STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MEDICAL PERSONNEL POOL OF TAMPA- ) ST. PETERSBURG, Inc., )
)
Petitioner, )
v. ) CASE NO. 85-2074
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
) MEDICAL PERSONNEL POOL OF TAMPA- ) ST. PETERSBURG, INC., )
)
Petitioner, )
v. ) CASE NO. 85-2075
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard on January 14-15, 1986, in Tallahassee, Florida, before Diane A. Grubbs, a Hearing Officer of the Division of Administrative Hearings
APPEARANCES
For Petitioner: Joel Marbury Rainer, Esq.
PARKER, HUDSON, RAINER & DOBBS
1200 Carnegie Building
133 Carnegie Way Atlanta, Georgia 30303
For Respondent: Linda S. Ledet, Esq.
CULPEPPER, PELHAM, TURNER & MANNHEIMER
Post Office Drawer 11300 Tallahassee, Florida 32302-3300
ISSUE
Whether the Department of Health and Rehabilitative Services should grant petitioners' applications for certificates of need for the establishment of Medicare certified home health agencies in Hillsborough and Polk Counties, Florida.
INTRODUCTION
On June 20, 1985, the Department of Health and Rehabilitative Services (HRS or Department ) transmitted to the Division of Administrative Hearings the petitions filed by Medical Personnel Pool of Tampa-St. Petersburg, Inc. (MPP or Personnel Pool) seeking a formal hearing concerning the preliminary decision of HRS to deny MPP's applications for certificates of need to establish a Medicare certified home health agency in Hillsborough County and in Polk County. 1/ The petitions for formal hearing both involve certificate of need applications for home health agencies in District VI which were comparatively reviewed, and therefore the petitions were consolidated.
At the hearing, MPP presented the testimony of Deborah Kolb, Ph.D, who is qualified as an expert in health care planning and health care finance, and Georgienne Stoler, the administrator of the Hillsborough and Polk Offices of MPP and an expert in home health administration. The respondent presented the testimony of James Michael McElreath, an expert in the fields of health care planning and certificate of need review in the State of Florida. Petitioner's Exhibits 1-4 and respondent's exhibits 1-10 were all received into evidence.
Prior to the hearing the parties filed a prehearing stipulation in which the parties stipulated as follows:
The parties stipulate that Personnel Pools' applications for a CON satisfy all relevant criteria for issuance of a CON under 381.494, Florida Statutes and Rule 10-5.11, Fla.
Admin. Code, with the sole exception that this stipulation does not include: (1) the issues of computation of need for the proposed CONs under the methodology of proposed Rule 10-5.11(14) or the validity of that methodology or any of the components thereof; or (2) the issue of the extent to which the proposed services would be accessible to all residents of the District.
The parties stipulated that the issues of law and fact which remained to be litigated were (1) the appropriate method of computation of need for home health services in District VI (2) the appropriateness of the methodology and related provisions of proposed Rule 10-5.11(14) and the components thereof and (3) the extent to which the proposed services would be accessible to all residents of the district.
Both parties timely filed proposed findings of fact and conclusions of law, and a ruling on each proposed finding of fact has been made in the appendix to this order.
FINDINGS OF FACT I. BACKGROUND
Medical Personnel Pool of Tampa-St.Petersburg, Inc., Hillsborough County, and Medical Personnel Pool of Tampa-St. Petersburg, Inc., Polk County, submitted certificate of need applications, numbered 3605 and 3606, to provide Medicare and Medicaid home health services to residents of Hillsborough and Polk counties, respectively. These counties are located within District VI.
In its applications; MPP proposes to provide a full range of home health services, including skilled nursing, physical therapy, occupational therapy, speech therapy, medical social work, and home health aide services to Medicare and Medicaid eligible patients in Hillsborough and Polk counties.
The applications were denied by the respondent in the state agency action report issued in April, 1985. Petitions for formal administrative proceedings were subsequently filed.
Prior to the hearing, the parties stipulated that MPP's applications met and satisfied all relevant criteria for the issuance of CONs under section 381.494, Florida Statutes, and Rule 10-5.11, Florida Administrative Code, with the exceptions that the stipulations did not include: (a) the issues of the correct computation of need for the proposed CONs under the methodology of proposed Rule 10-5.11(14) or the validity of that methodology; and (b) the issue of the extent to which the proposed services would be accessible to all residents of District VI.
