STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SAINT VINCENT'S MEDICAL CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 83-337
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) AMBULATORY CARE - DUVAL )
DEVELOPMENT CORP. d/b/a ) JACKSONVILLE SURGICAL CENTER/ ) AMBULATORY SURGICAL CENTER, )
)
Respondents. )
) RIVERSIDE HOSPITAL, )
)
Petitioner, )
)
vs. ) CASE NO. 83-482
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) AMBULATORY CARE - DUVAL )
DEVELOPMENT CORP. d/b/a ) JACKSONVILLE SURGICAL CENTER/ ) AMBULATORY SURGICAL CENTER, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, an Administrative Hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on May 17 and 18, 1983, in Jacksonville, Florida and on May 20 and June 7, 1983, in Tallahassee, Florida.
APPEARANCES
For Petitioner, Saint Vincent's Medical Center:
Kenneth F. Hoffman, Esquire Oertel & Hoffman, P.A.
646 Lewis State Bank Building Tallahassee, Florida 32301
For Petitioner, Riverside Hospital:
James M. McClean, Esquire and Allan T. Geiger, Esquire
Rogers, Towers, Sailey, Jones and Gay 1300 Gulf Life Drive
Jacksonville, Florida
For Respondent, Department of Health and Rehabilitative Services:
Claire D. Dryfuss, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services
1323 Winewood Boulevard, Suite 406
Tallahassee, Florida 32301
For Respondent, Ambulatory Care - Duval Development Corp.: Carl R. Pennington, Jr., Esquire
Russell D. Gautier, Esquire Pennington, Wilkinson and Dunlap
325 John Knox Road, Suite L-101 Tallahassee, Florida 32315-0955
STATEMENT OF REVIEW
The transcript of proceedings was filed with the Division of Administrative Hearings on July 29, 1983. This record together with depositions, exhibits and select interrogatories have been considered prior to the entry of this Recommended Order. The parties in the person of counsel have also offered proposed Recommended Orders and the applicant has presented a memorandum. These proposals and memorandum have been reviewed prior to the entry of the Recommended Order. To the extent that the proposals are consistent with this Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected as being irrelevant, immaterial, contrary to the factual impression gained by this Hearing Officer, contrary to the legal conclusions reached or contrary to the recommended disposition made through this Recommended Order.
ISSUES AND PARTIES
The issues presented on this occasion concern the overall question of whether Ambulatory Care-Development Corp., which shall be referred to in the course of this Recommended Order as "Ambulatory Care," is entitled to a certificate of need which would allow construction and operation of a freestanding ambulatory surgery center in Duval County", Florida. The other parties to this action include the Petitioners, Saint Vincent's Medical Center, which will be addressed as "Saint Vincent's"; Riverside Hospital, which will be addressed as "Riverside" and the State of Florida, Department of Health and Rehabilitative Services, which will be addressed as "Department." In accordance with the prehearing stipulation, issues of fact and law shall be resolved pursuant to the procedural provisions of Section 120.57, Florida Statutes, and select criteria set forth in Subsection 381.494 (6)(c), Florida Statutes, and Section 10-5.11, Florida Administrative Code. Of the twelve criteria set forth in the statutory reference, the following criteria are excluded from
consideration upon the agreement of parties that they are either not applicable or have been met and are not being challenged by the Petitioners Saint Vincent's and Riverside:
Section 381.494(6)(c)(4), Florida Statutes, and any corresponding rule, or portion thereof, of HRS.
Section 381.494(6)(c)(5), Florida Statutes, and any corresponding rule, or portion thereof, of HRS.
Section 381.494(6)(c)(6), Florida Statutes, and any corresponding rule, or portion thereof, of HRS.
Section 381.494(6)(c)(7), Florida Statutes, and any corresponding rule, or portion thereof, of HRS, to the extent that neither Saint Vincent's nor Riverside is challenging or disputing the adequacy of funds available to Ambulatory Care for capital and initial (start up) operating expenditures for project accomplishment and operation, and further, to the extent that the parties agree that the project will have no effect on clinical needs of health professional training programs in the service area, and further, to the extent that there is no current plan to have a program whereby the services will be accessible to schools for health professions in the service area for training purposes. Saint Vincent's and Riverside reserve the right to present evidence and dispute any other aspect of Section 351.494 (C-)(c)(7), Florida Statutes.
