STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
UNIVERSITY PSYCHIATRIC CENTER, ) d/b/a UNIVERSITY OF SOUTH ) FLORIDA PSYCHIATRIC CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4378
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) HCAC PSYCHIATRIC CENTER OF )
HILLSBOROUGH COUNTY, )
)
Respondent. )
) CHARTER HOSPITAL OF TAMPA BAY, ) INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4379
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) HCAC PSYCHIATRIC CENTER OF )
HILLSBOROUGH COUNTY, )
)
Respondent. )
) ST. FRANCIS CARE UNIT, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4380
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) HCAC PSYCHIATRIC CENTER OF )
HILLSBOROUGH COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on February 8-12 and 15-16, 1988, in Tallahassee, Florida, before Diane A. Grubbs, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
At the hearing, appearances were made as follows: For University Psychiatric Center, Inc.:
Christopher R. Haughee, Esquire Moffitt, Hart & Herron
216 South Monroe Street, Suite 300 Tallahassee, Florida 32301-1859
Susan Greco Tuttle, Esquire Moffitt, Hart & Herron
401 South Florida Avenue, Suite 200
For Charter Hospital of Tampa Bay: Michael D. Ross, Esquire
J. Robert Williamson, Esquire King & Spalding
2500 Trust Company Tower Atlanta, Georgia 30303
George N. Meros, Jr., Esquire
Rumberger, Kirk, Caldwell, Cabaniss & Burke
101 North Monroe Street, Suite 900 Tallahassee, Florida 32301
For St. Francis Care Unit:
Judith S. Marber, Esquire Wood, Lucksinger & Epstein Southeast Financial Center
Two South Biscayne Boulevard, 31st Floor Miami, Florida 33131-2359
Ivan Wood, Esquire
Wood, Lucksinger & Epstein The Park In Houston Center 1221 Lamar, Suite 1400
Houston, Texas 77010-3015
For HCAC Psychiatric Hospital of Hillsborough County: Darrell White, Esquire
McFarlain, Sternstein, Wiley & Cassedy, P.A. Post Office Box 2174
Tallahassee, Florida 32316-2174
For Department of Health and Rehabilitative Services: Ted Mack, Esquire
Assistant General Counsel
Department of Health and Rehabilitative Services Fort Knox Executive Center
2727 Mahan Drive
Tallahassee, Florida 32308
BACKGROUND
On September 30, 1986, the Department of Health and Rehabilitative Services (DHRS) granted partial approval to HCAC Psychiatric Hospital of Hillsborough County (HCAC) for construction of a 90 bed free-standing long term psychiatric hospital. HCAC had originally sought approval for a 90 bed freestanding long term psychiatric hospital. Notice of the partial approval was published in the October 3, 1986, edition of Florida Administrative Weekly. Thereafter, the Petitioners each requested formal administrative hearing. Manatee Memorial Hospital petitioned for, and was granted, leave to intervene in the cases, but subsequently withdrew.
At the hearing, University Psychiatric Center (UPC) presented the testimony of H. James Myers, Robert C. Fernandez, and Jay Wolfson. UPC exhibits 2-8 were admitted into evidence. Charter Hospital (Charter) presented the testimony of Howard E. Fagin, John C. Southern, Robert J. Gerrard, Susan C. Farmer, Steven Szabo, David Richardson, and Joseph C. Wood, III. Charter exhibits 1-8 were admitted into evidence. St. Francis Care Unit (St. Francis) presented the testimony of Thomas Konrad. HCAC presented the testimony of Francis A. Gomez, Nelson Rodney, Anthony J. Estevez, Richard Gordon, W. Eugene Nelson, and Rick Knapp. HCAC exhibits 1-24 were admitted into evidence. DHRS presented the testimony of Reid Jaffe.
For purposes of this order, "HCAC" refers to HCAC Psychiatric Hospital, Health Care Advisors Corporation, or Anthony J. Estevez, the sponsor of the CON application and developer of the proposed facility.
The issue presented for consideration is whether certificate of need (CON) #4526 should be issued to HCAC for construction of a 50 bed freestanding long term psychiatric hospital in Hillsborough County.
