STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WUESTHOFF HEALTH SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NOS. 84-1976

) 85-1310

DEPARTMENT OF HEALTH AND ) 85-1310

REHABILITATIVE SERVICES, and ) FLORIDA CONVALESCENT CENTERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Rockledge, Florida, on May 19 and 20, 1986, and in Tallahassee, Florida, on May 21, 1986. The issue for consideration concerned which of the various parties, if any, should be issued a Certificate of Need for community nursing home beds in HRS District VII, subdistrict of Brevard County, for the Planning Horizon identified as January 1987 and January 1988.

APPEARANCES

For Petitioner W. David Watkins, Esquire

Wuesthoff Health Oertel & Hoffman

Services, Inc.: 2700 Blairstone Road, Suite C

Tallahassee, Florida 32301

For Respondent DHRS: R. Bruce McKibben, Jr.

Assistant General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

For Respondent Palm Jonathan S. Grout, Esquire Bay Care Center: 307 West Tharpe Avenue

Tallahassee, Florida 32302

For Respondent Florida Thomas Beason, Esquire

Convalescent Centers, 118 North Gadsden Street, Suite 100 Inc.: Tallahassee, Florida 32301

BACKGROUND INFORMATION

In April 1983, Florida Convalescent Centers, Inc., submitted an application for a Certificate of Need to provide nursing home beds in the area in question which application was denied initially. Subsequently, however, on February 22, 1985, Respondent Department of Health and Rehabilitative Services (DHRS) reversed itself and issued a Certificate of Need to FCC for the beds in

question. This issue was challenged by Wuesthoff Health Services, Inc. (Wuesthoff), and Palm Bay Care Centers, Inc. (PBCC). As a result, DHRS indicated its intention to withdraw the previously granted Certificate of Need.

Wuesthoff submitted its application for a CON for the same bed population on January 16, 1984, and the application was denied. The case involving the denial of Wuesthoff's CON application and the cases involving Wuesthoff's and PBCC's contest of the award of the CON to FCC were consolidated by the Hearing Officer on November 14, 1985, and the consolidated hearing was held as scheduled. At the hearing, Wuesthoff presented the testimony of Harold E. Conn, its Vice-President for Support Services; Michael L. Schwartz, a Health Care Consultant in the area of administration and planning; Woodrin Grossman, a certified public accountant; Robert W. Annabale, Wuesthoff's medical service worker and discharge planner; Robert O. Carman, President of Wuesthoff Hospital and all subordinate companies related thereto; Dennis W. Boo, Vice-President for Financial Services with Wuesthoff; Robert C. Liden, an investment banker; Henry

1. Smith, an architect; and Dr. Rick Enriques, an internist in Port St. John, Florida. Wuesthoff also introduced Exhibits 1 through 11. FCC did not present any witnesses at the hearing but had admitted into evidence FCC's Exhibits 1 through 5. DHRS presented the testimony of Reid Jaffe, a health services facilities and services consultant supervisor with HRS Office of Community Medical Facilities, and introduced HRS Exhibit 1. Palm Bay Care Center presented no witnesses of its own but adopted the testimony of Mr. Jaffe who testified for DHRS. It did not present any documentary evidence.

   
   

   All parties have submitted posthearing proposed findings of fact which have been carefully considered and evaluated in the preparation of this Recommended Order. A specific finding as to the pertinence and acceptability of each proposed finding of fact is contained in an Appendix attached hereto.

   
   

   FINDINGS OF FACT

   
   

   1. Wuesthoff Memorial Hospital is a 279-bed not for profit acute care hospital which has been in operation for more than 45 years in central Brevard County, Florida. In that time, it has provided by far the majority of the indigent care for the population in that primary service area. Its secondary service area extends into the northern and southern portions of Brevard County, which is a long thin County extending north and south along the Atlantic Coast in Central Florida. Over the years, Wuesthoff Memorial Hospital has attempted to provide a broad range of services for the community in which it operates, including such services as satellite clinics, home health agencies, ambulance service and a lithotripter is programmed for implementation in the future.

