STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA KEYS MEMORIAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2903

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) DEPOO MEMORIAL DOCTOR's HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for telephonic conference call hearing on October 22, 1984. Pending motions considered at bearing were Notion to Dismiss of Department of Health and Rehabilitative Services (DHRS) dated September 21, 1984 and Motion for Reconsideration (of DEPOO Memorial Doctor's Hospital's Motion to Dismiss), dated September 26, 1984.

The parties were represented as follows:

For Petitioner Donna H. Stinson, Esquire Florida Keys The Perkins House, Suite 100 Memorial 118 North Gadsden Street Hospital: Tallahassee, Florida 32301

For Respondent Douglas L. Mannheimer, Esquire DHRS: 318 North Calhoun Street

Post Office Box 11300 Tallahassee, Florida 32302-3300

For Respondent Richard C. Klugh, Jr., Esquire DePoo Memorial Southeast Financial Center Doctor's 200 South Biscayne Boulevard Hospital: Miami, Florida 33131

The issues involved are:

1. Whether Florida Keys Memorial Hospital is an affected person pursuant to Rule 10-5.02(20), F.A.C.

   
   

2. Whether Florida Keys Memorial Hospital is or even can be substantially affected by the award of the CON to DEPOO Memorial Doctors' Hospital.

FINDINGS OF FACT

Based upon the documents filed herein and the stipulations and arguments of counsel at the telephonic hearing, the following Findings of Fact are determined:

1. Respondent, DePoo Memorial Doctor's Hospital (DEPOO) applied for a Certificate of Need for the establishment of a 15-bed short-term psychiatric service. CON #3248 was granted DEPOO for 15 short-term psychiatric beds on June 23, 1984, and noticed in the Florida Administrative Weekly of July 6, 1984.

   
   

2. Petitioner Florida Keys Memorial Hospital (FKM) alleges issuance of CON #3248 to DEPOO affects their substantial interests.

   
   

3. FKM admits that it did not, prior to receipt by DHRS of the DEPOO proposal being reviewed, formally indicate an intention to provide such similar services in the future, i.e. short-term psychiatric beds.

   
   

4. FKM is an established acute care hospital which, among other obvious services of an acute care facility, currently provides psychiatric care as patients are admitted for that purpose or, if a patient is admitted for another purpose, FKM may provide additional care for a psychiatric condition tangential to the purpose or treatment for which that patient is initially admitted.

   
   

5. No beds are allocated specifically for short-term psychiatric care at FKM. Indeed, FKM has no license to perform the health care services of a short- term psychiatric hospital and thus no short-term psychiatric beds. Its performance of any psychiatric services is, essentially, ad hoc and the extent thereof is fully described in Paragraph 4, above.

   
   

6. It was stipulated among the parties that there was no licensed short- germ psychiatric facility in the Key West area of Monroe County, Florida at the time DEPOO's application for a CON for a 15 bed short-term psychiatric facility was reviewed; that FKM was granted a prior CON for short-term psychiatric beds, which CON of FKN had expired without being implemented by FKM prior to the agency's review of DEPOO's application; and that currently there still is no facility licensed in the Key West area of Monroe County for short-term psychiatric care.

   
   

7. Rule 10-5.11(25), F.A.C. provides a methodology for short-term psychiatric bed need determination which is separate and distinct from that bed need methodology applicable to FKM as an acute care hospital. See Rule 10- 5.11(23), F.A.C.

   
   

8. Further, application for acute care CONs and short-term psychiatric CONs are reviewed separately by DHRS. Since the services offered by FKM [acute care] and by those proposed by DEPOD [short-term psychiatric] are the subject of separate and distinct need methodologies, they are not "similar."

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and of the parties to this action. Section 120.57(I), Florida Statutes (1983). Although somewhat unusual, a Recommended Order is appropriate due to the following conclusions of law.

   
   

10. Synopsized, both the Motion to Dismiss and Motion for Reconsideration raise the issue of whether FKM is or can be substantially affected by the award of a CON to DEPOO.

11. Subsection 120.52(b), Florida Statutes, (1983), defines a "party" as "(a)ny . . . person . . . whose substantial interests will be affected by proposed agency action.

    
    

12. Subsection 281.494(8)(e), Florida Statutes, provides in part that ". .

    . a substantially affected person who is aggrieved by the issuance . . . of a certificate of need shall have the right . . . to seek relief according to the provisions of the Administrative Procedures Act "

    
    

13. Rule 10-5.12(I), Florida Administrative Code, defines a substantially affected person as one who ". . . is aggrieved when that person has demonstrated that his/her interests are substantially affected by the department decision to issue or deny or Certificate of Need."

    
    

14. Accordingly, the standard of "substantiality" must govern FKM's entitlement to a hearing under Subsection 120.57(1), Florida Statutes.