Prior to the hearing, the parties (except Charter) stipulated to the application of Florida Statutes (1985) and administrative rules in effect at that time. Charter did not join in the stipulation as to application of the 1985 statutes, asserting that the 1987 statutes were applicable, but stated that there was no difference in application between the 1985 and 1987 versions of the relevant statutes. The language of Florida Statutes (1985) and administrative rules in effect at that time are cited in the Conclusions of Law contained herein.
All parties filed proposed recommended orders. The proposed findings of fact are directly or indirectly ruled upon in this Recommended Order and in the Appendix which is attached and hereby made a part of this Recommended Order.
On October 26, 1988, due to the unavailability of the previously-assigned hearing officer, the cases were transferred by Order of the Director of the Division of Administrative Hearings to Hearing Officer Larry J. Sartin for
issuance of the recommended order. On December 6, 1988, the cases were transferred by Order of the Director to William F. Quattlebaum, Hearing Officer, for issuance of this recommended order.
FINDINGS OF FACT
HCAC, on March 14, 1986, filed with DHRS, a letter of intent giving notice of its forthcoming application for a 90 bed long term psychiatric hospital in Hillsborough County, Florida. DHRS is the state agency authorized to consider, and approve or deny, applications for CONs. The proposed location is within DHRS service district VI.
On April 15, 1986, HCAC filed the CON application which DHRS designated as CON #4526. The facility, HCAC Psychiatric Hospital of Hillsborough County, was intended to provide treatment to chronically mentally disturbed patients, and was planned to contain a 74 bed adult/geriatric unit and a 16 bed adolescent unit. The application listed Anthony J. Estevez as the applicant and Francis A. Gomez as the authorized representative. Mr. Gomez is a consultant to Mr. Estevez.
On May 15, 1986, DHRS requested additional information of the applicant. On June 23, 1986, HCAC provided the requested material. On June 29, 1986, DHRS deemed the application complete. The HCAC application was comparatively reviewed by DHRS with another CON application, subsequently denied, which is not at issue in this proceeding.
On September 30, 1986, DHRS granted partial approval to HCAC for the construction of a 50 bed adult and geriatric long term psychiatric facility. DHRS is authorized to grant approval to an identifiable portion of an application for a CON. DHRS considers a single bed to be an identifiable portion. Notice of the agency's decision was published in Florida Administrative Weekly, Vol. 40, No. 24, at 3684. HCAC did not protest the denial of the remainder of the application. The Petitioners in the consolidated cases timely requested formal administrative hearing.
On September 15, 1987, HCAC provided, to all parties, materials purporting to be updated information relating to the DHRS-mandated reduction in the scale of their proposal and changed economic circumstances. Charter moved at the hearing to exclude the material. The hearing officer denied the motion, but recognized a continuing objection to the use of such materials. In that HCAC has failed to establish that there is need for 50 long term psychiatric beds in district VI, the updated information is not relevant to this order and has been disregarded.
HCAC, formally known as Health Care Advisors Corporation, Inc., was not incorporated until April 14, 1987, but - the name had been reserved prior to the incorporation. HCAC is wholly owned and controlled by Anthony J. Estevez. Following construction of the proposed facility, HCAC intends to operate as a general partnerships in which Mr. Estevez and his wife would be limited partners.
Long term psychiatric services are hospital based inpatient services averaging a length of stay of 90 days. DHRS rules provide that such services may be provided in specifically designated beds in a general hospital, or in a specialty hospital setting.
HCAC has failed to establish that there is a need for 50 additional long term psychiatric beds in district VI. The evidence does not indicate that there are persons within district VI who are unable to obtain long term psychiatric services, or whether there is need for any additional long term psychiatric beds in district VI.
The HCAC application is inconsistent with the goals of both the district and state health plans, as well as other available needs assessment data.
The district VI health plan indicates that additional long term psychiatric beds are unnecessary. The plan indicates that existing psychiatric hospital bed utilization must be at least 75%. The evidence indicates that for the three year period preceding the hearing, occupancy in existing psychiatric hospital beds was approximately 60%.
