STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEVERLY ENTERPRISES-FLORIDA, ) INC., d/b/a BEVERLY GULF COAST, )
(Columbia County), )
)
Petitioner, )
)
vs. ) Case No. 85-2884
) CON Action No. 3744
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
E. NIENOW, d/b/a ACRES ) MEMORIAL SERVICES and BEVERLY ) ENTERPRISES FLORIDA, INC., d/b/a ) BEVERLY-GULF COAST FLORIDA, ) INS., (Putman County) )
)
Petitioner, )
)
vs. ) Case No. 85-2894
) CON Action No. 3765
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) INVERNESS CONVALESCENT CENTER, )
)
Petitioner, )
)
vs. ) Case No. 85-2896
) CON Action No. 3762
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
EUSTIS LIMITED PARTNERSHIP, )
(Lake County) )
)
Petitioner, )
)
vs. ) Case No. 85-2899
) CON Action No. 3756
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) DIVERSICARE CORPORATION, )
)
Petitioner. )
)
vs. ) Case No. 85-2902
) CON Action No. 3747
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) BEVERLY ENTERPRISES-FLORIDA, ) INC., d/b/a BEVERLY-GULF COAST ) FLORIDA, INC., (Suwannee Co.), )
)
Petitioner, )
)
vs. ) Case No. 85-2903
) CON Action 3746
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) BEVERLY ENTERPRISES-FLORIDA ) INC., d/b/a BEVERLY-GULF COAST ) FLORIDA, INC., )
)
Petitioner, )
)
vs. ) Case No. 85-2943
) CON Action No. 3770
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
SOUTHERN MEDICAL ASSOCIATES, ) INC., )
)
Petitioner, )
)
vs. ) Case No. 86-0628
) CON Action No. 3766
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on June 25 and 26, 1986, at Tallahassee, Florida.
APPEARANCES
For Beverly Enterprises: Steven K. Boone, Esquire
Mark Hanson, Esquire.
P. O. Box 1596
Venice, Florida 34284
For Inverness Convalescent Robert S. Cohen, Esquire Center (ICC): P. O. Box 669
Tallahassee, Florida 32302 and
Beth Antrum-Berger, Esquire
P. O. Box 3269
Sarasota, F1orida 33517
For Eustis Ltd. Thomas W. Stahl, Esquire
Partnership: 104 South Monroe Street Tallahassee, Florida 32301
For Diversicare Corp.: Not present nor represented.
For Southern Medical Gary J. Anton, Esquire Association (SMA): P. O. Box 1019
Tallahassee, Florida. 32302
For DHRS: John F. Gilroy, Esquire DHRS-1323 Winewood Blvd Tallahassee, Florida 32301
These cases involve applications for Certificates of Need (CON) in District III which comprises 16 counties in north central and north west Florida. These applications were filed in the January 1985 Batching Cycle and were reviewed comparatively by DHRS who granted some 103 beds to several applicants. None of those beds are contested in these proceedings. Initially, some
34 applicants were involved in this consolidated hearing but all except those listed above filed voluntary dismissals before the hearing commenced. At the hearing Petitioners in Cases 85-2884, 85-2894, and 85-2943 voluntarily dismissed their petitions and Diversicare Corporation did not enter an appearance or present any evidence in support of its application in Case No. 85-2902.
Of those remaining applicants Inverness Convalescent Center seeks authority to construct and operate a 120-bed nursing home in Inverness, Citrus County, Florida; Eustis Limited Partnership seeks authority to add three (3) beds to its existing nursing home in Eustis, Florida, by converting private rooms into semi- private rooms; Beverly Enterprises (Suwannee County) seeks authority to add sixty (60) beds to its existing nursing home at Live Oak, Suwannee County, Florida; and Southern Medical Association seeks authority to construct and operate a free standing sixty (60) bed nursing home in Palatka, Putnam County, Florida.
