STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
INDIAN RIVER ARTIFICIAL KIDNEY ) CENTER and VERO BEACH ARTIFICIAL ) KIDNEY CENTER, )
)
Petitioners, )
)
vs. ) CASE NO. 83-2200
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) COMMUNITY DIALYSIS CENTERS )
OF FORT PIERCE, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Fort Pierce, Florida, on September 27, 1983. The issue for determination was whether Respondent Department of Health and Rehabilitative Services should deny Respondent Community Dialysis Centers' application for a certificate of need to operate an end station renal dialysis unit consisting of 10 stations in Fort Pierce, Florida.
APPEARANCES
For Petitioners: Eric Haugdahl, Esquire
1020 East Lafayette Street Tallahassee, Florida 32301
For Respondent: Doulas L. Mannheimer, Esquire Department of 315 North Calhoun Street Health and Tallahassee, Florida 32301 Rehabilitative
Services
For Respondent: Morgan L. Staines, Esquire Community Dialysis 2204 East Fourth Street Centers Santa Ana, California 92705
BACKGROUND INFORMATION
On May 31, 1983, Respondent Department of Health and Rehabilitative Services (HRS) issued a certificate of need (CON) to Community Dialysis Centers, Inc., d/b/a Community Dialysis Centers of Fort Pierce (CDC), to operate a 10- station hemodialysis facility (ESRD) in Fort Pierce, Florida. By letter dated June 29, 1983, Petitioners, Indian River Artificial Kidney Center and Vero Beach Artificial Kidney Center, through their parent organization, BioMedical Applications Management Company, Inc. (BMA) contested this grant of a CON on
the alleged basis it was arbitrary, capricious and an abuse of discretion, and requested a hearing under Section 120.57(1), Florida Statutes.
At the hearing, in which Respondents presented their evidence first, Respondents presented the testimony of Dan Cook Michael Sullivan, Spero Moutsatsos and C. Edwin Carter, and collectively introduced Respondents' Exhibits A through H. Petitioners presented the testimony of Richard LaParl and Thomas Last, and introduced Petitioners' Exhibits 1 through 3.
FINDINGS OF FACT
On January 4, 1983, Dan Cook, Director of Planning and Development for CDC, submitted a letter to HRS indicating CDC's intent to submit an application for a CON to establish an 11-station outpatient dialysis facility in Fort Pierce, Florida. This letter of intent was acknowledged by HRS by its letter of January 13, 1983, which also advised the application must be filed by February 15, 1983, and complete by April 15, 1983, for an action by HRS in May, 1983.
CDC's CON application was received in HRS on February 15, 1983, timely filed; and by letter of April 8, 1983, HRS deemed the application complete. On May 31, 1983, HRS issued a CON to CDC for a 10-station facility in Fort Pierce.
The law and regulations applicable to CON applications in Florida and the criteria by which they are judged are contained in Section 381.494(6)(c), Florida Statutes, and Chapter 10-5, Florida Administrative Code. The parties stipulate that several criteria in both authorities have been met CDC or are not relevant, but are in dispute over others. HRS is designated as the single state agency for the issue or denial of CONs for health care facilities.
Dialysis is a medical procedure whereby blood of persons with end stage renal disease is passed through an artificial kidney to remove the impurities contained therein. End stage renal disease is that stage of renal failure where the kidneys no longer naturally remove the impurities form of health maintenance which requires three treatments of about four to five hours' duration each per week. Patients are usually dialyzed at a dialysis facility during one of normally three dialysis shifts per day.
Dialysis treatments are reimbursable under Medicare. When CDC's pro forma statement of revenue was originally prepared for submission with the application for the CON, the assumption was that the reimbursement by Medicare would be at the then existing figure of $135 per treatment. Subsequent to that time, however, Medicare reduced its reimbursement figure to $115.21 per treatment. On the basis of this new figure, this reduction has resulted in an estimated $7 500 pretax loss for the proposed facility during the first year and a profit of $41,749 before taxes for the second year for CDC, which has adjusted its total corporate profits to offset the first year facility loss and to capitalize the new center. With that exception, there is no change in the pro forma statement originally submitted. Mr. Dan Sullivan, an accountant for CDC, estimates that CDC can operate the facility at a profit with its break-even point coming during the eleventh month, of operation. From that point on, each month should show a profit.
