STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ST. FRANCIS CAREUNIT, )
)
Petitioner, )
)
vs. ) Case NO. 84-2918
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES and )
MANAGEMENT ADVISORY AND )
RESEARCH CENTER, INC. d/b/a )
GLENBEIGH HOSPITAL, )
)
Respondents, )
)
and )
) CHARTER HOSPITAL OF TAMPA BAY, )
)
Intervenor. )
)
RECOMMENDED ORDER
The final hearing in this case was held in Tallahassee, Florida, on November 17 through 21, 1986. Appearing for the parties were:
For St. Francis Ivan Wood, Esquire
Careunit: The Park in Houston Center, Suite 1400
1221 Lamar Street
Houston, Texas 77010
For Department
of Health and Douglas L. Mannheimer, Esquire Rehabilitative Post Office Drawer 11300 Services: Tallahassee, Florida 32301
For Glenbeigh Kenneth F. Hoffman, Esquire Hospital: Post Office Box 6507
Tallahassee, Florida 32301-6507
For Charter Ross Silverman, Esquire Hospital of King and Spalding
Tampa Bay, Inc.: 2500 Trust Company Tower
25 Park Place
Atlanta, Georgia 30303
FINDINGS OF FACT
Description of the application
On March 14, 1984, the Petitioner, Management Advisory & Research Center, Inc., d/b/a Glenbeigh Hospital (Glenbeigh) applied for a certificate of need to construct and operate in Tampa, Florida, HRS District VI, a 100 bed long term substance abuse hospital as defined by rule 10-5.011(1)(q), Fla. Admin. Code. Forty of the beds are to be an adult unit, and sixty of the beds are to be an adolescent unit. G Ex. 1.
The application proposed that the facility consist of three buildings, a commons building, an adult building, and an adolescent building. G Ex. 1. The total square footage was to be 88,790. Id.
The total project cost was stated to be $7.5 million. Ex. 1.
If approved, the facility would be licensed pursuant to chapter 395, Fla. Stat.
Procedural History
The Department of Health and Rehabilitative Services (HRS) proposed to grant this certificate of need, assigning it number 3215, by issuing its state agency action report on June 29, 1984. G Ex. 3.
On August 3, 1984, Charter Medical-Southeast, Inc., d/b/a Charter Haven Hospital filed a Petition for a Formal Hearing to contest the grant of certificate of need number 3215 to Glenbeigh. When the case reached the Division of Administrative Hearings, it was assigned case number 84-2901.
On August 6, 1984, St. Francis Parkside Lodge of Tampa Bay filed a Petition for Formal Hearing to contest the grant of certificate of need number 3215 to Glenbeigh. It was assigned Division of Administrative Hearings case number 84-2918, which is the instant case.
The above two cases then were consolidated for all further proceedings since the same certificate of need was challenged.
On November 8, 1984, Recommended Orders were entered recommending that both petitions for formal hearing be dismissed for failure to allege a substantial interest.
On March 8, 1985, HRS entered final orders dismissing the requests for formal hearing.
On July 1, 1985, HRS issued an amended certificate of need number 3215 approving construction costs of $9,479,059. G Ex. 2. This amendment occurred because HRS determined that the initial certificate of need had been issued incorrectly, without fault of the Petitioner, and that the correct amount was the larger figure. T. 960-62.
On April 1, 1986, the First District Court of Appeal entered its opinion reversing the final orders of dismissal and remanding both cases to the agency for further proceedings. The cases were referred again to the Division of Administrative Hearings and reopened under the same case numbers.
On October 24, 1986, a Recommended Order was entered in DOAH case number 84-2901 recommending that the request for formal hearing in that case be dismissed due to decision of the First District Court of Appeal on July 29, 1986, affirming the denial of a certificate of need to Charter Haven, thus terminating its standing to contest the application of Glenbeigh. Case number 84-2918 was severed and has proceeded thereafter on its own.
The final hearing in the instant case number 84-2918 was set to begin on November 17, 1986. On October 17, 1986, Charter Hospital of Tampa Bay, Inc., (Charter Tampa) filed a petition to intervene. The petition was granted during a hearing on November 7, 1986, and confirmed by order entered November 14, 1986.
Standing of the Petitioner, St. Francis Careunit
Petitioner, St. Francis Careunit, which is the successor to St. Francis Parkside Lodge of Tampa Bay, is licensed by the State of Florida pursuant to section 627.669, Fla. Stat., and Chapter 10E-3, Fla. Admin. Code as a 30 bed residential substance abuse treatment facility. SF Ex. 4, P. 24, 31; G Ex. 5. The state license provides that it may operate residential (non- hospital) programs in treatment and detoxification, and prevention programs in education and information, and in telephone services. St. Francis Careunit does not require a certificate of need to operate its residential treatment facility. T. 680-81.5
St. Francis Careunit is located in Tampa, Florida, the same city and market area as that proposed for the new Glenbeigh facility. Id. at 22 and 58. The unit does not treat adolescents; the minimum age of its patients is eighteen. Id. at 33.6
The average length of stay at the St. Francis Careunit has been about
25 to 28 days. SF Ex. 3, P. 30.
St. Anthony's Hospital and St. Francis Careunit are both subsidiaries of St. Anthony's Health Care Center. SF Ex. 4, P. 4. St. Anthony's Hospital has had and currently has 20 licensed acute care hospital beds designated for short term substance abuse. SF Ex. 4, P. 14. The unit is called the St. Anthony's Careunit. SF Ex. 3, P. 69-70. St. Anthony's Hospital is not a party in this case.
Daniel McMurray is the President of St. Anthony's Health Care Center and is its Chief Executive Officer. SF Ex. 4, p. 5-6. In that capacity, he is generally responsible to oversee the operation of several units of St. Anthony's Health Care Center, including the St. Francis Careunit. Id. at P. 11.
It was Mr. McMurray's opinion that the St. Francis Careunit would be substantially affected by the proposed issuance of the certificate of need to Glenbeigh. SF Ex. 4, P. 47. The only basis for this opinion was Mr. McMurray's belief that both will serve the same patient population in the same geographic area with the same program. From this, Mr. McMurray concluded that the proposed Glenbeigh Hospital would diminish the number of patients served by the St. Francis Careunit. Id. at P. 48-49.
When asked whether he had attempted to quantify the perceived financial impact upon the St. Francis Careunit, Mr. McMurray testified: "No, I don't believe we have those numbers. I don't believe we have those numbers." Id. at P. 49. He was then asked if he knew if anyone else had attempted to quantify the financial injury to St. Francis Careunit, and he replied:
"Specifically no, I do not." Id. Finally, Mr. McMurray was asked whether he was aware of any effort being undertaken by the St. Francis Careunit or employees thereof to quantify or otherwise measure the projected impact of the the Glenbeigh Hospital on the Careunit. Mr. McMurray replied: "I believe Mr. [Thomas] [K]onrad is trying to determine that." SF Ex. 4, P. 61. Mr. Konrad did not present any evidence concerning specific injury to St. Francis Careunit. T. 1110-66.
The Chief Executive Officer and administrator of the program at the St. Francis Careunit is Joyce Ramage. SF Ex. 4, P. 26; SF Ex. 3, P. 5. She is the person most knowledgeable of the programs offered at the St. Francis Careunit. SF Ex. 4, p. 70.
Ms. Ramage was not aware of any specific patients of the St. Francis Careunit being lost to the current Glenbeigh of Tampa residential substance abuse treatment program, but she believed it might have occurred. SF Ex. 3, 47-
(Similarly, Mr. McMurray did not know whether Glenbeigh of Tampa had treated any specific patients who would otherwise have been treated at the St. Francis Careunit. SF Ex. 4, P. 45.)
Ms. Ramage thought that the proposed Glenbeigh substance abuse hospital would have the same adverse impact on the St. Francis Careunit as the existing Glenbeigh of Tampa residential treatment center. SF Ex. 3, P. 53. She said that such impact would depend upon the kind of advertising by Glenbeigh. Id. at P. 54. Ms. Ramage also testified that she believed that approval of the Glenbeigh certificate of need would have an adverse effect on the ability of St. Francis Careunit to recruit and retain highly qualified staff. SF Ex. 3, pp.
64-65. But Ms. Ramage testified that there was not a "true shortage" of staff for recruitment; the only problem that she identified was that recruitment of "the best qualified people" takes "some time." Id.
Further, Ms. Ramage testified that as a licensed substance abuse hospital, Glenbeigh might draw more third party reimbursement that can be obtained by a residential program like St. Francis of Tampa. SF Ex. 3, pp. 54, 58, and 78. But this is not evidence of harm to St. Francis Careunit: if such reimbursement is not currently available to St. Francis Careunit, the cause of such unavailability is not in any way associated with the grant or denial of the Glenbeigh application.
When asked if she had attempted to quantify potential adverse impact to St. Francis Careunit, Ms. Ramage testified that she had not and did not know if anyone had attempted to do so. Id. at P. 58.
Some portion of patients treatable at the proposed Glenbeigh unit could be treated adequately at a residential treatment program. T. 665-66, 1335-36. This, however, is not direct evidence that patients that would have been treated at St. Francis Careunit in fact will be treated at the proposed Glenbeigh facility, thus harming St. Francis Careunit.
St. Francis Careunit would continue to be a viable program if the Glenbeigh certificate of need were approved. SF Ex. 3, P. 65-66.
Standing of the Intervenor Charter Hospital of Tampa Bay, Inc.
Charter Hospital of Tampa Bay, Inc., is an existing health care facility in Hillsborough County, Florida, which operates 146 licensed short term psychiatric beds as defined by rule 10-5.011(1)(o), Fla. Admin. Code. G Ex. 6.
It is often difficult to distinguish the primary diagnosis when a patient has both a psychiatric and a substance abuse problem. T. 1270, 1280. Frequently, the determination of primary diagnosis is caused by the particular specialty and training of the clinician making the diagnosis, and not by the underlying disorders. T. 1128, 654-55.
The Diagnostic and Statistical Manual of Mental Disorders, 3rd Ed. is an authoritative treatise in the field of mental health. T. 618-19, 639-40. It defines substance abuse as a psychiatric disorder. Id.
Charter Hospital operates an addictive disease program providing detoxification, inpatient care, rehabilitative care, and outpatient care, for psychiatric patients who also have substance abuse problems. T. 1224-25. The program has been accredited by the Joint Commission on Accreditation of Hospitals. Id. Charter Hospital also provides similar services for adolescents ages 13 to 18. T. 1275. For planning purposes, Charter Hospital allocates approximately 23 of its 146 licensed beds to the addictive disease program. T. 1258. However, only 17 beds are actually available for substance abuse treatment since Charter Hospital would have to convert administrative space to operate 23 beds. T. 1261.
Shortly before the final hearing, Charter Hospital had 16 patients in
17 beds, an occupancy rate of 94 percent. T. 1262.
The program is designed to be a 28 day treatment program. T. 1235. About 65 percent of the patients are discharged by day 28, and of these, about
25 percent leave for one reason or another in two weeks. Thus, about 35 percent of the patients at Charter Hospital who are treated for substance abuse stay for longer than 28 days. About 76 percent are discharged by the 30th day. T. 1254. Some of those who leave, do so against medical advice, because they had only wanted detoxification, or because detoxification was all that was covered by third party payer arrangements. T. 1235-36. About 7 to 8 percent are treated for as long as 40 to 60 days. T. 1254. The average length of stay for all patients is only 22.6 days, however. t. 1239. The average length of stay at Charter Hospital is of little relevance with respect to probable lengths of stay at the proposed Glenbeigh facility since all patients receiving substance abuse treatment at Charter Hospital have a primary diagnosis of a psychiatric problem, and one cannot tell whether the average length of stay at Charter is caused by the psychiatric problem, the substance abuse problem, or both.