II. THE APPLICANTS
Medical Personnel Pool of Tampa-ST. Petersburg, Inc. is an existing, fully operational home health agency, with offices in Tampa and Lakeland, Florida. Both offices are fully equipped
and staffed. While it is an existing home health agency, it is not Medicare certified. All patient care and administrative systems are in place, including office equipment and coordinators, supervisors, and administrative personnel. A staff of about 450 is employed in Tampa and a staff of almost 400 is employed in Lakeland. The great majority of these staff people are contract field employees who are not salaried but are paid only for work actually performed, About six of the employees at each office are permanent, salaried employees.
Both Hillsborough and Polk County offices of MPP provide nursing services at all levels, including companion aide, lie-in, home health aide, licensed practical nurse and registered nurse. MPP also provides therapists and a social worker. MPP is presently providing many of the new "high tech" home health care procedures, including hyperalimentation. MPP presently provides all the services that Medicare would require that they provide.
Personnel Pool currently has available the majority of staff that would be necessary to handle the additional growth that would accompany Medicate certification. Many of MPP's contract employees who are working only 8-10 hours per week could be available 40 hours a week. Further, MPP has never experienced problems in recruiting staff.
Both MPP offices provide 24-hour a day service. The Hillsborough office is open 16 hours a day and during the other 8 hours the calls are routed to the home of an employee who has the necessary files and books available at his or her home. The Polk County office is not open as many hours, but there is a coordinator in the office who has a complete set of client and employee files at her home, and she has an off-premises extension phone in her home. Therefore, MPP personnel handle calls on a
24-hour basis, rather than having an outside answering service.
Both offices have a wide range of existing referral services in place and functioning. The sources include physicians, nursing directors, social workers, trust officers, lawyers, and others. The MPP personnel also attend discharge planning meetings at a local hospital, another source of patient referral. The MMP administrator noted at one of the discharge meetings that there was difficulty in placing Medicaid and indigent patients. Presently, MPP can only accept private pay referrals however, MPP is constantly being asked by its existing referral services whether it can take Medicare or Medicaid patients.
MPP currently has a contract with an HMO in Tampa. However, MPP has not been able to contract with other HMOs because MPP is not a Medicare certified agency. Further, the HMO
MPP presently has a contract with will have to terminate that contract due to federal regulations which require that HMOs contract only with a Medicare certified agency, even though the services are being provided for an individual other than a Medicare recipient.
If MPP's offices were Medicare certified, all the required Medicare forms and manuals could be obtained immediately from MPP's corporate offices in Ft. Lauderdale. No capital expenditures or additional costs would be required to establish the MPP offices as Medicare certified agencies since they are at present fully operational.
III. INCREASED DEMAND FOR HOME HEALTH SERVICES
In recent years there have been significant innovations and reimbursement changes in the health care industry, both in home health and elsewhere, which have significantly increased the utilization of home health services.
In 1983, hospitals come under the new Medicare prospective payment system, whereby they are no longer reimbursed for their costs of providing care but are paid a fixed fee based on the diagnosis of the patient, the Diagnostic Related Grouping or DRG. Thus, a hospital now receives a fixed amount for each defined DRG service or procedure, regardless of the costs incurred by the hospitals in delivering that service. For example, if $3,000 is the set fee for an appendectomy, the hospital will receive $3,000 whether the actual cost to the hospital to perform the service is $2,000 or $4,000. This method of payment is encourages hospital to find ways to deliver services at lower costs. An obvious way to accomplish this is to shorten the length of the patient's stay in the hospital.
Indeed, since 1982 the length of stay in hospitals has decreased
significantly, both nationally and in Florida. The decrease in utilization of inpatient hospital services has resulted in an increased demand for home health services. Services previously performed in an inpatient setting are being shifted to home health providers to perform in the patient's home or to an outpatient basis with follow-up care in the patient's home.
The movement toward health maintenance organizations (HMOs) has also reduced utilization of hospital forms of care and shifted them into less expensive outpatient forms of care. The HMO does not rely on a fee for services provided method of payment, but rather agrees to provide needed health care to its participants within a set budget. If the cost of care exceeds the budget, the HMO suffers the loss. Therefore, there is pressure to get the patient out of the hospital as soon as
possible and at the same time reduce the risk of re-admittance by providing continuity of care.
