STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERGREEN NURSING HOME OF )

PALM BEACH, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1891

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearing, conducted a formal hearing in this case on November 4, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Mayer Gattegno, Esquire

Suite 507-Landmark Bank Building 9600 West Sample Road

Post Office Box 8708

Coral Springs, Florida 33065

For Respondent: Claire Dryfus, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301

ISSUE

Whether petitioner should be granted a certificate of need to build a 120- bed nursing and extended care facility in West Palm Beach, Florida.

BACKGROUND

In January, 1983, petitioner Evergreen Nursing Home of Palm Beach, Inc. ("Applicant"), applied to respondent Florida Department of Health and Rehabilitative Services ("DHRS") for a certificate-of-need authorizing it to build a 120-bed nursing and extended care facility in West Palm Beach, Florida. By letter dated April 28, 1983, DHRS denied the application because "the proposed project is not consistent with Chapter 10-5.11(21), Florida Administrative Code, nursing home bed [-need] methodology." The Applicant challenged the denial and requested a Section 120.57 hearing.

On June 14, 1983, DHRS forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for October 6, 1983, then, on joint motion, reset for November 4, 1983.

At hearing, the Applicant presented the testimony of Norman Geller and T.

1. Del Rosso; DHRS presented the testimony of C. Edwin Carter. Petitioner's Exhibit Nos. 1-2 1/ and respondent's Exhibit Nos. 1-5 1/ were received into evidence.

   
   

   The Applicant was granted leave to file a post-hearing, exhibit consisting of a copy of the certificate of need application at issue. The Applicant subsequently filed a copy of the application together with a balance sheet and resume of Norman Geller. DHRS moved to strike the balance sheet and resume, contending that they were not part of the application. No response to the motion having been filed, the motion is now granted.

   
   

   Post-hearing proposed findings of fact and conclusions of law were filed by November 17, 1983.

   
   

   Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

   1. The Applicant seeks a certificate-of-need authorizing it to construct a 120-bed nursing and extended care facility in West Palm Beach, Florida. The facility will have 48,000 square feet and cost $3,309,000--$27,576 per bed. (P- 2)

      
      

   2. The sole basis for DHRS' denial is that, under its bed-need contained in Rule 10-5.11(21), Florida Administrative Code, there is no need for the proposed facility. Under this rule, in effect prior to the filing of the application at issue, DHRS "will determine if there is a projected need for new or additional community nursing home beds three years into the future according to the following methodology":

      
      

      N= De x R x P - Eb Se

      
      

      N is area-specific allocation of community nursing home beds for the calendar year for which a projection is being made,

      
      

      De is the percentage of elderly living in poverty in the relevant departmental service district according to the latest available U.S. census.

      
      

      Se is the percentage of elderly living

      in poverty in the State according to the latest available U.S. census.

      
      

      R is the statewide bed need ratio (2 7 community nursing home beds per 1,000 population age 65 years and older),

      P is the population age 65 and older pro- jected three years into the future residing in the relevant departmental district based on latest mid-range pro- jections published by the Bureau of Economics and Business Research at the University of Florida, and

      
      

      Eb is the number of existing and approved community nursing home beds within the relevant departmental service district.

   3. Here, the bed-need formula is completed as follows: For District IX (Indian River, Martin,

      Okeechobee, Palm Beach, and St. Lucie Counties)

      
      

      N= 9.28 x 27 x 265245.1 - (3,717 + 1,770)

      12.70 1000

      
      

      N= -259 beds

      
      

      For Subdistrict (Palm Beach County)

      
      

      N= 9.28 x 27 x 198,746.9 - (2,646 + 1,440)

      12.70 1000

      
      

      N= 3,923 - (2,646 + 1,440)

      
      

      N= -169.

      
      

      Thus, 259 excess beds are projected for 1986 in District IV and 169 excess beds in the subdistrict. (Testimony of Carter; R-1, R-2, R-3, R-4, R-5)

      
      

   4. The DHRS bed-need criteria of Rule 10-5.11(21) also contain a current utilization component. When the bed-need formula indicates, as here, that neither the subdistrict nor the district need additional bed capacity, Rule 10-

      5.11 (21)(f)4. specifies a subdistrict current-utilization threshold of .95 or higher. This threshold is not met since during the January - June, 1983, reporting period, Palm Beach County had 91.8 nursing home bed-utilization. (Testimony of Carter; R-3)

      
      

   5. The Applicant contends that, even if it does not satisfy the DHRS nursing home bed-need criteria, a certificate-of-need should be granted because existing nursing homes in Palm Beach County do not provide beds to medicaid patients. This contention is unsubstantiated. During the January - June, 1983, reporting period, 41.7 of District OX nursing beds were utilized by medicaid patients. (R-3)

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division' of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1981).

   7. Pursuant to Section 381.494(8), Florida Statutes (Supp. 1982), DHRS adopted Rule 10-5.11(21), which contains specific bed-need standards for use in reviewing nursing home certificate-of-need applications.

      
      

   8. In licensing proceedings such as this, applicants have the burden of demonstrating that they meet all criteria for licensure. See, J.W.C. Co. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

      
      

   9. Here, the Applicant has not sustained its burden. To the contrary, the record affirmatively shows that, in 1986, there will be no need for additional nursing home beds (over and above those already existing or approved) in either District IX or Palm Beach County.

      
      

   10. Further, the current bed-utilization rate in Palm Beach County does meet the minimum threshold of .95 or higher. Since the application does not satisfy the minimum criteria of Section 10-5.11(21), it must be denied.

       
       

   11. The parties' proposed findings of fact have been considered in preparing this recommended order. To the extent the findings were not consistent with the weight of credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the application be denied for failure to meet licensing criteria contained in Rule 10-5.11(21), Florida Administrative Code.

DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 8th day of December, 1983.

ENDNOTE

1/ Petitioner's Exhibits will be referred to as "P- "; Respondents's Exhibits will be referred to as "R- ."

COPIES FURNISHED:

Mayer Gattegno, Esquire David Pingree, Secretary Suite 507-Landmark Bank Bldg. Department of Health and 9600 West Sample Road Rehabilitative Services

Post Office Box 8708 1323 Winewood Boulevard Coral Springs, Florida 33065 Tallahassee, Florida 32301

Claire Dryfus, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Building 1, Suite 406

Tallahassee, Florida 32301

Docket for Case No: 83-001891

Orders for Case No: 83-001891