STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PLANTATION GENERAL HOSPITAL, Petitioner, vs. | ) ) ) ) ) CASE | NO. | 86-1535 |
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, and SOUTH BROWARD HOSPITAL DISTRICT d/b/a MEMORIAL HOSPITAL, HOLY CROSS HOSPITAL, NORTH RIDGE GENERAL HOSPITAL and FLORIDA MEDICAL CENTER, Intervenors. | ) ) ) ) ) ) ) ) ) ) ) ) ) |
)
) NORTH BROWARD HOSPITAL DISTRICT ) d/b/a NORTH BROWARD MEDICAL CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1536
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings on December 11, 12, 15, 17, 18, 19, 22 and 23, 1986 and January 5, 1987. A transcript of proceedings was filed and the parties submitted proposed recommended orders. Rulings on the proposed findings of fact are made in the Appendix to this Recommended Order.
APPEARANCES
For Plantation Ronald K. Kolins, Esquire General Hospital: West Palm Beach, Florida
For North Broward John Parker, Esquire Hospital District: J. Marbury Rainer, Esquire
Jon Rue, Esquire Atlanta, Georgia
For Department of Health and
Rehabilitative R. Bruce McKibben, Jr., Esquire Services: Tallahassee, Florida
For South Broward
Hospital District Kenneth F. Hoffman, Esquire and Holy Cross Eleanor Joseph, Esquire Hospital: Tallahassee, Florida
North Ridge Steve Ecenia, Esquire General Hospital: Tallahassee, Florida
Florida Medical Eric B. Tilton, Esquire Center: Kenneth D. Kranz, Esquire
Tallahassee, Florida ISSUE
The issue is whether the applications of Plantation General Hospital and North Broward Hospital District, d/b/a North Broward Medical Center for certificates of need for open heart surgery programs should be granted.
STIPULATION CONCERNING APPLICABLE STATUTES
A prehearing stipulation was filed in which the parties agreed that the criteria found in Section 381.494(6)(c), Florida Statutes (1985), apply in determining whether the open heart surgery programs should be approved. Not all of these criteria are in dispute, however. By stipulation the criteria found in Section 381.494(6)(c)3., 4., 6., 7., 8. (except as to economic accessibility),
9. (as it relates to the immediate and long-term financial feasibility of those proposals), 10., 11. and 13. are either not in dispute or are inapplicable.
With respect to the rule governing open heart surgery programs, the parties have stipulated that the provisions of Rule 10-5.0ll(1)(f)1., 3., 4. (except as it relates to underserved population groups), 5., 6. (except as it relates to equipment lists and costs) 9. and 10. are inapplicable or not in dispute.
It is also stipulated that if Rule 10-5.011(1)(f) applies on a district wide basis, the application of the formula set forth in sub-paragraph (1)(f)8. using 1984 or 1985 Broward County (District X) open heart surgery use rates applied to 1987 Broward County population forecasts by the Governor's Office results in an average of less than 350 annual procedures per existing provider in the District. The parties also agree that each existing and approved open heart surgery program in District X is not currently operating at 350 open heart surgery cases per year.
Procedural Background
FINDINGS OF FACT
General
On October 15, 1986 Plantation General Hospital (Plantation) filed an application to establish adult and pediatric open heart surgery programs and a pediatric cardiac catheterization program. On October 16, 1986 North Broward Medical Center filed an application to establish an open heart surgery program. Both applications were denied by the Department of Health and Rehabilitative
Services for reasons stated in its state agency action report issued on February 27, 1986. Both North Broward Medical Center and Plantation sought formal proceedings on their applications. North Ridge General Hospital, Memorial Hospital, Holy Cross Hospital and Florida Medical Center intervened in the proceedings. North Broward Medical Center updated its application on September 1, 1986. Plantation General Hospital updated its application on September 29, 1986, and deleted the pediatric open heart and pediatric cardiac catherization portions of the application.
The Parties
North Broward Medical Center (North Broward) is a 419-bed acute care hospital in Pompano Beach owned by the North Broward Hospital District (District), a special taxing district created by the Legislature to provide hospital services to residents of the northern two-thirds of Broward County.
The District operates a multi-hospital system. The other hospitals, are Broward General Medical Center (Broward General), a 715-bed acute care hospital in east central Broward County, Imperial Point Medical Center, a 200-bed acute care hospital, and Coral Springs Medical Center, a 200-bed acute care hospital which opened in early 1987. The District has a single medical staff for all four hospitals. North Broward offers many cardiac services, including cardiac catheterization and some cardiac surgery procedures. Its catheterization lab opened in January, 1986. The lab will perform between 350 and 400 catheterizations during its first year.
Broward General, the largest of the District hospitals, has a full cardiology program including a catheterization lab in which not only diagnostic catheterizations are performed, but also therapeutic catheterizations, (including balloon angioplasties) and has an open heart surgery program. It is not a party to this case.