Section 351.494(6)(c)(9), Florida Statutes, and any corresponding rule, or portion thereof, of HRS.
Section 381.494(6)(c)(10), Florida Statutes, and any corresponding rule, or portion thereof, of HRS.
Section 351.494(6)(c)(12), Florida Statutes, and any corresponding rule, or portion thereof, of HRS, to the extent that neither St. Vincent's nor Riverside is challenging or questioning the reasonableness of the costs of constructing the proposed facility, the method of the planned construction or the type of construction, the size or design thereof or the materials to be used.
WITNESSES AND EXHIBITS
The appearance of witnesses at hearing are noted in the table of contents in the various volumes of the hearing transcript. Deposition appearances or witnesses are noted on the lead page deposition transcript.
Ambulatory Care has offered a list of documentary evidence to include certain depositions and interrogatories. That list is provided for convenience of reference as part of the matters transmitted with this Recommended Order.
The Department offered four exhibits: Exhibit 1 received is a State Agency Action Report and other file material related to Ambulatory Care's request for certificate of need; Exhibit 2 received is an article entitled, "The Ambulatory Surgery Unit" by Drs. Davis and Detmer; Exhibit 3 received a copy of the Central Arizona Health Systems Agency Final Report of the 1980 Ambulatory Surgery Committee and Exhibit 4 denied admission is certain computer printouts purportedly related to census. Finally, Saint Vincent's offered three exhibits, Exhibit 1 received is a copy of the publication for the benefit of the Federal Trade Commission entitled, "Entrepreneurial Trends in Health Care Delivery: The Development of Retail Dentistry and Freestanding Ambulatory Services, Dating
from July 1982"; Exhibit 2 receive are State Agency Action Reports on various applications for ambulatory surgery centers in the State of Florida and Exhibit
3 received is a copy of correspondence of February 7, 1983, from Marjorie R. Turnbull Deputy Assistant Secretary for Health Planning and Development for the Department addressed to Richard B. Orfinger, Esquire. In addition, Saint Vincent's offered depositions of Sister Elizabeth Ann Lingg and Susan David, which were admitted.
FINDINGS OF FACT
In December 1982,, Ambulatory Care filed an application with the Department to be granted a certificate of need to construct a freestanding surgical center in Duval, Florida, to provide surgical treatment which does not involve overnight confinement, i.e. ambulatory or outpatient. The approximate cost of that project is $1,994,280. The proposed facility would be approximately 11,300 square feet in dimensions and contain four operating rooms with attendant substerile areas and scrub areas; necessary recovery, preoperative and postoperative areas; waiting areas; lounges staff changing areas; a business office area and physician space. The particulars of the description of the facility are more completely addressed in the application which is part of Department's Exhibit 1. The specific surgeries to be performed in this outpatient setting have not been determined; however, Ambulatory Care would anticipate proceeding on a basis similar to that of a freestanding ambulatory surgery center in Lexington, Kentucky, allowing for any differences in the two communities which might provide a different surgical mix by type. Information pertaining to that center was provided through the testimony of Dr. Edwin Nighbert, Transcript Pages 137-193. A further description of possible surgeries to be performed in the facility may be in the Department's Exhibit 1 through the Omission's Response of the applicant in an Appendix to that response numbered 1 entitled, "Types of Surgeries performed in an Ambulatory Surgical Facility." The surgeries to be performed are elective in nature and allow the patient to be discharged the same day of the procedure. The characterization of the facility as freestanding means that it is self-contained and not dependent upon other facilities in its normal operation. The exact location of that facility has not been established in that the purchase of property has not been concluded; however, Ambulatory Care intends to build the center in the Riverside area of Jacksonville, Duval County, Florida, as described by drawings and maps in the Omission's Response referred to before. Construction in this area would place the facility in the immediate vicinity of Saint Vincent's and Riverside Hospitals, which facilities also serve patients who undergo ambulatory surgery on an outpatient basis. Other hospitals in Duval County provide outpatient surgery, as more specifically described in latter portions of this Recommended Order.
