STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HOSPITAL MANAGEMENT ASSOCIATES, ) INC., )
)
Petitioner, )
)
vs. ) CASE NO. 84-4335
) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )
)
Respondent, )
and )
) HEALTH GROUP OF TAMPA, INC., ) d/b/a TAMPA HEIGHTS HOSPITAL, ) and UNIVERSITY PSYCHIATRIC CENTER,)
)
Intervenors. )
)
RECOMMENDED ORDER
The final hearing in this case was held in Tampa, Florida, on August 19, 20 and 21, 1985. At issue is whether the Respondent, the Department of Health and Rehabilitative Services, should grant a certificate of need to the Petitioner, Hospital Management Associates, Inc., (HMA) for the establishment and operation of a new 60 bed long term adolescent specialty hospital in Hillsborough County, Florida.
Appearing for the parties were:
For the Petitioner: Hospital Management Associates, Inc.
Robert S. Cohen, Esquire
Haben, Parker, Skelding, Costingan, McVoy and Labasky Post Office Box 669
Tallahassee, Florida 32302
For the Respondent: Department of Health and Rehabilitative
Services.
Jay Adams, Esquire Department of Health and
Rehabilitative Services 1317 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301
For Tampa Heights Hospital:
George N. Meros, Esquire
Carlton, Field, Wars, Emmanuel, Smith & Cutler, P.A.
410 Lewis State Bank Building Tallahassee, Florida 32301
For University Psychiatric Center
Susan Greco Tuttle, Esquire Moffit, Hart & Miller
401 South Florida Avenue Tampa, Florida 33602
On October 18, 1984, DHRS denied Petitioner's Certificate of Need application to construct a 60-bed long-term adolescent psychiatric specialty hospital in Hillsborough County, Florida. On November 9, 1984, HMA filed a petition for formal administrative hearing to contest the denial of the CON to HMA. Health Group of Tampa, Inc., d/b/a Tampa Heights Hospital (Tampa Heights) and University Psychiatric Center (UPC) applied for and were granted leave to intervene.
At the hearing, HMA called Phil C. Braeuning, Max Sugar, M.D., Louis DeSonier, Ph.D., and George Britton, and offered HMA, exhibits 1 through 10. Tampa Heights called Constantine J. Contis, Rene Haney, Marsha Lewis, Swadesh Khurana, Margaret W. Short, James M. Hunt, Howard E. Fagin, read the deposition of Peter Kreis, and offered Tampa Heights exhibits 1 through 10. UPC called Lawrence Pomeroy and Robert C. Fernandez, M.D., and offered UPC exhibits 1 through 4. HRS called Reid Jaffe, and offered one exhibit. Ruling was reserved on whether Mr. Britton is qualified as an expert in health planning.
Petitioner's Exhibits 1, 2 and 5 were ruled to be hearsay requiring direct evidence if used to establish a fact. Ruling upon the admissibility of Petitioner's exhibits 6 through 10 was reserved. An additional "public" exhibit was received and ruled to be hearsay.
The following issues of fact and law were either agreed to by the parties or were not otherwise in dispute:
Section 381.494(6)(c)8 Fla. Stat. The parties agree that HMA has sufficient funds to begin operation of the proposed facility. All other elements of subsection 8 are contested.
Section 381.494(6)(c)9, Fla. Stat. The parties agree that the project is financially feasible in the short run. Long-term financial feasibility of the project remains at issue.
Section 381.494(6)(c)13, Fla. Stat. The parties agree that the cost and method of proposed construction are reasonable.
All other sections of 381.494, Fla. Stat., remain in dispute.
References to the transcript in this recommended order shall be "T. ." References to proposed findings of fact will be P. PFF . for Petitioner's Proposed Findings of Fact, and TH PFF . for Tampa Heights' Proposed Findings of Fact. UPC and HRS did not submit proposed findings of fact.
FINDINGS OF FACT
Petitioner, Hospital Management Associates, Inc. (HMA) filed an application in June, 1984, for a 60 bed adolescent long- term psychiatric hospital in Hillsborough County, Florida. Petitioner's Exhibit 1. A completed application was filed August 13, 1984. Petitioner's Exhibit 2. (P. PFF 1.)
The proposed facility is patterned after a similar HMA facility in Arlington, Texas. The facility is proposed to be freestanding and is intended to conform to the state hospital code. The plan is to place the facility on a
10 or 15 acre tract of land. The facility will be divided into two 30 bed units, each having a 15 bed wing separated by a nursing station. T. 32- 37. Separation will be useful to separate patients by age, sex, functional levels, and treatment programs. T. 33. (The remainder of P. PFF 2 is rejected because irrelevant.)
Staffing that is proposed is found on table 11, Petitioner's Exhibit 2. The staffing proposed is consistent with standards set by the Joint Commission on Accreditation of Hospitals and is similar to the Arlington, Texas, facility.
T. 53. There is no evidence that this is not a reasonable level of staffing. The salary levels are reasonable. T.51. (The remainder of P. PFF 3 is rejected because not consistent with Petitioner's Exhibit 2 or T. 51-53, or irrelevant.)
HMA operates hospitals, both psychiatric and acute care, in Texas and Florida. T. 25-26. (The transcript does not establish that HMA currently operates hospitals in any other states, and to this extent, P. PFF 4 is rejected.)
HMA proposes to treat adolescents, ages 12 to 18. T. 35. (P. PFF 5 that HMA proposes to treat ages 10, 11, and 19, is rejected, based upon the testimony of Mr. Braeuning, and on the same basis, the proposed finding that the bulk of patients will be ages 13-17 is also rejected.) The proposed length of stay is 4 to 6 months. T. 36. The treatment program is aimed at the patient and the family unit, T. 41, and includes social work, family therapy, occupational therapy, recreational therapy, and education. T. 38, 39. Recreational facilities are proposed. T. 38. The proposed facility is planned to have three levels of security. T. 37. Treatment is planned on the behavior modification model, which uses a system of levels of reward and responsibility, and is used in both system and long term treatment. T. 37-40, 92. The length of stay is proposed to be an average of six months. T. 36. (The remainder of
P. PFF 5 is rejected because not supported by the record in the form proposed.)
Dr. Max Sugar is an expert in child and adolescent psychiatry. T. 84. Dr. Sugar has been asked to be a consultant for the HMA facility proposed, and may accept. T. 95. His consultation would involve program arrangement, milieu arrangements, in-service staff training, and recruitment of a clinical director. Id. (P. PFF 6.)
Louis DeSonier is an expert in child and adolescent pyschology. T. 102-103. He received his doctorate in 1982. T. 101. Dr. DeSonier has been hired by HMA to develop the system proposed for this certificate of need, to implement development issues, and to evaluate the program on an ongoing basis.
T. 104. He would be involved in hiring staff. T. 105. (The proposed finding that she will be involved in "setting up referral patterns within District VI" is rejected because not found in the transcript on the pages cited.) Dr. DeSonier envisioned attracting people from the adolescent psychology program at Florida State University to help develop a protocol for long term care for
adolescents. T. 105. Dr. DeSonier envisioned attracting other persons to work on the project. T. 106-107. Dr. Desonier was familiar with the levels of treatment concept of treatment, T. 106-107, and this will be helpful to him in his work with this proposal. (P. PFF 7.)
The Petitioner plans to monitor the quality of the programs at the proposed facility from its corporate offices, and will seek to use quality assurance programs as recommended by the Joint Commission on Accrediation of Hospitals (JCAH). T. 43. The Petitioner will seek JCAH accreditation accreditation by the National Association of Private Psychiatric Hospitals, and qualification for CHAMPUS reimbursement as a long term facility. Id. (P. PFF 9.)
The Petitioner intends to locate its facility near the 1-4 and 1-75 interchange, which would provide good access from many parts of District VI. T.