Accompanying this shift away from inpatient hospital care has been an increase in the use and development of several "high tech" home health services. Advanced treatment and care procedures are now being widely provided in the home which a very short time ago were only provided in inpatient settings. These services include such procedures as hyperalimentation and various other forms of indirect tube feeding. The development of new modernized equipment has enabled these and other advanced procedures to be provided more inexpensively in the home.
Adding to the increase in demand for home health services is the unavailability of nursing home care. In 1985 the nursing homes in Florida were virtually full, having a 95% occupancy. Thus, patients are getting out of the hospital earlier without being able to get into a nursing home.
IV. LIMITED SUPPLY OF HOME HEALTH PROVIDERS
For approximately seven years prior to 1984, no CONs were issued to new home health agencies as a result of an HRS rule, known as the "rule of 300", which, as a thresh hold requirement for issuance of a CON, required that each of the existing agencies in the service area have an average daily census of 300 patients. The rule was invalidated in Department of Health and Rehabilitative Services v. Johnson and Johnson Home Health Care, Inc. 447 So. 2d 361 (Fla. 1st DCA 1984) with the court finding that the rule was arbitrary and "designed to protect the existing industry from competition." In response to the invalidation of the rule, HRS imposed a moratorium on home health agency CON approvals which was not lifted until 1985.
The freeze on home health agencies produced the predictable result. With the number of providers remaining the same and the demand for home health care increasing, the average agency size grew. Indeed, as Dr. Kolb stated, the average agency size not only grew, "it skyrocketed". Whereas nationally the average size of a Medicare-certified home health agency is between 8,000 to 13,000 visits annually, Florida's Medicare- certified home-health agencies, having been protected from competition, currently average 27,000 visits annually in size.
V. DETERMINATION OF NEED-THE METHODOLOGY
At this time there is no adopted rule for determining the need for additional home health agencies in Florida. Subsequent to the invalidation of the "rule of 300", HRS developed an new need methodology, set forth in proposed rule 10-
5.11(14), which was used by HRS in reviewing MPP's applications as a matter of "incipient policy". HRS asserts that proposed rule 10-15.11(14), with certain corrections, provides an appropriate methodology for determining needs. Since the hearing in this matter, the proposed rule, as a result of several aspects of its methodology, has been declared invalid.
The methodology, as stated in proposed Rule 10-5.11(14) is as follows:
Need Methodology. In addition to relevant statutory and applicable rule criteria to be used in considering the population's use of Medicate-certified home health agencies, the Department will determine the projected use of such home health services and the number of agencies to be allocated according to the following methodology:
N = g - L
Where,
N = the net number of home health agencies to be allocated in the relevant departmental district;
G = the gross number of home health agencies to be allocated in the relevant departmental district reduced to the nearest whole number;
L = the number of licensed and approved home health agencies in the relevant departmental district.
G = (MV x(A + B)/S)
Where,
MV = is the state mean number of visits standard per Medicare home health service user across age groups;
= 31.5;
A = the projected district population of persons 65 years of age or older (POPA) times the Florida Medicare home health services utilization rate standard for the population age 65 and over;
= POPA x.0496;
B = the projected district population of persons 0-64 (POPB) who are estimated to be disabled times the Florida home health services utilization rate standard for disabled Medicare beneficiaries;
= POPB x.01755 x.0297;
S = the number of expected Medicare visits per year per agency. S is obtained by adding to the base agency size of 9,000 visits a year an additional number of visits equal to the total number of Medicare visits in the projected year within a district divided by the base agency size which is then multiplied by a factor denoted as C according to the following schedule; for applications timely filed in calendar years 1984 and 1985, agency size will be multiplied by 270; for applications timely filed in calendar years 1986 and 1987, agency size will be multiplied by 225; and for applications timely filed in calendar year 1988 and onwards, the base agency size will be multiplied by 180.
However, if the result of this computation
exceeds 21,000 visits, S shall be assigned a value of 21,000:
= 9,000+ (MV x(A + B)/9,000 x C).
The two corrections or variations presented by HRS at the hearing to this methodology are: (1) that G is to be rounded up to the nearest whole number if equal to or greater than .5 and down to the nearest whole number if less than .5 and (2) that the constant in A is .0506 rather than .0496.