Charter Hospital's treatment program is very similar to that proposed by Glenbeigh and serves the same market area. T. 1237, 1245, 1330. Some of the patients that Glenbeigh proposes to treat could and would be treated in short term psychiatric beds at Charter Hospital. T. 654-55, 1245-46.
Glenbeigh of Tampa
Glenbeigh, Inc. has purchased a 120 bed residential substance abuse treatment facility from the Comprehensive Care Corporation partnership. T. 100, 138-39. Like the St. Francis Careunit, Glenbeigh of Tampa could add any number of residential beds without obtaining a certificate of need. T. 680-81. (For purposes of this Recommended Order, the facility referred to in the transcript as the "Comp-Care" facility will be called Glenbeigh of Tampa.)
The purchase price of Glenbeigh of Tampa was $8.5 million. T. 141
The Glenbeigh of Tampa facility currently operates a 28 to 30 day adult program, and a 60 day adolescent program.
About three or four weeks before the final hearing, the occupancy at the Glenbeigh of Tampa facility was about 40 or 45 beds. T. 316. This was only the patient count on one day, however; there is no evidence of the occupancy rate over a period of time. T. 317-18. The facility is currently not operating at a profit, but expects a profit in the near future. T. 381-82.
Occupancy rates of other substance abuse hospitals and residential treatment facilities
Three substance abuse facilities in District VI in 1984 had an average occupancy rate of 74.4 percent. In 1985, there were four such facilities with a total of 132 beds, and the occupancy rate was 74.6 percent. For the first six months of 1986, the same four facilities had an average occupancy rate of 73.8 percent. All of these facilities were short term substance abuse facilities.
T. 1339- 40.
The average annual occupancy rate for all existing hospital inpatient substance abuse beds in District VI did not exceed 80 percent for the 12 months preceding the date of the final hearing. The occupancy rate in District would have exceeded 80 percent (82.9 percent in the first six months of 1886) if the
16 short term substance abuse beds at Palm View Hospital are excluded from the count. T. 1402. Palm View Hospital is a specialty psychiatric hospital. It is reputed to be a substandard facility and has been sold once in the last five years. Id. It had an occupancy rate of 8 percent in the first half of 1986. Id.
HRS does not consider the occupancy rates of existing short term substance abuse facilities in District VI to be relevant to consideration of an application for long term substance abuse services. T. 926.
Glenbeigh's expert checked with the Alcohol, Drug Abuse and Mental Health Program Office of HRS for data concerning utilization of existing residential programs, and found that that office did not have a complete inventory of such facilities, and did not have any utilization data. T. 863-64.
In 1985, residential substance abuse treatment programs in District VI had occupancy rates in excess of 80 percent. T. 915-16.
In the last fiscal year, the St. Francis Careunit operated at an average occupancy rate of 86 percent. G Ex. 7, interrogatory 8. Occupancy in February, 1986, was 94 percent, and was 89 percent in March, 85 percent in April, 99 percent in May, 75 percent in June, 75 percent in July, and 100 percent in August, 1986. Id. These occupancy rates reflect a recent trend. In the fiscal year ending March 31, 1986, the occupancy rate was 45 percent. Id. The lower occupancy, however, was not due to lack of need, but was due to a lack of adequate marketing and management by the facility. SF Ex. 3, P. 24. Due to its high occupancy rates, the St. Francis Careunit has given some consideration to adding an additional 20 beds, to increase its capacity by 67 percent. SF Ex. 4, P. 65.45
Length of stay projections
The programs proposed by Glenbeigh are to follow the Minnesota Model, which includes the twelve steps of Alcoholics Anonymous, and to borrow from programs from Glenbeigh's Ohio facilities. T. 551. The specifics of treatment are to be driven by the treatment needs of patients. T. 656. The patient's length of stay is to be determined by the patient's progress in the course of treatment. T. 657. See also SF Ex. 3, p. 75, testimony of Joyce Ramage concerning St. Francis Careunit. Glenbeigh intends to identify individual treatment needs in the evaluation and assessment period, and expects treatment need to vary by patient. Id.
It is reasonable to expect that some patients who may come to Glenbeigh for substance abuse treatment will need some psychiatric care as well. Glenbeigh's application for certificate of need stated that those patients having a secondary diagnosis of a psychiatric problem would be transferred to suitable external psychiatric facilities, and would not be treated at the proposed facility. This is supported by testimony as well. T. 557, 559, 151,
155. Thus, it must be concluded that the presence of a psychiatric problem will not be a factor causing a longer length of stay at the proposed facility.
There is some ambiguity in the record as to Glenbeigh's intentions to treat psychiatric patients. By memorandum dated December 5, 1985, Glenbeigh of Tampa announced that it would implement a program for substance abuse patients having a secondary diagnosis of a psychiatric problem, assuming the availability of medical and treatment staff. CT Ex. 3. There is no evidence, however, that Glenbeigh of Tampa has implemented any program to provide psychiatric care. Thus, it must be concluded that Glenbeigh of Tampa will not be providing such treatment, consistent with the testimony at the final hearing.
Glenbeigh has now filed a second application for a certificate of need (in a later batching cycle) to convert 40 of the long term substance abuse beds involved in this case to short term psychiatric beds. T. 159; SF Ex. 1. The second application is identical to the first application (which did not involve psychiatric care) with respect to staffing, payor mix, utilization, patient days, and pro forma figures. G Ex. 1; SF Ex. 1. The application was initially denied, and Glenbeigh has sought a formal administrative hearing with respect to that proposed denial.
It is not essential that Glenbeigh itself have short term psychiatric beds to deliver basically adequate long term substance abuse services, T. 609, but addition of the short term psychiatric beds would be an enhancement to the substance abuse services. T. 559, 152, 295-98, 610.
Glenbeigh has planned to have a program of substance abuse treatment for adults of 24 or 25 days. T. 570. Glenbeigh considers the detoxification and evaluation and assessment periods to be a part of treatment for adults, and plans for the entire length of stay for adults to be from 27 days to 36 days.
T. 572-74. It is obvious from the proposed statistics which follow that the length of detoxification is the critical issue in determining length of stay for adults.
The program for adolescents is designed to be 43 to 45 days, and possibly as long as 60 days. T. 576, 580. This includes a two week period for evaluation and assessment of adolescents. T. 578. Detoxification of
adolescents is projected to require less time than for adults. T. 579. A detoxification period of 1 to 2 days is normal T. 1281. The remainder of the adolescent program is intended to be 28 days. T. 579.
The expert who testified for Glenbeigh with regard to the clinical programs proposed was of the opinion that adult patients would stay for an average of 36 days, and that adolescents would average 38 to 45 days. T. 526. He believed the average length of stay would be longer because of an in-depth initial evaluation and assessment off patient needs, because detoxification will occur in the hospital, and because patients in recent years need longer periods of detoxification (three to twelve days) due to multiple substance abuse, or abuse of more damaging substances. T. 527, 574. Another witness, the director of clinical standards for Glenbeigh, thought that the length of stay would average more than 30 days because a longer treatment period would be needed to assist the patient in reassessment and alteration of major portions of the patient's life to achieve stable sobriety. T. 657-58. He felt that the average length of stay at the proposed Tampa facility would be longer than currently experienced due to the type of patient and the fact that the treatment process will be physician-driven and thus will last according to treatment needs, rather than be program predetermined. T. 667-69. But, he did not have any knowledge of the existing programs and services in the Tampa area concerning substance abuse. T. 663, 669-70.
There is no evidence in the record to allow comparison of the proposed Glenbeigh evaluation and assessment process to the evaluation and assessment process that is now generally used in other substance abuse programs. Moreover, the evaluation and assessment period, which is three days, T. 572, is planned to run concurrently with detoxification, and thus by itself would not cause a longer length of stay. T. 569.
Glenbeigh plans that detoxification for adults will take from 3 to 12 days, depending upon the patient. T. 527. But the witness who testified as to the length of detoxification was not aware of the average time for detoxification that has generally been experienced in other substance abuse programs. T. 570. For severe instances of drug abuse, 12 days for detoxification is not unreasonable, but most adults will be detoxified in 3 days and begin treatment at that time. T. 1306. Moreover, there is no reliable evidence in the record as to the numbers of patients needing periods of detoxification longer than 3 days. See the discussion concerning the need methodologies which follows.
Thus, one cannot conclude that either the evaluation and assessment period or the planned detoxification period will cause the average length of stay at the proposed Glenbeigh program to be longer than has been generally experienced in other substance abuse programs.
Glenbeigh has not presented evidence to show the details of the treatment programs that it may provide at its proposed facility. See e.g. T. 531-35 (testimony is not specific). The original application did not in detail describe the proposed programs. T. 1237-38. Apparently no one in the Glenbeigh organization knew with any specificity what programs Glenbeigh would offer in its proposed facility. T. 661-62.
The record indicates that the proposed facility would have one full- time medical doctor and an undetermined number of nurses. See discussion infra. Thus, the degree to which the proposed facility will be different from a residential treatment facility (which is not physician-driven) cannot be determined.
In summary, the record does not contain adequate evidence to show that the programs proposed at Glenbeigh will be any different from substance abuse programs in short term facilities. SF Ex. 4, P. 52, 55. Other than greater supervision by a physician, the record also does not contain adequate evidence that the Glenbeigh facility will provide programs much different than residential treatment facilities either. T. 1247. See also SF Ex. 3, pp. 36- 37, 43, 61-62.
The availability of reimbursement has a significant effect upon length of stay. T.1326.
Glenbeigh projects that 80 percent of its patients will have insurance, and that 84 percent of its net revenues will be from insurance. G Ex. 1, Table 7. While these projections may be unreasonably high, see T. 1361- 62, it is clear that Glenbeigh proposes to rely substantially upon lengths of stay generated by a substantial numbed of patients covered by insurance.
While Glenbeigh asserts that the grant of a certificate of need at the Glenbeigh of Tampa residential treatment facility would increase utilization by
30 to 35 percent, Glenbeigh's witness would not testify that full insurance coverage would be provided to adult patients for lengths of stay beyond 28 days. T. 402-03.
Third party payors (health maintenance organizations, preferred provider organizations, and other third party insurance carriers) have recently tended to provide payment or reimbursement for shorter and shorter lengths of stay for substance abuse, rather than longer lengths of stay. T. 1327. It is not uncommon now for carriers to have restrictions upon lengths of stay beyond
20 days for adults and 30 days for adolescents and children. Id. and T. 1329. It is common for insurance companies to pay for no more than one month of care at a facility like the St. Francis Careunit. SF Ex. 3, P. 52.
Long term substance abuse service for adults (that is, for lengths of stay beyond 30 days) is not identified as a topic in current health planning literature. T. 1326. There are a few programs in the country for adolescents having lengths of stay longer than 28 days, however. T. 1328. See e.g. T. 1284. One of the most widely used health planning documents in the field, the study by the Graduate Medical Education National Advisory Committee, correlates adult substance abuse as a topic with short term hospitals, but omits consideration with respect to long term hospitals. Id. The same study, however, does identify long term substance programs for adolescents and children. T. 1329.
From a clinical perspective, adult patients do not on the average need treatment beyond beyond 28 days, and there does not appear to be a correlation between longer lengths of stay and better treatment results. T. 1238-42, 1256, 1308, 1327. The current treatment trend is toward shorter lengths of stay, absent positive evidence that a longer length of stay will correlate with better results. T. 1301.
Nationally, a significant number of adolescent substance abuse patients stay longer than 28 days. T. 1328. Adolescent treatment takes longer than treatment of adult substance abusers. T. 1278. While there may be a national trend toward shorter lengths of stay for adolescents, a 36 day average for adolescents is not unreasonable. T. 1304-05.