58. All of District VI, and portions of adjacent Districts, are within a two hour driving time of the site proposed by the Petitioner. See finding of fact
38. The Petitioner proposes to obtain patients through contacts and marketing efforts with local practitioners, local religious counselors, and school counselors. T. 54. Free standing psychiatric hospitals are not eligible for Medicaid reimbursement, and thus Petitioner's proposed hospital will not do that type of work. T. 57. Petitioner's proposed facility is projected to do two to five percent indigent work. T. 70, 57. Petitioner expressed willingness to accept patients from the Children, Youth, and Family Program of HRS T. 54-55. The Petitioner proposes to accept up to 20 percent of state-funded patients. T. 57-58. (P. PFF 10, TH PFF 12.)
10. In a long term psychiatric facility, patients may stay six months or longer. T. 88. A short term facility deals with acute problems, and tries to discharge the patient in one to three months. T. 87. Long term facilities address long standing maladaptive behavior. T. 87. A patient requiring long term treatment can become isolated among patients in a short term facility. T.
All of the ancillary services in a long term facility should be staffed and planned to provide long term continuity for the patient. T. 88-9. Over time, long term problems, which the patient may hide during short term treatment, become visible. T. 92. Progress on these problems then can be made. T. 92.
An acute care general hospital is geared for acute care to a range of ages, and having a program for long-term adolescent care is potentially in conflict with these goals. T. 95 However, treatment is often the same for both long and short term patients. T. 90. Behavioral modification is used in both short and long term treatment. T. 37-40, 92. The physician. determines the length of stay, and the physician cannot tell precisely how long a patient may need to stay. T. 89-91. A patient may begin as identified for short term treatment, but may later have long term treatment needs identified. T. 90-91. The adolescent portion of the proposed psychiatric facility at University Psychiatric Center is expected to experience an average length of stay of from
45 to 60 days per patient, with the greater probability of longer lengths of stay. T. 432. The average length of stay for adolescents at Tampa Heights Hospital may be about 47 days. T. 253. Tampa Heights Hospital provides short term psychiatric services. Tampa Heights is not certified for long-term care under the CHAMPUS program. T. 253. But Dr. Rene Haney, a psychiatrist and the adolescent services chief at Tampa Heights Hospital, T. 246-247, has observed some patients staying longer than 90 days, and some of his patients have stayed more than 90 days, receiving essentially the same kind of care. T. 248-49, 255. One patient stayed over 1.4 months. T. 251. During the current fiscal year, Tampa Heights will earn approximately $4 million from adolescent Patients, and approximately 36.3 percent of that $4 million will[ be derived from adolescent
patient days from patients that stay over 90 days (or $1.6 million). T. 334. (TH PFF 2.) (TH PFF 1, that Dr. Haney had a "substantial" number of patients is rejected for lack of quantifying evidence in the record.) Thus, while there are some differences between a facility devoted to short term psychiatric care and a facility intended for long term psychiatric care, there is a significant overlap with respect to the manner in which both types of facilities provide the same service for patients staying in the midrange of lengths of stay. For these patients, a short term inpatient psychiatric hospital provides a service that is the same as that provided by a long term inpatient psychiatric hospital. (P. PFF 6 and 8. the remainder of P. PFF 8 is rejected as cumulative.)
A loss of as much as 10 percent of long term adolescent revenue would cause Tampa Heights to increase patient charges. T. 335. (Th PFF 2.)
Given the ultimate finding that a substantial need exists for the facility proposed by the Petitioner, it cannot be concluded that Tampa Heights will in fact lose 25 percent of its adolescent patient days to Petitioner. For this reason, TH PFF 2 is rejected. Given the overlap in treatment, however, Tampa Heights would probably lose some patient days to Petitioner, but the degree of lost patient days cannot be determined on this record.
Tampa Heights Hospital and University Psychiatric Center both have a substantial interest that could be affected by this proceeding.
The Health Council for West Central Florida, Inc., is the local planning council for HRS District VI, which consists of Hardee, Highlands, Hillsborough, Polk, and Manatee Counties. Tampa Heights Exhibit 2. The local health council has adopted a health plan for the district, which is Tampa Heights Exhibit 2. The local health plan, as corrected, shows that there are expected to be 134 excess psychiatric beds in the District by 1990. Ibid. at page 119; T. 286. Additionally, the District has a number of non-hospital residential beds, some of which are exclusively for adolescents and children, and others of mixed ages. Tampa Heights Exhibit 2, page 113; T. 311. The local health plan adopted a policy to encourage use of the least restrictive, non- hospital facility wherever possible. Tampa Heights Exhibit 2, page 112-114; T. 303-305. Thus, in these respects, the proposal of the Petitioner is not consistent with the local health plan. (TH PFF 4 and 13.) The local health plan estimates of need are not consistent with actual need as will be discussed ahead.
There is no direct evidence in the record of the occupancy levels of the one long term psychiatric facility in District VI, Northside Community Mental Health Center, which has 16 beds. (TH PFF 5.) An occupancy level for Northside may be inferred from the testimony of Ms. Marsha Lewis, Deputy Director of that facility. Ms. Lewis stated that the facility has 16 licensed long term beds, and ran an average length of stay of 349 days in 12 beds. This means that the facility had 4188 patient days (12 times 349) out of a possible 5840 (16 times 365), which converts to an occupancy level of 72 percent in 16 license beds. T. 320.
The 1984 occupancy rates for some short term psychiatric facilities in District VI were below 80 percent, and were as follows: 66 percent, Tampa Heights Hospital; Memorial, 76 percent Lakeland Regional, 54 percent; Winter Haven, 71 percent; Palmview, 27 percent. T. 213-216, 117. (The occupancy rate for Hillsborough County Hospital Authority was not provided by the witness.) (TH
PFF 6 and 39.) The relevance of these figures is not clear, since the evidence does not state whether these occupancy rates are for adult psychiatric patients, adolescents, or both.
The Petitioner projects that it would reach 80.6 percent occupancy by March 1988, and would be at 72 percent occupancy in September of that year. Petitioner's Exhibit 2, table 10; T. 49- 50. In fact, the Petitioner predicted
80 percent occupancy in the second year of operation, based upon the analysis of Mr. Braeuning of Petitioner's needs analysis, the gross population, and the number of adolescents in the District, T. 50, as well as comparisons to the HMA Arlington Texas, facility, analysis of District competition, availability of physicians, and information provided by children, family, and youth of the Department of Health and Rehabilitative Services. T. 49. Mr. Braeuning had not previously staffed or administered an adolescent psychiatric center in Florida.
T. 61. He had conducted a socioeconomic profile study of Hillsborough and Highlands Counties, but not for Polk, Manatee, or Hardee Counties. T. 63-64. Mr. Braeuning was not personally aware of whether District VI psychiatrists would use the program proposed by HMA, and was not aware in any great detail of the existing programs in the District. T. 64-66. The Petitioner does not currently operate an adolescent psychiatric facility in Florida. T. 61. Mr. Braeuning is an expert in health care administration and operations. T. 25. It is the further finding of the Hearing Officer that the projections of the Petitioner that an 80 percent occupancy rate will be achieved by this projected depend primarily upon the Petitioner's evidence as to need provided by other witnesses. Since, as will be discussed ahead, that evidence was sufficient to demonstrate need, the projection of an 80 percent occupancy rate is accepted as based upon sufficient evidence. (TH PFF 7 through 11.)
Children ages 0-17 are reasonably expected to require long term inpatient psychiatric hospital care at a rate of 103 per 100,000 persons in that age group. T. 159-161, 461-464; Petitioner's exhibit 5, pp. 21-22, 35.
The age group that the Petitioner proposes to serve is ages 12 to 18.
T. 35-36. This is a medically appropriate age group to be served by the planned facility. T. 97, 397.
No party presented evidence as to the precise rate of need for long term inpatient psychiatric hospital care for ages 12-18, the ages which Petitioner proposed to serve. The Petitioner relied upon the rate for ages 0-17 adjusted by 0.96. T. 160-161. Tampa Heights relied upon the rate for ages 0- 17, unadjusted. T. 465.