Petitioners operate renal dialysis facilities in areas contiguous to that requested by CDC. The Indian River Artificial kidney Center facility is located in Stuart, Florida, 18 miles to the south Fort Pierce; and the Vero Beach Artificial Kidney Center facility is located in Vero Beach, 14 miles to the north. The Indian River facility currently has 14 stations, and the Vero
Beach facility six. The Stuart facility expanded from 11 to the current 14 stations in 1983 after its request to expand to 21 stations was reduced upon the recommendation of Network 19's staff analysis, which indicated no greater need than that.
Network 19, a short title for ESRD Network 19, established approximately six years ago under the auspices of the Federal Health Care Finance Administration (HCFA). In Florida, it covers the whole state as a peer review organization which represents 75 dialysis units, 4 transplant units, and
9 patient advocates in the policy-making group, the coordinating council. In addition to that council is an executive committee made up of 17 members, most of whom are doctors, and a medical review board of doctors, nurses, social workers, dieticians and professionals of a similar background.
Network 19 performs three major functions: (1) that of a patient ombudsman, (2) that in the planning area and (3) that in the patient tracking area. The agency has a computer registry that maintains information on every dialysis and transplant patient in Florida for the last five years, and this information serves as a data base for certificate of need determinations in new ESRD CON applications. This data base is updated monthly, and Network 19 processes an average of 25 to 30 applications per year. By invitation from HRS, for the last five years, Network 19 has provided expert counsel and advice on all new hemodialysis service applications. Network 19's advice has been followed in approximately 95 percent of the cases upon which recommendations have been made. In the preparation of a recommendation, the executive director and his staff first perform an analysis of the applications which is thereafter submitted to the executive committee for review. It is the recommendation of the executive committee that is forwarded to HRS.
Network 19 did an analysis for this application considering information regarding all patients in the entire health service area (based on zip code). From that information, a subarea was defined, otherwise known as a catchment area, that best fits this application; and it was determined that Okeechobee and St. Lucie Counties would best fit the analysis' purposes. Based on the director's experience and the population figures within the Network 19 data base, it unit could start operating in Fort Pierce, within 12 months, at least one-half of the patient population would leave those facilities where they are now being treated and transfer to the new, Fort Pierce facility. Considering only the issue of better access, it was further determined that within a two- year period from the date the facility would open, between 75 and 100 percent of the current patients would shift over to the new facility.
However, this geographical area in question has experienced one of the highest rates of patient growth in the State of Florida which is estimated will produce a patient load of 162 per million population. Of the 24 patients presently undergoing treatment at the Vero Beach center, eight live in the identified catchment area, and these would be the ones most likely to transfer to the Fort Pierce facility, and 16 patients would remain. As for the Indian River unit, of the 22 patients currently undergoing treatment there, 11 or 12 would probably want to transfer to the new unit; and over the succeeding 12 months, the remaining 10 or 11 would probably transfer, as well. Based on growth experience in the area, however, the Network 19 director anticipated both units (Vero Beach and Indian River) would gain back the patient load by virtue of the anticipated increase in the patient population.
The transfer-out figures estimated by Network 19 are based on their experience which in the past showed that a more convenient center opened, about
50 percent of the patients transfer. Loyalty to doctors and other factors make it difficult for some patients to make the transition immediately. After a while, however, access and a shorter driving time begins to override loyalty and the remaining patients begin to transfer to a unit closer to their homes.
Relating to the patient population, this area contains one of the oldest in Florida. Sixty-six percent of the population is older than 55 years. A patient over 55 is considered a good candidate for either transplant or home dialysis; therefore, he or she would be dependent on a dialysis center. Age also makes the trip harder because the treatment is fatiguing and debilitating; and the less the patient has to drive, the better. At this age, patients tend to be more unstable and require more care. Many drive over 30 minutes, identified by Network 19 as a great distance, which is a problem. Since dialysis is a lifetime proposition, access is a prime motivating criterion used by Network 19 in considering new service. It is the policy of Network 19 that patients should not have to drive more than 30 minutes to get treatment. Older population tends to be more brittle, more unstable and to require more hospitalization, medicine and care. After a session, older patients tend to be tired and unable to cope with driving. As a result, friends or relatives have to drive for them, which constitutes a burden on the patient and the family.