      
      

   2. Recognizing that home health agencies and other alternative health care delivery systems are not an adequate substitute for nursing home care, Wuesthoff in January 1984, submitted an application for a 120-bed nursing home to be operated under the name Merritt Center Nursing Home by Wuesthoff Health Services, Inc., an affiliate of Wuesthoff Memorial Hospital. Wuesthoff Health Services, Inc., like its parent corporation, is a nonprofit entity.

      
      

   3. FCC submitted its application for a Certificate of Need to construct a 120-bed nursing home in Brevard County in April 1983. This Certificate of Need application was initially denied by HRS, and upon denial, FCC filed a timely petition for formal administrative hearing. Prior to hearing, however, on February 7, 1985, DHRS entered a "final order" which purported to grant a 120- bed Certificate of Need (2604) to FCC. Though titled a "Final Order," this document was more a notice of intent to grant the CON in question.

   4. Notice of this intent to grant the Certificate of Need was published in the Florida Administrative Weekly on March 8, 1985, and the Notice provided that substantially affected persons might request an administrative hearing within 30 days of that publication. However, prior to that date, on February 22, 1985, HRS improperly issued CON 2604 to FCC for a 120-bed nursing home in Brevard, with a termination date of February 21, 1986, and forwarded it to FCC on the issue date. No evidence of any formal recission of that CON was presented by HRS. However, it appears that the CON in question was partially (and improperly) based on beds from a future planning horizon and HRS has now reversed its position and resists the award to FCC. No construction was started under the CON. FCC has failed to present any evidence to support its application of this de novo hearing choosing instead to rely on the previous action by HRS granting the CON. This is insufficient.

      
      

   5. Both Wuesthoff and Palm Bay Care Center, an existing nursing home facility in Brevard County, filed administrative protests to the "intended" grant of the Certificate of Need to FCC. Wuesthoff's Petition contesting the issuance of CON 2604 was filed on March 3, 1985, and PBCC's on April 5, 1985, both well within the time period prescribed for filing protests to the issuance of the CON in question to FCC. By this time, Wuesthoff's application for a Certificate of Need had already been filed and Wuesthoff subsequently submitted an amended Certificate of Need application indicating that it would accept either a 120-bed or a 60-bed Certificate of Need. The local health plan for Brevard County indicates that new nursing home facilities within Brevard County should be at least 120-bed facilities. This does not foreclose HRS from granting a CON for less than that amount, but generally, the Department will not issue CONs for new nursing homes containing less than 60 beds.

      
      

   6. At the present time, there are 216 approved nursing home beds in Brevard County. In addition to those, Florida Convalescent Center has a Certificate of Need (2604) for 120 beds, and Courtenay Springs has a CON for an additional 36 beds.

      
      

   7. In calculating existing nursing home beds, HRS considers all licensed nursing homes which are operating and which provide data to the local health council in determining its calculations relating to occupancy rates within the county or subdistrict. The length of time the facility has been operating is immaterial. If licensed and reporting, it is accounted by HRS.

      
      

   8. Rule 10-5.11(21), Florida Administrative Code, contains the methodology for determination of additional need for nursing home beds in Florida. The overall criteria are found in Section 381.493, et seq., Florida Statutes. In the instant case, the planning horizons pertinent to the need methodology are those for January 1986 and January 1987. In its analysis of the need consistent with those horizon dates, HRS utilized the most recent six months occupancy rates data received from the local health council, which included the period October 1985 through March 1986. HRS did not use nor did it attempt to obtain occupancy data which, though available at the local health council level, had not been forwarded to HRS. The rule in question provides that the occupancy standard to be used in determining the need for nursing home beds in a January batching cycle such as here is the occupancy rate for the months of April through September preceding the filing of the CON application. The rule is silent regarding what occupancy data is to be used for determining bed need at a de novo hearing.