The method employed by Tampa Heights was much less reliable than that used by the Petitioner, and is rejected. Within the group of persons ages 0-17, the need for long term psychiatric hospital care is greatly skewed toward older persons in the group. Persons in the first 9 ages, from 0-9, account for only
3.596 of the need; in the next 5 ages, 10-14, there is 31 percent of the need; and in the last 3 years, 15-17, there is 6596 of the need. T. 160. These statistics follow a curve of accelerating need as children increase in age. The composite rate of 103 per 100,000, which includes a very large number of persons in the 0-11 age group with very little need, thus is much too low to be used as a predictor of need for the 12-18 age group. T. 578-579, 582-583.
Petitioner's method of adjustment also has a flaw, but the flaw is less unreasonable than that proposed by Tampa Heights. Petitioner proposes that the rate of 103 per 100,000 be adjusted so that it reflects that portion of the rate attributable to persons ages 10-17. This includes need of children ages 10
and 11, and thus includes need which Petitioner does not propose to serve. Second, it fails to include 18 year olds, and thus underestimates need in that regard. The net result, however, is probably to underestimate need slightly.
As discussed above, the need for long term hospital care seems to increase at an accelerated rate. If, for ages 0-9, only 3.5 percent of the need is represented, it is unlikely that the need of 10 year olds or 11 year olds will be all that much, and thus, inclusion of those ages probably has not contributed greatly to an overstatement of need. On the other hand, the failure to include
18 year olds, given the fact that persons 15-17 represent 6596 of the total need in the 0-17 age group, probably results in an underestimation of need. In all probability, the overinclusion and underinclusion problems with Petitioner's method cancel out. At ,worst, if one assumed a completely linear distribution of need between the ages 10-18 (which, as discussed above, is contrary to the evidence), the 0.96 adjustment would be evenly distributed throughout all the ages from 10-17. Thus, since there are 8 ages in that group, each age would account for 0.12 of the need, assuming linear distribution. Subtracting ages 10 and 11, and adding age 18, would result in an adjustment factor of 0.84. The calculations which follow will use both the 0.96 and 0.84 factors, although it is the conclusion of the Hearing Officer that the 0.96 factor is most reasonable.
District VI consists of Hillsborough, Manatee, Polk, Highlands, and Hardee Counties. Tampa Heights Exhibit 2.
The population for 1990 in District VI of persons ages 12-18 is predicted to be 135,627. T. 456. The population for ages 0-17 is predicted to be 380,583. (This is derived by reversing the calculations on pages 157-158 of the transcript, i.e., dividing 392 by 103 and multiplying by 100,000.)
As explained above, it would be statistically incorrect to multiply the rate for ages 0-17 times the population for ages 12-18, as proposed by Tampa Heights, since the rate of 103 per 100,000 is much lower due to the inclusion of ages 0-11 in calculating the rate. Petitioner's method is mathematically sound. It requires the multiplication of 103 times the projected population for District VI in 1990 for ages 0-17, which is 380, 583, divided by 100,000, and then adjusted by multiplying the adjustment factor discussed above, by 0.96.
The result is 376, which represents the number of persons, ages 10-17, who are expected to require long term inpatient psychiatric hospital care in 1990, and on this record, represents also the best estimate of the number of such persons in age group 12-18 predicted for District VI in 1990. (Assuming that 0.84 is the correct adjustment factor, and performing the same mathematical computation, the number of such persons is 329.)
Calculation of the gross bed need for these 376 patients depends entirely upon the choice of length-of stay estimated for such patients. The Petitioner proposes a length of stay at its facility of from 120 days to 180 days. T. 158; 36. Petitioner's expert, Mr. Britton, admitted that he used the range of 120 days to 180 days in his estimates of need because "they were the lengths of stay that were indicated for the Applicant's project as it related to specific program they intended to utilize . . . ." T. 265. Thus, to this extent, these length of stay are inappropriate for determining projected need for the District in 1990. As Mr. Brittion admitted, these lengths of stay are only those patients which Petitioner seeks to attract and serve. Mr. Britton testified that there is no definitive length of stay for adolescents in the expert literature, hut that one study reported a range from one month to nine months, with an average of 108 days. T. 242. Tampa Heights' expert, Howard E. Fagin, Ph.D., was of the opinion that an average length of stay of 90 to 120
days would be appropriate. T. 466. Tampa Heights thus used this range in its estimates. Tampa Heights Exhibit 8. Dr. Max Sugar felt that the length of stay could be six months or longer. T. 88. Northside Community Mental Health Center, the only facility (apparently) that has a certificate of need in District VI for long term adolescent inpatient hospital psychiatric beds, had an average length of stay of 349 days for 12 of 16 long term beds. T. 320.
Finally, and most persuasive to the Hearing Officer, Tampa Heights presented the testimony of Peter Michael Kreis, Program Director, Children, Youth and Families Program Office, of the Department of Health and Rehabilitative Services. Mr.
Kreis was the District Administrator of District VI for five and one-half years,
T. 342, and was accepted as an expert on the issue of the availability and adequacy, from the perspective of the Children, Youth and Families Program, of facilities in District VI and the central Florida area for children and adolescents eligible for that program. T. 348-352. As will be discussed ahead, Mr. Hreis identified some 320 beds in District VI that could be categorized as residential beds (including hospital beds) available to provide long term mental health care to CYF adolescents, and his testimony has been accepted as fact in the paragraph ahead. Mr. Kries testified that the normal length of stay in these facilities is "probably closer to nine months," and that the majority of them are "90 days and beyond." T. 354. Thus, the best evidence of length of stay is the actual length of stay now experienced, as shown by Mr. Kreis and the experience of Northside Community Mental Health Center, the only long term adolescent facility in the District. A length of stay of 180 days as proposed by the Petitioner is probably conservative, and is accepted as a reasonable basis for calculating need.
The gross bed need for District VI for adolescent long term inpatient psychiatric hospital beds is thus calculated as follows. In 1990, 376 patients will stay an average of 180 days, resulting in 67,680 patient days. Divided by the number of days in the year, 365, this is 185 patient years, which is also the annual bed need. This figure is adjusted by dividing by 80 percent to assure that the 80 percent or less occupancy standard contained in the rule is met, which results in a gross bed need in 1990 of 231 beds.
Performing the same calculation, but using the figure derived from using the 0.84 adjustment factor, the result is a gross bed need in 1990 of 202 beds. As will be seen ahead, the net bed need, insofar as the application of this Petitioner is concerned, is not materially affected, regardless whether the
0.96 (the factor chosen by the Hearing Officer) or a factor of 0.84 is used. It must be reiterated that the factor of 0.84 is rejected for the reasons stated in paragraph 22 above.
Camelot Care Center is erroneously carried by HRS in the inventory of District VI long term child and adolescent psychiatric beds. T. 164, 536. Camelot Care Center is not in District VI, but is in Pasco County, which is not in District VI. T. 163-166.
The only long term inpatient hospital psychiatric beds currently in District VI for children and adolescents are 16 beds located in Hillsborough County at Northside CMHC. Tampa Heights Exhibit 7. Thus, if only long term beds in District VI were to be considered, there would be a net need of 215 beds by 1990.