Plantation is a 264-bed full service general medical surgical hospital in Plantation, Florida. It offers many cardiac services, including diagnostic cardiac catheterization. It began its catheterization services in April, 1985 and in the first eight months performed 300 catheterizations. Approximately 500 catheterizations were performed its first year.
South Broward Hospital District is the special taxing district created to provide hospital services to residents of the southern one-third of Broward County. It owns a single hospital, Memorial Hospital. Memorial is a 737-bed tertiary care hospital. It began operating an open heart surgery program in 1983 and provides a complete range of cardiac services, excluding heart transplants.
Holy Cross Hospital is a 597-bed not-for-profit acute care hospital sponsored by the Sisters of Mercy, an order of nuns based in Pittsburg, Pennsylvania. It provides cardiac services including open heart surgery, but not including heart transplants. Its open heart surgery program began in 1976.
North Ridge General Hospital is a 395-bed acute care hospital located in Fort Lauderdale. It offers full cardiac services excluding heart transplants; 34 percent of its hospital admissions are cardiac related. It has had an open heart surgery program for 11 years.
Florida Medical Center is a 459-bed acute care hospital located in Fort Lauderdale approximately three and one half miles from Plantation. It provides a broad range of cardiac surgery excluding transplants and was the first open heart surgery program in Broward, opening in December, 1974.
II. Statutory Criteria For Evaluating The Application Under
Section 381.494(6)(c), Florida Statutes.
Consistency with the State Health Plan
and Local Health Plan. Section 381.494(6)(c)1. Florida Statutes.
The State Health Plan specifically addresses both cardiac catheterization services and open heart surgery. The plan recognizes a large body of research demonstrating a relationship between the number of procedures performed and surgical death rates; programs with low volume have higher mortality. One of the plan objectives is to maintain an average of 350 open heart surgery procedures per program in each district through 1990.
The State Plan recognizes it is not advisable to open cardiac catheterization units in a facility which does not provide open heart surgery, and that "consideration" should be given to applications for open heart surgery facilities which provide cardiac catheterization. The State Plan does not state or imply, however, that every facility with a catheterization program should also have open heart surgery.
The State Plan specifically recognizes there is support within medicine for cardiac catheterization labs not associated with open heart surgery programs. Florida currently has a significant number of hospitals with catheterization programs which do not perform open heart surgery.
Neither the State nor Local Health Plans link approval of open heart surgery programs at a facility to the number of catheterizations being done at an institution.
The District X (Broward County) Health Plan for 1985 states that each existing open heart surgery program must be performing at least 350 cases annually before additional programs will be considered.
The parties have stipulated that each existing and approved open heart surgery program in Broward County is not currently operating at 350 open heart surgery cases per year.
The District X Health Plan concludes that accessibility to either catheterization or open heart surgery is not a problem for residents of District X.
The District plan recommends that "[N]ew cardiac catheterization or cardiac surgery programs should not be approved unless they meet or exceed the standards and criteria set forth by HRS." The plan does not specify circumstances which the Local Health Council identifies as justifying a departure from those standards.
Nowhere in the District X Health Plan's examination of available cardiac services is evaluation based on anything other than a district-wide basis. The Local Health Council has neither adopted subdistricts for cardiac
services nor manifested through its plan any indication that new cardiac services should be examined on anything less than a district-wide basis. Division of the county north and south or east and west should not be done in determining the need for open heart surgery in Broward; the county should be looked at as a unit.
Plantation has argued that there are different medical communities in the east and west portions of Broward County and that physician referral patterns are such that State Road 441 is a dividing line between east and west medical communities. It maintains that Florida Medical Center is the only open heart provider located in the west, and thus operates almost without competition in western Broward, and without competitive stimulus to affect cost or quality of service. In the absence of sub-districting by the Local Health Council, ad hoc balkanization of the county is inappropriate. Neither of the applications satisfy the criteria of the Local Health Plan.
Insofar as Rule 10-5.0ll(1)(f)7., Florida Administrative Code, requires applications to be consistent with the Local Health Plan and the State Health Plan, both applications failed to meet that portion of the rule.
Availability, Utilization, Geographic Accessibility and Economic Accessibility Of Facilities In The District.
Section 381.494(6)(c)2., Florida Statutes.
As to service accessibility, open heart services are available within two hours under average travel conditions for at least 90 percent of the District X population. The Local Health Council has found that accessibility does not present a problem to the residents of District X. Open heart surgery is available to patients in Broward County, including indigents who are able to receive treatment at Broward General without regard to ability to pay.