The national average length of stay for all substance abuse patients exceeds 28 days in about 25 percent of the cases. T. 1329. For example, Glenbeigh's two Ohio facilities have experienced an adult average length of stay "in the 20's" and an adolescent length of stay "in the 30's." T. 178. Usually such-patients are treated in the same facility without regard to whether it is designated short or long term T. 1329.
There was testimony that in Florida substance abuse services tend to wait until a patient is in the late stages of alcoholism before the patient is treated. T. 518. As a consequence, when patients are finally treated in Florida, they tend to be sicker than patients being treated elsewhere in the country. Id. It does occur from time to time that a patient in a short term substance abuse program will stay for longer than 28 days and a patient of this sort would be suitable for a long term facility. SF Ex. 3, pp. 62-63, 75. Nonetheless, it does not appear that there are very many of such patients in District VI or in Florida staying longer than 28 days. In 1985, the four short term substance abuse facilities in District VI had 1,524 admissions, and the average length of stay was 23.6 days. T. 1342. The District VI average length of stay is not unusual. The average length of stay in short term substance abuse beds in District VI is comparable to that experienced in the rest of Florida. Id.
Patients admitted to substance abuse facilities sometimes leave early, against medical advice, and do not complete treatment. See e.g., SF Ex. 3, P. 43; T. 1236. There is no evidence that Glenbeigh's patients will not exhibit this same pattern of behavior, thus diminishing the average length of stay of all patients at the proposed facility.
In summary, if there were substantial evidence as to the numbers of patients that Glenbeigh might serve who would be either adults with severe substance abuse problems and needing lengthy periods of detoxification and treatment, or adolescents needing lengthy periods of treatment, and if there was also substantial evidence as to the extent that such patients either might be able to pay their own way, or might have unusually broad third party payer coverage, then the proposed average length of stay of 36 days for the proposed Glenbeigh facility would not be unreasonable. An average length of stay of more than 28 days for any other type of patient is not reasonable, on this record.
As will be discussed in the next section, the record does not contain evidence that District VI has an identified group of persons having severe substance abuse problems and needing treatment periods longer than 28 days, and further does not contain evidence that if such a group existed, Glenbeigh would attract them as patients in the horizon planning year. Moreover, there is no credible evidence of long term substance abuse insurance coverage. Since the evidence is lacking as to general need, it follows that evidence of the type described in the immediately preceding paragraph is also absent.
Therefore, it must be concluded on this record that Glenbeigh will not achieve an average length of stay of 36 days in its proposed program.
Need for Long Term Substance Abuse Beds in District VI
The Department of Health and Rehabilitative Services does not have a rule to determine numeric need for long term substance abuse beds.
The first method proposed by Glenbeigh's expert to estimate need for long term substance abuse beds was based upon a study of national rates of the probable numbers of persons having alcohol problems. The study was by Parker G. Marden. T. 706, 750; G Ex. 9. Glenbeigh's expert initially, but incorrectly, was of the opinion that there would be 2,828 total admissions of adults needing hospital substance abuse services in 1989, and a need for 234 adult long term beds for treatment of alcohol problems by 1989. T. 712; G Ex. 9.
Glenbeigh's expert added to this a projection of adolescent long term substance abuse bed need. The basis for this projection was the percentage of persons in the age group under 18 in the United States who have a "drinking problem" of some sort. T. 713. He then used this percentage applied to District VI projected population for this age group in 1989 to derive a prediction of the District's adolescent problem drinkers. From this, he used the same factors as used with adults to project a need in 1989 of 90 adolescent long term substance abuse beds. T. 715.
On cross examination, however, Glenbeigh's expert corrected this opinion, agreeing that two multiplying factors in his formula should be reduced.
T. 764-65. His corrected estimate of adult long term bed admissions for alcohol problems was 1,275, T. 765, which resulted in a need for 43 adult long term beds. T. 774. His corrected estimate of adolescent long term bed admissions for alcohol problems was 312, which resulted in a need for 41 adolescent long term beds. T. 775-76. Thus, the corrected total of need agreed to by Glenbeigh's expert, using his method, was 84 beds in 1989. T. 776.
The method is limited to alcohol problems, and does not address need for drug abuse problems. T. 707, 713. However, about 90 percent of utilization of substance abuse services is for alcohol problems, and only about 10 percent is for drug abuse. Thus, if the Marden method underestimates need because based only upon alcohol data, the underestimation is low by only 10 percent. T. 1370.
The Marden based method assumes that none of the persons needing inpatient hospital care for alcohol problems would be treated in either a general acute care hospital or a psychiatric speciality hospital due to an associated-medical or a psychiatric problem. T. 772-73. This is unrealistic, given the evidence that some treatment of alcohol problems in District VI does occur in those settings instead of a specialty substance abuse hospital. In this respect, the method overestimates need. T. 1369.
Notwithstanding these problems with the Marden method, the method has a more fundamental problem. The Marden based method provides an estimate of the number of admissions per year for all substance abuse treatment, short and long term. But it does not prove that long term admissions are needed. Unless there is a credible way to isolate that portion of the admissions which would be needed in 1989 for short term treatment, there is no credible way to isolate a projection of long term substance abuse admissions in 1989. Thus, to illustrate, the possibilities are:
That the Marden method estimates a number of admissions which are all short term. If that is the case, the Marden method is nothing more than an alternative to the short term need rule of 0.06 short term beds per 1,000 population.
That the Marden method estimates a number which is a mix of admissions that will be both short and long term.
Glenbeigh's expert asserted that the second possibility was true. To attempt to prove his contention, he suggested that the number of long term admissions be isolated by creating a model of short term substance abuse need in District VI. He suggested that the model would include all the essential components of the assumed real condition of need for short term substance abuse beds in District VI. The components of such a model would necessarily contain the number of needed beds and the projection of average length of stay for patients needing those beds. From those factors, a model number of needed short term admissions was to be derived.
The model of short term substance abuse need is essentially unnecessary since the actual number of admissions to short term substance abuse beds is known. The four short term substance abuse facilities in District VI, representing 132 beds, had 1,524 actual admissions in 1985. T. 1342.
The number of actual admissions is a better indication of the numbers of persons in District VI needing admission to a short term substance abuse facility than the model suggested by Glenbeigh's expert. Analysis of the model suggested by Glenbeigh's expert leads to the conclusion that what actually exists in District VI is better evidence of need than those need components that he recommended. The model of short term substance abuse need recommended by Glenbeigh's expert has the following problems:
Glenbeigh's expert asserted that the number of beds "needed" in District VI should be derived only from the numeric rule method, rule 10- 5.011(1)(q)6a. That rule indicates the short term bed need is 89 or 89.5 beds by 1989. G Ex. 9; T. 1343, 773. It is not clear whether Charter Tampa's expert disagreed. (He performed one calculation using 89.5 beds as a standard, but in another, he stated he preferred the current actual number of admissions, which correlates with the current actual number of beds. T. 1343-44.) While the numeric formula of subparagraph 6a of the rule is an initial estimate of bed need, the rule has a "not normally" provision. See subparagraph 5 of the rule. Thus, the numeric formula is neither exclusive nor conclusive regarding short term substance abuse bed need. On the other hand, 132 short term substance abuse beds in District VI in fact enjoy a certificate of need duly issued by the Department. District VI may be overbedded with respect to the numeric rule, but there is no evidence that the District is overbedded with respect to a "not normal" condition. The existence of certificates of need for 132 beds is, on this record, better evidence that such beds are "needed" in the broader sense.
Glenbeigh's expert also argued that the model of need for short term substance abuse beds should be based upon an assumed average length of stay of 28 days. This is not adequately supported in the record. The record shows that the average length of stay currently in District VI is 23.6 days, not 28 days. The current District VI average length of stay is apparently not an anomaly, but, as found above, is consistent with state averages. It may be inferred that the current average length of stay of 23.6 days for short term substance abuse beds in the District will hold for the near future. See the discussion concerning length of stay above. Thus, it makes no sense to say that
District VI substance abuse beds are "needed" for an average length of stay of
28 days when they are in fact used for only 23.6 days now, on the average. The rule, rule 10- 5,011(1)(q)2, defines short term substance abuse beds as those having an average length of stay "not exceeding" 28 days. The rule thus contemplates exactly the circumstance that exists now in District VI: that the needed average length of stay in short term substance abuse beds could well be less than 28 days in a particular District. The 28 day average length of stay proposed by Glenbeigh for the model of actual need in District VI would make sense only if there was evidence that such need really existed. It must be remembered that what is at stake is the construction of a model of the need in the District for short term substance abuse beds, including all components of that need. The model should approximate actual need as best it can based upon record evidence. The model of short term substance abuse need should not and cannot be a model of maximum capacity. For this reason, the proper average length of stay for the model of need for short term substance abuse beds in District VI is 23.6 days. See T. 1343.
The final component of a model of need for short term substance abuse beds in District VI is the proper occupancy rate. The actual occupancy rate for all 132 beds has been only 74.4 percent average over a 2.5 year period. See finding of fact 40 above. Again, it would be more accurate to use this actual number than 80 percent, which is not related to need, but is related to maximum capacity, beyond which new beds would be added.
Following the above principles, the proper model of short term substance abuse need is exactly what existed in District VI in the year completed before the final hearing. That is, the model contains the following factors. The District needs 132 beds. Each bed will be needed by patients who themselves will need to stay for an average length of stay of 23.6 days. The
132 beds are needed to handle 35,846 patient days at 74.4 percent occupancy. (132 X 365 days X 74.4 percent occupancy.) At an average length of stay of 23.6 days, 35,846 patient days would correlate with 1,518 admissions. (35,846 total patient days divided by 23.6 days average length of stay.) This is the same number of admissions as actually experienced (since it has been produced by actual factors) and the difference occurs due to rounding of percentages.
Admittedly, this number of needed short term admissions is only a 1985 need figure, and should probably be increased by 1989, since the Tampa bay area is undoubtedly increasing in population. Nonetheless, for purposes of analysis of need in this recommended order, that adjustment is not needed since a lack of need is indicated even using the lower number of needed short term substance abuse admissions.
The corrected total number of adult hospital substance abuse admissions projected in 1989 using the Marden based method is only 1,275, and the predicted number of adolescent admissions is 312, for a total of 1,587 substance abuse admissions in 1989. Since the number of needed short term substance abuse admissions in 1985 was 1,524, then at best the Marden method predicts a need in 1989 for only 63 long term admissions.
Sixty-three long term admissions, at an average length of stay as proposed by Glenbeigh of 36 days, would generate 2,268 patient days. Dividing that by 365 days and by 80 percent, would indicate a need for 8 long term substance abuse beds. Essentially this is an indication that no beds are needed since the number is so small. This is particularly true because the number of need short term admissions, 1,524, is a 1985 need figure, and will probably be more than 1,587 by 1989.
One must conclude that either all of the need projected by the Marden based method is short term need, or the Marden method is not sufficiently accurate to allow for a reliable separation of short term need from long term need. Thus, the Marden based method cannot be relied upon for determination of the need for long term substance abuse beds.
A second method proposed by Glenbeigh's expert to predict long term substance abuse bed need is contained in G Ex. 12, and is based upon the number of suicides associated with alcohol in the District in 1985. Initially, this method predicted a need for 199 such beds by 1989. T. 723. But with corrections in factors agreed to by Glenbeigh's expert, the number of all hospital substance abuse admissions projected was 1,146, and the need predicted by the method was 27 beds. T. 780- 81. Since the method is based only upon statistics related to alcohol, the estimate would be low by about 10 percent. See the discussion above.
This estimate is unreliable for the following reasons:
The method relies upon an estimate that 25 percent of suicides in District VI were due to alcohol. Glenbeigh's expert thought that that figure came from vital statistics, but was not certain. T. 777, 782.
The method doubles the number of estimated alcohol abusers to obtain the estimate of the numbers of persons having problems with alcohol. Glenbeigh's expert had no personal knowledge as to the basis for this factor.