As will be discussed ahead in the conclusions of law, both the statutes and the rules adopted by HRS require that the availability of short term inpatient psychiatric facilities to provide care for some of the long term inpatient psychiatric patients of the District must be considered in determining
net bed need. This conclusion was reached, following the language used by the rules, without regard for asserted differences in treatment modalities. But even if treatment differences were relevant, the Petitioner has not proven that the short term Inpatient psychiatric hospital facilities in District VI do not provide, in part, services "like" those provided in a long term facility. It is true that the short term facility will tend to treat acute problems, and that a patient having deeply seated mental problems may not reveal such problems in a short treatment period. T. 92. But Petitioner's own expert noted that the psychiatric treatment itself is the same for short and long term patients, and that the physician sometimes needs a period of time of evaluation to determine the patient's longest term needs. T. 89-90, 92. The treatment program at Tampa Heights is very similar to that proposed by the Petitioner. T. 326. The treatment program at Palmview Hospital seems to be quite similar to that proposed by the Petitioner. T. 115. Moreover, short term facilities in fact provide treatment for those "long term" patients who experience the shorter stays. Rule 10-50.11(26)(a), Florida Administrative Code, defines long term services as those averaging a length of stay of 90 days. Thus, at least some of the need for long term services is a need for hospital care (in gross number of days) of less than 90 days, and these stays could just as easily be provided by short term facilities. In fact, such potential "long term" patients are, in part, being served by such facilities as Tampa Heights, which observed lengths of stay of 90 days and longer, one patient for 14 months, and 2 patients for 8 months at the time of the hearing in August. T. 248-249, 255, 334. For these reasons, as well as the findings in paragraph 10 above, it is the conclusion of the Hearing Officer that short term inpatient psychiatric hospital facilities in District VI have the capability of providing a portion of long term services to adolescents, and in fact do so to some extent, and thus must be considered as a "like and existing health care service" as defined by section 381.494(6)(c)2, Fla. Stat.
The record does not contain high quality evidence as to what portion of existing and approved short term hospital inpatient psychiatric facilities for adolescents in District VI should be deemed to be "like" long term facility. The only attempt at quantification of this issue is found in the evidence presented by Tampa Heights that 36.3 percent of its revenues in the current fiscal year derived from adolescents were from adolescents who stayed longer than 90 days. There was no evidence as to the proportion of patient days represented by this revenue, and there was no evidence that this percentage holds for other short term facilities in the District. However, the percentage is conservative in one way: it includes only such stays that are more than 90 days, and does not include those who stayed less than 90 days. As discussed above, some of those adolescents who stay less than 90 days can be characterized as both a "long term" and a "short term" patients due to the definitions adopted by HRS in its rules. Rather than reject the only data available, it is concluded that approximately 36 percent of adolescent short term hospital inpatient psychiatric beds are available for the needs of "long term" adolescent patients.
District VI currently has 124 licensed and approved free standing short term inpatient psychiatric hospital beds, and 19 licensed and approved beds in a general hospital, for a total of 143 short term inpatient psychiatric beds. T. 459; Tampa Heights Exhibit 7. Since 36 percent of these beds are available to serve the needs of some of the long term patients in the District, the short term beds in the District provide an additional 51 beds.
Thus, the total number of psychiatric beds in District VI available to provide for the needs of long term adolescent psychiatric patients is 67, which includes 51 short term beds and 16 long term beds. (The 32 long term beds at Camelot Care Center have been excluded because not located in District VI.)
Since 231 long term adolescent psychiatric beds are needed in District VI by 1990, and 67 such beds exist, there is a net long term psychiatric bed need of 164. Even if the lower bed need number is used (which was 202, derived from using the 0.84 adjustment factor), the net bed need shown by the Petitioner is at least 135 beds by 1990.
The Respondent, the Department of Health and Rehabilitative Services, proposes to apply non-rule policy to the application of the Petitioner. The non-rule policy is that consideration should be given to the availability of
like and existing services that are within two hours driving time of the site of the facility proposed by the applicant, even though some of those facilities are outside the District. T. 534.
The Department justifies this policy to prevent overbuilding, T 535, to allow focus upon a standard metropolitan area, rather than upon a District,
T. 536, and because patients for long term psychiatric hospital care cross county lines, T. 543, 550. The policy makes sense. Long term psychiatric care, in all probability, does not need to be located by District, but could be sited regionally, to serve larger numbers of people than those in just a District, since by definition, such care ought not involve acute emergencies. The policy is reasonable and has been justified by the Respondent.
Intervenor Tampa Heights demonstrated that there are perhaps 270 long term psychiatric hospital beds within two hours drive of the site proposed by the Petitioner. T. 475-478; Tampa Height Exhibit 10. FIRS presented similar, if less precise, testimony. T. 535-536, 545-552. But neither the Respondent nor the Intervenors provided evidence as to how many of the beds outside District VI are actually available to serve the needs of persons in District VI. It is probable that facilities located in Orlando, Sarasota (Tampa Heights Exhibit 10) and St. Pet-ersburg (T. 536) are located in those cities to serve persons needing such services in those cities and Districts. There was no evidence that any of these out-of-District facilities were granted certificates of need to serve the needs of persons living in District VI. Moreover, without evidence to show to what extent these 270 out of District beds are needed to serve the needs of non-District VI patients, it is factually impossible to determine to what extent some of these 270 beds might be used to meet the needs of District VI. For this reason, the 270 beds identified as being within two hours of the site of the facility proposed by the Petitioner cannot be considered to be available to serve District VI needs.
The Children, Youth, and Families (CYF) program of the Department of Health and Rehabilitative Services helps place eligible children and adolescents in psychiatric or other mental health programs. T. 346. Mental health programs exist in outpatient and residential facilities as well as licensed general and specialty hospitals. T. 346-347. The Department prefers not to use the more restrictive hospital setting for placement of these children. T. 353. The majority of facilities providing mental health care to children and adolescents in District VI provide such care on a long term basis, that is, for more than 90 days, and normally about nine months. T. 354. District VI has the following facilities which do provide or can provide such long term mental health care for CYF children and have the following approximate number of beds: (T. 355-357):
Childrens' Home 68
Northside CMHC 24 (This is 8 more than TH. Ex. 7) FMHI 28
Childrens' Services Cen. 24
Tampa Heights 38 (This is 2 less than TH. Ex. 7) Hillsborough C. Hosp. 12
Memorial 10
University of S. Fla. 24 (Devoted to adolescents) Peach R. CMHC 34
Palmview 18
Winter Haven Hospital 30 Manatee Memorial 10
TOTAL 320
All of the above programs are residential programs, not outpatient programs. See T. 353-357.
All, or a substantial portion, of these 320 beds are available in District VI to meet the need by 1990 in that District for long term psychiatric beds. T. 354. However, this inventory of 320 beds includes residential programs (such as perhaps the "Childrens' Home" listed above) that are not hospitals as characterized by Tampa Heights Exhibit 7. It should be remembered that the need for 231 long term psychiatric hospital beds was derived from data used by all parties from table 13, page 35, Petitioner's Exhibit 5. The rate of
103 per 100,000 was derived from that table by adding only the predicted number of psychoses and neuroses for the age group 0-17 needing "24-hour institution" care. Excluded from that rate were persons needing "acute hospital" care and "special programs." One cannot meaningfully assess the availability of the 320 beds listed above for long term care until the need for such beds for acute care and residential care has been calculated.
Since there has been no expert testimony in this case to calculate the total need in District VI for adolescent mental health care (including long term
24 hour beds, acute care beds, and other types of residential beds), the testimony of the "availability" of the 320 beds is rejected as an irrelevant and statistically incorrect correlation of bed inventory with "need."