Following review, the Department issued a certificate of need for the project in its entirety, effective December 29, 1982. This action led to Petitioners' timely challenge to the proposed agency action. The Department simultaneously approved a certificate of need for another freestanding surgical facility in Duval County, Surgical Services of Jacksonville, Inc., with proposed expenditures of $2,500,000 and a plan to provide four operating rooms. That latter surgical center has not been challenged on the issue of the grant of its certificate, through protest from local hospitals.
With the addition of Surgical Services and Ambulatory Care, outpatient surgery would be performed in Duval County in hospital settings, the freestanding centers, and physician's offices. The hospitals and Ambulatory
Care are expected to provide the same surgical procedures either on an outpatient basis or inpatient basis.
Saint Vincent's is a hospital which is owned by the Daughters of Charity, a religious order within the Catholic Church and is a nonprofit corporation. Riverside is a nonprofit hospital. Other hospitals in the area providing outpatient surgery at present or in the immediate future are Methodist Hospital, Jacksonville General Hospital, University Hospital, Baptist Medical Center, Memorial Medical Center, and Saint Luke`s Hospital. None of the hospitals referred to have freestanding outpatient surgery units, meaning all procedures provided by those institutions are hospital based.
There being no rules promulgated in keeping with Section 381.494, Florida Statutes, related to the establishment of a methodology for considering the question of need for ambulatory surgical centers in Florida, the parties on this occasion attempted to establish a record basis for determining the need question. In this endeavor, objective and subjective observations and predictions were offered. Similarities and dissimilarities between hospital- based outpatient surgery centers and freestanding surgery centers were discussed and the relative merits of those sites ware debated. Given the novelty of this comparison in Florida, determination of need in the ambulatory surgery realm is less than an exact science. To accommodate this situation, factual determinations are based upon those elements of proof which tend to best describe the Duval County circumstance pertaining to the question of need for ambulatory surgeries at present and in the near future, with particular emphasis on the applicant's request for certificate.
To begin, there is the issue of what constitutes a surgery for statistical purposes. In the State Agency Action Report related to the fiscal or calendar year reporting of procedures performed by Duval County hospitals ending in 1982, reference is made to the number of impatient and outpatient surgical procedures. There is uncertainty about some of the outpatient procedures reported, whether they are best described as surgical or diagnostic. As example, in Ambulatory Care's Omission's Response request it included certain procedures such as cysto which by exhibit were under a surgical heading. Subsequently, the applicant argued in the course of the hearings that these proceedings were diagnostic in nature and not surgical. One physician who testified believed that a cysto could be considered a surgery. Opinion was expressed that any procedure reported for insurance purposes as surgical should be accepted as such, even if primarily diagnostic in effect. A hospital official believed that procedures that are primarily diagnostic in effect are not surgeries. Another contributing element in the dilemma is the possibility that some procedures might be considered surgical at times and diagnostic at others depending on the intended result. Moreover, the record is not clear on whether some of the inpatient procedures reported for the 1981-82 reporting period by the Duval County hospitals would involve procedures which might arguably be described as diagnostic and not surgical. There being no consensus among the practitioners and the health care planners on the question of what constitutes a surgery and given the existence of a known statistical base, making allowances for adjustments related to numbers of outpatient surgeries in the reporting year ending 1982 which was made in the course of the hearing and consistent with Appendix 1 to the Omission's Response offered by the applicant, all procedures are considered surgical for purposes of this review, with the exception of endoscopic procedures. This determination takes into account that the applicant has not specifically delineated those procedures which it intends to perform.