As to utilization, none of the five existing providers of open heart surgery in Broward operates at capacity. North Ridge can easily handle 150 more open heart surgery cases per year with its current staffing. Broward General is working 4 hours per day 4 days a week to do 230 open heart surgeries. Holy Cross performs only 235 procedures per year in its two operating rooms dedicated to open heart surgery. Florida Medical Center performs about 400 open heart surgeries in its two dedicated operating rooms. Memorial Hospital can handle twice its 1986 rate of 355 open heart procedures without difficulty.
The record as a whole indicates there is currently substantial excess capacity in the existing open heart surgery programs in District X. This will continue through the planning horizon. While there may be occasional scheduling problems at any of the 5 current providers of open heart surgery at times of peak demand, these anecdotal problems do not support a finding that open heart surgery is inaccessible or that current providers are overutilized.
North Broward failed to demonstrate that there is any concentration of hispanic migrant workers in northwest Broward in need of open heart surgery services that are not receiving them and which it, as a tax supported institution, would serve.
There is no issue as to the applicants' ability to meet the standard enacted in Rule 10-5.011(1)(f)(3), Florida Administrative Code, which implements Section 381.494(6)(c) 2., Florida Statutes.
Quality of Care
Section 381.494(6)(c)3., Florida Statutes
Additional open heart programs would reduce the number of procedures done in the existing programs and thereby affect quality of care, for an open heart surgical team needs to perform a considerable number of procedures to remain proficient.
Efficiency and communication among the entire surgical team is important to lower operating time and time under anesthesia. The team consists of the surgeon, an assistant surgeon, surgical nurses, the pump profusionist, the anesthesiologist, the hospital intensive care unit, the monitoring units, and physical and respiratory therapy units.
In 1986 North Ridge performed about 600 open heart procedures. Florida Medical Center performed about 404; Memorial performed approximately
355, Broward General Medical Center performed 235, and Holy Cross performed 235. All provide high quality care.
Holy Cross Hospital and Broward General Medical Center have not reached the 350 procedure volume required by Rule 10-5.011(1)(f)11. (I), Florida Administrative Code. Memorial and Florida Medical Center are just over the 350 procedure volume set in the rule and will drop below that number if Plantation is approved, which would degrade the quality of care at those institutions.
Economies And Improvement In Services Derived From Shared Health Care Resources Section 381.494(6)(c)51 Florida Statutes.
Plantation did not contend that its proposal would result in economies and improvements from joint, cooperative, or shared health care resources.
North Broward proposes to share the same open heart surgical team that is now being using by Broward General, a larger hospital owned by the North Broward Hospital District. North Broward has no contract with the surgeons at Broward General to insure that they will staff its open heart surgery program if it is approved.
If the volume of open heart surgery at North Broward grows to occupy its current open heart surgeons full time, additional surgeons can be added to the group of surgeons who serve Broward General. A witness for North Broward testified that this would still constitute a shared service program. Such an elastic definition of a "shared service", based on whether all surgeons are in a group practice together rather than on whether actual procedures are done together, is useless.
National Health Planning Guidelines published in the Federal Register on March 28, 1978 state than an open heart surgery program should reach 200 cases within three years in order to be cost effective and to have a high level of care, and that additional programs should not be approved unless all existing programs have reached the level of 350 cases per program. 43 Fed.Reg. 13048. These standards are generally incorporated in Rule 10-5.011(1)(f) governing open heart surgery programs. The federal regulation also states that in special circumstances, a shared surgical team may perform fewer than 200 cases if they
are performing open heart surgery in more than one institution; in such cases procedures at each institution may be aggregated to reach the 200 case level.
The Federal Register states
"In some areas open heart surgical teams, including surgeons and specialized technologists, are utilizing more than one institution. For these institutions the guidelines may be applied to the combined number of open heart procedures performed by the surgical team where an adjustment is justifiable in line with Section 121.6(B) and promotes more cost effective use of available facilities and support personnel. In such cases, in order to maintain quality care a minimum of 75 open heart procedures at any
institution is advisable. . . ." 43 Fed. Reg. 13048
Section 121.6(B) states that adjustments may be made by local health systems agencies (now local health councils) to the standards set in the Federal guidelines for important reasons, e.g. increased cost of care for a substantial number of patients in the area if the guidelines are followed, or if residents of the service area do not have access to necessary health services. Special circumstances which have justified the use of a shared surgical team under the federal guidelines have been to provide indigent care, geographic accessibility, trauma service, or to meet the needs of a teaching hospital. While special circumstances may justify the use of a shared team, a shared team is not a special circumstance in and of itself. A reading of the entire portion of the federal guidelines dealing with shared surgical teams leads to the conclusion that the circumstances in which those guidelines authorize the use of shared surgical teams to operate open heart surgery programs that would not otherwise meet the National guidelines are not present. North Broward's proposal to use a shared open heart surgical team with Broward General does not enhance its application.