   9. Applying the rule methodology utilizing the October 1985 through March 1986 data resulted in a conclusion that there would be no need for any additional nursing home beds in Brevard County in January 1986 and a need for approximately 25 beds in January 1987. These figures do not include the beds involved in the CON awarded to FCC and Courtenay Springs. Had they been used, a large surplus/smaller need would appear for the planning horizons at issue in this case. Both PBCC and FCC agree with HRS that the appropriate occupancy rate to be utilized here is that for October 1985 through March 1986. On the other hand, Wuesthoff contends that the more reasonable occupancy rate to be used would be one which does not include that of Vista Manor, a newly opened nursing home whose occupancy rate is extremely low. Wuesthoff also urges that Vista Manor should not be considered since it is located in the northern part of the country. The occupancy rate there is higher than in the central area. To accept Wuesthoff's position here would be to subdistrict a subdistrict, a procedure for which there is little rationale.

      
      

   10. An analysis of the number of nursing home beds per 1,000 population for the six geographic subdivisions of Brevard County established by the local health council establishes that the countywide average is 22.6 beds per 1,000 population, which figure is less than the statewide average of 27 beds per 1,000 population. From this, it is inferred that Brevard County is underbedded when compared to other areas in the State and the State as a whole. Further, the Brevard County average is considerably less than that of 54 beds per 1,000 population, which is the national average.

       
       

   11. In 1985, the occupancy rate for nursing homes in Brevard County was

       93.9 percent, including Vista Manor which was open for only 137 days in that year, and which had an extremely low occupancy rate during the first several months of operation. Excluding Vista Manor, the 1985 occupancy rate becomes 97 percent. During the period 1983 through 1986, licensed and approved nursing home beds in Brevard County increased from 830 to 1180 but during that entire period, the occupancy rate for Brevard County at no time dropped below 92.6 percent, although the 42.2 percent increase in the number of beds did result in an occupancy rate decrease of 5.4 percent.

       
       

   12. Generally, when nursing home beds increase in a county, the occupancy rate drops proportionately. Comparing Brevard County with its neighboring counties, Orange, Osceola and Seminole, for the 1983-1986 period, shows an interesting statistic. In Orange County, a bed increase of 34.6 percent resulted in an almost 10 percent decrease in the occupancy rate. In Osceola County for the same period an 11.8 percent bed increase resulted in a 13 percent decrease in the occupancy rate and in Seminole County, with no increase in the number of beds, the occupancy rate decreased by 9. 9 percent.

       
       

   13. From this, according to Wuesthoff's experts, it can be seen that while the other counties in District VII experience the traditional or typical decrease in occupancy rate with the increase in available beds, special circumstances in Brevard County tend to ameliorate the decrease in occupancy. At this point, it should be noted that the largest population of nursing homes (those persons over age 65) are divided somewhat inequitably. Even though 35.2 percent of persons in this age group in the district are located in Brevard County, only 23 percent of the nursing home beds in the District are located in the county. If an 80 percent occupancy standard is applied, there would be a

       need for approximately 1400 nursing home beds in Brevard County by January 1987. Since there are currently 1240 beds currently existing, licensed and approved, a net need of 160 beds would appear to exist. If a less conservative use rate is applied, the net need in Brevard County would be even greater. Consequently it

       can be seen that the methodology used by the State as to the factors applied may be subject to question. It is here that the issue of the appropriate 6-month occupancy data comes into play. It is anticipated that the proposed Wuesthoff Nursing Home could not be completed before July 1987. It would not appear that that FCC project, if approved, would be available any sooner. Since the earliest operational date for a nursing home by either applicant would be July 1987, Wuesthoff urges that the most reasonable projection of bed need would be that for July 1987. If that is done a net need of 139 beds is found. However, the latest planning horizon in issue here is January 1987, not July 1987.