T. 778. The number was not based upon empirical data, and could be substantially different. T. 1357.
C. Finally, and most important, the number of all substance abuse hospital admissions predicted by this method is 1,146. T. 780. But, as discussed above, the number of short term substance abuse admissions in the 1988 need model is estimated to be 1,524. Thus, for the reasons discussed above, it appears that the suicide method, like the Marden based method, is not a sufficient basis for isolating, and thus determining, long term need.
The preceding two methods (Marden and suicide methods) were thought by Glenbeigh's expert to be more reasonable. T. 742.
The third method presented by Glenbeigh's expert for estimating long term substance abuse bed need is based upon statistics concerning deaths in 1985 in District VI from cirrhosis of the liver. G Ex. 11; T. 718. Initially, and again admitted to have been incorrect, this method yielded an estimate that 85 long term substance abuse beds would be needed by 1989. T. 721. When the same corrections were made to the method that were made with respect to the first two methods, the cirrhosis of the liver method projected 729 hospital admissions for substance abuse in 1989, which resulted in a prediction of zero bed need. T. 784.
Substituting the correct number of projected short term substance abuse admissions in the 1989 model of need (which was 1,524) for the 928 used in G Ex. 11, the third method severely underpredicts substance abuse need. (The projected number of all substance abuse admissions predicted by the method, which was 729, is 50 percent of the short term substance abuse admissions projected in the model of need, which is 1,524.) It may be true that the cirrhosis of the liver method is conservative since the method is based solely upon deaths due to cirrhosis of the liver, and thus excludes data as to need
which may exist in adolescents and adults below age 45. T. 721-22. It may also be true that the method is conservative since it does not contain data as to need for services to treat drug abuse other than alcohol. Nonetheless, these matters are not quantified in the record. For the reasons already discussed with respect to the Marden and the suicide methods, the cirrhosis of the liver projection of 729 admissions results in an inability, on this record, to isolate what portion, if any, of those admissions might be long term admissions. Thus, the method is unreliable as a basis for a finding as to long term substance abuse bed need.
The fourth method for estimating need was similar to the Marden method, but was based upon probability factors derived from Florida data collected by Drs. George J. Warheit and Joanne M. Buhl at the University of Florida and a study by Dr. Richard D. Gordon. T. 715; G Ex. 10. The method was augmented by Glenbeigh's expert because it did not recognize the concept of long term substance abuse treatment, and did not consider need in that regard. T. 792-93. The method initially predicted a need for 478 long term substance abuse beds in District VI by 1989. T. 717. By correcting the factor of48.1 percent used in step 3 of the method to 34.1 percent as was done in the other methods discussed above, the fourth method projects 3,407 total substance abuse admissions. T. 792. Subtracting the 1,524 projected short term substance abuse admissions, the method projects 1,883 long term admissions in 1989. Multiplying this by the assumed average length of stay of 36 days, results in a projection of 67,788 long term substance abuse patient days. Dividing this by the number of days in the year and by the occupancy standard, 80 percent, results in a projected need for 232 long term substance abuse beds in the District by 1989. The method is not reliable for the following reasons:
While there may have been population updates, the basic data was collected in the early 1970's, and thus is not reliable for use now. T. 1353- 54, 788. Further, it was collected from only Gainesville, Florida, and from Seminole County, Florida. T. 1352. These communities have not been shown to he similar to District VI. See T. 1354.
The data is based upon interviews with households and thus is only a collection of nonprofessional perceptions of personal or household healthcare needs. Such data could be overstated since it is not based upon medical diagnosis of need. T. 1353. It could be understated due to reluctance of persons interviewed to speak freely concerning personal problems. Charter Tampa's expert was not sufficiently familiar with the survey instrument to categorically say whether the questions were designed to overcome the inherent propensity for a substance abuser to deny the existence of a problem. T. 1371- 72.
The method converts the gross number of persons expected in 1989 to have problems with alcohol to the number of such persons expected to require inpatient services by multiplying that gross number by certain rates of expected need for inpatient services obtained from a study of Broward County in 1983 by Dr. Gordon. T. 716; G Ex. 10. However, these rates included inpatient services in state mental health facilities and in community mental health facilities. Those facilities, however, are not the same as short term and long term substance abuse beds as defined by rules 10-5.011(1)(q)2 and 3, and requiring a certificate of need. Thus, the inclusion of persons needing to be served in those other facilities causes an overstatement of total need. T. 1355.
As discussed above, the national average length of stay for substance abuse patients exceeds 28 days in only 25 percent of the cases. Thus,
it would be expected that a valid method for projecting the need for long term substance abuse beds in 1989 would project some number of long term admissions that is significantly smaller than the need for short term substance abuse beds. The Gordon method appears to predict far more long term substance abuse admissions than would be expected by other evidence of record.
For these reasons, the fourth method is unreliable.
Glenbeigh's expert asserts that one methodology used by experts previously, and one that should be applied in this case, is that the State has a rule defining long term substance abuse beds, and none of these beds as so defined exist in District VI. T. 818, 841-42. The apparent assumption in this methodology is that HRS would not give definition to the concept of "long term substance abuse beds" unless such beds were in fact needed in District VI.
HRS's expert testified similarly. He noted that Districts I, V and VI do not have any long term substance abuse beds, and reasoned that District VI, with a population in excess of two million, ought to need some. T. 914-15. (It appears that the expert for St. Francis Careunit, Thomas Konrad, relied upon the same logic in support of another application for, in part, long term substance abuse beds in another District. T. 1183.) To state the assumption is to reveal its flaw: the creation of a concept does not prove that the concept currently has relevance in a particular District. See T. 1124-25. It would be enough if need might exist in the future. But here, HRS has no evidence that any persons in District VI actually need long term substance abuse services. T. 947.
A variant of the foregoing analysis was the testimony of the expert for HRS that currently there are 836 licensed and certificate of need approved long term substance abuse beds in Florida, a ratio of .072 such beds per 1,000 population. T. 918-19. The expert then reasoned that if the Glenbeigh application were approved, District VI would have about the same ratio, .070 beds per 1,000 in District VI. T. 920. 11RS did not put on any evidence to explain why Florida needs .072 long term substance abuse beds per 1,000 population. HRS does not have a rule that .072 such beds are needed per 1,000 people. T. 944. If HRS wishes to use this ratio as an incipient policy to guide its decision in this case, it must present evidence to support the policy. For this reason, the ratio is not adequate evidence that District VI has need for long term substance abuse beds.
Need in adjacent District V
HRS proposes to consider the absence of a long term substance abuse hospital in District V, composed of Pinellas and Pasco Counties, as a further reason that the Glenbeigh project is needed. T. 915, 1149.
The only justification given by HRS for combining District V with District VI was that the two Districts were in the same standard metropolitan area. There is no evidence to explain how that relates to need for long term substance abuse services, or why that fact is relevant in a long term substance abuse case, and not relevant in other kinds of certificate of need cases.
One witness testified that people can travel both ways across the bridges over Tampa Bay. This testimony shed little light on the propriety of combining the two Districts in this case with respect to needs of patients for long term substance abuse services.
The critical question is whether people needing the particular health service, and their families, would have reasonable access to the facility
proposed by Glenbeigh. Proof of reasonable access requires more than simply noting that the standard metropolitan area is the same, or that people can use bridges both ways. T. 1150-51.
In summary, the above testimony is inadequate support for the incipient policy of HRS to combine two Districts in this case for analysis of need.
Additionally, the proof is not sufficient to provide a basis for relevance of testimony that patients in District VI could be served by facilities in District V.
State and Local Health Plans
Neither the State Health Plan nor the District VI Local Health Plan have any provisions concerning numerical need for long term substance abuse beds in District VI. T. 727. The Local Health Plan places the description of substance abuse services within the acute care section, and the concepts of long and short term substance abuse are somewhat merged. T. 908.
Local mental health boards were abolished in 1984, and thus there is no mental health board plan relevant to this case.
The State Health Plan contains "goals," "objectives," and "editorial comment" (or mere narrative). T. 907. Goals are summary important statements that is to he achieved. Id. Objectives are action steps to achieve a goal.
Id. Editorial comment, or narrative, is not as important as a goal or an objective. Id.
Goal number 2 found in Chapter 6, Vol. II, of the State Health Plan, pages 116 through 119, is that a continuum of health care he promoted. T. 728. The State Health Plan itself is not in evidence. It must be inferred that the State Health Plan encourages a continuum of health services only to the extent that each and every component of such services are actually needed in a District. It cannot be assumed that the State Plan would allow the creation of unneeded components of the continuum of health care simply for the sake, in the abstract, of completion of the continuum. Thus, absence credible proof of need in District VI, it cannot be concluded that Glenbeigh's proposal would satisfy goal number 2. Glenbeigh's proposal would satisfy goal number 2, however, if need for long term substance abuse beds were present.
All of the other portions of the State Health Plan which will be discussed in the following paragraphs are not goals or objectives, but are editorial comments or narrative, and thus are of less importance.
The State Health Plan, at pages 111-12, recommends that State policy should support the development of residential rather than hospital-based substance abuse and psychiatric treatment programs. T. 801. Approval of the Glenbeigh proposal would be inconsistent with that policy since the proposal is a hospital-based treatment program. However, it must be inferred that the policy favoring residential treatment programs would not he intended to preclude development of hospital treatment programs if such programs were needed. Thus, if there were need for the Glenbeigh proposal, approval of the proposal would not be inconsistent with the above State policy. See T. 808, 804. Moreover, the State Health Plan, states that the quality of care in free standing alcohol treatment facilities (facilities licensed under chapter 394, Fla. Stat.), and which do not receive insurance reimbursement, may be an issue of concern, when
compared to certificate of need licensed facilities that are eligible for JCAH accreditation,. T. 855-56. Thus, the State Health Plan contains conflicting policies on the subject.
The State Health Plan, at page 113, recommends the development of community based alcohol and drug abuse services in a least restrictive setting as the primary goal, and that inpatient hospital services are a setting of last resort. T. 809. However, it must be inferred that if there were need, such services should be provided, even if only as a last resort. approval of the Glenbeigh proposal thus would not be inconsistent with this policy if there were need.
The State Health Plan, at page 114, states that beds used by short term patients are equally adequate for long term patients, and asks as a rhetorical question whether there is a need to plan separately for these services. T. 810-11. In view of the fact that Departmental rules distinguish between long and short term substance abuse beds, the foregoing statement in the State Health Plan must be viewed as addressing a long range planning issue, rather than a clear current State policy. Thus, it cannot be said that the Glenbeigh proposal is inconsistent with this policy.
The State Health Plan, at page 115, states that the actual need for long and short term inpatient services for children and adolescents is relatively small compared to that of adults, but is difficult to quantify. The State Health Plan further states that providers continue to request approval for beds for children and adolescents as a means of gaining access to the health care market. In one estimate of need, Glenbeigh's expert found a need for 43 adult and 41 adolescent beds. T. 774- 76. This estimate of need is inconsistent with the State Health Plan view that need for substance abuse beds for adolescents and children is proportionately small compared to adult need.
The State Health Plan, at page 115, states that continued development of long and
short term inpatient hospital programs
for the treatment of adolescents and children is contrary to current treatment practices for these groups, and is therefore inappropriate without local data to support the need for these services. Such development can contribute to inappropriate placement, unnecessary costs of treatment, and divert scarce resources away from alternative uses. T. 812-13.
Glenbeigh's expert had not analyzed local socioeconomic variables in District VI to determine those areas in the District most likely to need substance abuse services for adolescents and children. T. 814. Moreover, the one method he proposed for estimating adolescent bed need was based solely upon a national statistic applied to District VI. adolescent population. T. 774- 76. Thus, the estimate of 41 adolescent beds needed uses a methodology that is inconsistent with this portion of the State Health Plan.