On a similar topic, Duval County has been identified as the service area for the Ambulatory Care facility. It is that population base which the Department used in trying to identify the surgical use rate for all surgeries and ultimately for ambulatory surgery by measure of surgeries per thousand population. This calculation fails to take into account the fact that patients from areas outside Duval County, especially from the surrounding counties use the hospitals in Duval County. It was not established in the course of the hearing what percentage or number of those patients from those outside areas were in the hospital for purposes of undergoing inpatient or outpatient surgery. Nonetheless it can be assumed based upon the facts presented that some portion of those patients did receive surgery thereby increasing the number of persons in the population base who underwent surgeries and decreasing the number of surgeries per thousand population. Moreover, the modification of statistics presented in the course of hearing to more correctly reflect the number of outpatient surgeries done in the reporting periods 1981-82 suggests that the total number of procedures was around 64,600, not the 68,000 plus first thought when the action report was prepared and the Department made its calculations. This change alone would reduce use rate for surgeries per thousand from 118 to
112. Having in mind a necessary adjustment in the population base to account for patients outside Duval County who receive surgery as well as adjustment in the outpatient surgery statistics in the 1982 reporting period, somewhat less than 112 surgeries per thousand could be expected. According to the applicant, the national experience has been an expectation of 55 to 90 surgical procedures per year per thousand population as a planning guideline. Those projections made as a result of research and data gathered are accepted as establishing the base from which more precise estimates may be made. In view of the national experience and the adjustments that are needed in the initial projection of the Department that 115 surgeries per 1,000 population would be the experience, 110 surgeries per 1,000 population is found to be a reliable figure both in 1982 and the succeeding years to include the critical years of 1985 and 1986, for Duval County, Florida, surgical procedures. This finding acknowledges the fact that
97 percent of the residents of Duval County seek their health care in Duval County.
In trying to determine what percentage of all surgeries will be ambulatory or outpatient in the critical years 1985 and 1986, considerable testimony has been offered. That testimony tends to establish a potential for outpatient surgeries in the range 15 percent to in excess of 40 percent. During the reporting period for which data is available, as many as 15 percent of the surgeries performed in the Duval County hospitals have been performed on an outpatient basis. The Department has taken a median fraction or number between the extremes of 15 percent and 40 plus percent and anticipated 29 percent of all surgeries to be ambulatory surgeries in the years 1985 and 1986 in Duval County. In consideration of the dramatic increases in the number of outpatient surgeries being performed in local hospitals within the last two or three years, and the continuing improved reimbursement environment for those surgical procedures performed on an outpatient basis, 29 percent is a reasonable policy choice for making the projections. Based upon an analysis of the facts presented, it is not safe to assume that the number of outpatient surgeries performed in Duval County for its patients in the years 1985 and 1986 will approximate the 40 percent experience found in other communities outside Florida. The Department in its calculations has utilized mid-range projections of the University of Florida, BEBR, population studies showing a population in Duval County in 1985 of 387,500 and in 1986, 590,480. This midrange choice is sound. Employing the technique used by the Department, the following predictions are arrived at in terms of expected outpatient surgeries in Duval County in 1985 and 1986:
387,500 total populations x 110 procedures per thousand = 1,000
64,525 total procedures x .29 percentage of outpatient = 18,741 outpatient surgeries in 1985
* * *
390,480 total populations x 110 procedures per thousand = 1,000
64,953 total procedures x .29 percentage of outpatient = 18,835 outpatient surgeries for 1986.
Who is to provide those outpatient surgeries in 1985 and 1986? In answering that inquiry, in 1981, excluding endoscopic examination, area hospitals performed 6,450 outpatient surgeries. This number increased to 9,527 in 1982 and based upon statistics provided for the first quarter of 1983 that number would approximate 11,000 outpatient procedures in 1983. This growth pattern in those reporting years reflects substantial increases in the delivery of health care related to outpatient surgeries; however, an extrapolation of percentage increases over the intervening year 1984 and into 1985 and 1986 does not give a reliable approximation of the level of outpatient surgeries to be provided by the several hospitals. Neither does the estimate by the Department that the increase in surgeries performed in the hospitals shall be only to the extent of the increase in population in Duval County in the intervening years. Therefore, the question of available capacity in the years 1985 and 1986 is considered on the basis of an inventory or audit of outpatient surgical suites which may reasonably be expected to provide outpatient surgeries in 1985 and 1986 based upon the selection or a utilization rate for those operating rooms. The applicant has initially indicated in its application that 1,200 ambulatory cases could be dealt with in one operating suite on an annual basis. Initial testimony of one of the applicant's witnesses, Andrew Miller, at transcript page 460, was to the effect that the range 1,200 to 1,250 cases approached the capacity for a single dedicated operating room performing outpatient surgery.