The basic approach of the proposed rule was to apply historical use rates for specific age cohorts of the population
65 and 65 and over to the projected population in those age groups in a given district in a future year, the "planning horizon", and translating that projection to the number of agencies or providers. This type of approach is referred to by health planners as a "utilization-based methodology". A utilization based approach is appropriate in projecting need for home health agencies. However, certain arbitrary aspects of the proposed rule made the application of the proposed rule unreasonable and illogical.
There are five steps included in the methodology of the proposed rule. The first step is to project the number of elderly Medicare recipients who would utilize home health services. This number is denoted by the letter "A". To calculate "A", one multiplies the district population aged 65 and
over, projected two years into the future, by a constant which represents the percentage of the elderly who have historically used home health services. In 1982, the percentage of elderly Medicare enrollees who used home health services in Florida was 5.06% (.0506) and HRS established this number as a constant.
The second step is to project the number of disabled Medicare recipients under 65 years old ("B") who will utilize home health services. To calculate "B", one multiplies the projected district population two years in the future under the age of 65 by the percentage of that population estimated to be disabled. In the proposed rule, HRS uses constants for both the proportion of the population under 65 years of age wich is projected to be disabled (.0175) and the portion of those disabled persons who would be expected to use home health services (.0297). As in the first step, these values are taken from 1982 Medicare utilization data for Florida. Thus, in the second step of the formula under the proposed rule, the number of under-65 disabled persons who are projected to need Medicare home health services equals the projected number of persons in the district under the age of 65 multiplied by .01755, the result of which is then multiplied by .0297.
The third step of the proposed rule's formula projects the number of Medicare home health visits in the district two years in the future, by multiplying the total projected number of people needing Medicate home health services (A+B) by the historical number of average visits per person in 1982 was 31.5 as derived from 1982 Medicare data. The total number of home health visits is projected as being equal to "A" plus "B" multiplied by 31.5.
The fourth step of the formula of the proposed rule calculates the number of needed Medicare home health agencies, given the number of projected Medicare visits calculated in the third step. The gross number of Medicare agencies projected as needed in the planning horizon ("G") is calculated by dividing the number of projected total Medicare visits by the expected number of Medicare visits per agency per year ("S"). "S" is determined through another calculation, and varies, depending upon the total number of projected Medicare visits in the district and the calendar year in which a CON Application is filed. "S" is obtained by adding to a presumed base agency size of 9,000 Medicare visits per yearr, an additional adjudted number of visits (the so-called "additive factor"). This adjusted number of visits equals the total projected number of Medicare visits divided by 9,000, then multiplied by what is called the "C" factor. The "C" factor varies with the calendar year in which an application is filed. For applications which are filed in 1984 and 1985, "C" is equal to 270. For applications filed in
1986 or 1987, "C" is equal to 180. If the calculation of "S" results in a number which is larger than 21,000, then "S" will be assigned to a value equal to 21,000. This means that the divisor "S", or the number of visits an agency is expected to provide, will range from 9,000 visits to 21,000 visits. Thus, districts will have different values for "S", and even within a district, the value of "S" may vary from year to year.
The fifth and last step of the formula is to calculate the net number of Medicare-Certified home health agencies needed ("N"). "N" is calculated by subtracting the number of "licensed and approved" agencies currently located in a district ("L") from the gross number of agencies projected as needed in the planning horizon, ("G"). HRS as a matter of policy includes so-called "crossover agencies" in the inventory of licensed and approved homes. "Cross-over" agencies are those that are located outside the district but are licensed to serve a specific county or counties within the district.
VI. PROBLEMS WITH THE HRS METHODOLOGY
There are three major problems which prevent acceptance of the HRS methodology as a valid means of determining need in this case: (1) its use of 1982 utilization rates and mean number of visits, (2) the computation of the "S" factor or expected number of Medicare visits per agency, including the use of the "C" factor in that computation (3) and the treatment of "cross- over" agencies. These problems, among others, caused the need methodology proposed in Rule 10-5.11(14) to be held invalid in Home Health Services and Staffing Association, et al. v State of Florida, Department of Health and Rehabilitative Services, DOAH Case No. 85-1377R (Final Order rendered March 12, 1986).
To support its incipient policy, HRS presented virtually no credible evidence as to the reasonableness of the use of the proposed rule methodology as modified. HRS's policy of using a constant set at 1982 utilization rates and mean numbers of visits to project future use is unreasonable because it does not consider the most current data and thus does not reflect shifts in the provision of health care services. Indeed, fixing the utilization rates at the 1982 level is particularly outdated because 1982 preceded implementation of the prospective payment system, which was discussed in paragraph 13. The use of the 1982 rates serves only on purpose, to artificially reduce the projected need.