Like and existing facilities and alternative facilities
In determining charges for the proposed Tampa facility, Glenbeigh considered residential substance abuse treatment facilities to be competitive and their charges to be relevant. T. 382-84.
As discussed in the findings relating to the standing of St. Francis Careunit and Glenbeigh of Tampa, residential substance abuse treatment facilities can and do treat some of the patients that Glenbeigh proposes to treat. However, residential treatment facilities differ in some respects from substance abuse hospitals.
Residential programs do not require a certificate of need, as discussed above, and can expand or contract as the market may indicate without applying for a certificate of need. Such programs are not licensed as hospitals pursuant to chapter 395, Fla. Stat., but are licensed under chapter 394, Fla. Stat. T. 865.
Residential treatment facilities, unlike hospitals, do not have to pay 1.5 percent of net operating revenue into the indigent care fund. T. 681- 82.
Health insurance is more likely to provide coverage for a specialty hospital than a residential treatment program. T. 128. Of those patients having insurance coverage, about 30 to 35 percent have substance abuse coverage only in a licensed hospital, rather than a licensed residential treatment facility.
Physicians and other professionals will associate more readily with a specialty hospital than a residential treatment facility. T. 129. Substance abuse speciality hospitals tend to be supervised more closely by a physician than a residential substance abuse treatment facility. Patients with medical problems are usually not treated in residential facilities. SF Ex. 3, P. 39.
Psychiatric specialty hospitals also can and do treat some of the substance abuse patients that Glenbeigh proposes to treat. See findings of fact relating to the standing of Charter Hospital. However, psychiatric specialty hospitals also differ from substance abuse specialty hospitals in that such facilities treat psychiatric problems as a primary diagnosis, and treat substance abuse problems as an associated diagnosis. The problems of assigning priority of diagnosis have been discussed above.
Construction plans and cost
Conversion of the Glenbeigh of Tampa facility to house the proposed
100 bed long term substance abuse hospital sought in this case is currently the first option being considered by Glenbeigh if such coversion would meet all licensing requirements. T. 237-40, 137-40, 583. Glenbeigh has advertised the Glenbeigh of Tampa facility in a manner that makes it appear that Glenbeigh of Tampa is a hospital. CT Ex. 4. Glenbeigh has not submitted to HRS any drawings or plans for such conversion, and has not obtained any estimates of cost. T. 143, 322-23. It appears, ,however that the cost of conversion will be substantially less than $1,000,000. The facility at Glenbeigh of Tampa currently would not be in compliance with hospital licensure codes if it were to be used as the facility to house the 100 substance abuse beds sought in the pending Glenbeigh certificate of need application. T. 142. Glenbeigh has consulted with three or four architectural firms to evaluate what would he needed to modify the Glenbeigh of Tampa facility to comply with hospital
licensure codes. T. 239. Renovation of the Glenbeigh of Tampa facility would be a clinically appropriate means to implement the proposed program. T. 616.
Economies of joint and shared health care resources could he achieved if Glenbeigh locates its proposed hospital adjacent to or in its residential treatment facility. T. 233-40.
Glenbeigh has received initial approval from HRS for six long term substance abuse specialty hospitals. T. 95.
Glenbeigh currently holds a certificate of need for a 100 bed long term substance abuse hospital in Miami, Florida. T. 98. Construction of the building for this hospital was 75 percent complete in November 1986, and was scheduled to be completed in April, 1987. T. 99. The building is a four story building, and is essentially the same as the building to be built for Glenbeigh in Orlando for a similar long term substance abuse hospital. T. 451. It is also comparable to a three story building under construction for Glenbeigh for a long term substance abuse hospital in West Palm Beach. Id.
All of these buildings are being constructed by the same design and construction company. T.99. The Miami building is reasonably expected to be completed at a cost of about $3,900,000. T. 452. The Orlando building is running about the same, and the cost of construction in Tampa, overall, is about the same as Orlando or Miami. T. 452. It is reasonable to expect that a similar building could be constructed for the Glenbeigh project in Tampa at about the same cost if the soil conditions are about the same as in Miami or Orlando. Id. In both Miami and Orlando, the final cost included soil stabilization work. T. 456. No soil tests have yet been done in Tampa. T.
455. However, there is no reason to believe that any soil stabilization work that might be needed in Tampa will cost substantially more than it did in Miami and Orlando. The construction costs proposed by Glenbeigh are comparable to construction costs for similar facilities in Florida, and are reasonable. T. 937.
Glenbeigh would probably build a single building like the one in Miami, rather than three buildings as described in the application, if conversion of the Glenbeigh of Tampa facility is not feasible. T. 962-63. Glenbeigh has not submitted detailed plans to HRS regarding the single building plan for the Tampa facility, but HRS has approved essentially the same design for the Miami and Orlando facilities.
The original design for three buildings as submitted in the application had an arts and crafts room, a meeting room, lobbies, a porch, an adult movie room, an audio- visual room, employee lounges, a club room, and a multipurpose room. G Ex. 1, tab 22. A single building would reduce overall gross square footage from about 88,000 to 56,000. T. 962-63, 459-60. The record does not contain substantial or clear evidence as to the amount of space that would be allocated for patient sleeping, group therapy, recreational therapy, or administration in either the plan to convert the Glenbeigh of Tampa facility or to build a single building of 56,000 square feet. T. 591, 593-97, 621-22. It may be inferred that reduction of space to 56,000 square feet, a reduction of 36 percent, will inevitably reduce common areas more than sleeping spaces since sleeping spaces cannot be reduced beyond functional minimums. Nonetheless, while three buildings providing 88,000 square feet would probably be more desirable than a 56,000 square foot facility, with respect to the basic adequacy of treatment it makes little difference whether the proposed services are housed in a single building or in three buildings. T. 610. Three buildings
would be ideal, but are not required. T. 611. Three buildings would allow better separation of adults and adolescents. T. 611-12. However, a single building would have the advantage of greater efficiency with respect to staff meetings and staff contact and interaction. T. 613.
Staffing
Glenbeigh could adequately staff the proposed facility. T. 98, 471; SF Ex. 3, P. 64.
Some of the 65 to 68 counselors on the proposed staffing list are intended to be registered nurses. T. 620, 648. The exact number is uncertain since Glenbeigh did not commit itself to a specific number.
The proposed staffing does not list clinical psychologists, social workers, or family therapists, all of which are necessary to provide adequate care for patients having severe substance abuse problems. T. 1309. Table 11b of G Ex. 1, however, lists two senior counselors for adults, and 4 senior counselors for adolescents. Senior counselors must have a master's degree of some kind; the field of study was not mentioned, although it may be inferred that the field of study will relate to substance abuse in some way. T. 623. Thus, the record is unclear whether Glenbeigh will be providing these services from full time equivalent positions which have been given another name, or will be providing them by contract, or will not be providing such services.
Consequently, the record does not contain sufficient evidence that the staffing proposed by Glenbeigh for long term substance abuse treatment will be adequate.
Quality of care
St. Francis Careunit does not assert that there are any facts in dispute concerning the quality of care that Glenbeigh would provide. G Ex. 7, para. 12.
The only evidence concerning the quality of care is the lack of evidence as to proper staffing.
Indigent care
Some persons needing substance abuse treatment are denied such treatment at some facilities in District VI due to inability to pay. T. 1236; SF Ex. 3, pp. 39-40.
The St. Francis Careunit does not participate in Medicaid or Medicare. SF Ex. 3, P. 45.
Glenbeigh currently operates two substance abuse hospitals in Ohio, and indigent care in those hospitals runs about 6 to 12 percent of gross revenues. Glenbeigh intends that indigent care will be the same at its proposed Tampa facility. T. 335-36. Table 7, G Ex. 1, shows zero for indigent care only because it was prepared on a net revenue basis, and indigent care is already subtracted out of gross revenue to obtain the net revenue figure. T. 335.
Financial feasibility
Glenbeigh has adequate capital and funds, and has adequate sources of credit, to build the proposed facility and operate it in the short term. T. 337-39, 468-70, 488, 490-91, 496.
For long term financial feasibility, it appears that Glenbeigh has overestimated its revenues from third party payors. See findings of fact concerning length of stay.
To maintain the number of patient days currently experienced in Glenbeigh of Tampa, the new Glenbeigh facility will have to attract more admissions than Glenbeigh of Tampa currently experiences. T. 439.
Since need has not been proven, long term financial feasibility has not been proven.
Conclusions of Law
Jurisdiction exists with respect to the parties and the subject matter.
In St. Francis Parkside Lodge of Tampa Bay v. Department of Health and Rehabilitative Services, 486 So.2d 32 (Fla. 1st DCA 1986), the First District Court of Appeal remanded this case, ruling that the factual allegations of the petition of St. Francis, "if proved," would establish a substantial interest sufficient to entitle it to a formal administrative hearing. St. Francis Careunit has not proven by a preponderance of the evidence that it "will suffer injury in fact of sufficient immediacy to entitle [it] to a section
120.57 hearing (E.S.) Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478, 482 (Fla. 1st DCA 1981). It did not present any evidence of the origin of its patients, or the potential origin of Glenbeigh's patients, so that a comparison could be made. It presented no evidence of actual patients who have been served by St. Francis Careunit, but who might be served by Glenbeigh. Nor is there any evidence that St. Francis Careunit's current source of referrals might also refer patients to the proposed Glenbeigh facility. The only evidence in the record pertaining to the potential injury to St. Francis Careunit is that it could provide the same treatment as will he offered by Glenbeigh, and that it is located in the same area in the same service district. This is not sufficient proof that it would lose patients to Glenbeigh, or that such loss would he substantial. Thus, the fact of actual injury, or the immediacy thereof, has not been proven. For these reasons, St. Francis Careunit has not proven a substantial injury in fact.
If substantial injury as defined by the Agrico case was the only legal principle involved, this Recommended Order would recommend that St. Francis Careunit be dismissed for failure to prove a substantial interest.
It would then follow that Charter Hospital would also be recommended for dismissal since it did not seek a formal hearing in compliance with section 381.494(8)(e), Fla. Stat., and must take jurisdiction in this case as it finds it. Humana of Florida, Inc. d/b/a Humana Hospital Daytona Beach v. Department of Health and Rehabilitative Services, et al., 500 So.2d 186, 187-88 (Fla. 1st DCA 1986).
Rule 10-5.002(2), Fla. Admin. Code, defines an "affected person" to be, among other things, "health care facilities, service providers . . . located
in the service district where the service is proposed to he offered or developed, which provide services similar to the proposed services under review (E.S.)(The rules cited in this Recommended Order are the same as those in effect at all relevant times during the pendency of Glenbeigh's application but have been renumbered by the Department.)
The only later use in the rules by HRS of the a defined term "affected person" is with respect to the preliminary public hearing (not to he confused with a formal administrative hearing governed by section 120.57(1), Fla. Stat.) provided by rule 10-5.010(3). That rule states that HRS will hold a public hearing at the local level only "if a written request for a hearing from an affected person or the applicant is actually received by the department (E.S.) The presiding officer at the public hearing is assigned by HRS. Rule 10- 5.010(4)(b), Fla. Admin. Code.
After such a public hearing has been held, further communications concerning the application are strictly regulated so that all "parties" are copied (to avoid ex parte communications). Rule 10-5.010(5).
The Department then makes its initial decision on the application. Rule 10-5.010(6)-(10)
Once an initial decision is made by the Department to issue, revoke, or deny a certificate of need, a second definition comes into play. Rule 10- 5.012(1) provides that a formal administrative hearing pursuant to the Administrative Procedure Act may be obtained by request by "an applicant or a substantially affected person."
The second definition fits with conventional administrative procedure law, see Agrico, above, pertaining to the initiation of section 120.57(1) hearings only where substantial interests are involved. Moreover, the use of the modifier "substantially" would seem to signal something different from the original definition of a merely "affected" person.