However, Network 19's analysis of the patient members who have to drive over 30 minutes to get treatment is not particularly accurate. It was gained from a review of zip codes and may not be exact. To be more accurate, it would us necessary to do a personal survey of the patients, and this was not done. Based on their estimate, however, most of the patients in the catchment area resided more than 33 minutes from the existing units. When it errs, Network 19 also errs on the conservative side by under estimating need rather than overestimating it.
Petitioners take issue with Network 19's determination of excessive traveling distance for patients from the subarea in question to the currently existing facilities. Contending that the driving time from Fort Pierce to the Vero Beach facility is between 20 and 25 minutes, depending on traffic, and that from Fort Pierce to the Stuart facility is 25 minutes, the Vero Beach facility has 24 total patients of whom 10 reside in the catchment area. The Stuart facility has catchment area; and though Mr. LaParl, Petitioner's local director, does not know exactly where each resident resides, he is convinced none has to travel more than 30 minutes to get treatment.
Dialysis takes an average of four hours per treatment. The first shift at Petitioner's facilities comes in at 6:00 a.m. and is through by 10:00 a.m. or 11:00 a.m. After a turnover period between shifts, the second shift begins between 1:00 and 3:00 p.m. and finishes up between 5:00 and 5:30 p.m.
Examining those figures, it would appear that the first shift patients would not be traveling during the rush hour, but the second shift patients would most probably be going home at the conclusion of their treatment during the rush hour. Consequently, based upon the distances to be traveled, the estimate of driving time for the second shift patients, both to the Vero Beach and Stuart facilities, appears to be somewhat understated by the Petitioners.
Network 19 calculates that based on its population figures, there will be 255 patients unserved in the district by September 1, 1984. A group this size will require 111 dialysis stations. At this time, including those presently in operation and the ones approved (10 for Fort Pierce and 8 for Belle Glade), there are 114 stations, or a surplus of 3. Without the 10 stations at issue here, there would be a shortage of 7 stations districtwide. In the
subarea, however, the growth pattern is such that in one year, based on project growth, there will be a need for 13 stations. Currently, in the catchment area for the two counties, there are none.
Even considering the district as a whole with the surplus of three units, it is not at all unusual for Network 19 to recommend approval of new units where there is a surplus of units in the health service area, but a shortage in the subarea, such as in the situation here. Approximately one-third of the total number of applications for hemodialysis units certificates filed in the last couple of years fell within that category. In a case such as this, Network 19, in analyzing the situation, applies districtwide acquisition rates as applied to the particular subarea, not special rates for that subarea. The result of this is generally a tendency to underestimate growth and need rather than overestimate it.
A net increase or decrease in patient census may be affected by factors other than mere transfers in and out; for example, transplants, mortality, and seasonal visitors an increase or decrease in home treatment patients over whom the center exercises care and treatment and for which it is reimbursed. Therefore, while a center may show an increase or only seven patients in in-center treatment which would call for an increase of only two units, this figure may not accurately reflect a patient census/workload/reimbursable patient load, which is the bottom line as far as profit.
Petitioners questioned the figures utilized by Network 19 in its evaluation of CDC's application, claiming that the figures used violate Rule 10- 5.11(18)(a), Florida Administrative Code, which in substance states that acquisition rates cannot be projected into the future. It is noted at these projections utilized bin the analysis submitted to HRS did not include any date beyond 1982, and the testimony at the hearing by Mr. Moutsatsos Executive Director of Network 19, referred to figures for the entire year of 1983. Regardless of whether one considers the 1983 figure of 969,000, plus or minus, or the 4984 figure of difference or approximately 40,000 people in the districtwide population base, the net difference in dialysis station requirements is one station--certainly not a significant variation. In addition, as was stated before, the formula used by Network 19 in its review and analysis of the application and the projections thereto are applied to the entire five-county district, as well as to the subarea.
