STATE OP FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY MEDICAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0046

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held before Larry J. Sartin, duly designated Hearing Officer of the Division of Administrative Hearings, on May 8, 1985, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Timothy H. Rearick

non-attorne representative 615 North Bonita Avenue Panama City, Florida 32401

For Respondent: David Gauldin, Esquire

Assistant General Counsel 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301

STATEMENT OF THE CASE

On June 14, 1984, the Petitioner, Bay Medical Center, filed an application with the Respondent, the Department of Health and Rehabilitative Services, for a certificate of need to acquire a linear accelerator. On October 17, 1984, the Respondent denied the Petitioner's application. By letter dated November 29, 1984, the Petitioner requested an administrative

hearing.

The Petitioner's request was forwarded to the Division of Administrative Hearings. The case was assigned case number 85-0046.

At the final hearing, the Petitioner presented the testimony of Timothy H. Rearick and the deposition testimony of Danny Lewis Quenton. Mr. Quenton is hereby accepted as an expert in radiological physics. The Petitioner offered Bay Medical Center Exhibits 1-4 into evidence. All were accepted into evidence except Bay Medical Center Exhibit 3. A ruling on the admissibility of Bay Medical Center Exhibit 3 was reserved. That exhibit is hereby rejected.

The Respondent presented the testimony of Reid Jaffe who was accepted as an expert in health planning. The Respondent did not offer any exhibits into evidence.

The Respondent submitted proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes (1984 Supp.). The Petitioner did not file any proposed findings of fact. A ruling on each of the Respondent's proposed findings of fact has been made directly or indirectly in this Recommended Order except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

ISSUE

Whether a certificate of need to acquire a linear accelerator should be granted to Bay Medical Center?

FINDINGS OF FACT

1. The Petitioner is a 284 bed general medical-surgical hospital located in Bay County, Florida. The Petitioner is owned and operated by Bay County.

   
   

2. The Petitioner presently uses two types of energy to treat patients requiring radiation treatment: orthovoltage and four megavolt linear accelerator. The four megavolt linear accelerator is used for 96% of the radiation treatments performed at the Petitioner's hospital and is used for deeper seated tumors than orthovoltage. The four megavolt linear accelerator is approximately eleven years old even though it only has a use life of approximately seven years.

   
   

3. During the fiscal year ending September 30, 1983, the four megavolt linear accelerator was used for 5,795 treatments. For the fiscal year ending September 30, 1984, it was used for 5,720 treatments. For the period beginning November 1, 1984 and ending April 30, 1985, it was used for 2,467 treatments.

   
   

4. Beginning in June of 1984, the number of treatments began to decrease. During the last twelve months, the four megavolt

   linear accelerator has been used for only 4,827 treatments. This trend was not explained by the Petitioner.

   
   

5. There are no providers of like and existing services in Bay County. Based upon this fact and the number of treatments on the Petitioner's existing equipment, it is clear that there are less than 6,000 treatments per year performed in Bay County. The voltage of linear accelerators varies. Patients with deeper seated tumors need to be treated by linear accelerators with a voltage capacity greater than that of the Petitioner's current equipment. Patients who currently need such treatment who reside in Bay County must travel to Dothan, Alabama or Pensacola or Tallahassee, Florida. These patients are often older patients and are often very ill.

   They have to receive, on average, twenty treatments; one treatment per day, Monday through Friday (sometimes through the weekend also). The Petitioner estimated that 10% of the patients seen by radiation therapists in Bay County are referred to other hospitals because the Petitioner does not have a higher voltage linear accelerator.

   
   

6. The Petitioner has applied for a certificate of need to acquire an eighteen megavolt linear accelerator. Due to the technological advances during the last ten years, certain types of cancers can be better treated by such a linear accelerator than with the Petitioner's existing equipment. This equipment would be in addition to its existing equipment. The Petitioner needs its existing accelerator and the higher voltage accelerator because the higher voltage accelerator can only be used for selected tumors while its existing accelerator can he used only for primary care. The cost of this equipment is $1,000,000.00. The Petitioner has also requested authority to acquire a simulator for $350,000.00. Other related costs total $735,000.00, for a total of S2,085,000.00.

   
   

7. The Petitioner has proved that there is a need for treatment by a linear accelerator with a higher voltage than it can now provide. The Petitioner, however, has failed to prove the extent of that need or that the need is great enough to conclude that the proposed additional equipment would be financially feasible.

   
   

8. The Petitioner has sufficient assets to finance the proposed addition. The Petitioner, however, has failed to provide any evidence to support a finding that the proposal can be operated in a financially feasible manner.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1984 Supp.).

10. Section 10-5.11(17), Florida Administrative Code, provides that a certificate of need to acquire and place in operation a linear accelerator will not be issued unless each existing "edition therapy unit" (cobalt, linear accelerator, betatron) within the health service area is performing "more than 6,000 treatments (patient visits) per year." The evidence clearly shows that this requirement has not been met.

    
    

11. Section 381.49116)(c), Florida Statutes (1984 Supp.), also specifies several criteria which must be met in order for the Petitioner's application to be approved. The burden of proving that the application in this case meets those criteria was on the Petitioner. Florida Department of Transportation v.

    J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

12. The Petitioner has failed to prove that there is a need for the linear accelerator it proposes to acquire sufficient to financially Support the proposal. The Petitioner has failed to prove that the proposal is financially feasible in the long-term.

RECOMMENDATION

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

RECOMMENDED that the certificate of need application filed by Bay Medical Center be denied.

DONE and ORDERED this 31st day of July, 1985, in Tallahassee, Florida.

LARRY J. SARTIN

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 31st day of July, 1985.

COPIES FURNISHED:

Timothv H. Rearick, non-attorney representative

615 North Bonita Avenue Panama City, Florida 32401

David Gauldin, Esq. Assistant General Counsel 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

BAY MEDICAL CENTER,

Petitioner,

vs. CASE NO. 85-0046

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

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 has submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended

Order is attached hereto as Exhibit A.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order. Accordingly,

It is ADJUDGED that the Certificate of Need application filed by Bay Medical Center is denied.

DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

A PARTY WHO IS A VERSELY 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, WITE THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE TEE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the following named people by U.S. Mail, at 3:30 p.m. o'clock,

this 4th day of October, 1985:

Timothy H. Rearick

615 North Bonita Avenue Panama City, FL 32401

David Gauldin, Esquire Assistant General Counsel Department of HRS

1323 Winewood Blvd.

Tallahassee, FL 32301

Larry J. Sartin, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

LESLEY MENDELSON, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Building One, Suite 407 Tallahassee, FL 32301 904/488-2381

Docket for Case No: 85-000046

Orders for Case No: 85-000046