       
       

   14. HRS's expert, Mr. Jaffe, who performed the calculations regarding bed need consistent with the rule methodology, indicated that HRS' position has been that the latest available occupancy data should be utilized in projecting need pursuant to the Department rule. Though a rule embracing that policy has never been promulgated by the Department, according to Mr. Jaffe, October 1985 through March 1986 data was the most recent made available to HRS and was that used in his calculations. Admittedly, he made no attempt to obtain any later data. The period he used was not that described in the Department's rules.

       
       

   15. In light of the above, it is not at all clear that Wuesthoff has shown a need for additional beds.

       
       

   16. There is, however, room within the Department's rule to consider mitigating circumstances that would dictate a deviation from the strict need computation outlined therein. If it can be shown that there is a demonstrated lack of accessibility to the currently existing nursing home beds, then a deviation from a strict application of the bed need methodology might be appropriate. Wuesthoff presented evidence regarding the difficulties experienced by its own personnel in placing hospital patients who require nursing home care. According to Mr. Annabale, a medical social worker at Wuesthoff Hospital, whose job includes nursing home placement, frequently patients who are ready to be discharged from the hospital experience an extended waiting period before a nursing home becomes available. As a result, it has been his experience to be forced to place nursing home patients outside Brevard County. Admittedly, most of these patients are high level care cases, the type of patient least desired by the operators of nursing homes.

       
       

   17. Mr. Annabale is reasonably familiar with the existing nursing homes in Brevard County. Most of the existing beds are in facilities which are reluctant to take Medicaid patients and the "heavy care" patients referenced above.

       Though some will take this type of patient, most are reluctant, or are in excess of 30 minutes drive from the central Brevard area where Wuesthoff proposes its facility. In addition to the Medicaid/Medicare patient, a third "undesirable" patient is one who is without a responsible sponsor to make funeral arrangements in the event of the patient's death.

       
       

   18. Wuesthoff represents that since it is accustomed to working with this type of patient already, it would accept patients without a responsible party and would accept the Medicaid and heavy care patients as well. Wuesthoff indicates its willingness to accept and care for the AIDs patient, also, along with tuberculosis sufferers, who are difficult patients to place. Wuesthoff has had experience in dealing with such patients and is most likely the only reasonable possibility for them. The existing difficulties experienced by Mr. Annabale and, presumably, other placement personnel, are unlikely to be solved in the near future absent the approval and construction of additional nursing home beds.

   19. With regard to the out-of-county placement referenced above, this practice frequently has an adverse impact on both the patient and his family. Most nursing home patients are elderly who rely to a great extent on the support system of their families and friends. Once deprived of this support system by less frequent family visits occasioned by the distance involved in out-of-county placement, the patient's condition tends to deteriorate rapidly.

       
       

   20. If approved, Wuesthoff expresses its intention to accept Medicaid patients even prior to final Medicaid approval, AIDs patients, and those less desirable patients referred to above. By doing so, Wuesthoff anticipates that the financial burden placed on the hospital by keeping a patient in a hospital bed at a much higher rate than that involved in nursing home placement would be reduced, as would the emotional and financial burden placed on the patient's family.

       
       

   21. The difficulties cited here by Mr. Annabale and Mr. Carman oriented toward the placement problems by hospital personnel were endorsed by a practitioner physician in the area who indicated his own difficulties in arranging for the placement of patients in nursing homes in the area. From a medical standpoint, Dr. Enriques indicated the inability of placement often has an adverse medical effect on the patient's health as a result of depression generated by an extended stay in the hospital beyond the time the patient's physical condition so dictates.

       
       

   22. There appears to be a substantial difference in the waiting period for nursing home placement experienced by private pay patients, and those of the less desirable category. Not only that, but even comparing the experience of both categories statewide vis-a-vis Brevard County, it is seen that whereas statewide a private pay patient can expect a wait of 1.8 days for a skilled nursing home bed, that same category of patient in Brevard County (District VII), will have to wait 6-7 days. For Medicare patients, the statewide average waiting time was 3.2 days compared to 7.38 days for a similar type patient in District VII. As to the least desirable category of patient, Medicaid, the state average is 10.18 days as opposed to 23 days in District VII. From the above, it can be seen that the patient who is the least able to pay for nursing home services must wait the longest for that service and the waiting period in all categories in District VII is considerably longer than that of the statewide average.