The Extent To Which The Proposed Services Will Be Accessible To All Residents Of The Service District.
Section 381.494(6)(c)8., Florida Statutes
The parties stipulated that the Petitioners' meet the considerations of criteria 8 regarding health manpower, management personnel and funds for capital and operating expenditures, and that the other portions of subsection 8 are inapplicable, except for the clause concerning the extent to which the proposed services are accessible to all residents of the service district.
The proposed services at North Broward would be economically accessible to the residents of the service district. North Broward serves patients without regard to their financial resources. It currently cares for indigents in its cardiac catheterization laboratory. Its filings with the Hospital Cost Containment Board for 1987 budget 19.5 percent of its charges as unpaid because rendered to indigents. The budget also projects Medicaid deductions as 5.2 percent of total revenue. By comparison, North Ridge and Holy Cross project 0 percent Medicaid deductions in their 1987 budgets. North Ridge projects only 3.7 percent and Holy Cross 4.5 percent for uncompensated indigent care. Florida Medical Center's performance shows only 0.1 percent Medicaid and
6.1 percent uncompensated care, which includes bad debt. None of the current
open heart surgery providers which are privately owned has a particularly good record in providing access to indigents. On the other hand, indigents generally do not significantly utilize open heart surgical services.
Plantation's current Medicaid utilization approximates 2 percent. There is no indication that Plantation's proposal will significantly enhance economic accessibility of open heart surgery services to indigents in District
X. It has given no undertaking that it will provide any particular level of service to indigents. While Plantation will accept patients when a physician with staff privileges chooses to admit the patient, there is no showing that physicians at Plantation have any significant indigent patient load.
Probable Impact Of The Proposed Projects
On The Cost Of Providing Open Heart Surgery
Services. Section 381.494(6)(c) 12., Florida Statutes
There is no need in the district for a new program and the approval of additional programs will have an adverse economic impact on existing providers by diluting the number of procedures now being performed by existing programs. For example, Plantation is physically near Florida Medical Center. Much of the cardiac surgery and therapeutic catheterization (angioplasty) performed on patients who receive diagnostic catheterization at Plantation is now being done at Florida Medical Center. Patients who have diagnostic catheterization usually have their open heart surgery or angioplasty at the hospital where their catheterization was performed. Thus if Plantation receives approval for its open heart surgery program, most of those patients who receive cardiac catheterizations at Plantation would have their angioplasty or open heart surgery done there rather than at Florida Medical Center. Florida Medical Center has not attached a particular dollar loss figure to the impact of the approval of Plantation's open heart surgery program. Approval of the Plantation program will result in a pre-tax income decrement to North Ridge of approximately $416,000 in the 12 months ending December 31, 1989. Memorial Hospital would probably lose $690,000 in net revenue if Plantation is approved. Holy Cross would lose about 15 percent of its heart patients.
II. Factual Findings Concerning The Rule Criteria Against
Which The Application Must Be Evaluated
Rule Hethodology. Rule 10-5.011(f)8.
The parties have stipulated that applied on a District-wide basis, the formula set in Rule 10-5.011(f)8., using the 1984 or 1985 District X open heart surgery use rate applied to the 1987 population forecast for Broward County by the Governor's Office results in an average of less than 350 procedures annually for the existing providers in Broward County. Moreover, each existing and approved open heart surgery program in Broward is not currently operating at 350 open heart surgery cases per year. According to the evidence from the Department of Health and Rehabilitative Services, the methodology shows need for
4.4 open heart programs in Broward County. HRS Exhibit 1.
Minimum Service Volume For Existing Applicants, Rule 10-5.011(1)(f)ll. Florida Administrative Code.
The rule also requires that the service volume of each existing and approved open heart program be at least 350 adult open heart surgery cases per
year. Holy Cross and Broward Medical Center have not reached the 350 minimum service volume in 1986. Memorial and Florida Medical Center just reached that level in 1986.
The Abnormal Circumstance Exception Rule 10-5.011(1)(f)2., Florida Statutes
The rules of the Department of Health and Rehabilitative Services provides that the "Department will not normally approve applications for new open heart surgery programs in any service area unless the conditions of sub- paragraphs 8. and 11. . . . are met". As shown in the discussion above, those sub-paragraphs are not met by the applications and unless an abnormal situation prevails in Broward County, the applications should be denied.
Service Accessibility
Rule 10-5.011(1)(f)4., Florida Administrative Code
The parties stipulated that each of the Petitioners meets the requirements of service accessibility involving travel time, hours of operation and waiting. The only issue remaining is the criterion dealing with underserved population groups. There is no persuasive evidence that there are any underserved population groups in Broward County, i.e. Medicare, Medicaid or indigent patients. Broward General has additional capacity to serve such patients.