It is possible, however, to test the meaningfulness of the testimony that 320 beds are "available" for long term care in District VI by reference to statistics contained in Petitioner's Exhibit 5. Since this exhibit and the date contained therein is heresy, the Hearing Officer cannot make a finding of fact by reference to the statistics contained in Petitioner's Exhibit 5, in the absence of expert opinion, which is lacking in this record. However, a relatively simple calculation can be made, using exactly the same method used by all the experts in this case. That calculation will be made in findings of fact 42-46, however, not as a finding of fact per se, but as explanation for why the
320 beds must be ignored absent some evidence that such beds are indeed available to serve long term patient needs (or, are unavailable because
currently serving many other needs). Turning to Petitioner's Exhibit 5, table 13, the following predicted incidence of mental illness by treatment facility for the age group 0-17 is recorded therein:
Special Programs Acute Hospital 24 Hour
Psychoses | 128 | 210 | 30 |
Neuroses | 123 | 253 | 73 |
The total of these numbers is 817. Excluded from the above are "outpatient" statistics. "Outpatient" as used in table 13, Petitioner's Exhibit 5, is concluded to mean the same as "ambulatory" as described on pages 21 and 22 of the same exhibit, and "special programs" on table 13 are concluded to be "partial hospitalization" as described on the same pages. "Partial hospitalization" and "special programs" include halfway houses, group homes, day care centers, boarding homes, foster homes, and congregate care facilities. Id. at page 21. Thus, the commination of data with respect to "special programs," "acute hospital," and "24-hour institutions" much more reasonably approximates the types of facilities and care included in the 320 beds identified by Mr.
Kreis.
Adding these numbers, the total predicted incidence of psychoses and neuroses for persons ages 0-17 needing partial hospitalization, acute hospital care, and 24 hour hospital care, would be 817 per 100,000. This number should also be modified by the factor 0.96 to convert it to a better estimate of the rate per 100,000 for the age group 12-18, which is a rate of 784 per 100,000.
Using this rate, it might thus be predicted that 2984 adolescents in District VI in 1990 (ages 12-18) will need special programs, acute hospital care, and 24 hour care, for psychoses and neuroses. This number is based upon the predicted 1990 population of the District of 380,583.
Mr. Kreis testified that the majority of the 320 beds are used by adolescents staying longer than 90 days, and that the norm for these beds was about nine months. T. 354. Using a more conservative average length of stay for all of these beds of 180 days, and apply an 80 percent occupancy standard, the following calculation can be made, using the same need formula used above. The 2984 adolescents needing special programs, acute care, and 24 hour institutional care, will need 537,120 patient days of care per year at an average length of stay of 180 days. Dividing by 365, this converts to an annual bed need of 1472. Assuming the need to maintain 80 percent or less occupancy, the gross bed need is 1840 beds to provide special programs, acute care, and 24 hour institutional care. Subtracting the 320 beds now available, there would be a net need by 1990 of 1520 beds. Thus, the 320 beds identified by Mr. Kries would not adequate to fulfill the need identified in earlier parts of this order.
While it is the conclusion of the Hearing Officer that a length of stay of 180 days for the combined 320 beds is appropriate, given the testimony of Mr. Kreis, it would be useful to recalculate the above figures assuming only a 60 day average length of stay for all of these beds. (This length of stay is far too low, given the probability that adolescents assigned to residential settings are, for reasons of continuity of care and for lack of parental availability to cope with the adolescent's problems, destined to spend far more than 60 days per year in such programs.) At a length of stay of 60 days, 2984 persons would generate 179,040 patient days annually, which converts to a bed need of 491 annually. At 80 percent occupancy, 614 beds would be needed by
1990, a net need (subtracting 320 beds) of 294 beds. This calculation is not correct, given the testimony of Mr. Kreis as to normal length of stay, and is not adopted by the Hearing Officer. It is performed, however, to show that even if Mr. Kries were wrong about the length of stay, the 320 beds he identified still do not meet predicted need, even if a 60 day average length of stay is used.
Based upon all of the foregoing, there is a need for the 60 beds proposed by the Petitioner in District VI.
George Britton, who testified on behalf of the Petitioner with respect to calculation of need, was tendered as an expert in health care planning. Mr. Britton received a master's degree in business administration in health care administration in 1979. During his master's work, Mr. Britton took a course in health economics. T. 139. In part that course concerned health care regulations at the national level. T. 140. The primary focus of his master's degree was hospital administration. T. 137. There were no courses available specifically dealing with planning for psychiatric services, and he took none.
T. 137. He has had experience with various methodologies for determining bed need for a new health service both in his academic work and in practical experience. T. 140- 141. He also has attended seminars over the past five years concerning planning for new health services. T. 141. He worked as a health care administrator in a middle level position at George Washington University Medical Center between his undergraduate degree and his master's degree. T. 128. He served as assistant to the executive director, University of Florida Medical Center, Shands Teaching Hospital, from 1979 to 1982. T.
129. From 1982 to late 1984, Mr. Britton worked as vice president operations, University Community Hospital, in Tampa, Florida. Id. At Shands, Mr. Britton was also in charge of planning, and in that job, worked on several applications for certificates of need. T. 131. These certificates of need were quite substantial, one involving about $70 million for a proposed new hospital, and another for about $30 million in renovations. T. 132. Other certificates of need applications that he worked on included applications for neonatal services, radiology, and for helicopter service. T. 132. As vice president at University Community Hospital, Mr. Britton was similarly responsible for certificate of need applications, and worked on applications for cardiac catheterization, open heart surgery, and nuclear magnetic resonance imaging. T. 133. One of the applications for a certificate of need for which Mr. Britton was responsible concerned renovation of a children's mental health unit, but did not involve new beds. T. 138. All of his work with certificate of need applications involved work with need methodologies based upon the demographics of a service population. Id. Mr. Britton has been qualified on one prior occasion as an expert in emergency medical services or hospital administration. T. 135. He had not testified previously with respect to need for psychiatric services. T. 138.
Mr. Britton's testimony covered areas well within his general expertise. First, Mr. Britton selected the same rate of incidence of psychoses and neuroses among persons ages 0-17 in need of 24 institutional care as selected by the Tampa Heights expert. Thus, there was no dispute as to that basic rate and its genesis from Petitioner's Exhibit 5. Second, Mr. Britton applied a factor of 0.96 to reduce that rate, deriving this factor from Petitioner's Exhibit 10. Dr. Fagin was less conservative, proposing to use the
103 per 100,000 prevalence rate without adjusting for ages 0-11. If Mr. Britton erred, the error is not in the favor of the Petitioner. Third, Mr. Britton used the same mathematical formula as used by Dr. Fagin, including use of the 80 percent occupancy standard. Fourth, there was no dispute as to the accuracy of
the population figure used, and as discussed above, Dr. Fagin seriously erred in using a population figure for only ages 12-18. Fifth, the length of stay was primarily established by Mr. Kreis and testimony from Northside Community Mental Health Center, and Mr. Britton's expertise only corroborated that primary evidence. It is the conclusion of the Hearing Officer that Mr. Britton is as an expert in health planning for the testimony that he rendered in this case. TH PFF 30 is rejected for these reasons. and finding of fact 48.
Mr. Britton was deposed on July 5, 1885. He was questioned about several methodologies, and thought that he had been asked about three methodologies. T. 216. But it is clear from the cross examination of Mr. Britton during the hearing that none of the deposition testimony amounted to his opinion on July 25, 1985, as to need, with the exception of one statement: on July 25, 1985, Mr. Britton apparently was of the opinion that there was a net need for 105 beds. T. 219-220. All of the other deposition testimony appears to have simply been Mr. Britton responding to questions by counsel as to the results if various other methodologies were used; at no point did Mr. Britton admit that any of the alternative methodologies were ones that he adopted. He said that he considered various age ranges, and ultimately refined his opinion as he gathered data from professional literature. T. 204. In the deposition, Mr. Britton reviewed one version of inventory of available beds, but he never stated that the 479 beds identified were in fact available to serve long term adolescent needs. He clearly stated that "there was a great deal of confusion about that at that particular time, which I indicated I was in the process of sorting out" with respect to "what constituted inventory." T. 207 He characterized the list of 479 beds as a "mixture of facilities," Id. He later said that these beds were in short term facilities. T. 213. It should be remembered that earlier Mr. Britton had stated that he considered 8 wide variety of facilities in the District, and that due to various statistical problems, it was not possible to develop a precise number of beds available for long term patients, T. 153-155. The second method explored in the deposition was based upon the District VI local health plan of 1985, and was simply something that Mr. Britton "took into consideration." T. 218. In the deposition, he went through the local health plan and verified the numbers, T. 218, and stated that there was other information not yet available on July 25, 1985, upon which he intended to rely. T. 219, 223-224. This second method was the method used to determine need for short term psychiatric facilities. T. 224. None of the foregoing detracts from the ultimate credibility of Mr. Britton. It only reflects that various types of methodologies that he considered and ultimately rejected. (TH PFF 31.)