Goal #1 of the state health plan indicates that mental health services should be made available to persons in need of such services in the least restrictive setting which offers treatment. Long term hospitalization does not generally offer the least restrictive setting for such treatment. Further, objective 1.3 of the state plan provides that additional long term beds in a particular district should not be approved unless the average annual occupancy rate for all existing long term beds in the district is at least 80%. The average annual occupancy rate for existing long term beds in district VI is less than 80%.
The district VI alcohol, drug abuse and mental health plan also emphasizes the desirability of providing psychiatric care in a noninstitutional setting when possible, and suggests utilization of alternatives to institutionalization. Additional long term psychiatric beds are not identified as needed for the district. The plan does indicate that additional services for elderly persons are needed in the district, and that some elderly persons are inappropriately hospitalized due to lacking community resources. The evidence does not indicate that such persons would benefit from the HCAC project.
DHRS approved the facility primarily based upon the premise that there was need for long term psychiatric beds in district VI. DHRS has not established a method of establishing numerical need for long term psychiatric beds. In the absence of such methodology, DHRS identified the "inaccessibility" of long-term beds in the eastern part of district VI as the most important consideration in their determination to award the HCAC certificate.
The agency concluded in making the determination to grant the CON that "it is highly doubtful" that persons in need of services and residing in the eastern portion of the district would be within two hours driving time of facilities located within the district. However, the agency conducted no actual drive time study, instead relying on estimations based upon map distances and the agency analyst's perceptions of the time required to cover such distances.
At least 90% of the district VI population is within two hours driving time to long term psychiatric beds. In determining that district VI residents were unable to obtain services, DHRS failed to consider existing long term psychiatric beds which are located within a two hour drive from, but outside of, district VI. Further, although it is normal for the agency to consider approved but unconstructed facilities in making CON determinations, the agency failed to consider such long term psychiatric beds located within a two hour drive from district VI for which CONs have been issued but which are not yet operating.
The HCAC application did not suggest a detailed bed need assessment methodology. HCAC did not conduct a demographic study in district VI to assess or propose a numerical bed need for the district. Subsequent to the filing of the application and prior to the administrative hearing, a bed need analysis based upon the report of the Graduate Medical Educational National Advisory Committee (GMENAC) was prepared for HCAC.
The GMENAC report was prepared in 1981 in order to predict the numbers of physicians (including psychiatrists) which would be needed in the United States by 1990. The study was not prepared for the purpose of predicting bed need, but was prepared for the purpose of predicting the need for educating new physicians.
The GMENAC-based bed need projection results in a bed-to-population ratio of .61 beds per 1,000 residents. The accepted DHRS short term bed need methodology results in a bed-to-population ratio of .35 per 1,000 residents. However, according to the testimony of all witnesses including HCAC's and DHRS's, there is greater need for short term beds than for long term beds. The use of the GMENAC report as a basis for projection of long term psychiatric bed need overestimates the need for long term psychiatric beds. The resulting bed need projections are not supported by the weight of the evidence and have been disregarded.
DHRS does not recognize numerical bed need projections which are projected pursuant to any methodology other than as specified in the agency rules. As stated previously, DHRS has not established a numerical bed need methodology applicable to long term psychiatric beds.
In making the determining of need, DHRS did not consider the existence of long term beds in district VI which are designated for children and adolescents. The agency's rationale for failing to include all beds in ascertaining relevant occupancy levels in existing beds, is that children and adolescents are required by rule to be housed separately from adults in long term psychiatric hospitals.
Although the rule relating to approval of short term psychiatric hospital beds requires that occupancy levels for short term adult beds and child/adolescent beds be counted separately, the long term rule states that need for additional beds will not be found unless the annual occupancy rate for all existing long term psychiatric beds in the district is at or in excess of 80%. The rule does not provide for DHRS to disregard some long term beds in determining that other long term beds are needed. There was no evidence to support the decision by DHRS to waive the 80% occupancy requirement as it relates to all existing long term beds in the district. The agency rule requires that all such beds be taken into account in determining whether there is need for a proposed facility. The evidence establishes that the annual occupancy rate for all existing long term psychiatric beds in district VI is less than 80%. The DHRS rule accordingly directs the finding that additional beds are not needed.