In summary, it would appear that the definition of an "affected" person was not intended by HRS to confer standing upon persons who otherwise would not be entitled to obtain a formal administrative hearing.
The case law, however, has evolved in another fashion. In Community Psychiatric Centers, Inc. v. Department of Health and Rehabilitative Services,
474 So.2d 870 (Fla. 1st 1985), the Court had an attempt by an applicant for a certificate of need in a later hatching cycle to obtain a formal hearing to contest the grant of a certificate of need to an applicant in an earlier batch. The later batched Petitioner was not an existing provider in the service district. The Court appears to have based its ruling upon two points: that the later hatched Petitioner was not entitled to comparative review with the earlier batch (which should have disposed of the question), and that the Petitioner was not within the definition of an "affected person."
The next case to refer to the "affected person" rule was North Ridge General Hospital, Inc. v. NME Hospitals, Inc., 478 So.2d 1138 (Fla. 1st DCA 1985). Again, the Court used the definition of an "affected person" as a secondary reason that the Petitioner lacked standing to obtain a formal administrative hearing to contest the grant of a certificate of need to another entity. The same reliance on the "affected person" definition is also found in Charter Medical Southeast, Inc. d/h/a Charter Haven Hospital v. Department of Health and Rehabilitative Services, 495 So.2d 759, 764 N. )6 (Fla 1st DCA 1986)
Additionally, citing the "affected person" rule (then numbered 10- 5.02(20)), in the 1985 portion of NME Hospitals, Inc. d/b/a Delray Community Hospital, et al. v. Department of Health and Rehabilitative Services, 492 So.2d 379, 381 (Fla. 1st DCA 1986)(not altered on rehearing), the Court held that "there is no dispute that appellants, as hospitals in the same HRS service district as Humana's planned facility, are substantially affected by the decision to grant a CON to Humana."
Finally, in Florida Medical Center v. Department of Health and Rehabilitative Services, et al., 484 So.2d 1292, 1294 (Fla. 1st DCA 1986), the Court again cited the "affected person" rule, along with the intervention rule, and held that those rules "clearly provide that an existing health facility in the same service area he accorded party status as an intervenor," noting that an agency's rule can define party status.
Although each of the above cases could have reached the same result relying upon legal principles other than the "affected person" rule, the continued reliance of the Court upon that definition to confer standing cannot he ignored.
Both St. Francis Careunit and Charter Hospital have presented sufficient evidence that each provides services "similar" to those proposed by Glenbeigh in the same service district. Their services are not identical, but identity of services is not needed to be an "affected person." Thus, both are "affected persons" as defined by rule 10-5.002(2).
Consequently, both St. Francis Careunit and Charter Hospital have a substantial interest as Petitioner and Intervenor, respectively.
An application for a certificate of need for long term substance abuse services is governed by a balanced evaluation of the criteria provided in rule 10-5.011(1)(q), Fla. Admin. Code, and section 383.494(6)(c), Fla. Stat. Department of Health and Rehabilitative Services v. Johnson & Johnson Home Health Care, Inc., 447 So.2d 361, 363 (Fla. 1st DCA 1984).
Unlike rule 10-5.011(1)(q)6a, pertaining to short term substance abuse beds, there is no numeric method for determining the need for long term substance abuse beds. Rule 10-5.011(10(q)6b provides that:
A favorable need determination for long term hospital inpatient substance abuse beds will not normally be given to an applicant unless the applicant shows evidence that the type of service and the number of proposed beds are consistent with the needs in the community as stated in the Local Health Council plans, the Mental Health District Board plans and
other available needs assessment data.
Local Health Council plans are silent as to need for long term substance abuse beds, and Mental Health District Boards no longer exist.
None of the other "needs assessment data" presented in this case convincingly demonstrated need. Some of the methodologies, when corrected, showed no need. None were sufficiently reliable to show need. There was not adequate proof of need in District V, or accessibility of Glenbeigh's proposed facility to residents of District V. The two non-rule policies relied upon by the Department as reasons for issuance of the certificate (that there was no long term facility in the District VI, and use of the statewide ratio of long term substance abuse beds to population) were not justified by persuasive record evidence, and thus cannot be relied upon in this case. Florida Cities water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980). Short term substance abuse beds are in more than adequate supply for 1989 (132 beds, when the numeric rule alone indicates a need for 89), and are operating at only
75 percent capacity. More important, the average length of stay in District VI short term substance abuse beds is well under the 28 day maximum. Thus, these facilities have adequate capacity to treat some patients needing to stay longer than 28 days and still maintain an average length of stay not exceeding 28 days. There was no convincing evidence that there is any group of substance abuse patients needing treatment longer than 28 days who cannot he adequately treated by existing short term facilities, or, in appropriate cases, in short term psychiatric hospitals or residential treatment facilities.
Rule 10-5.011(1)(q)5 then provides that if need does not exist according to the terms of subparagraph (1)(q)6, then a favorable determination to grant a certificate of need may still be made "when the criteria . . . as provided in Paragraph 381.494(6)(c), Florida Statutes, and Sub-paragraph (1)(q)8. of this rule, demonstrate need."
Rule 10-5.011(1)(q)8a provides that "no additional or new hospital inpatient substance abuse beds shall normally be approved in a Department service district unless the average occupancy rate for all existing hospital based substance abuse inpatient beds is at or exceeds 80 percent for the preceding 12 month period."
HRS asserts that this section only applies to the type of substance abuse bed (long term or short term) for which application is made. Otherwise, low occupancy in one category of service would preclude the grant of a certificate of need in the other category of service. Since there are no existing long term substance abuse beds in District VI, HRS argues that the occupancy standard does not apply.
While the position of the Department is fundamentally logical, it is contrary to the clear words used in the rule. Law is usually to he applied as written if it is clear and unambiguous, unless the result is absurd. Here, application of the rule as written does not produce an absurd result. The rule explicitly requires an observation of the occupancy rate of "all existing hospital based substance abuse inpatient beds" without distinction between long or short term. Moreover, the reference to the 80 percent occupancy standard comes only after there has been a failure to show need pursuant to subparagraph
6 of the same rule. The only distinction between long and short term substance abuse treatment is whether a facility's average term is over or under 28 days. As discussed above, by defining the two types of beds by averages, it is apparent that some number of patients staying more than 28 days may lawfully be treated in a short term facility, and some number of patients staying less than
28 days may lawfully stay in a long term facility. Indeed, this was supported by facts in this record as well. The only definitional restriction in the rule is that the average length of stay of the facility not cross the definitional threshold of 28 days. Thus, given the interrelationship of short term and long
term beds, there might he good reason to grant a long term substance abuse application where none existed in a District and the short term beds were running over 80 percent occupancy. Conversely, there also is logic in denying an application for long term substance abuse beds where all (short or long term) beds are running under 80 percent occupancy, given the ability of one type of facility to treat some of the patients from the other type of facility.
Thus, rule 10-5.011(1)(q)8a should he applied as it is written.
Since the occupancy rate of all existing substance abuse beds in District VI did not exceed 80 percent in the preceding 12 months, this provision is additional reason for the conclusion that the long term beds sought by Glenbeigh are not needed.
Since need does not exist, the criteria in section 381.494(6)(c)1, Fla. Stat. has not been satisfied.
Like and existing health care services in District VI are adequate to fulfill all of the need for substance abuse treatment in the horizon year. Some alternatives exist as well, such as the Petitioner and the Intervenor. Thus, the criteria in sections 381.494(6)(c)1 and 4, Fla. Stat. have not been satisfied.
While the proposed project would be financially feasible in the short term, it would not he financially feasible in the long term. Need has not been established, the source of patients has not been identified, and insurance reimbursement as projected has not been credibly proven. Thus, criteria 9 of the same statute has not been satisfied.
Criteria 3 (quality of care) and criteria 8 (availability of resources for project accomplishment and operation) of the same statute have been satisfied.
Criteria 5 would probably be satisfied if Glenbeigh elects to convert Glenbeigh of Tampa. Criteria 13 would probably be satisfied by conversion of the Glenbeigh of Tampa facility or construction of the less costly single building.
Criteria 6, 7, and 10 do not apply in this case.
In summary, the Glenbeigh proposal is not consistent with important criteria contained in section 381.494(6)(c), Fla. Stat. Moreover, it is not needed pursuant to the criteria of rule 10-5.011(1)(q), Fla. Admin. Code.
Charter Tampa and St. Francis Careunit have argued that Glenbeigh has unlawfully amended its application in contravention of rule 10-5.008(3), Fla. Admin. Code., as construed by Health Care and Retirement Corporation of America, d/h/a Heartland of Palm Beach v. Department of Health and Rehabilitative Services, 8 F.A.L.R. 4650. Charter Tampa mentions only two issues: Glenbeigh's second application to convert 40 long term substance abuse beds to short term psychiatric beds, and the alternative construction or conversion options Glenbeigh is now considering. With respect to the first issue, the second application, later in time and procedurally distinct, and irrelevant to the current application with respect to the amendment issue.
The second issue, concerning potentially less costly construction alternatives, is not persuasive either. Were the Petitioner or the Intervenor competitive applicants, and were this a comparative hearing, the question of how
Glenbeigh offered to construct its facility would clearly impinge upon the interests of the Petitioner and the Intervenor. This would he so because the characteristics of Glenbeigh's facility would be in direct competition with facilities that would have been proposed by the Petitioner and the Intervenor. But here, the Petitioner and the Intervenor are only existing providers, and their substantial interest runs only to approval of the Glenbeigh project in a general sense. St. Francis Careunit argues that the change in Glenbeigh's facility design implicates due process considerations of "notice to the agency." St. Francis Careunit does not have standing to protect the due process interests of the Department. Thus, it is doubtful that the Petitioner and the Intervenor have standing to raise this as an issue.
Moreover, in the Health Care and Retirement Corporation case, HRS ruled that "an applicant is not allowed to update by adding additional services, beds, construction, or other concepts not initially reviewed by HRS." Glenbeigh has not proposed "additional construction," but less construction. Both alternatives would he less expensive as well. The general phrase "other concepts" must he construed to be similar to the specifically enumerated matters which precede it, and must mean, at a minimum "other concepts of like nature."
Admittedly, rule 10-5.008(3) is worded rather absolutely: "no further information or amendment will be accepted by the department." But to construe those words as forbidding the kinds of matters permitted by the Health Care and Retirement Corporation case would cause an absurd result: applicants and their opponents in formal administrative hearings, often several years after the initial application, would be unable to provide data concerning the most current statistical information, inflation, the most current financial condition of the applicant, or changes in available resources or ideas for design (such as the purchase of Glenbeigh of Tampa subsequent to the initial application, or the less costly single building design). As long as such data is not explicitly precluded by one of the substantive rules setting forth criteria for review, it would he unreasonable to construe the rule to forbid consideration of such changes. Moreover, the Gulf Court case (Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, et al., 483 So.2d 700 (Fla. 1st DCA 1986)) admittedly applied the amendment rule rather strictly, but it did so in the context of preservation of rights of other applicants entitled to comparative review. There is far less reason to cut such sharp corners when comparative review is not at stake.
For these reasons, it is recommended that the Department of Health and Rehabilitative Services enter its final order denying certificate of need number 3215 to Management Advisory & Research enter, Inc. d/b/a Glenbeigh Hospital.
DONE and RECOMMENDED this 9 day of April, 1987, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 84-2918
The following are rulings upon proposed findings of fact which have been rejected. The numbers correspond to the. paragraph numbers used by the parties. Glenbeigh's proposed findings of fact have no numbers, and thus have been numbered by page number, by paragraph number on the page (beginning with the first full paragraph on that page, and assigning the last paragraph on a page to that page, even though it continues to the following page), and by sentence number within the paragraph.