At a deposition on July 25, 1985, Mr. Britton testified that it was not possible to establish the number of beds available in District VI for long term adolescent care, and on cross examination, Mr. Britton explained that when he was asked that question, he had under consideration a wide variety of facilities throughout the District. He further explained that due to the practice of combining adult and adolescent beds and reporting irregularities, plus the inclusion of short term beds, it was not possible to develop a precise number of such beds as long term beds. T. 153-155. Rather than detract from the credibility of Mr. Britton as a witness, this answer adds to his credibility. As discussed above in other findings of fact, none of the parties presented evidence of high quality as to the availability of beds to provide long term adolescent care. Tampa Heights proposed to extrapolate from its own revenue experience to apply a 36.3 percent figure to all other facilities, and did so without any specific evidence to justify such as extrapolation. See findings of fact 11 and 32. HRS asked the Hearing Officer to consider the availability of beds within a two hour driving time without providing any
evidence as to the actual availability of out-of-District beds to serve District VI needs. And Tampa Heights applied the prevalence rate of psychoses and neuroses for adolescents needing 24 hour institutional care to the bed inventory provided by Mr. Kreis, which included halfway houses and acute care hospitals.
In sum, Mr. Britton's candor concerning the problems of precisely determining the availability of beds to serve the long term need of District VI adolescents adds to his credibility. (TH PFF 31.)
As discussed above, Mr. Britton considered and rejected several age groups in arriving at his final opinion. T. 204. That he did so is normal for an expert in arriving at an opinion, and his testimony coupled with his deposition testimony ultimately does not detract from his credibility on this point. He admitted that he looked at various lengths of stay, including 45 days (when he was analyzing short term bed need, T. 241 and Tampa Heights Exhibit 1), and 87.2 days, T. 242, but, as found earlier, Mr. Britton testified that there is no one definitive length of stay in the professional literature. T. 242. Moreover, Tampa Heights' expert, Dr. Fagin, used two lengths of stay, without explaining a detailed basis for either. Finally, it is true that Tampa Heights Exhibit 1 contains an analysis performed by Mr. Britton as of August 9, 1985, which contains a prevalence rate of 1,010 per 100,000. T. 237. But that rate is correct for the analysis performed on Tampa Heights Exhibit 1, which shows an analysis of short term (acute hospital) bed need. As Mr. Britton stated, it was not "his" rate, it was the rate for such need derived form the GMENAC study, Petitioner's Exhibit 5. T. 238. Tampa Heights Exhibit 1 is marked "working - notes," and, as discussed in earlier parts of this recommended order, it would be appropriate to use a rate for acute care psychiatric hospitals to determine need for such hospitals as one step in an analysis of determining to what extent such short term hospitals might in fact be available to serve long term needs. That Mr. Britton performed such an analysis is to his credit. For these reasons, TH PFF 32 is rejected.
The following are specific rulings upon the proposed findings of fact of the Petitioner which have not previously been identified in the above findings of fact, or which may contain sentences that have not specifically been addressed. The numbers which follow correspond to the numbers of Petitioner's proposed findings of fact:
Rejected because not factual in nature.
The facts proposed herein are dealt with in findings of fact 36-
38.
All of the facts proposed by Petitioner in proposed finding of
fact 13 are true, but irrelevant, since the methodology of Dr. Fagin, and his result, have been rejected for the reasons stated in findings of fact 18-35, and findings of fact 21 and 26 in particular.
Petitioner's proposed finding of fact 14 is adopted by reference.
Petitioner's proposed finding of fact 15 is adopted by reference.
Petitioner's proposed finding of fact 16 is adopted by reference.
Petitioner's proposed finding of fact 17 is a summary of Mr. Britton's calculations of need. The majority of these calculations were adopted, except that the average length of stay was found to be 180 days. Findings of fact 18-38 deal with Petitioner's proposed finding of fact 17.
Adopted by findings of fact 29, 30 and 47.
The following are specific rulings upon the proposed findings of fact of Tampa Heights which have not previously been identified in the above findings of fact, or which may contain sentences that have not specifically been addressed. The numbers which follow correspond to the numbers of Tampa Heights' proposed findings of fact:
TH PFF 14 is adopted by reference, except the last sentence. The testimony of pages 529-530 of the transcript was that "the need for care is greater than those people who demand care" because people who need care sometimes do not receive it. It cannot be concluded that calculations of need based upon estimates of need are overstated, or that demand statistics are more suitable, since the point of calculating "need" is to estimate the number of people who are in need, and not to exclude those who need care but are unable to obtain it.
Rejected for the reasons stated in findings of fact 18 through 38, and particularly 21 and 26.
TH PFF 16 is adopted by reference.
The first and last sentences were adopted in findings of fact 19 and 23. The second sentence was rejected by findings of fact 21 and 25.
TH PFF 18 was adopted, except that the adjustment factor of 0.96 was also adopted; see findings of fact 18 and 22.
Most of TH PFF 19 has be rejected in findings of fact 20 through
The rate of 103 per 100,000 cannot be applied solely to the population ages 12-18 for the reasons stated in finding of fact 21 and 25. The average length of stay is not as low as 90 or 120 days for the reasons stated in finding of fact 26.
TH PFF 20 uses a correct mathematical formula, but reaches an incorrect result for the reasons stated in the preceding paragraph.
TH PFF 21 is rejected for the reasons stated with respect to TH PFF 19, except that the 80 percent occupancy standard was adopted.
TH PFF 22, which concerns the correct inventory of beds available to serve the need, is rejected for the reasons stated in findings of fact 29 through 34.
TH PFF 23 is rejected as stated in finding of fact 30 and findings of fact which precede that finding.
TH PFF 24 has been adopted by findings of fact 31 through 34, to the extent that 36 percent of the short term beds identified by Tampa Heights were counted as available to serve long term needs. However, the resulting net bed need is rejected for the reasons stated above with respect to TH PFF 18-22.
TH PFF 25 is rejected by finding of fact 29.
TH PFF 26 is rejected due to differing calculations adopted above, see paragraphs dealing with TH PFF 18-22.
and 37.
TH PFF 27 is adopted to the extent stated in findings of fact 36
TH PFF 28 was adopted by finding of fact 38 to the extent that
such facilities exist, but the conclusion reached, that these facilities were shown by evidence to be available to serve District VI needs, is rejected for the reasons stated in finding of fact 38.
TH PFF 29 is rejected for the reasons stated in findings of fact
39 through 46.
TH PFF 30 was rejected in findings of fact 48 and 49.
TH PFF 31 was rejected in findings of fact 50 and 51.
TH PFF 32 was rejected in finding of fact 52.
TH PFF has been considered and ruled upon in findings of fact 20, 21, 25, and 31 through 34.
34-38. TH PFF 34, 35, 36, 37, and 38 are cumulative, and were completely contained in earlier proposed findings which have already been ruled upon.
TH PFF 39 has been adopted and rejected for the reasons stated in finding of fact 16.
TH PFF 40 has been adopted, in essence, in finding of fact 31.
TH PFF 41 is adopted by reference to the extent that there is no evidence that there are access travel to and from) problems with existing psychiatric facilities in District VI.
TH PFF 42 is adopted by reference. However, even with the addition of 22 long term beds, under any of the above calculations, there would still be a net need for the facility proposed by the Petitioner. Further, there was no evidence that Tampa Heights in fact intends to add 22 beds to its facility. Absent such evidence, the inference in TH PFF that 22 beds would be available to serve the needs of District VI is rejected.