Service Quality
Rule 10-5.011(1)(f) 5., Florida Administrative Code
The parties stipulated that Petitioners' applications meet the criteria of this rule, except as logistically affected by North Broward's shared surgical concept, and the applicant's ability to achieve a minimum service volume. The application of North Broward meets the rule criteria insofar as having an adequate number of appropriately trained personnel for the program. The problem is that with the shared surgical team it is physically impossible for the team to be in two hospitals at the same time. Both applicants would achieve the necessary volume of 200 procedures within 3 years.
Cost Effectiveness
Rule 10-5.011(1)(f)6., Florida Administrative Code
The parties stipulated that both applicants' proposed equipment lists and costs are not in dispute. The charges to be made for open heart surgery at Plantation and North Broward would be comparable with charges established by similar institutions in the service area. Mere competition, given five existing providers, would insure this. There is, however, a less costly alternative to the institution at Plantation and North Broward of open heart surgery programs: Further use of the existing programs which do not meet the minimum 350 procedure service level required by Rule 10-5.011(1)(f)11., Florida Administrative Code. The cost effectiveness component of Rule 10-5.011(1)(f)6. has not been met by either applicant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1985).
The applicants must prove that they are entitled to a certificate of need. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985).
North Ridge General Hospital, Holy Cross Hospital, Memorial Hospital and Florida Medical Center have standing to contest the applications as existing providers of the same service in the same service district. Florida Medical Center v. Department of Health and Rehabilitative Services, 484 So.2d 1292 (Fla. 1st DCA 1986).
The applications of both North Broward and Plantation are inconsistent with the State Health Plan and the District X Health Plan. The existing providers of open heart surgery in Broward are not performing currently at least
350 cases per year. The District X residents have no problem with geographic or economic accessibility to open heart surgery services.
Existing open heart surgery programs are available, efficient and accessible alternatives to the proposals by North Broward and Plantation. The existing programs have additional capacity, and quality of care would be benefited from increased utilization at existing programs. All programs in Broward provide a high level of care in their open heart surgery programs.
With respect to the application by North Broward, the proposal to use a shared surgical team does not enhance the application. North Broward has an elastic view of what constitutes a shared surgical team, and has suggested that if volume increases at North Broward or Broward General, surgeons could be added to the current surgeons' group practice as needed without violating the concept of a shared surgical team. Under such a proposal several surgeons could perform relatively few surgeries thereby having an adverse impact on the surgical team's proficiency. The current surgeons of Broward General have a substantial practice there and cannot truly be a shared team with North Broward. The North Broward Hospital District is fulfilling its duty to make open heart surgery available to indigents with its program at Broward General.
Rule 10-5.011(1)(f)(previously numbered Rule 10- 5.11(16), Florida Administrative Code), has been determined to be a valid rule. North Broward Hospital District vs. Department of Health and Rehabilitative Services, DOAH Final Order Case 86- 1186R, issued July 18, 1986. The rule specifies that HRS will not normally approve new applications for open heart surgery programs unless the conditions of sub-paragraphs 8. and 11. are met. The parties stipulated that the numerical need calculations shows no need for additional programs. Whether exceptional circumstances justify approval is a discretionary conclusion of law. Bayonet Point Regional Medical Center vs. Department of Health and Rehabilitative Services, 8 FALR 4339, HRS Final Order, August 22, 1986. In Federal Management Corp. v. Department of Health and Rehabilitative Services, 482 So.2d 475 (Fla. 1st DCA 1986) the court stated
"The Department's determination that factors other than the numerical need projected by the rule do not reach the level of exceptional circumstances so as to justify deviation from the rule methodology is a conclusion of law and is therefore a matter within the permissive range of agency discretion." Id. at 477.
Although existing institutions may be able to handle increases in demand by adding additional capacity, such as additional open heart surgery suites, the structure of the need methodology looks at the number of procedures performed in the district as the threshold for approving new programs. This assures that internal increases in capacity by existing providers will not forever prevent new programs from obtaining approval.
Although the rule provides that new programs will "not normally" be approved unless the rule methodology shows need it does not spell out criteria justifying approval in the absence of need. In Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), a challenge to the cardiac catheterization rule, the court stated:
should the formula methodology .
result in an underestimation of the need for additional services in an area, the applicant has the opportunity to demonstrate need by showing that existing facilities are unavailable or inaccessible, the quality of care in the service area is suffering from overutilization, or by providing other information to illustrate that the situation is not `normal' in that service area." Id.
at 891.
Plantation has attempted to demonstrate the formula methodology underestimates the needs for open heart surgery when compared to other numeric formulas for determining need. Preparing an age cohort analysis for Broward County, or for the applicants' primary service area, and then superimposing a national or Florida age cohort use rate is not an authorized means to determine need. The rule formula accounts for age groups within the population and is reflected in the Broward County use rate. Moreover, the First District pointed out in the Humana, Inc. decision
". . . The use of the more current [utilization] data alone is not sufficient to justify an exception to the Rule. The applicant must demonstrate and there must be some finding of fact that, without the requested lab, the existing facilities are (or will be) unavailable or inaccessible, or the quality of care is (or will be) suffering from overutilization, or other evidence of that nature." 492 So.2d 392.