Referencing the Network 19 meeting at which Petitioners could have voiced their objections to CDC's application and failed to do so, an initial mailing containing a notification of all applications to be considered at the meeting was sent to every facility administrator in the State. The subsequent staff analysis was sent to all 17 executive committee members, including the five medical directors of the Petitioners' facilities who serve on the executive committee of Network 19.
Mr. LaParl, the center administrator for the two existing BMA facilities in Stuart and Vero Beach, was present at the Network 19 meeting at which Respondent CDC's application was considered, but contends he was not aware that this particular application was going to be reviewed at that meeting. He contends he received no mail-out from Network 19 regarding the Fort Pierce facility. The mailing he did receive regarded the Lantana facility, which was one of Petitioners' facilities, and that is why he was there. Because of the lack of prior knowledge, he contends he was not prepared to testify at the hearing regarding it. Accepting, arguendo, that Mr. LaParl was not given prior
notice of the fact that the Fort Pierce facility was to be considered at that meeting, that omission is not a weighty factor. Network 19's evaluation of Respondent CDC's application was based on a reliable data base and a failure of Petitioners to comment on it at that juncture and is not dispositive.
The occupancy and utilization percentage at the Indian River facility on March 31, 1983, was 93 percent, not counting transient and seasonal patients. At the same time, the Vero Beach facility rate was 92 percent. HRS and Network
19 consider optimal occupancy rate at 80 percent. Occupancy as high as that shown for both of Petitioners' currently existing area facilities tends to inhibit the ability of those facilities to accept new patients.
Petitioners contend that the opening of CDC's facility in Fort Pierce would have serious financial consequences for their two closely located existing a result of the reduction in Medicare reimbursement to $118, as well as increased medical necessity requirements for ancillary services which have been in the past moneymakers to operators of facilities such as these, the Stuart facility will probably show a loss for the 1984 year, especially with the projected loss of patients to the new Fort Pierce facility proposed. If this happens, Petitioners indicate they may well close the unit.
It is noted, however, that in August of 1983, this particular facility made a profit primarily, it is explained, because of the 81 acute treatments done for Martin Memorial Hospital, in addition to the routine patients, at a fee of $250 per treatment. Normally, the number of acute treatment patients is between 35 and 40 per month. The next highest month prior to August, 1983, was in May, 1982, when 70 acute treatments were done. Charges for acute care treatments are more expensive than In the chronic care facilities because of the added expense; i.e., a one-on-one situation (registered nurse) versus a three patients to one nurse ratio in the chronic care facility.
As to the Vero Beach unit, the financial condition is as bad or worse than that for the Stuart facility. This unit had a loss in both 1981 and 1982 and was just beginning to recover in 1983. Mr. LaParl contends that if this facility loses patients to the Port Pierce unit (44 percent loss is predicted) it will be "devastating," and Petitioners will close this unit. This opinion is shared by Mr. Last, Regional Administrator for BMA, who contends that opening the Fort Pierce center, along with the reduced rates of Medicare reimbursement, would be fatal to the Vero Beach facility and will throw the Stuart-facility into a loss position. In fact, he contends, if the reduced rates remain and the Fort Pierce facility opens, he will recommend closing the Vero Beach facility, but would have to study the three-year projection on the Stuart facility before, making a recommendation there. He disagrees totally with Network 19's projection of growth in the area and contends the past growth has been no greater for this subarea than for the whole health service area. Further, the percentage of utilization figures cited by Network 19 does not really have bearing on facility use. For example, when a facility reaches 80 or even 100 percent utilization, he contends, this does not stop the taking of new patients. It would result only in the opening of another shift to accommodate the new patients. This would be consistent with Network 19's theory that for a small (under 12 stations) facility or a medium (12 to 20 stations) facility to be profitable with the reduced dialysis reimbursement rate, three shifts would be minimal. Under currently existing agency rules, however, operation of three shifts in existing facilities should not be considered in determining need for further stations.