    
    

15. Further, Rule 10-5.02(20), Florida Administrative Code, clarifies who is an "affected person" to mean one of four classes of persons:

    
    

    1. The person whose application/proposal is being reviewed.

    2. Members of the public who are to be served by the person proposing the project.

    3. Health care facilities located in the health service area in which the service is proposed to be offered or developed which provide services similar to the proposed services.

    4. Health care facilities which, prior to receipt by the agency of the proposal being reviewed, have formally indicated an intention to provide such similar services in the future.

       
       

16. Examining the test established by Rule 10-5.02(20), FKM admittedly does not fall into classes (1), (2), or (4). FKM is not the person whose application is being reviewed, i.e. DEPOO; FKM is not a member of the public; and FKM admittedly did not, prior to receipt of the DEPOO proposal, indicate an intention to provide "similar" services, i.e. short-term psychiatric services. In applying Rule 10-5.02(20), one must consider both what constitutes an indication of intent as well as what constitutes the definition of what is a "similar" service. Here, it was stipulated that FKM did not file a timely "letter of intent" to offer similar services. This indicates lack of intent, but moreover, FKM clearly indicated it did not intend to offer similar services because it had permitted its own prior CON for short-term psychiatric beds to expire without implementation. Due to the separate and distinct bed need methodologies and separate agency review, the two facilities would not be providing "similar" services. Therefore, FKM demonstrated neither intent to offer nor similarity of services.

    
    

17. FKM can only hope to claim standing to challenge the award of the CON to DEPOO, if at all, under class (3) of the "affected person" definition. Here, the sole operative word is "similar." To qualify in this class, FKM would have to be currently providing "services similar to the proposed services," and again, the fact that separate and distinct bed need methodologies are establised

    for the different types of facilities clearly militates against these being construed as "similar" services. Also, having applied for and having been granted a prior short-term psychiatric bed CON which it permitted to expire without implementation, FKM cannot now be heard to argue that the services FKM currently provides in the existing acute care facility, are "similar." Consequently, FKM is not an "affected person" under Rule 10-5.02(20), Florida Administrative Code.

    
    

18. If a party cannot qualifv as an "affected person" it seems reasonable to assume that he cannot meet the more stringent test of having "substantial interests" which will affected through the proceeding, but in an overabundance of caution, the undersigned has examined the standing of FKM for "substantial interests," as well.

    
    

19. The term "substantial interests" is not defined in the Florida Statutes. The Florida courts have therefore followed a two-pronged standing test that reguires that before a person can be considered to have his substantial interests affected by the outcome of a 120.57(1) proceeding, he must show (a) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a 120.57(1) hearing, and (b) that his substantial injury is of a type or nature which the proceeding is designed to protect. See, for example, Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Citv of Panama City v. Board of Trustees of Internal Improvement Fund, 418 So.2d 1132 (Fla. 1st DCA 1982). The latter part of the test is more commonly known and referred to as the "zone of interest" test.

    
    

20. Under the facts, it is concluded that because of the separate and distinct bed methodologies applied, it is impossible for FKM's ad hoc psychiatric treatment in an acute care facility and the short-term psychiatric beds proposed by DEPOO to be mutually exclusive. Therefore, FKM cannot base its claim of standing on the concept of mutual exclusivity. Because separate and distinct bed need methodologies apply, FKM and DEPOO are not competing for the same short-term psychiatric beds and any adverse effect upon FKM as an established acute care hospital is speculative in the extreme. See Recommended Order of Dismissal in Psychiatric Institutes of America, Inc. d/b/a Psychiatric Institute of Orlando v. Department of Health and Rehabilitative Services, et al (DOAH Case No. 84-2904)(October l, 1984) and Order in Charter Medical-Southeast, Inc. d/b/a Charter Haven Hospital v. DHRS (DOAH Case No. 84-2901) and St. Francis Parkside Lodge of Tampa Bay v. DHRS (DOAH Case No. 84-2918)(October 15, 1985). Because of the separate agency review, the instant case can also be analogized to separate batching cycles discussed in the Recommended Order of Dismissal in Surgicare III v. DHRS and Humana (DOAH Case No. 84-2617)(September 7, 1984).

    
    

21. FKM is not an affected person under Rule 10-5.02(20) Florida Administrative Code and it has failed to show that its substantial interests are affected by the issuance of the CON DEPOO.

    
    

22. It is concluded that FKM is not substantially affected by the agency action herein and it has no standing to request a Section 120.57(1) hearing to contest the issuance of a CON to DEPOO.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the petition for Formal Hearing be dismissed with prejudice.

DONE and ORDERED this 29th day of October, 1984, in Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.

COPIES FURNISHED:

Donna H. Stinson, Esquire The Perkins House, Suite 100

118 N. Gadsden Street Tallahassee, Florida 32301

Douglas L. Mannheimer, Esquire

318 North Calhoun Street

P. O. Box 11300

Tallahassee, Florida 32302-3300

Richard C. Klugh, Jr., Esquire Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131

David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-002903

Orders for Case No: 84-002903