Use of the additive factor in calculating "S" is unreasonable because it results in a "target agency size" that varies from district to district and year to year. The target agency size should reflect the economics of scale established by
the relevant data. There is no data to support a wide variation in optimum agency size and economics of scale from district to district and year to year. The testimony supports a finding that 9,000 visits per year represents a realistic point at which reasonable economics of scale are realized. Increasing the 9,000 visit base number by the "additive factor" does not produce a number that represents a more efficient agency size; it services no legitimate purpose and its function is only to reduce the number of agencies needed.
The C factor has no basis that is related to health care economics. It is a number calculated by HRS to manipulate the methodology to yield a net need for virtually no new agencies for several years. The only rationalization for the use of C is to allow HRS to control the growth of the industry such tat new agencies would be permitted only gradually over a period of years. However, not only was there no evidence presented to support the need for such controlled growth, the evidence clearly indicated that the C factor was designed to prevent growth. Further, the function of the methodology is to provide a formula to calculate need, and inclusion of the C factor in the methodology bears no relationship to the determination of actual need.
The treatment of "cross over" agencies under the department policy is questionable. Obviously, once the total or gross number of agencies needed to serve the district is determined, it is necessary to subtract from that amount the number of agencies that are currently licensed and approved to serve the district ("L") in order to determine the number of new agencies that are warranted. However, the "cross-over" agencies are not licensed and approved to serve the entire district. They are only licensed to provide services within specified counties within the district. Therefore; the inclusion of the "cross- over" agencies in "L" results in an inaccurate calculation of the net number of agencies needed to serve the district. 2/
Lastly, the appropriate planning horizon is two years from the date of the hearing, not two years from the date the application is filed.
VII. A NEED FOR HOME HEALTH AGENCIES IN DISTRICT VI
An objective set forth in the 1985-1987 State Health Plan is "It]o assure that the number of home health agencies in each service area promote the greatest extent of competition consistent with reasonable economies of scale by 1987." Modifying the methodology by using the 1983 utilization rates, eliminating the "additive factor", and using the appropriate planning horizon
provides a reasonable methodology for determining the number of home health agencies needed to "promote the greatest extent of competition consistent with reasonable economies of scale." The use of this modified methodology reflects the need for a substantially greater number of home health agencies in District
Even modifying the HRS Methodology only to the degree of eliminating the anti-competitive "additive factor" produces eighteen as the net number of agencies to be allocated to District VI.
ACCESS TO INDIGENTS
As of September, 1985, there were 58,690 Medicaid- eligible individuals in District VI, with 58.7% residing in Hillsborough County and 26.5% residing in Polk County.
In 1984, according to District VI Local Health Counsel, there were 6,147 Medicaid home health visits provided in the District, with few of the existing agencies in District VI provided any significant number of Medicaid visits. Three agencies provided 75% of the Medicaid visits. Applying the statewide average use rate to the 6,147 Medicaid home health visits indicates that about 256 Medicaid clients out of the 58,690 Medicaid eligible individuals in District VI received home health services.
The low levels of reimbursement for Medicaid patients have had the result that few of the home health agencies currently in District VI serve the Medicaid population. New agencies, however, can be required to serve the Medicaid population through conditions in their CONs.
Medical Personnel Pool has committed to allocate 2% of its gross annual visits from each office to to Medicaid patients to help meet the unmet need for Medicaid home health care. In addition to this Medicaid service and to help meet the unmet need in the district for indigent care, one totally uncompensated visit will be provided to an indigent patient for every 20 Medicare visits. This 1-for-20 ratio will result in a number of totally uncompensated visits in each year equal to 3.9% of MPP's gross projected visits. This indigent care policy for Medicaid and uncompensated care will be promoted to Personnel Pool's existing referral sources. No other existing home health agency in District VI is currently providing a level of indigent care comparable to that proposed by MPP.
To the extent that MPP receives any compensation from patients for what would otherwise be indigent care, these amounts will be used to increase the amount of indigent care remaining to be apportioned to persons truly in need. Regardless of what
amount of compensation Medical Personnel Pool receives for any of its services, it will provide 3.9% of its total gross visits as totally uncompensated care.