When Network 19 calculated the effect on the patient load on the Vero Beach and Indian River stations, if the Fort Pierce were allowed, it made no analysis of the financial aspects of the opening because the detailed information, such as cost information, was privileged and was not available to Network 19. While no direct request was made of the Petitioners for the information, Petitioners were offered the opportunity to be heard at the Network
19 meeting the application as reconsidered at the time the analysis and the decision-making process was conducted. No one from Petitioners came forward with a showing that there would be a negative cost effect.
The dire predictions of Messrs. LaParl and Last regarding the disastrous financial result to the Stuart and Vero Beach facilities were questioned by CDC's comptroller. His analysis for the projections for both Petitioners' facilities indicates an overstating of the future costs of treatment. For example, Petitioners projected a 10.6 percent increase in costs during 1984 for the Vero Beach facility to an ultimate $148.16 per treatment. In the projection for the Stuart facility, the projected cost per treatment is
$149, an increase of almost 14 percent, when the inflation rate projected for the period is in the area of 6 percent. The CDC comptroller attributes this to a lack of cost control, both in fixed and nonfixed costs, and compares these figures to its own (CDC's) projected costs, which it estimates will be approximately $20 per treatment less than that of Petitioners. In CDC's opinion, supply costs are going down, and it raises a question as to the accuracy of Petitioners stated supply costs when it is seen that Petitioners buy the majority of their dialysis supplies from Erica, a medical supply company which is a sister division to Petitioners in the BMA corporate structure. For example, CDC's dialysis filters cost between $11.50 and $18.50, as opposed to the Petitioners' costs for the same unit of $29 to $40 paid to Erica. On the other hand, Erica sells to other facilities besides those owned by BMA and, while admittedly making a reasonable profit, does not charge BMA facilities any more or less than that which is charged to other facilities outside the corporate structure. However, considering both arguments, there is little doubt Petitioners' costs run high.
Analysis of the above factors shows that while opening of the Port Pierce facility will have a definite negative impact on both the Stuart and the Vero Beach facilities owned BMA, proper management of these facilities which are but segments of a large corporate operation will result, when taken along with the projected reasonable population growth for the area, will result in survival of Petitioners' facilities at the same time room is made for Respondent CDC's facility in between the two.
Respondent HRS has always accepted the recommendation of Network 19 organization in the area of renal hemodialysis. When the agency receives the Network review, it advertises it for public hearing. This was done in this case, and no hearing was requested. The agency considered only CDC's application, Network 19 report in king its analysis. No other input was considered.
The agency accepted Network 19's findings on the effect on existing facilities. It found that the applicant's availability of manpower and financial resources was adequate. In the area of financial feasibility, the two years for profitability as projected in the pro forma financial statement submitted along with the application was considered reasonable, and the projected loss during the first year is not considered significant and is expected. Most bills for hemodialysis treatment are paid by Medicare. The
agency also accepted Network 19's utilization rates after the first year and the projected changes in population.
The agency's position is that based on the composition of Network 19's executive board and the input it receives from the many disciplines involved, it has a better feel for the need in a area than HRS does in Tallahassee. In addition, HRS considers heavily the results of public hearings held and the comments the applicants and affected parties have submitted. In that regard, it is note-worthy that none were submitted here. HRS also defers to Network 19 because it does not unnecessarily have the specific language in its rules regarding all of the various disciplines whose applications are considered, from hospitals to ambulatory surgeries to end stage renal dialysis units. As a result, by using Network 19 as an expert, there is promoted a flexibility as to what service area is considered, depending on the type of activity involved and the needs of those patients.
In light of all the above, after considering Network 19's report, the agency concluded that a need existed for 12 hemodialysis stations in the health service district of which this subarea needed 10. Notwithstanding the additional possible requirements, since the application asked only for approval of 11 new units, that figure as modified 10 was granted. The use of subareas in determining need in the case of end stage renal dialysis has constantly been the policy of HRS, as opposed to a districtwide need.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
The criteria established under Section 381.494(6)(c), Florida Statutes (1982 Supp.), and Rule 10-5.11, Florida Administrative Code, govern the issuance of certificates of need for health care facilities. The parties stipulated that only certain of the criteria outlined in both authorities are in dispute. These criteria shall be mentioned and discussed below. All other criteria under both authorities are stipulated by the parties to have been met by the applicant or to be not relevant to this hearing.