No such proof has been made here.
Plantation's attempt to engage in ad hoc subdistricting of Broward County using U.S. 441 as a north-south dividing line to create east and west Broward medical communities is inappropriate. The decision to subdistrict is essentially a policy determination for the Local Health Council to make, not one for an institution to create by choosing a division line which it finds advantageous.
Plantation defends the proposition that approval of an open heart surgery program is justified when a facility has a cardiac catheterization laboratory which reaches a certain level of activity. Its witnesses believe
Plantation's program for catheterization was active enough to support an open heart surgery program but these witnesses also believe that every hospital with active cardiac catheterization programs should have an open heart surgery program. Their position is a criticism of the current rule criteria rather than a presentation of an exceptional circumstance justifying deviation from the rule enacted by the Department. The Department might have adopted a rule which would have authorized new open heart surgery programs when cardiac catheterization programs reach a certain size but it has not done so.
The applicants have taken the position that approval of open heart surgery programs is essential to the full operation of their cardiac catheterization programs. While they may perform diagnostic catheterizations, they may not perform therapeutic catheterizations (angioplasties) because those procedures require open heart surgery backup. There are currently adequate facilities in Broward County that perform angioplasties, and the catheterization labs at North Broward and Plantation operate successfully without routinely performing angioplasties. They can perform angioplasties on an emergency basis without open heart surgery backup, because open heart surgery is not performed while someone is having a heart attack. A facility with a catheterization laboratory is as effective in an emergency as a facility without a catheterization laboratory in an open heart surgery program.
The applications of North Broward Medical Center and Plantation General Hospital for approval of open heart surgery programs should be denied.
DONE and ORDERED this 6th day of August, 1987, in Tallahassee, Florida.
WILLIAM R. DORSEY, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1535, 86-1536
Rulings on the Joint Proposals of the Applicants: 1-6. Covered in Findings of Fact 1-3.
7-10. To the extent appropriate, covered in Finding of Fact
4. Rejected as unnecessary.
Rejected as a conclusion, not a finding.
Rejected for the reasons stated in Finding of Fact 10.
Rejected because to the extent that the State Plan speaks of maintaining an average of 300 open heart surgery procedures, it is inconsistent with the portion of Rule 10-5.11(1)(f)1l. a. (I) which requires each
program to have a volume of 350.
Rejected for the reasons stated in Findings of Fact 10- 12.
Rejected because to the extent that the State Plan speaks of maintaining an average of 300 open heart surgery procedures, it is inconsistent with the portion of Rule 10-5.11(1)(f)11. a. (I) which requires each program to have a volume of 350.
Covered in Finding of Fact 41.
Covered in Finding of Fact 32.
Covered in Finding of Fact 40.
Rejected because whether the "350" standard relates to economic efficiency or other issues it still applies, and is not met. The allegation that Holy Cross has not met the standard due to its own constraints is rejected.
Rejected because the concept of a shared surgical team is rejected. See Findings of Fact 30-33 and 40.
Rejected as unnecessary.
Rejected as unnecessary because existing providers do not perform 350 procedures per year as the rule requires.
Rejected because Holy Cross performed 235 procedures. See Finding of Fact 21.
Rejected as unnecessary and irrelevant.
25-30. Rejected because the attempt to use a use rate other than that prescribed in Rule 10-5.011(1)(f)8. is improper.
31-34. The evidence that other providers have operational constraints which impede expansion of the number of procedures at their facilities are unpersuasive.
35-37. Covered in Finding of Fact 35.
Covered in Finding of Fact 35.
This attempt to create a subdistrict for open heart services is rejected as inconsistent with the Local Health Plan.
Covered in Finding of Fact 18.
Rejected as legal interpretation not a fact.
Rejected as legal interpretation not a fact.
Rejected as unnecessary.
Subparagraph 11. of the rule does not speak in terms of averages. This finding is rejected. To the extent HRS may have, in the past, used averages rather than absolute numbers, that was a misapplication of the rule.
Rejected because the contention concerning operational constraints of Holy Cross is rejected as unpersuasive.
Rejected as unnecessary.
47-53. Rejected because although the applicants can meet the
200 procedure minimum service volume they cannot meet the other requirements of subparagraph 11, rendering further findings on minimum service volume unnecessary and subordinate.
54-61. Rejected because although cardiologists would prefer to have open heart surgery available so that they can also provide therapeutic catheterizations, they are not necessary for operation of a diagnostic catheterization
laboratory. See Finding of Fact 11. 62-71. Covered in Finding of Fact 35 and 36.
