STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHERN HEALTH CARE, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 84-0223

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 1, 1984 in Miami, Florida.

John D. Whitaker represented Petitioner and Louise Jeroslow a legal intern with Culpepper, Turner and Mannheimer represented Respondent.

Petitioner filed with Respondent an application for a Certificate of Need for a 180-bed nursing home in Dade County, and Respondent denied that application for the reason that no new nursing home beds were needed.

Petitioner timely requested a formal hearing on that denial. Accordingly, the issue for determination is whether Petitioner's application should be approved.

Kathryn W. Whitaker testified on behalf of the Petitioner and Elizabeth Dudek testified on behalf of the Respondent. Additionally, Petitioner's Exhibits numbered 1-5 and Respondent's Exhibits numbered 1-2 were admitted in evidence.

Only the Respondent submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Petitioner filed an application for a Certificate of Need for a 180-bed nursing home in Dade County, a subdistrict of Respondent's District 11 service area. The application was not offered into evidence, and no testimony was presented describing Petitioner's proposed project.

   
   

2. Respondent reviewed Petitioner's application in accordance with statutory criteria and Section 10-5.11(21), Florida Administrative Code, which contains a formula or methodology for computing whether there is a need for additional community nursing home beds in any health district or subdistrict in Florida. In applying that formula, Respondent utilized the following planning

   data: the number of licensed and approved beds within the service area, the average patient census data, the number of elderly living in poverty within the service area, and the projected number of persons aged 65 and older residing within the service area three years in the future (the formula's planning horizon). Respondent then projected the theoretical need in the district and subdistrict, subtracted the inventory of licensed and approved beds, and thereby obtained the need / no need ratio. Although a need was demonstrated in both the district and subdistrict, the methodology then further requires a current utilization rate in excess of 85 percent and a prospective utilization rate in excess of 80 percent before additional beds can be approved. In this case, the current utilization rate of 93.4 percent exceeds the 85 percent requirement.

   However, when the proposed 180 beds are added to the number of already licensed and approved beds, the prospective utilization rate decreases to 69 percent, a figure below the required 80 percent prospective utilization threshold.

   
   

3. In accordance with its application of its need methodology, Respondent issued a State Agency Action Report determining there is no need for Petitioner's proposed nursing home facility.

   
   

4. Even though District II and the Dade County subdistrict have a current utilization rate of 93.4 percent, Petitioner presented no evidence to show that persons in need of nursing home beds are unable to secure them or that any special or extenuating factors exist to mitigate against the strict application of Respondent's need methodology.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1983).

   
   

6. Although Petitioner's only witness demonstrated her disagreement with and criticism of the methodology contained in Respondent's need formula, she was neither tendered nor accepted as an expert witness in any field and merely recited statistics from reports published by others. Accordingly, no findings of fact are based upon the contents of those reports unsupported by any personal knowledge on the part of the witness.

   
   

7. Since the need methodology demonstrates a lack of need for Petitioner's proposed project, and since Petitioner failed to offer evidence of any exceptional factors which would warrant a less than strict adherence to the formula, Petitioner has failed to sustain its burden of proving by competent, substantial evidence that a need exists for its proposed project.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for a Certificate of Need.

DONE and RECOMMENDED this 14th day of November, 1984, in Tallahassee, Florida.

LINDA M. RIGOT

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 14th day of November, 1984.

COPIES FURNISHED:

John D. Whitaker, Esquire 10700 Caribbean Boulevard Suite 202-H

Miami, Florida 33189

Culpepper, Turner and Mannheimer

318 North Calhoun Street Post Office Drawer 11300

Tallahassee, Florida 32302-3300

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-000223

Orders for Case No: 84-000223