Section 381.494(6)(c), Florida Statutes (1982 Supp.), states, as follows:,
The department shall review applica- tions for certificate-of-need deter- minations for health care facilities and services, hospices and health maintenance organizations in context with the following criteria . . . .
As was stated above, only certain criteria listed thereunder are in issue. These are, as follows:
The need for the health care facilities and services and hospice being proposed in relation to the applicable district plan, annual implementation plan, and state health plan adopted pursuant to Title XV of the Public Health Service Act, except
in emergency circumstances which pose a threat to the public health.
The evidence presented showed that Network 19, a federally funded and sponsored organization, has been, de facto, delegated the responsibility to evaluate certificate of need applications for end stage renal dialysis facilities in Florida. The testimony of Mr. Moutsatsos to the effect that the establishment of the dialysis facility in Fort Pierce as requested would satisfy an existing and growing need for the service within the context of the district health plan and the state health plan in conjunction with the testimony of Mr. Carter from HRS to the effect that the agency constantly and consistently relies upon the recommendation of Network 19 for its input in this area was not offset by any evidence introduced by Petitioners. Consequently, it is clear that this criterion has been met.
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.
Currently, Petitioners operate two facilities in the counties contiguous to those proposed in CDC's application. Both are currently utilized to an extent in excess of that which is considered optimum for effective patient care and expansion by Network 19. Further, the distances to be traveled by patients of the category treated here were considered by Network 19 to be currently, if not excessive, at least subject to improvement by the opening of CDC's Fort Pierce facility. Petitioners presented no evidence to successfully counter the position taken by the agency in its approval of CDC's application.
Probable economies and improve- ments in service that may be derived from operation of joint, cooperative, or shared health care resources.
This section does not appear to be applicable here since no service or resources would be shared.
The immediate and long-term financial feasibility of the proposal.
Network 19 considered the pro forma statement of income submitted with the application to be adequate. The projected negative income for the first 11 months was not considered to be disqualifying, but to be acceptable. The uncontroverted testimony of Mr. Sullivan, Comptroller for CDC, tends to indicate the likelihood that CDC will operate a more economically efficient facility than either of those currently operated in the area by Petitioners.
The special needs and circum- stances of health maintenance organizations.
Since neither Petitioners' existing facilities nor CDC's proposed facility are health maintenance organizations, this section is not applicable here.
12. The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative less costly, or more effective methods or construction.
No evidence was presented at the hearing which tended to indicate the costs projected for the establishment of this facility were other than as stated and considered appropriate by Network 19 and the agency.
The parties also stipulated that of the criteria set forth in Rule 10- 5.11, Florida Administrative Code, only Subparagraphs 1, 3, 5, 6, 7 and 18 were in dispute. Of those just listed, 1, 3, 5, 6 and 7 have been treated in the discussion of the criteria set forth in the statute above; therefore, only Criterion 18 needs comment here. This criterion, which deals specifically with chronic renal dialysis facilities, forth base period for determining need (18)(a)] and thereunder lists four factors for consideration in determining the need for a new facility. These, therefore are:
The base period for determining the need for a proposed chronic renal dialysis facility is one year from the date that the application is deemed complete by the department. Factors which must be incorporated in the procedure for determining the need for a chronic renal dialysis facility include:
The most recent available monthly census of the number of patients receiving chronic dialysis services in the
service area.
Data on the annual patient acquisition rate (new ESRD patients per million population) for the
vice area for at least the preceding calendar year or more than one year if available.
Data on the number of successful and unsuccessful transplant operations performed for the service area for at least the preceding calendar year or more than one year if available.
Data on the ESRD patient mortality rate (ESRD patient deaths/ESRD
patient population) for the service
area for at least the preceding calendar year or more than one year if available.