72. The necessary findings concerning shared services are made in Findings of Fact 30-33. The additional information in these proposals is unnecessary.
79-83. Covered in Finding of Fact 41, to the extent necessary. 84-164. The findings concerning lack of adverse impact on
intervenors are generally rejected. The approval of additional programs will necessarily have the effect of diluting the number of procedures performed by existing providers, which has an adverse financial impact on them. The losses the opponents will experience are not especially significant, in the sense that they would cause existing providers to cease providing open heart surgery services. The factor is not so significant in the balancing to justify the extensive proposed findings made by the applicants, which are therefore rejected as subordinate and unnecessary.
Ruling on Proposals of the Department of Health and Rehabilitative Services:
The Proposed Recommended Order submitted by the Department of Health and Rehabilitative Services is quite brief. All of the proposals have essentially been adopted in the Recommended Order.
Rulings on the Proposed Findings of Florida Medical Center:
Covered in introductory paragraph.
Covered in statement of issue. 3-5. Covered in Finding of Fact 1.
6. Rejected as unnecessary because capital costs are not an issue.
7-8. | Covered in | Finding of Fact | 1. |
9. | Covered in | Finding of Fact | 8. |
10. | Covered in | Finding of Fact | 1. |
11-13. | Rejected as unnecessary. | ||
14. | Covered in Finding of Fact | 4. | |
15. | Rejected as unnecessary. | ||
16-17. | Covered in Finding of Fact | 4. | |
18. | Rejected as unnecessary. | ||
19. | Discussed in Conclusion of | Law 12. | |
20-24. | Rejected as unnecessary. | ||
25-27. | Covered in Finding of Fact | 8. | |
28. | Rejected as subordinate. | ||
29. | Covered in Finding of Fact | 8. | |
30-31. | Rejected as unnecessary. | ||
32. | Covered in Finding of Fact | 37. | |
33-41. | Rejected as unnecessary. | ||
42-43. | Covered in Finding of Fact | 9. | |
44. | Rejected as unnecessary. | ||
45. | Covered in Finding of Fact | 9. | |
46. | Covered in Finding of Fact | 10. | |
47-48. | Covered in Finding of Fact | 11. | |
49. | Covered in Finding of Fact | 12. | |
Covered in Finding of Fact 13.
Covered in Finding of Fact 14.
Covered in Finding of Fact 15.
Covered in Finding of Fact 16.
Covered in Finding of Fact 17.
Covered in Finding of Fact 18. 56-58. Rejected as cumulative.
Rejected as unnecessary.
Rejected because testimony of East-West communities is legally irrelevant.
61-62. Rejected as unnecessary.
Rejected as irrelevant.
Rejected as unnecessary.
65-66. Rejected as subordinate and cumulative.
Covered in Finding of Fact 22.
Rejected as unnecessary.
69-70. Subordinate to Finding of Fact 27. 71-75. Covered in Finding of Fact 22.
76-77. Rejected as unnecessary.
Covered in Finding of Fact 27.
Implicitly dealt with in Finding of Fact 21.
Rejected as unnecessary.
Covered in Finding of Fact 40. 82-84. Rejected as unnecessary.
85. Covered in Finding of Fact 29. 86-87. Covered in Finding of Fact 36.
88-109. Covered in Finding of Fact 37 to the extent necessary. 110-119. Rejected because Section 381.494(6)(d) does not apply
because the project does not reach the capital expenditure threshhold of $600,000.
120. Covered in Finding of Fact 38. 121-124. Covered in Conclusions of Law.
Covered in Finding of Fact 20.
To the extent necessary, covered in Finding of Fact 36.
Covered in Finding of Fact 36. 128-129. Covered in Finding of Fact 41.
Covered in Finding of Fact 19.
Rejected as unnecessary.
Covered in Conclusion of Law 10. 133-141. Rejected as unnecessary.
Covered in Finding of Fact 37.
Rejected as not constituting a Finding of Fact.
Rejected as irrelevant whether HRS practice reflects what is found in the rule or not, HRS is required to follow its rules.
Rejected as subordinate.
Covered in Finding of Fact 36.
Rejected as subordinate. 148-150. Rejected as unnecessary.
151. Covered in Finding of Fact 36.
Rulings on Findings by North Ridge:
Covered in Finding of Fact 1.
Covered in Findings of Fact 9, 13 and 16.
Covered in Findings of Fact 13 and 33.
Covered in Finding of Fact 7 to the extent necessary.
Covered in Finding of Fact 27 to the extent necessary.
Covered in Finding of Fact 21 to the extent necessary. 7-8. Rejected as unnecessary.
9. Covered in Findings of Fact 25 and 26. 10-11. Rejected as unnecessary.
Covered in Finding of Fact 5 to the extent necessary.