       
       

   23. The cost estimates for the facility proposed by Wuesthoff including construction costs and equipment purchases are reasonable.

       
       

   24. Wuesthoff is a fully qualified facility staffed by individuals who are quality conscious and fully capable of providing appropriate care in the proposed nursing home complex.

       
       

   25. Since the Wuesthoff Nursing Home will be a subsidiary of Wuesthoff Hospital, there will be an opportunity for substantial cost savings in several areas as a result of shared services. The proposed nursing home site is only five miles from the existing hospital, and it is anticipated that the sharing of dietary services through Wuesthoff Memorial Hospital is not only feasible but cost saving. In addition, many of the hospital's specialized staff, such as occupational and physical therapists who are ordinarily contracted for by nursing homes, will be available through the affiliation with Wuesthoff Memorial Hospital at a substantial savings to the nursing home. Further, other ancillary services, such as pharmacy and business office, could be shared and would result in a savings to the Wuesthoff facility.

   26. In the opinion of the accountant who prepared those portions of the application relating to financial feasibility, the revenues and expenses projected therein during the first two years of operation are considered reasonable. In his opinion, the nursing home is financially feasible in the long term, and there would be no difficulty in obtaining the appropriate financing necessary to construct and operate it.

       
       

   27. An alternative pro forma was prepared for a 60-bed nursing home for this facility, which itself would be, in the opinion of Mr. Grossman, financially feasible in both the long term and short term for both facilities. The schedule of new purchase equipment necessary and that of projected salaries were considered reasonable and no evidence to contradict this was presented by any party.

       
       

   28. Not only the cost figures but the financing arrangements are considered both available and practical as well as reasonable. Wuesthoff has sufficient equity capital available to provide that, although current plans call for a financing proposal which would not require equity contribution by Wuesthoff. It is anticipated that a bond issue of either tax exempt or conventional bonds could be floated to provide the necessary financing and in either case, current bond interest rates are favorable to the borrower. Here too, there was no evidence to contradict this testimony.

       
       

   29. There appeared to be no issue regarding the financial feasibility of the proposal or the ability of Wuesthoff to provide the requisite funds necessary for construction. The ultimate issue is a need for the additional beds in District VII and that resolution will be based on the application of the bed need methodology which is dependent upon the information made a part thereof. Since there is no demonstrated bed need and since neither Wuesthoff nor FCC has established an independent need for the additional beds, the question must be resolved in the negative.

       
       

   30. The occupancy rate used in the rule formula calls for use of data for a six month time period depending on whether the rate under consideration is the current or prospective utilization. For the former the rule requires use of the patient census during the most recent six month period for which the department has data available. For the latter, the rule calls for use of the patient census during the most recent six month period prior to the filing of the CON application for which the department has data available. It is this small change in wording which has contributed so much to the confusion regarding this determination.

       
       

   31. A formal hearing such as here, is a de novo hearing and it is logical that the appropriate data to be used is the most recent six month data made available by the local health council. In this case it is the data for the period October 1985 through March 1986. This is especially true where all other current factors are considered as well in a de novo hearing. In the instant case, Wuesthoff objects to including the occupancy data from the newly opened nursing home when considering current occupancy rates. This objection is not justified.

       
       

   32. Wuesthoff urges also that the occupancy rate relied upon by HRS was artificially depressed by the inclusion of Vista Manor, a newly opened facility which has been experiencing management difficulties in its operation since its opening. It well may be appropriate to exclude Vista Manor's occupancy rate for that reason and if that is done, the occupancy rate is much higher than

       calculated. However, it would be improper to disregard the reality that this facility exists and where operating properly, will constitute an integral bed resource which cannot be discounted or overlooked.