FINDINGS OF FACT PROPOSED BY GLENBEIGH:
1.2. Law, not fact.
1.4. Law
Law
Law 2.3.1-6. Law 3.2-5. Law
4.1. Law 4.4.2-3. Law
6.2. Irrelevant
7.1. Unpersuasive. There is not enough evidence of advertisement of the character intended by Ms. Ramage, and Ms. Ramage's testimony as to advertisement is unpersuasive as well.
9.1.2. Irrelevant.
9.3-4. through 11.1. This legal point has not been addressed since standing has been conferred by the "affected person" rule as interpreted by the First District Court of Appeal.
11.2-13.3. This section is a mixture of facts relevant to the argument that St. Francis has not proven standing and to the argument that the Glenbeigh project is needed. To the extent that the facts are relevant to the first argument, that argument has not been addressed due to the fact that standing is conferred h5 the "affected person" rule. With respect to the second reason for the proposed facts, portions have been rejected for the reasons which follow.
11.2 Some of this has been adopted. It is all true, but cumulative. 11.3.1-4. Only marginally relevant, since the application was for short
term substance abuse beds.
11.3.5-8. Rejected as not persuasive. The record in this case demonstrates that residential treatment beds and psychiatric beds do, in part, serve as alternatives to short and long term substance abuse beds.
Irrelevant.
Irrelevant. The short term substance abuse bed rule demands that approach. It explicitly states what should he subtracted from gross need to obtain a net bed need figure.
This would have been relevant had Glenbeigh's four methods for projecting need proven to have been reliable. But since those methods failed, this supportive evidence is now irrelevant.
Without a context, this statement is suspect. Further, it is insufficient to tie in with other evidence to show a quantitative need.
Irrelevant
12.5 Irrelevant, since short term beds are at issue.
13.1. It is probably true that Mr. McMurray believes
that short term substance abuse beds are needed for St. Anthony's Hospital, and at the same time, believes that the St. Francis Careunit is needed and partially serves the need for both short and long terms substance abuse care.
It is also undoubtedly true that St. Anthony's group of associated health care corporations is in direct competition with Glenbeigh, and seeks to open services in all phases of the potential market. To this extent, Mr. McMurray's testimony has been considered in the context of the competitive forces at work.
Nonetheless, the totality of the evidence present indicates that residential treatment facilities do partially serve the needs of all types of substance abuse patients. The remainder of the needs of such patients appears to he served by short term substance abuse beds, psychiatric hospital beds, and general hospital beds. Thus, ultimately the credibility of Mr. McMurray is not of great importance.
14.1. Law.
14.2.5. 94 percent occupancy is the mathematical result.
14.1 through 16.1. These proposed findings of fact are irrelevant since Charter Hospital proved that it was an "affected person" pursuant to HRS's rule. Moreover, testimony that assignment of primary diagnosis was accepted. Thus, the distinctions drawn in the proposed findings of fact on page 15 have no application to what in fact occurs. Charter Hospital has sufficiently proven that it treats some patients that have both a psychiatric and substance abuse problem, patients who also could be treated by Glenbeigh in its proposed facility, with psychiatric care provided by outside contract and referral.
17.6.2. Absent credible evidence as to the numbers of adolescents that need long term substance abuse services, a finding cannot be made that "the adolescent program would create an average for the hospital far in excess of 28 days." If need for adolescent services had been credibly identified, then it is true that the average length of stay of such patients would drive the total average length of stay for the Glenbeigh facility upward.
19.2. The average length of stay at Glenbeigh's Ohio hospital (at 28-32 days) does not help much to determine whether District VI has a substantial number of persons needing to stay longer than 28 days.
Dr. Wheeler's testimony is too general to be applied in this case. The record does not contain adequate evidence of the specifics of the program to he offered at Glenbeigh from which one might conclude that the kind of education alluded to by Dr. Wheeler might either he offered, or be warranted or really needed.
There is no evidence of a proposal to serve geriatric substance abusers in significant numbers, and thus this irrelevant.
20.4. Mr. Jaffe did not testify that editorial comments did not carry any weight, but only that such comments were of much less importance ("does not carry nearly as much weight").
The testimony cited is not sufficiently clear to allow a finding as stated. Moreover, the issue is primarily one of law.
Irrelevant. Applications for certificates of need must show need of patients, not need to simply put beds where none exist.
Ultimately, this reasoning has been rejected in this Recommended Order because it appears that short term substance abuse facilities-can (and probably do) treat a certain number of patients who stay for longer than 28 days, and can nonetheless maintain an average length of stay for all patients of
28 days or less.
21.1.1-2. Irrelevant. It is not illegal for a short term substance abuse hospital to admit a patient who will stay for more than 28 days. It is only illegal if the pattern of such admissions causes the facility to no longer fit the definition of short term substance abuse, that is "short-term services not exceeding an average length of stay of 28 days." Rule 10- 5.011(1)(q)2., Fla.
Admin. Code. That is what Mr. Jaffe said. The record contains no evidence
that any such pattern exists in District VI, and in fact, the average length of stay is only 23.6 days, well below the 28 day limit.
21.1.3. Irrelevant.
Irrelevant. There is no evidence that single diagnosis substance abuse patients are being admitted to psychiatric hospitals.
Accessibility to residents in District V is not relevant absent evidence of need in District V. The testimony as to access across Tampa Bay is so cursory as to he only marginally relevant, even if District V need had been shown.
22.3.2. Irrelevant.
22.4 Not persuasive.
23.1-2. No evidence presented to support an incipient policy that District VI should have the same ratio of long term substance abuse beds to population as the ratio in the state at large, and that ratio has not been adopted as a rule.
23.3. Rejected for the same reason as in 21.3 above.
25.1. Rejected because the evidence showed that short term substance abuse hospitals, short term psychiatric hospitals, and residential treatment facilities provide similar services to the patients that Glenbeigh would have available to it to serve.
27.3. Rejected due to lack of need.
27.5.2. Rejected due to lack of need.
30.6. Rejected as discussed elsewhere because alternatives are available.
30.6.3. Rejected because these patients can be served in short term substance abuse hospital beds, which are not at 100 percent capacity.
31.1. Rejected for reasons discussed above. Alternatives exist.
Rejected for lack of evidence that any patients will experience serious problems in obtaining inpatient care of the type proposed, since short term substance abuse beds exist.
Law, not fact.
31.6.2 The testimony cited (T.690, 909) is not sufficiently credible or detailed to conclude that the proposal is consistent with the local health plan. The local health plan is not in evidence.
32.1.5. Rejected for lack of need.
True, but not an issue in the case at this point.
A question of law.
34.1 and 2. Rejected as explained with respect to proposed findings of fact 23.1-2.
34.3. Rejected as explained with respect to proposed finding of fact 21.3
34.4.2. The result of the Marden method in this case indicate that the method is not reliable.
34.6. While this proposed finding is true, it is not needed since no contrary finding has been made.
35.2. Some of the assumptions were correct, as found in the findings of fact.
Rejected because contrary to the record cited.
True, but of marginal importance in determining quantitative need because no other evidence exists to tie this fact into a reliable projection of bed need.
35.6. This proposed finding of fact is true, but not necessary since contrary findings of fact have not been adopted.
36.1.2-3. Rejected in findings of fact discussing the Marden methodology.
36.2. Rejected in findings of fact discussing the Marden methodology.
FINDINGS OF FACT PROPOSED BY CHARTER HOSPITAL
2. Cumulative and unnecessary.
5. The first sentence is not relevant since the mistake was made by HRS. Moreover, it is irrelevant because the Petitioner would he entitled at the formal administrative hearing to submit the latest construction costs and receive a certificate of need based on those current costs. T. 1151-52.
7. Evidence concerning the second certificate of need application for conversion of 40 beds to short term psychiatric beds was admitted solely for the purpose of determining issues related to the first application. It is obvious from the statements from the second application quoted in proposed finding of fact 7(e), (g), and (j) that the second application is either exaggerated, or that a hospital cannot be granted long term subtance abuse beds unless it has psychiatric beds. The evidence, however, showed that psychiatric beds would be an enhancement to a facility operating substance abuse beds, but that psychiatric beds were not essential. Thus, the entirety of this proposed finding of fact is irrelevant.
10-13. Unnecessary since not related to any issues proposed by Glenbeigh.
Not supported by the record cited.
Subordinate to the finding previously made that a length of stay for adolescents of 36 days is not unreasonable. Moreover, little can be determined from the average length of stay of only one adolescent hospital in Ohio; the relevance is marginal.
Not supported by the record cited. Statements of counsel are not evidence. The testimony at T. 953 is only evidence of whether the witness was surprised, not evidence of the fact proposed.
Irrelevant. This is not proof of financial infeasibility.
24. A matter of law.
No supported by the record cited.
A matter of law.
38-39. The statement that three buildings are required has proven to be incorrect. There is no independent proof in the record that three buildings are necessary, and in fact, proof is to the contrary. The fact that such a statement was made and is incorrect only marginally detracts from the credibility of Glenbeigh. Applicants for certificates of need cannot know in advance whether their application will be in competition with other applicants, and whether an issue of enhancement, such as separation of buildings, will be the pivotal distinction between it and another applicant. Some exaggeration seems to be an inevitable consequence of the competitive nature of the process.
50. The lack of prior experience of this type by Project Advisors Corp., which is the firm building Glenbeigh's Miami, West Palm Beach, and Orlando facilities, is not persuasive evidence that the costs submitted by Glenbeigh are unreasonable. The costs are comparable to other such construction in the state. Moreover, the Miami project was 75 percent complete.
Since it is clear that conversion of the Glenbeigh of Tampa facility is the first option being considered, and that the single building is the second option, this proposed finding must be rejected.
It is not necessary that the facility have a pharmacy or a laboratory on site if such services are provided by other means. T. 587.
The single building will cost about $3,900,000 and provide 56,000 square feet, at about $70 per square foot. Thus, findings proposed concerning
$46 per square foot are irrelevant.
57-59. Even if the costs for equipment were more, the amount more would be relatively unimportant. Moreover, the credible evidence of record is that the Miami and Orlando buildings will be completed with full equipment at a cost of about $3,900,000.
Subordinate.
Glenbeigh's application does provide the staffing that will be provided. T. 522.
Glenbeigh has generally shown that it will treat adult and adolescent substance abusers. This is sufficient identification for program purposes.
64-65. Subordinate.
77. The initial application was prepared on a net revenue basis, and indigent care had already been deducted.
The testimony that salary levels were unreasonably low is rejected as not explained, and therefore not credible. T. 1364.
Irrelevant. The fact that the second application uses exactly the same staffing table would lead one to believe that it is in error because psychiatric staffing is absent from the list.
95-100. Since some of the counselors will also be registered nurses, it is impossible to say on this record how many nurses will be on a given shift. It thus is further impossible to conclude that staffing of nurses on shifts is clinically inadequate.
101-103. Since the number of nurses and the training of senior counselors has not been proven on this record, it is impossible to conclude that the staffing proposed is inadequate.
102. The record cited does not support the conclusion that only such treatment is proper.
106-107. Rejected because patients needing some psychiatric care can he referred to appropriate facilities, such as to Charter Hospital, which can provide psychiatric and substance abuse services. The degree of loss of effectiveness is not sufficient to warrant denial of Glenbeigh's application.
109. A matter of law.
110-112. Glenbeigh has adequate resources and credit to finance the completion of this project.
113. One cannot tell from this proposed finding of fact whether the second application is in error, or whether the first application is incorrect. Thus, it is irrelevant.
119-20. The Marden estimate may not have accounted for local differences.
Marden recommended that age, sex, and census are not the only factors that should he considered, and that a sample survey should he conducted in the local area as a means to develop figures for a specific population. This was not done because it would have been too costly. T. 744, 747-48. However, Charter Tampa's expert was of the opinion that although the Marden statistics were national averages, the Florida experience is actually quite close to the national average. T. 1344-45. Therefore, these proposed findings of fact are rejected.