Prior to the introduction of evidence the parties stipulated that under the bed rule methodology there is no need for additional nursing home beds in District III, and the only issue to be resolved is need for the proposed facilities; and those issues related to need such as access, utilization of existing facilities, and long-term financial feasibility. It was stipulated that the financial ability of the Petitioners to provide the proposed services, availability of personnel to operate these facilities, the adequacy of the facilities proposed, and the ability of the Petitioners to provide quality service are not issues in these proceedings.
At the hearing, Eustis Limited Partnership called one witness, Beverly Enterprises called ten witnesses, ICC called three witnesses, SMA called three witnesses, DHRS called one witness, and 51 exhibits were admitted into evidence, of which five are late filed exhibits. Of those, four are depositions of SMA witnesses and one is the deposition of a witness for Beverly. Exhibit 13 was never offered into evidence.
There are four applicants here seeking CONs and each submitted evidence to support its position. To simplify this Recommended Order, the salient facts relating to each applicant will be broken down under a heading for that applicant. Initial
facts below are those applicable to all petitioners, some to a greater degree than others.
Proposed findings have been submitted by the parties.
Treatment given those proposed findings is contained in Appendix A, attached hereto and made a part hereof.
FINDINGS OF FACT
The semi-annual census report by DHRS for District. III dated December 1, 1984, (Exhibit 23) indicated a need for 615 additional nursing home beds for the January 1985 review cycle. Although this report cautioned that changes in reporting and pending litigation or appeals could change the count of approved beds, nevertheless, most of the applicants for beds in the January 1985 batching cycle relied on this report as the basis for their applications. At the time this report was submitted, District III was subdivided into seven sub districts, and the need for each sub district was separately listed.
Prior to the completion of the review of the applications in the January 1985 batching cycle, some 500 nursing home beds in District III were allocated to applicants in earlier batching cycles whose applications had been denied for lack of need, and who were in the process of appealing those denials. Many of these applications had been updated and those beds were issued by DHRS pursuant to its then-current policy of issuing beds on a first come-first served basis. As a result, only some
beds were allocated to those applicants in the January 1985 batching cycle before the pool of available beds was depleted. Furthermore, rule changes became effective before the January 1985 batching cycle applications were reviewed which eliminated sub districts in District III.
Largely because of the allocation of beds to applicants in earlier batching cycles, but also due to population based changes in District III, the bed need methodology, using data current at the time of the hearing and computing need to January 1988, shows there will be an excess of 342 nursing home beds in District III in 1988. (Exhibit 33)
Eustis Limited Partnership
The initial application of Eustis was for 8 additional beds which involved construction costs. The amended application which was considered in this hearing is for three (3) beds with costs allocated only for the equipment and furniture needed to add a bed to three existing rooms. As amended, Eustis' application is very similar to the application of Oakwood Nursing Center who was granted a CON for the addition of three (3) beds without construction costs. At the time Oakwood's CON was granted, DHRS was in the process of granting CONs for 103 beds. At the time Eustis submitted its application, all of the 615 beds initially available had been dispensed and there was no need for additional beds. At this hearing, Eustis produced no evidence to show a need for the three (3) beds for which Eustis applied. The evidence submitted by Eustis primarily showed that by simply
adding a bed to three existing rooms, the cost per bed added was far less than would be the cost of constructing new facilities.
Inverness Convalescent Center (ICC)
ICC proposes to construct and operate a 120-bed nursing home in Citrus County at a cost of $3,400,000. (Exhibit 15)
Citrus County has four licensed nursing homes with a total of 430 beds and an average occupancy rate of less than 90% during the last reported six-month period. (Exhibit 17)- During the last quarter of 1985, the occupancy rate in Citrus County nursing homes was the lowest of the planning areas in District III, and in the first quarter of 1986, it was second lowest.
ICC contends the need formula doesn't apply to their application because they propose to serve special needs of the elderly, such as institutionalized patients, head trauma patients, etc. However, the only testimony presented indicating a need in Citrus County for such special services came from ICC owners and employees who live in New Jersey.