In rebuttal testimony, Miller recanted and indicated that 1,300 cases per operating room was not a reasonable estimate for hospitals in Duval County. He suggested the use of lower figures, perhaps as low as 1,000 procedures per room. In the face of the evidence, it is determined that for purposes of this review 1,100 procedures per operating room are an acceptable approximation.
Utilization of this number takes into consideration differences in the length of procedures, scheduling and turn-around time in the preparation of the operating suite for a subsequent procedure. By dividing 1,100 procedures into the 15,741 projected outpatient surgeries in 1985, there would he a need for 17 operating suites in that year. Realizing that same process of division against the 19,536 projected ambulatory surgeries in 1986, 17 plus surgery suites would be needed. At the point of hearing, there were 15 ambulatory surgery suites in the hospitals in Duval County, excluding endoscopic rooms and those rooms in which inpatients and outpatients were operated on. Eight of those rooms had capability of general anesthesia. St. Luke's, in the move of their hospital, would add two additional ambulatory surgery suites, both of which would have general anesthesia capability and both of which are under construction. The freestanding ambulatory center, Surgical Services of Jacksonville, Inc., would bring the total to 21 operating rooms with its four additional surgery rooms with general anesthesia capability. With inclusion of the St. Luke's and Surgical Center of Jacksonville, a total of 14 of the 21 operating rooms would have general anesthesia capability. This does not take into account the high number of outpatient surgery procedures which are being performed at Baptist Hospital in rooms which have an inpatient and outpatient mix, nor does it take
into account future plans of area hospitals to increase their outpatient surgery capacity, which would provide even greater capacity for outpatient surgery. In summary, there is more than enough capacity to perform needed outpatient surgeries in Duval County in 1985 and 1986.
Ambulatory Care and the Department have referred to the cost savings to the individual patient being treated and to the overall patient community should the Ambulatory Care Surgical Center be opened. If there was a demonstrated need for that center the proof tends to bear out the savings to the individual patient and arguably to the patient community as a whole. However, on this occasion, given the fact that the addition of Ambulatory Care's operating suites would bring the total to 25 operating rooms against the need for 17 plus operating rooms, the cost benefits to the individual patients being treated in the applicant's facility and the patient community at large, would not be realized. To the contrary, the inordinate duplication of services that would be experienced with the addition of the applicant's facility would tend to drive up health care costs in Duval County. Additionally, the applicant cannot be expected to survive financially in the overcrowded health delivery environment described in this paragraph. The innovative nature of a freestanding surgery center in matters such as ambience, related to the psychological well being of patients, especially younger patients and potential efficiency of operation of the applicant's surgical center are not sufficient to redeem its request for certificate in this instance. In a related vein, modifications to existing plans in the hospitals and the inconvenience occasioned by those adjustments are not such that those circumstances may be expected to impede the steady progress of increased outpatient ambulatory procedures in those hospitals and make them less than a viable alternative for performing the needed procedures in the 1985 and 1986 periods. Any competitive influence to be fostered by the addition of Ambulatory Care's facility would not be beneficial. Sufficient competitive influence is already present to promote quality care and cost effectiveness. Finally, if trends in outpatient surgery, particularly to be performed under general anesthesia increases beyond the predictions indicated, there is sufficient capacity in the hospitals to accommodate that eventuality by constructing new outpatient surgical suites or by conversion of inpatient surgical suites to perform outpatient surgeries to include ancillary space. This can be accomplished without having to resort to an application for certificate of need, given the $695,000 exemption or exclusion from the certificate of need review process.
In view of the overburden that would be created in ambulatory surgeries by the additional capacity of the applicant, provision of needed construction of facilities is being met and can be met in the future in a less costly way then suggested by the applicant. On this occasion, the hospitals can provide more cost effective facilities.
Ambulatory surgery is available and accessible in local area hospitals within Duval County in an appropriate and adequate setting. That service does not exclude any patient. Though not needed Ambulatory Care's contemplated facility addresses those contingencies set forth in this paragraph, with one proviso. That matter pertains to the fact that Ambulatory Care shall provide its services to all residents in the service area without regard for physical condition or financial standing, premised upon the willingness of the treating physician to admit those patients to the facility for treatment and subsequent screening to be done by the staff of Ambulatory Care to determine the appropriateness of that setting to achieve the surgery. This will cause a certain number of potential patients to receive their surgery in a hospital environment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding per Subsection 120.57, Florida Statutes; Section 381.494, Florida Statutes and Section 10-5.12, Florida Administrative Code.