122. Dr. Fagin testified that the Marden method was basically acceptable, and thus the fact that the data was from the 1970's is not a basis to reject the method.
123-25. See 119-20 above.
126-28. Subordinate findings, and unnecessary.
Lack of accessibility was considered in reducing the first number in the Marden method by 80 percent. T. 709. Dr. Fagin agreed this was reasonable.
T. 1346. To reduce the number again would be redundant. T. 1399. The second portion of this proposed finding of fact was adopted.
Since a significant portion of the 10 to 20 percent reduction recommended by Dr. Fagin was the accessibility issue rejected in proposed finding of fact 131 above, the quantity of the remaining deduction is no longer clear. About all that can be said is that the second deduction renders the method imprecise in some unknown degree.
Rejected because all steps needed to get to those numbers have not been adopted.
138-40. Unnecessary and based upon incorrect analysis.
142-43. Unnecessary and based upon incorrect analysis.
154. A question of law.
155-58. The availability of services in District VI is irrelevant.
FINDINGS OF FACT PROPOSED BY ST. FRANCIS CAREUNIT
14. The third sentence is not relevant.
20. Irrelevant.
The second sentence concerns admissions to general hospitals, and thus is only of marginal relevance.
Absent further evidence concerning medical ethical standards, and given the gravity of ethical issues, a finding as to ethical propriety cannot he made.
32-33. Evidence does exist that the programs will still be able adequately to function in the smaller space proposed for a single building, although inevitably some of the more desirable features of having more space will be lost with a single building.
36. The testimony cited compares staffing of a psychiatric hospital, with
45 attending psychiatrists, to the staffing of a substance abuse facility, where patients presumably do not have acute medical problems. It is illogical to conclude from such a comparison that one medical director is not enough for the few medical problems that substance abuse patients may have.
40. The testimony cited was not from a representative of Glenbeigh.
45. A matter of law.
The second sentence must be rejected because it appears that HRS does consider the statewide average of .076 long term beds per 1,000 persons to be an appropriate ratio. (HRS failed to substantiate the basis of the policy on this record.)
Rejected because although the witness testified that less than a majority of such patients could he treated in a speciality hospital, he also testified that he could not tell what percentage could he treated in a residential treatment facility, and limited his testimony to "some." T. 666.
There is no testimony at the record cited.
Not supported by the record cited.
Rejected. The testimony of Ms. Ramage was accepted on this point.
Rejected as worded. The witness was referring only to epidemiological analysis, which was only one of several methods he identified to determine need. T. 1330-33.
58-60. Bed inventory in District V is irrelevant as discussed in the findings of fact, and the evidence is inextricably commingled.
78-86. Rejected in the findings of fact concerning short term financial feasibility. If there were need, Glenbeigh has the capacity to finance all of the projects.
87. It is not clear from the testimony that the witness understood the question cited as the basis for the second sentence for this proposed finding of fact. Previous testimony had made it clear that the planned length of stay was to be longer than 28 days for adults. The answer "right" to the question that preceded it, T. 403, is inexplicably inconsistent, evidencing a misunderstanding by the witness. The witness's inability to testify as to the exact amount of expected insurance coverage for adults, however, has been made a part of the findings of fact concerning length of stay.
89. With the exception of site preparation, which is already a part of the findings of fact, this proposed finding is not relevant. The witness testified that Tampa would get a water retention pond if needed. T. 455. Absent evidence that sewage or other utilities would he needed in Tampa (which is unlikely, given the urban nature of Tampa), the remainder of the proposed finding is not relevant.
Irrelevant, given the testimony as to total project cost and square footage.
Marginally relevant. See discussion above with respect to the proposed finding of Charter Hospital.
COPIES FURNISHED:
Ivan Wood, Esquire
The Park in Houston Center Suite 1400
1221 Lamar Street
Houston, TX 77010
Douglas L. Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32301
Kenneth F. Hoffman, Esquire
W. David Watkins, Esquire Post Office Box 6507 Tallahassee, Florida 32301
William F. Hoffman, Jr., Esquire Ross Silverman, Esquire
King and Spalding
2500 Trust Company Tower
25 Park Place Atlanta, GA 30303
Chris Bentley, Esquire
2544 Blairstone Pines Drive Tallahassee, Florida 32301
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller, Esquire Acting General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power, HRS Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407
Tallahassee, Florida 32388-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
ST. FRANCIS CAREUNIT,
Petitioner,
CASE NO. 84-2918
vs. CON NO. 3215
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and MANAGEMENT ADVISORY AND RESEARCH CENTER, INC., d/b/a GLENBEIGH HOSPITAL,
Respondents,
and
CHARTER HOSPITAL OF TAMPA BAY,
Intervenor.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. 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.
RULING ON EXCEPTIONS FILED JOINTLY BY HRS AND GLENBEIGH
Exceptions to conclusions of law numbers 1 and 12 through 18 are granted. The legislature has provided that the applicant or any other substantially affected person has standing to initiate proceedings under the Administrative Procedure Act to challenge CON decisions. Section 381.494(8)(e), Florida Statutes. A person seeking party status must allege and establish to the satisfaction of the Hearing Officer that he is substantially affected. A finding of standing must be based on competent substantial evidence. Because the petitioner, St. Frances, failed to establish that it was substantially affected, it was not entitled to party status.
Because, St. Francis lacks standing it is not necessary to rule on the remaining exceptions.
RULING ON EXCEPTIONS BY ST. FRANCIS CAREUNIT (ST. FRANCIS)
Exception number 1 is denied as the challenged finding is based on competent substantial evidence.
Exception number 2 is denied as the challenged finding is based on competent substantial evidence.
Exception number 3 is denied as the challenged finding is based on competent substantial evidence.
Exception number four is denied as immaterial to the outcome.
Exception number 5 is denied for the reasons given by the Hearing Officer in his ruling on findings of facts proposed by St. Francis. Island Harbor Beach Club vs. Department of Natural Resources, 476 So2d 1350 (Fla. 1st DCA 1985).
Exception number 6 is denied. The Hearing Officer is the trier of fact and his findings on the weight to be given to evidence and the credibility of witnesses are binding so long as they are supported by competent substantial evidence.
Exception number 7 is denied. Again, it is the function of the Hearing Officer to weigh the evidence and evaluate the credibility of witnesses. The Hearing Officer's findings are entitled to the same weight and respect as the verdict of a jury. Gruman vs. State Department of Revenue, 379 So2d 1313 (Fla. 2nd DCA 1980).
The findings challenged in exception number 8, although under the heading of conclusions of law, are findings of fact on the threshold issue of whether St. Francis proved its allegations that it was substantially affected. Exception number 8 is denied. It follows from the failure of proof, that St. Francis did not establish its right to party status.
FINDINGS OF FACT
The department adopts and incorporates by reference the findings of fact set forth in the Recommended Order. The findings of fact, made by the Hearing Officer under the heading of conclusions of law number 2, on the threshold issue of whether St. Francis proved its allegations that it was substantially affected are also adopted.
CONCLUSIONS OF LAW
In St. Francis Parkside Lodge of Tampa Bay vs. HRS, 486 So2d 32 (Fla. 1st DCA 1986), the First District Court of Appeal remanded this case, ruling that the factual allegations of the petition of St. Francis, "if proved," would establish a substantial interest-sufficient to entitle it to a formal administrative hearing. St. Francis Careunit has not proven by a preponderance of the evidence that it "will suffer injury in fact of sufficient immediacy to entitle [its to a Section 120.57 hearing . . . ." (E. S.) Agrico Chemical Company vs. Department of Environmental Regulation, 406 So2d 478, 482 (Fla. 1st DCA 1981). It did not present any evidence of the origin of its patients, or the potential origin of Glenbeigh's patients, so that a comparison could be made. It presented no evidence of actual patients who have been served by St.
Francis Careunit, but who might be served by Glenbeigh. Nor is there any evidence that St. Francis Careunit's current source of referrals might also refer patients to the proposed Glenbeigh facility. The only evidence in the record pertaining to the potential injury to St. Francis Careunit is that it could provide the same treatment as will be offered by Glenbeigh, and that it is located in the same area in the same service district. This is not sufficient proof that it would lose patients to Glenbeigh, or that such loss would be substantial. Thus, the fact of actual injury, or the immediacy thereof, has not been proven. For these reasons, St. Francis Careunit has not proven a substantial injury in fact.
Rule 10-5.002(2), Florida Administrate Code, defines an "affected person" to be, among other things, "health care facilities, service providers .
. . located in the service district where the service is proposed to be offered or developed, which provides services similar to the proposed services under review . . . ." (E. S.)(The rules cited in this Order are the same as those in effect at all relevant times during the pendency of Glenbeigh's application but have been renumbered).
The only later use in the rules by HRS of the defined term "affected person" is with respect to the preliminary public hearing (not to be confused with a formal administrative hearing governed by Section 120.57(1), Florida statutes) provided by Rule 10-5.010(3). That rule states that HRS will hold a public hearing at the local level only "if a written request for a hearing from an affected person or the applicant is actually received by the department . .
. ." (E. S.) The presiding officer at the public hearing is assigned by HRS. Rule 10- 5.010(4)(b), Florida Administrative Code.
After such a public hearing has been held, further communications concerning the application are strictly regulated so that all "parties" are copies (to avoid ex parte communications). Rule 10-5.010(5).
The department then makes its initial decision on the application. Rule 10-5.010(6) - (10).
Once an initial decision is made by the department to issue, revoke, or deny a certificate of need, a second definition comes into play. Rule 10- 5.012(1) provides that a formal administrative hearing pursuant to the Administrative procedure Act may be obtained by request by "an applicant of a substantially affected person." Section 381.494(8)(e), Florida Statutes.
In summary, the definition of an "affected" person was not intended by HRS to confer standing upon persons who otherwise would not be entitled to obtain a formal administrative hearing.
That portion of the final hearing on the merits issue of Glenbeigh's entitlement to a certificate of need is a nullity because St. Francis did not prevail on the threshold issue of standing. Agrico, p. 481, footnote 3. This conclusion is not affected by Charter Hospital's intervention as it did not seek a formal hearing in compliance with Section 381.494(8)(e), Florida Statutes, and must take jurisdiction as it finds it. Humana vs. HRS et al, 500 So2d 186, 187, and 188 (Fla. 1st DCA 1986).
Based upon the foregoing, it is
ADJUDGED, that petitions of St. Francis and Charter Hospital be dismissed.
It is further adjudged that Glenbeigh's application for certificate of need number 3215 be approved.
DONE and ORDERED this 27th day of July, 1987, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
BY:
Assistant Secretary for Programs
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED
Copies furnished to:
Ivan Wood, Esquire
The Park in Houston Center Suite 1400
1221 Lamar Street
Houston, Texas 77010
Kenneth F. Hoffman, Esquire
W. David Watkins, Esquire OERTEL & HOFFMAN, P.A.
P. O. Box 6507
Tallahassee, Florida 32314-6507
William C. Sherrill Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Douglas L. Mannheimer, Esquire BROAD AND CASSEL
300 East Park Avenue Tallahassee, Florida 32303-3300
Ross Silverman, Esquire KING & SPALDING
2500 Trust Company Tower
25 Park Place Atlanta, GA 30303
Chris Bentley, Esquire 2544 Blairstone Pines Drive Tallahassee, Florida 32301
Nell Mitchem (PDDR)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 7day of July, 1987.
Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
904-488-2381
| Issue Date | Proceedings |
|---|---|
| Apr. 21, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1987 | Agency Final Order | |
| Apr. 21, 1987 | Recommended Order | Resp failed to show need for long-term substance abuse beds in district with adequate supply (and capacity at only 75%) and ALOS below avg. CON denied. |