       
       

   33. Under the provisions of 42 U.S.C.A 300 m, in reviewing application for CONs, each decision of the Department "shall be consistent with the State health plan in effect for such state . . . . A decision to issue or not issue a CON shall be based solely on the record established in the administrative proceeding with respect to that application." The requirements of the Florida Act are similar. Pursuant to statutory authority, DHRS has adopted rules governing application for CONs.

       
       

   34. In Gulf Court Nursing Center vs. Department of Health and Rehabilitative Services, et al., 483 So.2d 700 (1st DCA Fla. 1985), the Court rejected DHRS's contention that the de novo provisions of McDonald vs. Department of Banking and Finance, 346 So.2d 569 requires or permits bed need to be projected to the most recent figures which relate to a later planning horizon. However, the Hearing Officer may consider changed circumstances, inadequacy of bed need, projections and similar factors, so long as the same fixed pool of beds which was the basis of the original application was addressed.

       
       

   35. If DHRS attempts to modify its own rule regarding bed need, it may not do so in a Section 120.57(1) hearing. Once having promulgated a rule, it as well as all applicants are bound by its provisions. Consistent with the terms of Gulf Court, supra, changed circumstances may be shown but the decision on bed need still must be calculated consistent with the parameters of the DHRS rule.

       
       

   36. Here, application of the rule methodology to the relevant information presented by the parties reveals that there is no need for additional community nursing home beds in the January 1986 planning horizon and only a modest need in the January 1987 planning horizon. Under the rules in question, the modest need is not sufficient to trigger the issuance of a CON for 60 beds in either of the planning horizons in issue.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore

RECOMMENDED that the applications for a CON to construct either a 60 or 120-bed nursing home in Brevard County, Florida, submitted by Wuesthoff Health Services, Inc. and Florida Convalescent Centers, Inc., be denied.

RECOMMENDED this 8th day of October, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

The Oakland Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER

IN CASE NOS. 84-1976; 85-1310; 85-1506

The following constitutes my specific findings pursuant to Section 120.59(2), Florida Statutes, on all Proposed Findings of Fact submitted by the parties to this case.

RULINGS ON PROPOSED FINDINGS OF FACT BY PETITIONER WUESTHOFF

1. Accepted and incorporated.

2-4. Accepted and incorporated in Finding of Fact 1. 5-6. Accepted and incorporated in Finding of Fact 2. 7-8. Accepted and incorporated in Finding of Fact 25.

1. Cumulative.

2. Accepted.

3. Accepted.

4. Rejected as a summary of testimony rather than a Finding of Fact. 13-15. Accepted and incorporated in Finding of Fact 10.

16-20. Accepted and incorporated in Finding of Fact 11. 21-22. Accepted and incorporated in Finding of Fact 12. 23-25. Accepted and incorporated in Finding of Fact 13.

1. Rejected as a recitation of testimony rather than a Finding of Fact.

2. Treated in Finding of Fact 13.

28-29. Rejected as argument rather than Finding of Fact.

30. Rejected as contra to the weight of the evidence. 31-32. Accepted.

1. Accepted but irrelevant.

2. Rejected as a recitation of testimony rather than a Finding of Fact. 35-36. Rejected as argument rather than fact.

37-40. Rejected.

41. Rejected as contra to the weight of the evidence. 42-43. Rejected.

1. Rejected as contra to the weight of the evidence.

2. Accepted.

46-48. Accepted and incorporated in Finding of Fact 14. 49-50. Accepted and incorporated in Finding of Fact 16.

51-52. Accepted in substance and incorporated in Finding of Fact 16. 53-55. Incorporated in substance in Finding of Fact 17.

56-57. Incorporated in substance in Finding of Fact 18. 58-59. Cumulative.