ICC further contends that since there are less than 27 nursing home beds in Citrus County per 1,000 residents over age 65, that an additional nursing home is needed in Citrus County. However, the 27-beds per 1,000 population is but one factor considered in determining need for nursing home beds. In short, ICC presented no evidence to show that need exists in Citrus County for the proposed facility.
Beverly Enterprises
Beverly's application is for a CON to add 60 beds to an existing 120-bed nursing home in Live Oak, Suwannee County, Florida, at Suwannee Health Care Center. This facility was opened in 1983 and reached full capacity in seven to nine months.
There are two nursing homes in Suwannee County; Suwannee Health Care Center, (HCC) and Advent Christian Village, Dowling Park (ACV). The latter is a church owned retirementc ~B community of 550 residents which provides a continuum of care on five levels. Although Advent Christian is not licensed as a life care community, it gives priority of admission to its 107 licensed nursing home beds to residents of the life care community. As a result, there are few vacancies available for persons living outside the retirement community. Advent - Christian has a waiting list of 32 on the active waiting list and
~20 on an inactive waiting list. People on waiting lists are told the wait is from one to five years for admission.
Suwannee HCC has an occupancy rate approaching 100% and a waiting list of approximately 50. As a result, the vast majority of Suwannee County residents needing nursing home care
are sent to a nursing home outside Suwannee County, usually in Gainesville, some 65 miles from Live Oak.
The planning area in which Suwannee County is located, formerly sub district 1 in District III, has five nursing homes with an average occupancy rate for the last three months of 1985 and the first three months of 1986, ranging from 96.91% to 99.75%. During the first three months of 1986, the occupancy rate of three of these nursing homes was greater than 99%' one as 98.7% and the lowest, Advent Christian, was 96.91% (Exhibit 17).
The patient mix at Suwannee ACC is over 80% Medicaid and approximately one-third black. The black population is about 30% of the total population in Suwannee County.
Suwannee HCC has had several superior ratings (Exhibits 9, 10), takes patients in order on the waiting list regardless of whether they are Medicaid or private pay, and has a very good reputation in the area for service.
DHRS personnel who approve Medicaid placement of patients, hospital employees who have the duty of placing patients in nursing homes, nursing home personnel, and private citizens with relatives in nursing homes, all confirmed the critical access problems of Suwannee County residents for local nursing home placement. Live Oak residents, for example, who need placement in a nursing home are usually sent outside Suwannee County, have their names added to waiting lists at nursing homes in Live Oak, and nursing homes closer to Live Oak than the nursing home in which they are placed, and move to the closer nursing home when a vacancy occurs. As a result, most of the vacancies at Suwannee HCC are filled by patients who were, first transferred outside Suwannee County for nursing home placement, and got on the waiting list at Suwannee HCC. There are very few patients from Suwannee County who are initially placed in a Suwannee County nursing home.
Southern Medical Associates (SMA)
SMA proposes to construct and operate a free standing, 60-bed, skilled nursing home in Palatka, Putnam County, Florida, at a cost of $1,692,400. (Exhibit 19)
When SMA's application was submitted the computation of bed need in Suwannee County under the sub district rule in effect when the application was submitted, showed 30 beds needed in Putnam County. This calculation included 36 beds earlier approved but not yet licensed. At the time of this hearing those approved 36 beds had been revoked by reason of not beginning construction in a timely fashion.
The medical consultant who reviewed these applications and prepared most of the State Agency Action reports, (Exhibit
30) initially recommended that SMA'S application be granted.
The two existing nursing homes in Putnam County have an occupancy rate in excess of 98 percent for the latest reported 3 month period. (Exhibit 17) 85 to 90 percent of these patients are Medicaid patients.
The one nursing home in Palatka, Putnam Memorial Nursing Home, is a 65-bed nursing home with an occupancy rate in excess of 99 percent for the past year, and on the date of hearing had 18 people on the waiting list for a bed. The turnover in this nursing home is about 50 percent each year, with most vacancies resulting from the death of a patient.