HCAC proposes to offer a full range of high level, specialty long term psychiatric services, including diagnostics and evaluation, to chronically mentally disturbed patients. Such patients suffer from illnesses such as personality disorder, organic brain syndrome, and schizophrenia. Generally, long term patients may be differentiated from short term patients by the nature of the illnesses addressed through hospitalization and the type of care which is
appropriate to particular patients. Long term patients are generally unserved or underserved, and require specialized treatment. However, many of the patients HCAC intends to serve are also appropriate for, and receive, short term treatment.
The stated goal of the facility is to assure that the full continuum of psychiatric care is available to residents of district VI. The facility proposes to provide "milieu" therapy. Such therapy provides patients with a sense of community important where lengths of stay are extended. The facility proposes to offer educational programs designed to teach patients skills necessary for successful living outside an institution. The facility proposes to provide family counseling, and support for family members who are confronted with the chronic mental illness of a family member. Such services are generally currently available to residents of district VI.
HCAC intends, as do other providers of similar services, to admit patients from a broad range of other facilities, private practitioners, and public and private agencies. HCAC states that it will establish relationships with other area mental health care providers in order to facilitate the cooperation between agencies conducive to providing appropriate treatment to persons needing mental health services. There was no evidence that such relationships or admission agreements have yet been entered into by HCAC.
HCAC intends, as do other facilities, to closely monitor treatment plans for individual patients in order to provide a high level of care and to maintain therapeutic progress. A system of goal attainment will be utilized in evaluating appropriateness of treatment and planning further care. HCAC intends to ensure that patients receive services from existing community-based agencies following discharge so as to make subsequent readmission into a facility less likely.
HCAC states that it intends to provide training to staff and other personnel, both from the HCAC facility and from other providers. However there was no evidence to establish that the facility will be specifically staffed by instructional personnel capable of providing such training.
The HCAC facility is expected to draw patients primarily from within the district VI area, however, additional patient referrals from outside the service district are anticipated. The facility is planned to include 36 adult and 14 geriatric beds.
Mr. Estevez is a developer and general contractor. Mr. Estevez's interest in long term psychiatric facilities is related to his personal inability to locate an acceptable instate long term psychiatric facility which could provide the level of care which Mr. Estevez believed would be appropriate for a family member in need of services.
The facility would be managed by Flowers Management Corporation. Flowers' a for-profit entity, is 51% owned and controlled by Anthony J. Estevez. While Flowers manages several short term psychiatric and substance abuse facilities, Flowers has never operated or managed a long term psychiatric hospital. Nelson Rodney, Flowers, vice president for the Florida region, will be responsible for the management and programmatic operation of the proposed facility. Mr. Rodney has never managed, or been employed by, or had direct experience in, a long term psychiatric facility.
The evidence does not indicate that Flowers Management Company is currently capable of managing and operating a long term psychiatric facility.
The proposed HCAC facility will include a psychiatric inpatient unit, patient support services, diagnostic services, and ambulatory care services. The program to be utilized by the HCAC facility is based upon the "Flowers" model. The Flowers model is the Flowers designation for the type of services and care which are available at facilities managed by the Flowers Management Corporation.
The Flowers model currently utilized by the company is constituted of numerous treatment modalities developed over a period of years and is essentially similar to treatment programs offered at short-term psychiatric hospitals. The Flowers model is applicable to both short term and long term treatment programs. None of the treatment modalities identified by HCAC as proposed for use at the facility are unavailable to residents of district VI.
There are adequate, available and accessible alternatives to the proposed HCAC facility, both within and outside of district VI. In considering the HCAC application, DHRS disregarded beds in short term psychiatric facilities because agency rule distinguishes between long term and short term beds. However, DHRS has previously considered short term psychiatric services when evaluating the need for a long term psychiatric service provider.
It is appropriate to consider existing short term facilities in determining whether alternatives to the proposed facility are adequate and available. Short term and long term facilities compete to some extent in providing services. Projecting an expected length of stay for a particular patient is an inexact process and is very difficult. Most psychiatric patients are considered to be in need of, intermediate care, extending beyond 30 days but less than 90 days. On occasion, some patients in short term facilities are hospitalized in excess of 90 days, and some patients hospitalized in long term facilities are discharged prior to 90 days.