TH PFF 43 is rejected as irrelevant, given the calculations of need contained in earlier protions of this - recommended order.
TH PFF 44 has been rejected for the reasons set forth in findings of fact 39 through 46.
There was no evidence of need for additional teaching or research facilities to be served by Petitioner, nor was there evidence of the adequacy of existing teaching or research facilities. TH PFF 45 is rejected as worded, and the above sentence is adopted as an alternative.
TH PFF 46 is rejected for the reasons stated in findings of fact
7 and 3. The testimony as to a national shortage of child psychiatrists was not sufficiently detailed to result in a finding that the Petitioner could not attract psychiatrists to provide treatment at its facility. In fact, the Petitioner showed consulting affiliation with one psychiatrist, Dr. Sugar, end a
plan for attracting staff. The vast majority of staff shown in Petitioner's Exhibit 2 are not psychiatrists, in any event. There was no other evidence of a shortage of other types of staff.
TH PFF 47, to the extent that it proposes that long term financial feasibility has not been shown, is rejected based upon the findings in finding of fact 17, since financial feasibility is largely determined by the existence of patients needing the service. Failure to present evidence from a financial expert does not cause a finding of a lack of financial feasibility where need is clearly demonstrated in the record. Although Mr. Jaffe questioned the amount that Petitioner stated it would receive per patient from the CYF" program, Mr. Jaffe did not correlate this with any evidence of the actual amount of CYF payments that should be substituted in place of Petitioner's estimates, and did not quantify the estimated revenue shortfall. Commitment from a bonding authority is not essential to show financial feasibility, since such commitment could not be expected until a certificate of need is granted.
TH PFF 48 is rejected based upon finding of fact 12.
TH PFF 49 is the same as proposed findings in TH PFF 37 and 42, which already have been ruled upon.
TH PFF 50 is rejected due to the analysis of need contained in the findings of fact above, finding a need for an additional 151 long term adolescent inpatient psychiatric hospital beds by 1990 in District VI, and finding of fact 16.
CONCLUSIONS OF LAW
Jurisdiction exists in this case pursuant to section 120.57(1) Fla. Stat.
Rule 10-5.11(26), Florida Administrative Code, provides certain criteria for determining the propriety of granting a certificate of need for long term psychiatric services, but does not establish a methodology for calculating patient need for such services. The parties have offered differing methods. As might be expected, the methods have differing results depending upon the inclusion or exclusion of certain data. These decisions depend upon resolution of the following issues:
Whether HRS may apply a non-rule policy that considers "like and existing" psychiatric facilities within a two hour driving time from the site of the Petitioner's proposed facility, even though such facilities are outside District IV.
Whether services currently provided by facilities having certificates of need for short term hospital inpatient psychiatric services should be considered in determining the need for long term psychiatric services.
The statute which establishes the framework for determining the propriety of granting a certificate of need, section 381.494(6)(c), Fla. Stat. (1984), establishes 13 criteria. Of these, 6 criteria expressly mention the word "district." Criterion 2 requires HRS to consider "the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health services and hospices in the service district of the applicant." Criterion 4 requires HRS to consider
the "adequacy of other health care facilities and services and hospices in the service district . . . which may serve as alternatives for the health care facilities and services to be provided by the applicant."
Rules adopted by HRS likewise limit consideration to consideration of "like and existing health care services" in the "applicant's health service area," which is defined essentially to mean the District. Rules 10-5.11(6) and 10-5.02(24), Florida Administrative Code.
From the foregoing it is clear that the determination of net need, following a consideration of the existence of "like and existing services," is usually based upon the existence of such services in the District of the applicant.
The Department of Health and Rehabilitative Services, however, also follows a non-rule policy with respect to long term psychiatric services that considers like and existing facilities, as well as alternative facilities, which are within a two hour driving time of the site of the applicant's proposed facility. The legal, issue raised by this policy is whether it is contrary to the statutes set forth above, which focus solely upon facilities within the District. It might be concluded that the expression of one set of criteria in the statute implies that the Legislature intended to prohibit the consideration of additional criteria (services within two hours but outside the District). This, however, seems to be an overly stringent construction of the certificate of need law, and contrary to the broad Legislative intent expressed in section 381.493(2), Fla. Stat., that the result be "the best possible service to the community," that "available alternatives" be considered, and that "every consideration shall be given to the elimination of unnecessary duplication of health services." There is no good reasons for HRS to not do both: to consider first existing facilities within the District (which may normally end the matter), and then to consider whether out of District facilities exist and have capacity to serve District needs. Since the foregoing is an entirely permissible construction of the statute, deference must be given to the agency's interpretation. Department of Professional Regulation v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984).
As found in findings of fact 36 and 37, the Department has adequately justified its non-rule policy on this record. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
The second issue, whether services currently provided by facilities having a certificate of need for short term hospital inpatient psychiatric services should be considered in determining the need for long term psychiatric services, is also answered by reference to the statute and rules. Criterion 4, section 381.494(6)(c)4, Fla. Stat. (1984), requires consideration of both the availability and adequacy of "other" services "which may serve as alternatives." Further, criterion 2 set forth above requires consideration of existing services which are "like" the ones proposed by the Petitioner.
HRS has determined to separate psychiatric hospital services into two categories for purposes of certificates of need. Rule 10-5.11(25) defines "short term hospital inpatient psychiatric services" as follows:
Short term hospital inpatient psychiatric services means a category of services which provides a 24-hour a day therapeutic milieu for persons suffering from mental health
problems which are so severe and acute that they need intensive, full-time care. Acute psychiatric care is defined as a service not exceeding three months and averaging a length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years.
The rule uses the phrases "short term hospital inpatient psychiatric services" and "general acute care psychiatric inpatient services" and "acute psychiatric care" interchangeably.
Rule 10-5.11(26), Florida Administrative Code, defines "long term psychiatric services" as "a category of services which provides hospital based inpatient services averaging a length of stay of 90 days." (E.S.)
It is obvious that HRS intended by these rules to issue two different kinds of certificates of need distinguished by length of stay. But the mathematical definitions adopted by the two rules overlap. Long term psychiatric services necessarily will provided hospital care to patients who stay for less than 90 days. In fact, to result in an average of 9-0 days, the mix of days spent less than 90 days must balance the mix of days spent more than
90 days. A patient who stays for less than 90 days is also, by the definition set forth above, a short term hospital inpatient psychiatric patient. It follows inescapably, therefore, as a matter of law that a facility that holds a certificate of need for "short term hospital inpatient psychiatric service" is a "like and existing service" with respect to patients who might also stay for less than 90 days in facilities providing "long term psychiatric services."
The Petitioner has attempted to show that in fact the methods of treatment it proposes to provide will be different from short term services provided by facilities such as those of the Intervenors. While this argument failed as a matter of fact, it fails as a matter of law as well. The two HRS rules do not distinguish long term and shirt term psychiatric services by distinguishing treatment modalities. The rules simply use length of stay as the sole criterion.
Thus, with respect to the second issue, it must be concluded that services currently provided by facilities having a certificate of need for short term hospital inpatient psychiatric services should and must be considered in determining the need for long term psychiatric services.
A witness may be qualified as an expert based upon study without practice or by practice without study. Copeland v. State, 58 Fla. 26, 50 So. 621, 624 (1908). A witness need not have previously had an occasion to personally perform a particular procedure, or to have had personal experience in the subject matter of the proposed expertise, so long as his or her knowledge generally about the subject has been adequately obtained from study, experience, or both. Hawkins v. Schofman, 204 So.2d 336 (Fla. 3d DCA 1967), cert. denied,
211 So.2d 215 (Fla. 1968); Seaboard Airline R.R. v. Lake Region Pecking Association, 211 So.2d 25 (Fla. 4th DCA), cert. denied, 221 So.2d 748 (Fla. 1968). As found in findings of fact 48 and 49, Mr. George Bri tton has sufficient training and experience to be designated an expert with respect to the subject matter of his testimony, health care planning. Mr. Britton had significant work experience with respect to Florida certificates of need. The statutes and rules governing this program require very similar kinds of analysis with respect to need, and Mr. Britton's expertise was confined to that subject
matter. Further, his business administration background, with emphasis upon health care, provided more than adequate training to perform the analysis that he performed in this case.