Two HRS employees whose job it is to determine eligibility of residents of Putnam County for Medicaid reimbursement for nursing home care, testified that they very, seldom see a patient go to Putnam Memorial Nursing Home, that over half of the patients they qualify for eligibility are sent out of the county, and of those placed in the county, almost all are placed at Lakewood Nursing Home which is located 18 miles from Palatka.
The only hospital in Putnam County discharges 5 to 6 patients per month who need additional nursing care after discharge. Most of these patients are sent to nursing homes in St. Augustine, Florida, a few are sent to Lakewood, but for very few is a bed available in Palatka.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Under the bed need methodology rule there are no nursing home beds needed in District III for the horizon year of 1988. Accordingly, unless some special need can be shown, apart from that determined by the bed need methodology rule, the applications must be denied.
Section 381.494(6)(c), Florida Statutes, establishes the criteria upon which applications for Certificate of Need shall be determined. Those criteria here applicable are:
The need for the health care facilities being proposed in relation to the applicable district plan and state plan .
The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like
and existing health care services and hospices in the service district of the applicant.
The ability of the applicant to provide quality of care.
The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant, such as outpatient care and ambulatory or home health care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant.
9. The immediate and long-term financial feasibility of the proposal.
These statutory criteria have been further interpreted in Rule 10-5.11(21), Florida Administrative Code. Rule 10- 5.11(21)(b)10, Florida Administrative Code, provides in pertinent part:
In the event that the net bed need allocation is zero, the applicant may demonstrate that circumstances exist to justify the approval of additional beds under the other relevant criteria specifically contained in the Department's Rule 10-5.11. Specifically, the applicant may show that persons using existing and like services are in need of nursing home care but will be unable to access nursing home services currently licensed or approved within the sub district. Under this provision the applicant must demonstrate that those persons with a documented need for nursing home services have been denied access to currently licensed but unoccupied beds or that the number of persons with a documented need exceeds the number of unoccupied and currently approved`' nursing home beds.
In these proceedings, the evidence was clear that residents of Suwannee County, and specifically the City of Live Oak, have a serious access problem in obtaining nursing home care in Live Oak, and the same is true in Putnam County and Palatka. In both of these areas local residents needing nursing home care are forced to travel a considerable distance from their residence
to obtain access to nursing home facilities. This creates an undue burden on the patients and on their families by increasing the travel distance required to visit those placed in nursing homes some distance away.
No such need was shown for the additional beds sought by Eustis Limited Partnership, despite the low cost of adding these beds, or by those sought by Inverness Convalescent Center. The planning sub district in which ICC seeks authority to construct a 120-bed nursing home is one of the lowest priority, areas in District III for additional nursing home beds.
From the foregoing it is concluded that despite the lack of need for additional nursing home beds in District III, under the bed need methodology rule, an access problem exists in both Suwannee County and Putnam County so as to justify awarding CONs to Beverly Enterprises to add 60 beds to its facility at Live Oak, and to SMA to construct and operate a 60-bed free standing nursing home in Palatka, Florida. These beds will be quickly filled by local residents and these projects are financially feasible. No need for additional beds was shown by ICC or Eustis Limited Partnership. It is,
RECOMMENDED that Beverly Enterprises-Florida, Inc., d/b/a, Beverly Gulf Coast-Florida, Inc., be granted a Certificate of Need to add sixty (60) beds to its existing nursing home at Live Oak, Florida. That Southern Medical Association be granted a Certificate of Need to construct and operate a sixty-bed nursing home in Palatka, Florida. That the application of Eustis Limited Partnership for a Certificate of Need to add three beds to its facility at Eustis, Florida, be denied and the application of ICC to construct and operate a 120-bed nursing home at Inverness, Florida be denied. It is further
RECOMMENDED that the petitions of A. E. Nienow (Case 85- 2894), Diversicare Corp. (Case No. 85-2902) and Beverly Enterprise (Cases 85-2884 and 85-2943) be dismissed.
DONE AND ENTERED this 9th day of September, 1986, at Tallahassee, Florida.
K.N. AYERS, 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 9th day of September, 1986.