Covered in Findings of Fact 6 and 21, to the extent necessary.
Covered in Findings of Fact 8 and 21.
Covered in Finding of Fact 30 to the extent necessary. 16-17. Rejected as unnecessary.
Covered in Finding of Fact 30.
Covered in Finding of Fact 31. 20-26. Rejected as unnecessary.
27. Implicitly adopted in Finding of Fact 31. 28-30. Rejected as unnecessary.
Covered in Findings of Fact 2 and 23.
Rejected as unnecessary.
Rejected as unnecessary. This is governed by Rule 10- 5.011(1)(f).
Rejected as unnecessary.
To the extent appropriate, covered in Finding of Fact 37.
36-43. Covered in Finding of Fact 37. The specific impact of the opening of the North Broward Program in North Ridge has not been determined by the Hearing Officer because it is unnecessary to do so. An additional program will dilute the number of procedures already being provided, which clearly will have a negative financial impact on North Ridge.
44-47. To the extent necessary, covered in Findings of Fact 32 and 33.
48-50. Rejected as unnecessary.
Rejected because the shared surgical team concept has been rejected as the basis for the Certificate of Need, economic access is already adequate, demographic factors do not require a new program and rate of increase in utilization in Broward is not relevant because the rule requires a specific use rate.
Rejected as a recounting of contentions and is not a Finding of Fact.
Rulings on Holy Cross Hospital and South Broward Hospital District:
Covered in Finding of Fact 36.
Rejected as subordinate.
Covered in Finding of Fact 37.
Covered in "Stipulation concerning applicable statutes."
Rejected as a Conclusion of Law, not a Finding of Fact.
Rejected as a statement of position, not a Finding of Fact.
Covered in Finding of Fact 2.
Covered in Finding of Fact 4.
Covered in Finding of Fact 5.
Covered in Finding of Fact 6.
Covered in Finding of Fact 8.
Covered in Finding of Fact 7.
Rejected as a statement of law, not a Finding of Fact.
Covered in Finding of Fact 20.
Covered in Findings of Fact 23 and 35.
Rejected as unnecessary.
Covered in Finding of Fact 36.
Rejected as unnecessary. 19-20. Rejected as cumulative.
21. Rejected as unnecessary.
22-25. Covered in Finding of Fact 21. 26-27. Rejected as unnecessary.
Rejected as a statement of law, not a Finding of Fact.
Covered in Finding of Fact 21.
Covered in Findings of Fact 37 and 28.
Rejected as unnecessary.
Covered in Finding of Fact 9.
Covered in Finding of Fact 25. 34-35. Covered in Finding of Fact 26. 36-37. Rejected as unnecessary.
Rejected as a statement of a position, not a Finding of Fact.
Rejected for the reasons proposal 38 was rejected.
Covered in Conclusion of Law 10.
Rejected as unnecessary.
Covered in Conclusion of Law 10. 43-46. Rejected as unnecessary.
47. To the extent appropriate, covered in Findings of Fact
10 and 11.
48-50. Rejected as unnecessary.
51-52. Covered in Finding of Fact 9.
Covered in Finding of Fact 10.
Covered in Finding of Fact 11.
Covered in Finding of Fact 15.
Covered in Finding of Fact 14. 57-58. Covered in Finding of Fact 18. 59-69. Rejected as unnecessary.
70-107. Covered in Finding of Fact 37.
COPIES FURNISHED:
Ronald K. Kolins, Esquire Post Office Box 3888
West Palm Beach, Florida 33402
John Parker, Esquire
J. Marbury Rainer, Esquire John Rue, Esquire
1200 Carnegie Building
133 Carnegie Way Atlanta, Georgia 30303
R. Bruce McKibben, Jr., Esquire
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Building One, Room 407 Tallahassee, Florida 32399-0700
Kenneth F. Hoffman, Esquire Eleanor Joseph, Esquire Oertel & Hoffman, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
Steve Ecenia, Esquire Post Office Drawer 1838
Tallahassee, Florida 32301
Eric B. Tilton, Esquire Kenneth D. Kranz, Esquire Post Office Drawer 550 Tallahassee, Florida 32302
Gregory L. Coler, Secretary
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Building One, Room 407 Tallahassee, Florida 32399-0700
Sam Power, Clerk
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Building One, Room 407 Tallahassee, Florida 32399-0700
John Miller, Acting General Counsel
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Building One, Room 407 Tallahassee, Florida 32399-0700
| Issue Date | Proceedings |
|---|---|
| Aug. 06, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 09, 1987 | Agency Final Order | |
| Aug. 06, 1987 | Recommended Order | Hospital denied Cert. of Need for open heart surgery program. Petitioner unable to demonstrate need, numeric formulas used in determining need. |