The Florida State Health Plan, 1985-87, emphasizes the need for increased access to home health services for Medicaid and indigent patients. The proposal by Medical Personnel Pool to provide 2.0% of its visits to Medicaid-eligible clients and 3.9% of its visits as totally uncompensated visits to indigent clients would improve the accessibility and availability of home health services to these groups. Since many providers have stopped providing service to Medicaid patients and since Medical Personnel Pool will commit to provide such services, the approval of these proposed Medicare home health agencies will improve access to indigents and underserved population groups.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
HRS analyzed petitioner's applications based on the methodology of proposed rule 10-15.11(14), which HRS had adopted as its incipient policy pending the rule taking effect. With the two modifications previously mentioned, HRS asserted at the hearing that use of the methodology of the proposed rule was considered by the Department to be the appropriate means to determine need as a matter of agency policy. Subsequent to the hearing, the proposed rule was declared invalid.
When an agency chooses to develop policy through administrative proceedings rather than by rule making, it is free to do so however, it must establish the reasonableness of such policy by competent substantive evidence during such administrative proceedings. McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977).
HRS totally failed to establish its methodology policy in this case. There is a complete lack of evidence showing a legitimate justification for the policy, and there is overwhelming evidence that integral parts of the methodology are arbitary and unreasonable. Therefore, the need methodology proposed by HRS must be rejected.
The evidence did establish, however, that employing a utilization-based methodology to project Medicare home health visits and then dividing the projected Medicare visits by the efficient agency size of 9,000 visits is an appropriate and valid method of quantifying projected need for home health agencies.
The use of such approach shows a clear need for home health agencies in District VI.
The only remaining issue, as stipulated by the parties, is the extent to which the proposed services would be accessible to all residents of the district. Both the State Health Plan and District VI Health Plan recognize the need for greater accessibility of home health care to the indigent population.
MPP has shown that its proposed services to the Medicaid and indigent population of District VI will increase the access of those populations to needed home health services.
A certificate of need application must be evaluated in light of all the relevant statutory and rule criteria. In this case the parties stipulated that the application met all the statutory and rule criteria other than evidence of need and accessibility. Medical Personnel Pool has established that a need for home health agencies exists in District VI, and that Medicare certification of its agencies would provide greater accessibility of home health services to the indigent.
Based upon the foregoing findings of fact and conclusions of laws, it is
RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting and issuing CON Nos. 3605 and 3606 to Medical Personnel Pool.
DONE and ENTERED this 25th day of April, 1986, in Tallahassee, Leon County, Florida.
DIANE A. GRUBBS, 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 25th day of April, 1986.
ENDNOTES
1/ MPP also filed a petition for formal hearing concerning its application for a certificate of need to establish a home health agency in Manatee County (Case No. 85-2073). However, that petition was voluntarily dismissed at the outset of the hearing, and the file of the Division of Administrative Hearings in that cause was closed by separate order.
2/ It is recognized that the proposed rule included a provision whereby the "cross-over" agencies could become licensed to serve the entire district. However, the demise of the proposed rule eliminated the need to determine whether these "cross- providers since, even as a matter of policy, their ability to become district-wide providers on a preferential basis was contingent on the rule taking effect.
COPIES FURNISHED:
Linda S. Ledet
Douglas L. Mannheimer, Esq.
P. O. Drawer 11300 Tallahassee, FL 32302-3300
Robert A. Weiss
The Perkins House, Suite 101
118 North Gadsden Street Tallahassee, FL 32301
Joel Marbury Rainer, Esq. 1200 Carnegie Building
133 Carnegie Way Atlanta, GA 30303
HRS office of Community Medical Facilities
1321 Winewood Boulevard
Tallahassee, FL 32301
William Page, Jr.
Department of Health
and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32301
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER
1.-5. Accepted generally in paragraphs 1-5.
6.-12. Accepted generally in paragraphs 5-11.
13.-14. Accepted as set forth in paragraphs 39 and 40. 15.-16. Accepted as set forth in paragraphs 17 and 18.
Accepted in paragraph 12.
Accepted as set forth in paragraph 13.
Accepted as set forth in paragraph 15.
Accepted as set forth in paragraph 16.
Accepted as set forth in paragraph 19.
Accepted in paragraph 22.
23,-27. Accepted as set forth in paragraphs 20, 23-27.