COPIES FURNISHED:
Steven K. Boone, Esquire Mark Hanson, Esquire
P. O. Box 1596
Venice, Florida 34284
Robert S. Cohen, Esquire
P. O. Box 669
Tallahassee, Florida 32302 and
Beth Antrum-Berger, Esquire
P. O. Box 3269
Sarasota, Florida 33517
Thomas W. Stahl, Esquire
South Monroe Street Tallahassee, Florida 32301
Gary J. Anton, Esguire
P. O. Box 1019
Tallahassee, Florida 32302
John F. Gilroy, Esguire DHRS1323 Winewood Boulevard Tallahassee, Florida 32301
Kenneth W. Kern, II, Esquiree Regional Manager
Diversicare Corporation 1321 U. S. 19 south
Clearwater, Florida 33546
APPENDIX
Treatment accorded to Beverly's proposed findings.
Accepted. Those facts not included in Hearing Officer's #13 are deemed immaterial to conclusions reached.
Accepted insofar as included in Hearing Officer's #12.
Accepted. Portions not included in Hearing Officer's #10 are deemed immaterial to conclusions reached.
Included in Hearing Officer's #10.
Immaterial except insofar as it impinges in Findings of Fact #6.
Included in Hearing Officer's #15.
Included in Hearing Officer's #11 and #12.
Included in Hearing Officer's #11.
Included in Hearing Officer's #9.
Accepted. Omitted as being immaterial and unrelated to need.
Included in Hearing Officer's #14.
Accepted.
Rejected as immaterial to question of need.
Accepted. Not included as unnecessary to conclusions reached.
Included in Hearing Officer's #15.
Rejected as immaterial to issue of need.
Accepted.
Rejected as opinion of non-expert witness.
Accepted as testimony of witness.
Included in Hearing Officer's #11.
Included in Hearing Officer's #11 and in Conclusions of Law.
Included in Hearing Officer's #15.
Included in Hearing Officer's #10.
Included in Hearing Officer's #10.
Included in Hearing Officer's #10.
Included in Hearing Officer's #10.
Accepted.
Included in Hearing Officer's #10.
Accepted.
Included in Hearing Officer's #10.
Included in Hearing Officer's #10.
Included in Hearing Officer's #15.
Accepted as the opinion of the witness of need.
Accepted as testimony of witness
Rejected as not an issue in these proceedings.
Rejected as included in bed need methodology rule.
Accepted insofar as included in Hearing Officer's #3.
Accepted.
Accepted insofar as included in Hearing Officer's #1 and #2.
Included in preamble.
Included in Hearing Officer's #2.
Included in Hearing Officer's #2.
Included in Hearing Officer's #2.-
Included in Hearing Officer's #2.
First sentence rejected as not supported by the evidence. Balance of proposed findings accepted.
Rejected as redundant and repetitive.
Rejected as immaterial to issue of need.
Accepted.
Included in Hearing Officer's #11.
Included in Hearing Officer's #11.
Included in Hearing officer's #11.
Included in Hearing Officer's #11.
Rejected as opinion.
Accepted. Parties stipulated that financial feasibility is an issue in these proceedings only insofar as it relates to need.
Accepted. Parties stipulated that financial feasibility is an issue in these proceedings only insofar as it relates to need.
Accepted. Parties stipulated that financial feasibility is an issue in these proceedings only insofar as it relates to need.
Accepted. Parties stipulated that financial feasibility is an issue in these proceedings only insofar as it relates to need.
Accepted. Parties stipulated that financial feasibility is an issue in these proceedings only insofar as it relates to need.
Accepted. Parties stipulated that financial feasibility is an issue in these proceedings only insofar as it relates to need.
Treatment accorded SMA's proposed findings.
Included in Hearing Officer's #1.
Accepted.
Included in preamble.
Accepted. Not included as immaterial.
Included in Hearing Officer's #1.
Accepted. Not included as immaterial.
Included in Hearing Officer's #17.
Included in Hearing Officer's #19.
Included in Hearing Officer's #17.
Rejected as legal conclusion.
