heart surgery capabilities. However, both Plantation and Cypress have conceded that no need has been established for Broward County for 1986 when the requirements of Rule 10-5.11(16) are applied. North Broward, while conceding that the requirement of that rule that existing and approved open heart surgery programs operate at a minimum of 350 adult open heart surgery cases per year, contends that its application should be granted as an exception because members of its staff who would perform that service presently utilize several hospitals in the Broward County area for open heart surgery. North Broward contends that if its cardiac catheterization laboratory is approved, these physicians would be in a position to perform these services at North Broward, rather than having to transfer patients to other facilities. Even if this were true, however, there is no showing on this record that the other requirements of Rule 10-5.11(16) have been met. For example, there has been no showing that the establishment of an open heart surgical suite at North Broward would increase geographic or economic accessibility to that service, what effect the establishment of such a service would have existing programs, and no financial analysis to demonstrate what effect, if any, the granting of North Broward's application would have on patient costs or total expenditures for open heart surgery. In fact, the record in this cause affirmatively establishes that no need exists in Broward County in 1986 for the establishment of additional heart surgery facilities.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Applicable statutory and rule criteria for the evaluation of the CON applications for Plantation, North Broward, and Cypress are contained in Section 381.494(6)(c), Florida Statutes, and Rule 10-5.11, Florida Administrative Code. Each of the parties has stipulated that, with the exception of the determination of need, the applications at issue in this proceeding meet all applicable statutory and rule criteria.

    
    

13. Rule 10-5.11(15)(f), Florid Administrative Code, provides, in pertinent part, as follows:

    
    

    (f) Departmental Goal. The Depart- ment will consider applications for cardiac catheterization laboratories in context

    with applicable statutory and rule criteria. The Department will not normally approve application laboratories in any service area unless additional need is indicated, as calculated by the formula in paragraph (1) below. . . . (Emphasis added.)

    
    

14. The inclusion of the "not normally" language in Rule 10-5.11(15)(f) allows HRS latitude to approve CON applications for cardiac catheterization laboratories where extraordinary circumstances are demonstrated. It is concluded, based upon the foregoing facts, that such extraordinary circumstances exist in Broward County because of the substantially increased utilization of cardiac catheterization services in 1982 and 1983 over historical 1981 use data and the fact that all other statutory and rule criteria are satisfied as to merit the granting of the applications of Plantation General, North Broward, and Cypress notwithstanding the strict application of the formula contained in the rule.

    
    

15. There is no evidence of record to demonstrate that either Plantation, North Broward, or Cypress has met the requirements of Rule 10-5.11(16), Florida Administrative Code, to merit the granting of their applications for a certificate of need to establish an open heart surgery facility.

    
    

16. Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, granting the applications of Plantation General Hospital, North Broward Hospital, and Cypress Community Hospital to establish cardiac catheterization laboratories, and denying the applications of those applicants for the establishment of open heart surgery facilities.

DONE AND ENTERED this 30th day of August, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1984.

COPIES FURNISHED:

John H. French, Jr., Esquire James C. Hauser, Esquire MESSER, RHODES & VICKERS

Post Office Box 1876 Tallahassee, Florida 32302

John H. Parker, Jr., Esquire Rufus T. Dorsey, IV, Esquire PARKER, HUDSON, RAINER, DOBBS & KELLY

1200 Carnegie Building

133 Carnegie Way

West Palm Beach, Florida 30303

Thomas A. Sheehan, III, Esquire MOYLE, JONES & FLANIGAN, P.A.

Post Office Box 3888

West Palm Beach, Florida 33402

Donna H. Stinson, Esquire MOYLE, JONES & FLANIGAN, P. A.

Suite 858, Barnett Bank Building Tallahassee, Florida 32301

E. G. Boone, Esquire Post Office Box 1596 Venice, Florida 33595

Jay Adams, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-001838CON

Orders for Case No: 82-001838CON