28. Accepted as set forth in paragraph 28.
29.-31 Accepted as to substance; however, rejected as finding of fact since these paragraphs consist of quotes from the final order entered in the rule challenge case. The subject matter of these paragraphs is addressed in paragraphs 29-
30 and 33.
32.-33 Rejected as unnecessary.
34.-36. Accepted as set forth in paragraph 34.
37. Accepted generally in paragraph 41. 38.-39. Accepted as modified in paragraph 37.
Accepted in paragraph 38.
Accepted in paragraph 41.
RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT
Accepted as set forth in paragraph 5.
Accepted to the degree it is a finding of fact in paragraph 1.
Rejected as unnecessary.
Accepted as stated in paragraph 41.
Accepted that HRS included "cross-over" agencies in its methodology (paragraph 27), but rejected that this should be done in paragraph 32.
6.-7. Rejected as unnecessary.
8.-11. Accepted in paragraph 19-21.
12.-13. Accepted to the degree that it reflects HRS's policy as addressed in paragraphs 23-27 rejected as a proper methodology in paragraphs 29-33.
Rejected in paragraph 33 however, even using the 1986 figures along with the proper methodology indicates a need therefore the finding of fact is irrelevant.
Rejected since HRS's methodology is invalid for reasons set forth in paragraphs 29-33.
Accepted that methodology is inappropriate in paragraphs 29-33. Reject that methodology is not unreasonable for reasons set forth in paragraphs 29-33.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
MEDICAL PERSONNEL POOL
OF TAMPA-ST. PETERSBURG, INC.,
Petitioner,
CASE NO. 85-2074
vs. CON NO. 3605
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/ MEDICAL-PERSONNEL POOL
OF TAMPA-ST. PETERSBURG, INC.,
Petitioner,
CASE NO. 85-2075
vs. CON NO. 3606
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 submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto. Exceptions to the Recommended Order were filed by HRS.
RULING ON EXCEPTIONS
HRS's exception to the last sentence of paragraph 32 under the Findings of Fact is granted in that the sentence is a conclusion of law. Furthermore, the sentence is incorrect as a conclusion of law. The crossover agencies licensed to serve Medicare patients in a District are properly counted in the inventory of home health agencies.
HRS's exception to paragraph 33 under the Findings of Fact is likewise granted in that it is a conclusion of law. It is incorrect in that a planning horizon measured from the date of the hearing is a violation of Gulf Court Nursing Center v. DHRS, et al 483 So 2d 700 (Fla. 1st DCA 1986).
HRS's last exception is granted as a clarification. The hearing officer did not reject in total the need methodology proposed by HRS.
FINDINGS OF FACT
HRS thereby adopts and incorporates by reference the findings of fact set forth in the recommended order except for the last sentence of paragraph 32 and paragraph 33. See discussion in ruling on exceptions.
CONCLUSIONS OF LAW
HRS hereby adopts and incorporates by reference the findings of fact set forth in the recommended order except as follows:
First, the hearing officers conclusion that crossover agencies should not be counted in the inventory is rejected. See discussion in ruling on exceptions. Second, the hearing officer's conclusion that the planning horizon should be measured from the date of the final hearing is rejected. The proper horizon is 2 years from the date of filing of the application.
Based upon the foregoing, it is
ADJUDGED, that Petitioner's application for certificate of need #3505 and #3506 are granted conditioned upon the provision of 2% of total visits to Medicaid eligible patients and 3.19% of total visits to other indigent patients.
DONE and ORDERED this 26th day of August, 1986, in Tallahassee, Florida.,
WILLIAM J. PAGE
Secretary
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:
Diane A. Grubb Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, FL 32301
Linda S. Ledet
Douglas L. Mannheimer, Esq. Culpepper, Pelham, Turner & Mannheimer
Post Office Box 11300 Tallahassee, FL 32303-3300
Joel Marbury Rainer, Esquire 1200 Carnegie Building
333 Carnegie Way Atlanta, GA 30303
Nell Mitchem (PDCFM)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U. S. Mail this 29th day of August, 1986.
R. S. POWER, Agency Clerk 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. 25, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 29, 1986 | Agency Final Order | |
| Apr. 25, 1986 | Recommended Order | Health and Rehabilitative Services methodology rejected. No justification for policy. Substantial evidence policy was arbitrary and unreasonable. Need demonstrated. Certificate Of Need issued. |