Accepted. Omitted as unnecessary to conclusions reached.
Accepted. Partly included in Hearing Officer's #18.
Included in Hearing Officer's #18.
Included in Hearing Officer's #18.
Rejected as immaterial.
Rejected as immaterial.
Rejected as contrary to the testimony of Dudek.
Accepted. Not included as immaterial.
Accepted. Not included as immaterial.
Accepted as mere testimony of witness.
Included in Hearing Officer's #3.
Accepted.
Rejected as Conclusion of Law.
Accepted as a primary basis for Hearing Officer's recommendation.
Rejected as immaterial.
Accepted. Not included as immaterial.
Accepted. Included in hearing Officer's #20.`~'
Accepted.
Included in Hearing Officer's #19 and #20.
Included in Hearing Officer's #19 and #20.
31. | Accepted. | Not included as immaterial. | |
32. | Rejected | as | immaterial to issue of need. |
33. | Included | in | Hearing Officer's #21. |
34. | Included | in | Hearing officer's #21. |
35. | Included | in | Hearing Officer's #21. |
36. | Rejected | as | immaterial to issue of need. |
37. | Rejected | as | opinion of non-expert witness. |
38. | Rejected | as | immaterial. |
39. | Included | in | Hearing Officer's #21. |
40. | Included | in | Hearing Officer's #21. |
41. | Accepted. | ||
42. | Rejected | as | opinion of non-expert witness. |
43. | Included | in | Hearing Officer's #22. |
Included in Hearing Officer's #22.~
Included in Hearing Officer's #22.
Included in Hearing Officer's #22.
Included in Hearing Officer's #22.
Accepted, but immaterial to issue of need.
Rejected as opinion of non-expert witness.
Accepted.
Included in Hearing Officer's #20.
Included in Hearing Officer's #20.
Accepted as undisputed testimony of witness.,
Included in Hearing Officer's #19.
Included in Hearing Officer's #19.
Accepted as undisputed testimony of witness.
Rejected as opinion of non-expert witness.
Rejected as opinion of non-expert witness.
Rejected as immaterial.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted. Not included as immaterial to issue of need.
Accepted. Not included as immaterial to issue of need.
Accepted. Not included as immaterial to issue of need.
Accepted as testimony of witness.
Accepted as testimony of witness.
Accepted as opinion testimony of non-expert witness.
Accepted.
Rejected as immaterial to issue of need at the 1988 planning horizon.
Accepted. Not included as immaterial.
Accepted. Not included as immaterial.
Accepted. Not included as immaterial.
Accepted insofar as included in Hearing Officer's #19.
Accepted. What the plan states is immaterial.
Accepted. Not included as immaterial to need.
Included in Hearing Officer's #19.
Accepted.
Accepted. Noted as a stipulation in preamble.
Treatment accorded ICC proposed findings.
Included in preamble.
Included in Hearing Officer's #7.
Included in Hearing Officer's #7.
Included in Hearing Officer's #7.
Accepted.
Included in Hearing Officer's #2.
Accepted.
Included in Hearing Officer's #3.
Included in Hearing Officer's #3.
Included in Hearing Officer's #2 and #3.
Included in Hearing Officer's #2.
Accepted.-
Accepted.-
Included in Hearing Officer's #3.
Rejected as not supported by competent evidence.
Accepted.
Accepted.
Accepted as testimony of witness but not of fact.
Accepted as testimony. Immaterial on issue of need.
Accepted. Immaterial since this factor is included in bed need methodology rule.
Omitted as immaterial.
Omitted as immaterial.
Accepted. Not sufficient to show need.
Rejected as speculation unsupported by credible evidence.
Rejected.
Treatment accorded Eustis proposed findings.
Accepted.
7 2. Rejected. At time of hearing there was no waiting
Rejected. These factors are immaterial to issue of need.
Included in Hearing Officer's #4.
Accepted insofar as included in Hearing Officer's #4.
Rejected as opinion.
Included in Hearing Officer's #4.
Included in Hearing Officer's #4.