The Petitioners in these actions have made a timely challenge to the grant of the certificate of need to Ambulatory Care.
To be successful in its application for certificate of need, Ambulatory Care must satisfactorily address those criteria in Subsection 381.494(6)(c), Florida Statutes, which have not been resolved by agreement of the parties. This includes Subsections 381.494(6)(c)2. and 3., Florida Statutes, which state:
The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy
of like and existing health care services and hospices in the applicant's health service area.
The availability and adequacy of other health care facilities and
services and hospices in the applicant's health service area, such as
outpatient care and Ambulatory or home care services, which may serve as alternatives for the health care
facilities and services to be provided by the applicant.
Services anticipated to be provided by Surgical Services of Jacksonville, Inc. and those provided and anticipated to be provided by the hospitals in the area, related to outpatient ambulatory surgery, are sufficiently available, qualitatively sound, efficient, appropriate, accessible or not overly utilized and are adequate to meet the need of those patients who desire outpatient surgery, without regard for the additional treatment that may be afforded by Ambulatory Care.
The proposed services of Ambulatory Care would be accessible to all residents in the service area, with the proviso alluded to in the facts pertaining to judgments made by physicians and others in attendance. See Subsection 351.494 (6)(c)7., Florida Statutes.
Immediate and long term financial feasibility of the applicant's project is not acceptable in view of the excess capacity which which would be created with the construction and operation of Ambulatory Care's facility. See Subsection 381.494(6)(c)8., Florida Statutes.
The probable impact of the proposed project related to the cost of providing health services which are proposed by the applicant, taking into account competition on the supply of health services and any improvements or innovations in finance and delivery of those services, which would tend to foster competition end serve to promote quality assurance and cost
effectiveness, does not work in favor of the grant of this certificate. Given the overburden and duplication that would be caused by the grant of the certificate of need, any improvements or innovations in the delivery of health services or positive effects of competition and assistance in promoting quality assurance and cost effectiveness will not be realized with the advent of another outpatient surgery center in a community where capacity of the existing health institutions is adequate to serve the health care needs of the community in the provision of ambulatory surgery. At times, a freestanding surgery center is feasible. That feasibility has not been demonstrated on this occasion. See Subsection 331.494(0)(c)11., Florida Statutes.
There are available less costly and more effective methods of construction to meet additional ambulatory surgery services within the hospitals, as contrasted with the construction costs contemplated by the applicant Ambulatory Care. See Subsection 381.494(6)(c)12., Florida Statutes.
Criteria sat forth in Rule 10-5.11, Florida Administrative Code, related to the certificate of need process have not been satisfactorily addressed by the applicant, for reasons of the facts found and the discussion of law set forth before.
In summary, Ambulatory Care has not shown the need for the grant of a certificate to construct and operate the facility contemplated by its application and it is,
That the request for certificate of need to construct and operate the proposed ambulatory center be DENIED.
DONE and ENTERED this 7th day of October, 1983, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 7th day of October, 1983.
COPIES FURNISHED:
James M. McClean, Esquire Allan T. Geiger, Esquire Rogers, Towers, Bailey, Jones
and Gay
1300 Gulf Life Drive Jacksonville, Florida
Claire D. Dryfuss, Esquire Department of Health and
Rehabilitative Services
1323 Winewood Boulevard, Suite 405
Tallahassee, Florida 32301
David H. Pingree, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
Carl R. Pennington, Jr., Esquire Russell D. Gautier, Esquire
Pennington, Wilkinson and Dunlap
335 John Knox Road, Suite L-101 Tallahassee, Florida 32315-0985
Kenneth F. Hoffman, Esquire Oertel & Hoffman, P.A.