1. Accepted and incorporated in Finding of Fact 18.

2. Accepted and incorporated in Finding of Fact 17. 62-66. Incorporated in Finding of Fact 17, 18 & 20. 67-68. Incorporated in Finding of Fact 21.

75-80. Incorporated in Finding of Fact 22. 81-84. Incorporated in Finding of Fact 23. 85-88. Incorporated in Finding of Fact 24. 89-92. Incorporated in Finding of Fact 25.

93-100. Incorporated in Finding of Fact 26 & 27. 101-103. Incorporated in Finding of Fact 28.

104-107. Incorporated in Finding of Fact 28.

RULINGS ON PROPOSED FINDINGS OF FACT BY PETITIONER PALM BAY CARE CENTER

1. Accepted in Finding of Fact 3.

2. Accepted in Finding of Fact 3.

3. Accepted in Finding of Fact 3. 4-5. Accepted in Finding of Fact 4.

1. Accepted in Finding of Fact 5.

2. Accepted in Finding of Fact 2.

3. Irrelevant.

9-10. Accepted in Finding of Fact 9.

11. Correct but is a Conclusion of Law. 12-13. Accepted in Finding of Fact 9.

1. Accepted in Finding of Fact 5.

2. Accepted and incorporated in Finding of Fact 9.

3. Accepted.

4. Accepted.

5. Rejected as argument and not Finding of Fact.

6. Accepted and incorporated in Finding of Fact 15.

7. Accepted and incorporated in Finding of Fact 5, except that the decision to deny was made prior to the formal hearing.

21-22. Cumulative.

23. Rejected as not supported by the evidence of record.

RULINGS ON PROPOSED FINDINGS OF FACT BY RESPONDENT FLORIDA CONVALESCENT CENTERS

1-4. Incorporated in Finding of Fact 3.

1. Rejected as argument rather than Finding of Fact.

2. Incorporated in Finding of Fact 4.

3. First sentence accepted. Second, fourth and ninth sentences rejected as legal argument. Fifth through ninth and tenth sentences accepted.

4. Accepted in Finding of Fact 2.

9-10. Accepted insofar as they relate that petitions were filed by Wuesthoff and PBCC contesting the grant of CON 2604 to FCC.

1. Rejected as not relevant facts to the issues here.

2. No evidence presented as to this point.

3. Rejected as argument rather than Finding of Fact.

4. Rejected since no evidence to this point was submitted.

5. Rejected as argument rather than Finding of Fact.

6. Accepted but irrelevant.

RULINGS ON PROPOSED FINDINGS OF FACT BY RESPONDENT DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

1-2. Rejected as a statement of the issues and not a Finding of Fact.

1. Accepted and incorporated in Finding of Facts 8 and 9.

2. Incorporated in Finding of Fact 9.

3. Accepted.

4. Incorporated in Finding of Facts 6 - 9.

5. Incorporated in Finding of Fact 7.

6. Incorporated in Finding of Fact 16.

7. Incorporated in Finding of Fact 17.

8. Irrelevant.

9. Incorporated in Finding of Fact 5.

10. Incorporated in Finding of Fact 6. 13-14. Irrelevant.

1. Cumulative.

2. Incorporated in Finding of Fact 7.

3. Incorporated in Finding of Fact 11.

4. Irrelevant.

5. Incorporated in Finding of Fact 22.

6. Incorporated in Finding of Fact 14.

7. Irrelevant.

8. Incorporated in Finding of Facts 4 and 5.

COPIES FURNISHED:

W. David Watkins, Esquire Oertel & Hoffman

2700 Blairstone Rd.

Suite C

Tallahassee, Florida 32301

R. Bruce McKibben, Jr. Assistant General Counsel Department of HRS

1323 Winewood Boulevard

Jonathan S. Grout, Esquire

307 W. Tharpe Avenue Tallahassee, Florida 32302

Thomas Beason, Esquire Suite 100

118 N. Gadsden Street Tallahassee, Florida 32301

William Page, Jr.

Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-001976

Orders for Case No: 84-001976