Accepted. Immaterial to issue of need.
Included in Hearing Officer's #4.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
INVERNESS CONVALESCENT CENTER,
Petitioner,
vs. Case No. 85-2896
CON No. 3762
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/ EUSTIS LIMITED PARTNERSHIP
LAKE COUNTY,
Petitioner,
vs. Case No. 85-2899
CON No. 3756
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/ BEVERLY ENTERPRISES-FLORIDA
IND., d/b/a BEVERLY GULF COAST-FLORIDA, INC. (SUWANNEE COUNTY),
Petitioner,
vs. Case No. 85-2903
CON No. 3746
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
SOUTHERN MEDICAL ASSOCIATES, INC., d/b/a PALATKA HEALTH CARE CENTER,
Petitioner,
vs. Case No. 86-0628
CON No. 3766
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.
RULING ON EXCEPTIONS
Inverness Convalescent Center (Inverness) excepts to the hearing officers conclusion that the percentage of elderly over age 75 in Citrus County was immaterial. This exception is denied as all parties stipulated there was no need under the Rule methodology and the percentage of elderly over age 75 is a factor in the methodology; thus, it is not a special circumstance. The Hearing Officer properly weighed the evidence supporting Inverness' position that there were special circumstances justifying a CON despite lack of need under Rule 10-5.11(21)(b). He properly concluded that Inverness failed to show that special circumstances outweighed lack of numeric need under the Rule.
Federal Management Property County v. DHRS 482 So 2d 475 (Fla. 1st DCA 1986), Humana v. DHRS 492 So 2d 388 (Fla. 4th DCA 1986).
Inverness exception to the occupancy rates found by the Hearing Officer is denied in that the finding is supported by competent substantial evidence.
Inverness relies on Gulf Court Nursing Center v. DHRS et al
483 So 2d 700 (Fla. 1st DCA 1986) in excepting to the counting of beds awarded prior to Gulf Court under the previous "first in line, first in right" policy. Such a retroactive application of Gulf Court is contrary to the sound health planning requirement that approved beds be counted in determining whether need exists.
Furthermore, the parties stipulated there was, no numeric need. The exception is denied. It is noted that Mandate on Gulf Court was not issued until March 18, 1986.
Inverness also relies on Gulf Court in excepting to HRS policy of adjusting the projected need on the basis of updated population, utilization, and inventory data. While Gulf Court limited de novo review it did not eliminate every aspect of de novo review. Use of updated data is proper under Gulf Court and the exception is denied.
Eustis Limited Partnership (Eustis) excepts to the Hearing Officers finding regarding a waiting list at Eustis. The Hearing Officers finding is supported by competent substantial evidence. Furthermore, the occupancy at a single facility, Eustis, is not dispositive and in the context of the evidence presented would not constitute a special circumstance justifying approval despite lack of numeric need under Rule 10-5.11(21)(b).
The exception is denied.
Eustis exception regarding Oakwood is denied in that Eustis and Oakwood were not comparative reviewed in this proceeding.
The requirement of Section 381.494(6)(c)1, Fla. Stat., that HRS consider need in relationship to the local health plan prevails over the requirement of Section 381.494(7)(b)1, Fla.
Stat., be promulgated by rule; thus, Eustis' exception is denied for the following reasons.
It appears that HRS has violated Section 381.494(7)(b)1, Fla. Stat., by failing to promulgate as a rule those elements of the District IX local health plan "necessary" for review of the instant application for a certificate of need; specifically here, the elements concerning calculation (allocation) of net bed need by sub districts.