As a general matter, Petitioner's Exhibits 1, 2, 5, 9, and 10 are hearsay. Pursuant to section 120.68(1), Fla. Stat., hearsay evidence is admissible, but only to supplement and explain other evidence, and cannot itself support a finding. For this reason, these exhibits are now admitted into evidence. As hearsay evidence, they have been used in this Recommended Order only to supplement and explain other evidence as permitted by section 120.68(1), Fla. Stat. All of these exhibits are "of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs See section 120.68(1), Fla. Stat. Moreover, use of such hearsay evidence as the basis for the opinion testimony of expert witnesses in this case is proper because these exhibits clearly contain "facts or data . . . of a type reasonably relied upon by experts in the subject to support the opinion expressed . . . ." Section 90.704, Fla. Stat.
In view of the rulings made previously in findings of fact 48 through 52, and conclusions of law 13 and 14 above, Petitioner's Exhibits 6, 7, and 8 are now admitted into evidence. (Ruling had been reserved. T. 109.)
With respect to the criteria of section 381.494(6)(c), Fla. Stat., using the same numbers of the criteria in the statute, it is concluded that:
Need has been demonstrated. Although the local health plan shows no need, this aspect of the local health plan must be disregarded, in view of better evidence of need.
Like and existing services, both in the District and outside the District, have not been shown to be adequate to satisfy need. The Petitioner presented an adequate prima facie showing of need and the lack of existing facilities, and, as discussed in the findings of fact, no other party demonstrated the actual availability of the various other facilities proposed to satisfy the need.
The Petitioner has adequately shown its ability to provide quality of care, and no party has presented substantial evidence to the contrary.
As discussed in the findings of fact, and particularly findings 38 through 41, there is no substantial and competent evidence that there are alternative facilities actually available to satisfy need.
A 60 bed facility as proposed by the Petitioner would in and of itself provide economies of scale improving upon the smaller facility, Northside Community Mental Health Center, which has 24 approved beds.
This criterion is not applicable on this record. No party has attempted to show that Petitioner's hospital is needed in District VI to provide a service which is not accessible in adjoining areas.
This criterion is also not applicable on this record.
This criterion was satisfied. The Petitioner adequately demonstrated that resources would be available to operate this hospital, and that the facility will be located so as to be accessible to District residents.
The immediate financial feasibility of the project is not at issue, and the long term financial feasibility is assured due to the significant need shown in the record. Thus, this criterion is satisfied.
Needs of Health Maintenance Organizations is not an issue on this
record.
The Petitioner did not attempt to show that its proposed hospital
would provide a "substantial" portion of its services to "individuals not residing in the service district," and thus, this criterion is not at issue.
Given the substantial need shown in this record, it was found that Tampa Heights will not suffer a substantial loss of revenue from loss of patients to Petitioner. This will particularly be true over the long term. Moreover, if the policy behind the two rules of HRS is to be followed (distinguishing short term and long term patients), then it is not appropriate for patients staying over 90 days to continue to stay at Tampa Heights. See rule 10-5.11(25), Florida Administrative Code, which excludes from the definition of a short term patient any patient receiving services beyond "three months." There is no other evidence in the record that the proposed hospital will have an adverse effect upon competition for the supply of health services.
This criterion is stipulated to be not at issue.
With respect to the criteria of section 381.494(d), Fla. Stat., using the same numbers of the criteria as in the statute, it is concluded that:
While the parties attempted to show that less costly alternatives might exist, such as expansion of the facility at Tampa Heights, or use of halfway houses and acute care facilities as set forth by Mr. Kreis, for various reasons, the proof fell short of demonstrating that these were in fact reasonable alternatives. Tampa Heights did not present evidence of concrete plans to expand its facility, or the likelihood that it could obtain a certificate of need for long term care, and Mr. Kreis failed to show that the alternatives he described were in fact available to meet District needs for adolescent long term care.
This factor is not particularly relevant in this case, except to the extent that perhaps those facilities holding certificates of need for short term psychiatric care are being used inappropriately to care for patients beyond
90 days. This case does not need to resolve the question of whether it is unlawful for a short term psychiatric hospital to care for a patient beyond 90 days. The parties seemed to take it for granted that such continued care was permissible so long as the short term facility did not provide the majority of its care on such a basis. But the way HRS has promulgated its rule, rule 10- 5.11(25), to define short term care, it would seem that any care "exceeding three months" would be, by definition, not short term car e.
As set forth above in paragraph 1, alternatives to new construction were not shown to be feasible or available.
There was no showing that any particular patient had been unable to find long term care in the District. However, the statistical projections of need show a sufficiently great need that such evidence unnecessary. Inability of patients to obtain suitable long term care is inferred from statistical need.
This criterion is not applicable in this case.
With respect to rule 10-5.11(26), Florida Administrative Code, using the same numbers and letters as used in subparagraphs of that rule, it is concluded that:
(c)1. The only long term psychiatric beds in District VI are the 16 beds at Northside Community Mental Center, and the occupancy rate at that facility appears to be 72 percent, which is less than the rule criterion of 80 percent. (The occupancy rates of short term psychiatric beds, finding of fact 16, is relevant only in part to show the potential availability of such beds to fulfill part of the need for long term beds, and is not relevant to rule 10- 5.11(26).) Since, however, there is a net bed need for long term adolescent care of 161 beds by 1990, and since the current occupancy rate at Northside is nearly 80 percent now, it is reasonably probable that Northside will be at 80 percent occupancy very soon in the future. Moreover, the 80 percent criterion is not absolute, and need not be completely satisfied in an abnormal circumstance. In a major urban District such as District VI, which now has only a base of 16 long term adolescent beds, but has a gross bed need of at least 231 beds by 1990, the fact that the one District facility licensed for long term beds is not at 72 percent occupancy should not impede the development of new resources to meet need.
(c)2. This criterion was satisfied. Finding of fact 17.
(c)3. This criterion was satisfied. Finding of fact 9 and 38.
(c)4. This criterion was satisfied. Finding of fact 35. (As discussed in finding of fact 14, the inconsistency with the local health plan must be resolved in favor of finding of fact 35.)
This criterion was satisfied. Findings of fact 1, 2, 3, 5, 7 and
9.
This criterion was satisfied. Finding of fact 9.
It is concluded, therefore, that the Petitioner's proposal is
consistent with all relevant statutory and rule criteria and should be approved by the Respondent, with issuance of a certificate of need for the establishment and operation of a new 60 bed adolescent long term psychiatric hospital in Hillsborough County, Florida.
It is RECOMMENDED that the Department of Health and Rehabilitation approve the application of Petitioner and issue to it a certificate of need for the establishment and operation of a new 60 bed adolescent long term psychiatric hospital in Hillsborough County, Florida.
RECOMMENDED this 20th day of January, 1986, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986.
COPIES FURNISHED:
Robert S. Cohen, Esquire
Haben, Parker, Skelding, Costingan, McVoy & Labasky
P. O. Box 669
Tallahassee, Florida 32302
Jay Adams, Esquire Department of Health and
Rehabilitative Services 1317 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301
George N. Meros, Esquire
Carlton, Field, Wars, Emanuel, Smith & Cutler, P.A.
410 Lewis State Bank Building Tallahassee, Florida 32301
Susan Greco Tuttle, Esquire Moffit, Hart & Miller
401 South Florida Avenue Tampa, Florida 33602
David Pingree, Secretary
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jan. 20, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 20, 1986 | Recommended Order | When determining Certificate Of Need eligibility for long term facility HRS can consider like facilities outside district and services of short term facilities. |