Careful analysis of the testimony of Mr. Moutsatsos as to the data utilized by Network 19 in its analysis of Respondent CDC's application for a CON for the Fort Pierce facility clearly shows that the information listed in the above Subparagraphs 1 through 4 was considered and utilized. As was stated in
the Findings of Fact above regarding the base period for determining need, even if the most conservative figure were to be utilized to conform with the provisions of (18)(a) that is, the period extending one year from the date the application is deemed complete as opposed to the more current figures projecting into the future the differance in stations needed is one; consequently, the need would be for nine rather than 10 stations. That difference is of little significance in considering the overall project.
It would also appear, based on a review of the certificate of need applications and the testimony of the Network 19 officials, that the formula set forth in Paragraph (b) for determining the need for the facility was met again. The testimony shows that the recommendation was based on estimates which are as a matter of agency policy conservative; ergo, the recommendation, positive for the issuance of a certificate of need, is a conservative one. Therefore, it is clear that the requirements of said Paragraphs (18)(a) and (b) and the criteria and formula thereunder have been met and satisfied.
In light of all the above, it is clear that CDC has established that there is a need for the additional facility. The recommendation of Network 19 is accurate and justified and demonstrates a need for a 10-station hemodialysis facility in Fort Pierce, Florida.
The Respondents have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
It is, accordingly, RECOMMENDED:
That HRS grant Community Dialysis Centers of Fort Pierce's application for a certificate of need for a 10-station hemodialysis facility in Fort Pierce, Florida.
RECOMMENDED: this 10th day of November, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983.
COPIES FURNISHED:
Eric Haugdahl, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301
Douglas L. Mannheimer, Esquire
318 North Calhoun Street Tallahassee, Florida 32301
Morgan L. Staines, Esquire 2204 East Fourth Street Santa Ana, California 92705
Mr. Pingree Secretary
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
INDIAN RIVER ARTIFICIAL KIDNEY CENTER and VERO BEACH ARTIFICIAL KIDNEY CENTER,
Petitioners,
vs. CASE NO. 83-2200
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and COMMUNITY DIALYSIS CENTERS OF FORT PIERCE,
Respondents.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. On November 10, 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.
CDC- meaning Community Dialysis Centers, Inc., filed technical Exceptions to the Recommended Order. A copy of CDC's exceptions is attached hereto as Exhibit A.
BMA- meaning Biomedical Applications Management Corporation, Inc., which is the parent organization for Indian River Artificial Kidney Center and Vero Beach Artificial. Kidney Center filed Exceptions to the Recommended Order. A copy of BMA's exceptions is attached hereto as Exhibit B.
HRS STATEMENT AND RULING ON THE EXCEPTIONS
(AA) CDC Exceptions (1) through (7)- These corrections are duly acknowledged. The Final Order will modify the Recommended Order in accordance with these technical but necessary corrections. The exceptions have merit.
(BB) BMA Exception 1- The incorrect listing of the statutory criteria is acknowledged. Otherwise, the Hearing Officer's decision is supported by competent, substantial evidence. The exception is denied.
(BB) BMA Exceptions (2) and (3)- These Exceptions are denied.
(BB) BMA Exceptions (4), (5), (6) and (7)- There is competent, substantial evidence in the record which supports the Recommended Order. Accordingly, the exceptions are denied.
(BB) BMA Exceptions (8) and (9)- These exceptions are denied.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact made by the Hearing Officer.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law stated by the Hearing Officer. The exceptions filed by CDC are incorporated herein and made a part of these conclusions of law.
It is ADJUDGED that the application by Community Dialysis Centers of Fort Pierce for a certificate of need for a 10-station hemodialysis facility is approved.
ORDERED this 30th day of December, 1983, in Tallahassee, Florida.
DAVID H. PINGREE
Secretary
COPIES FURNISHED:
Eric Haugdahl, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301
Douglas L. Mannheimer, Esquire
315 North Calhoun Street Tallahassee, Florida 32301
Morgan L. Staines, Esquire 2204 East Fourth Street Santa Ana, California 92705
Arnold H. Pollock, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Harden King, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jan. 05, 1984 | Final Order filed. |
| Nov. 10, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 30, 1983 | Agency Final Order | |
| Nov. 10, 1983 | Recommended Order | Evidence sufficient to grant Certificate of Needs (CONs) for ten-station hemodialysis facility. |