646 Lewis State Bank Building Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
SAINT VINCENT'S MEDICAL CENTER,
Petitioner,
vs. CASE NO. 83-337
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and AMBULATORY CARE - DUVAL DEVELOPMENT CORP. d/b/a JACKSONVILLE SURGICAL CENTER/ AMBULATORY SURGICAL CENTER,
Respondents.
/ RIVERSIDE HOSPITAL,
Petitioner,
vs. CASE NO. 83-482
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and AMBULATORY CARE - DUVAL DEVELOPMENT CORP. d/b/a JACKSONVILLE SURGICAL CENTER/ AMBULATORY SURGICAL CENTER,
Respondents.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. On October 7, 1983, the Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
PDCF - meaning HRS Office of Community Medical Facilities - filed Exceptions to the Recommended Order. A copy of PDCF's Exceptions is attached hereto as Exhibit A.
AMBULATORY CARE - meaning Ambulatory Care Duval Development Corp. - filed Exceptions to the Recommended Order. A copy of Ambulatory Care's Exceptions is attached hereto as Exhibit B.
HRS RULING AND STATEMENT ON THE EXCEPTIONS
(AA) PDCF EXCEPTION (1) - The exception has merit. Unformed future plans regarding capacity to do outpatient surgery are irrelevant to the methodology presented in the Recommended Order.
(AA) PDCF EXCEPTIONS (2) and (3) - The exceptions are self explanatory. They have merit and, accordingly are accepted.
(k) PDCF EXCEPTION (4) - HRS rejects the sweeping language pinpointed by PDCF in this exception to the Hearing Officer's conclusion of law. The exception has merit and hence the HRS Final Order incorporates the exception.
(BB) AMBULATORY CARE EXCEPTIONS (1) end (2) - These
exceptions are denied. The Hearing Officer's explanation for the derivation of the 110 figure is supported by the evidence.
(BB) AMBULATORY CARE EXCEPTIONS (3), (4) and (5) -
These exceptions are denied. Under the projection for outpatient surgery, which will be available at existing and approved facilities in Duval County, the County will be over built with outpatient surgical facilities.
(BB) AMBULATORY CARE EXCEPTION (6) - This
exception has merit, but the finding excepted to is deemed to be irrelevant.
(BB) AMBULATORY CARE EXCEPTION (7) - Because
there is no need for an additional facility, an addition of the proposed - facility would not be beneficial. The exception is denied.
(BB) AMBULATORY CARE EXCEPTIONS (8), (9), (10),
(11) and (12) - [Exception to the Conclusions of Law] - All the exceptions must be denied. The overall conclusion of law stated by the Hearing Officer is accepted by HRS, but
with appropriate modifications set forth by At PDCF's four exceptions
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact made by the Hearing Officer. There are, however, adjustments made in these findings, adjustments which are explained by PDCF's exceptions and the rulings thereon.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the overall conclusion of law stated by the Hearing Officer. The exception by PDCF in respect to the Hearing Officer's conclusion of law is incorporated into this Final Order.
Otherwise,
It is ADJUDGED that the Certificate of Need requested by Ambulatory Care Duval-Development Corp. for construction of a freestanding ambulatory surgical center is DENIED.
ORDERED this 28th day of November, 1983, in Tallahassee, Florida.
DAVID H. PINGREE
Secretary
Copies furnished to:
James M. McClean, Esquire and Allen T. Geiger, Esquire 1300 Gulf Life Drive Jacksonville, FL 32207
Claire D. Dryfuss, Esquire Assistant General Counsel Department of HRS
1323 Winewood Blvd.
Tallahassee, Florida 32301
Carl R. Pennington, Jr., Esquire and Russell D. Gautier, Esquire
325 John Knox Rd., Suite L-101 Tallahassee, Florida 32315-0985
Kenneth F. Hoffman, Esquire 646 Lewis State Bank Bldg. Tallahassee, Florida 32301
Charles C. Adams, waring Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Harden King, Agency Clerk Department of HRS
1323 Winewood Blvd.
Suite 407
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Nov. 29, 1983 | Final Order filed. |
| Oct. 07, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 28, 1983 | Agency Final Order | |
| Oct. 07, 1983 | Recommended Order | Respondent failed to meet statutory guidelines for granting of Certificate of Need (CON) because there was no need shown and there are more cost-effective methods. Deny CON. |