What result flows from this conclusion? Section 381.494(7)(b)1, Fla. Stat., does not give a clue as to what the result should be. Moreover, that section must be construed on an equal basis with Section 381.494(6)(c)1, Fla. Stat., which mandates that HRS consider need in relationship to the local health plan. It would be a bizarre result indeed if the agency could avoid the mandate of Section 381.494(6)(c)1, that it must consider the local health plan, by violating the mandate of Section 381.494(7)(b)1, that it must adopt elements of the local plan as rules. Resolution of this apparent conundrum is found in federal law. Section 300m-6(g) of Title 42, U. S. C. A., cited in Gulf Court, sup a, 483 So. 2d at 706, provides that "in approving or disapproving applications for certificates of need...a State Agency shall take into account recommendations
made by health systems agencies with the State under Section 3001-2(f) of this title." Moreover, 42 C. F. R. Section 123.412(a) provides that the State Agency must review applications for certificates of need against a number of criteria, including in subparagraph (1) "the relationship of the health services being reviewed to the applicable health systems man " The health systems agencies and health systems plan were the predecessors of the local health councils and local health plans in place today. University Medical Center, Inc. vs.
Department of Health and Rehabilitative Services, 483 So 2d 712 (Fla. 1st DCA 1986). Thus, the requirement of Section 381.494(6) (c)l, Fla. Stat., that HRS consider need in relationship to the local health plan is a requirement of federal law. For this reason, Section 381.494(6)(c)1 must be given full force and effect. In the case at bar, the provisions of the local health plan which pertain to need must be considered even though HRS has not adopted these as rules, in violation of Section 381.494(7)(b)1, Fla. Stat. There may be other remedies available for thee violation of Section 381.494(b)1, but disregard of Section 381.494(6)(c)1 and federal law is not one of them.
Eustis exceptions to the counting of beds awarded prior to Gulf Court and the adjustment of projected need are denied for the reasons discussed in the ruling on exceptions filed by Inverness.
Southern Medical Associates (Southern) motion to sever and for separate final orders is denied. HRS finds it is unnecessary to address the exceptions filed by Southern in view of the decision to grant the CON sought by Southern.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
HRS adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except as follows:
In reaching his conclusion that Beverly's CON application number 3746 to add 60 beds to its facility in Suwannee County should be approved, the Hearing Officer disregarded HRS uncontroverted evidence that there are 60 beds presently approved in Suwannee County (Exhibits 31-35). This cannot be considered harmless error in light of the Hearing Officer's findings of fact in paragraph 9 and 10. There are only two nursing homes in Suwannee County with a total of 227 beds. Thus, the 60 approved beds not considered by the Hearing Officer will significantly
increase the inventory of beds in Suwannee County, and should abate the access problem. HRS rejects the recommendation that Beverly's application for certificate of need 3746 be approved. See Humana v. DHRS 492 So 2d 388 (Fla. 4th DCA 1986), and Federal Management Property company v. DHRS 482 So 2d 475 (Fla. 1st DCA 1986).
Based upon the foregoing, it is
THEREFORE, adjudged that 1. Inverness Convalescent Centers application for CON number 3762 bed denied, 2. that Eustis Limited Partnership application for CON number 3746 be denied, 3. that Beverly's application for CON number 3746 be denied and, 4. that Southern Medical Associates' application for CON number 3766 for a 60 bed nursing home in Putnam County be granted.
DONE and ORDERED this 26th day of November, 1986, in Tallahassee, Florida.
WILLIAM J. PAGE
Secretary
Copies furnished to:
Steven K. Boone, Esquire Mark Hanson, Esquire
P. O. Box 1596
Venice, Florida 34284
Robert S. Cohen, Esquire
P. O. Box 669
Tallahassee, Florida 32302
Thomas W. Stahl, Esquire
104 South Monroe Street Tallahassee, Florida 32301
Gary J. Anton, Esguire
P. O. Box 1019
Tallahassee, Florida 32302
John F. Gilroy, Esguire DHRS1323 Winewood Boulevard Tallahassee, Florida 32301
Kenneth W. Kern, II, Esquiree Regional Manager
Diversicare Corporation 1321 U. S. 19 south
Clearwater, Florida 33546
Certificate of Service
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 2nd of December, 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
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
| Issue Date | Proceedings |
|---|---|
| Sep. 09, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 02, 1986 | Agency Final Order | |
| Sep. 09, 1986 | Recommended Order | Absent need under bed methodology rule special conditions of need must be shown before additional beds can be awarded. |