The average length of stay projected by HCAC was 90 days. HCAC chose the 90 day figure solely because DHRS defines a long term psychiatric facility as one with an average length of stay of 90 days, and HCAC proposes to construct a lone term facility. HCAC expects the average length of stay to be in excess of 90 days.
In an attempt to screen out prospective patients with shorter lengths of stay, HCAC proposes to utilize an experimental method of projecting lengths of hospitalization, in order to eliminate patients with projected hospitalizations of less than 90 days. The experimental methodology, a "strain ratio analysis", enables psychiatric health care providers to assess a prospective patient's situation, develop an appropriate course of treatment, and determine the anticipated length of the hospitalization. However, such prototypical models are, by their nature, testing vehicles. The Flowers Management Corporation has never used the strain ratio analysis system. No facility was utilizing the strain ratio analysis system in other than an experimental capacity at the time of the administrative hearing. The strain ratio analysis system has been tested primarily in short term psychiatric facilities, rather than in long term facilities such as proposed by HCAC. While such methods hold great promise, and may be helpful in predicting the expected length of stay in individual cases, they are not sufficiently reliable to establish that HCAC's average length of stay will exceed 90 days. Some HCAC patients could be hospitalized for periods of time shorter than 90 days.
Short term facilities, on occasion, provide treatment to patients hospitalized in excess of 90 days when such continued treatment is warranted. HCAC intends to take short term psychiatric facility charges into account when determining rate structure. HCAC used financial data from several short term psychiatric hospitals in preparing the information submitted to DHRS as part of the application for the CON.
There are 654 licensed or approved short term psychiatric beds in service district VI, most of which may be utilized to treat adults in need of care. The annual average occupancy rate for these short term beds is less than 80%. The available beds are accessible, appropriate, underutilized and available. Additionally, there are beds in district VI residential treatment centers and nursing homes which to some extent may be used as alternatives to the HCAC proposal.
UPC is a licensed short term psychiatric hospital located in Hillsborough County, approved in part as a teaching and research facility. The UPC facility contains 114 beds, including a 28 bed adult unit, a 20 bed geriatric unit, a 22 bed substance abuse unit, an 8 bed professorial unit, an 8 bed child unit, and a 28 bed-adolescent unit. The operation of the HCAC facility would negatively impact the operation of UPC through a reduction in patient days and related revenue.
Charter is a short term psychiatric hospital located in Hillsborough County, containing 146 beds, 84 of which are designated as' adult or geriatric. Charter provides services to adult and geriatric patients. Although Charter is a short term facility, services to be provided by HCAC are essentially similar to services provided by Charter. Accordingly, the proposed HCAC facility would have a substantial impact on the operations of Charter. Because there is no need for additional psychiatric bed capacity, it is reasonable to assume that Charter would lose a significant number of patients, and revenue, to the HCAC facility, if the HCAC facility were operational.
St. Francis is a 30 bed alcohol and drug treatment unit located in Hillsborough County. Although HCAC would not admit a patient with a primary diagnosis of substance abuse, HCAC would provide substance abuse treatment to persons receiving care for other illnesses. Patients in need of substance abuse treatment receive care at various types of facilities. At the hearing, an HCAC witness stated that some of the beds which the HCAC/GMENAC methodology indicated were needed could operate as residential substance abuse treatment beds. Accordingly, the HCAC facility could impact on the operation of St. Francis.
UPC, Charter, and St. Francis provide services essentially similar to those which the HCAC facility would provide.
There is a shortage Of personnel available to staff psychiatric hospitals. The HCAC facility would exacerbate the shortage, however, there are sufficient personnel to meet projected staffing levels, although it would make staff retention more difficult for existing providers.
Theme was no evidence which would indicate that the HCAC facility would, through the operation of joint, cooperative, or shared health care resources, provide for probable economies or improvements in the delivery of psychiatric services. There was no evidence which would indicate that HCAC planned to participate in joint, cooperative, or shared health care service provision.
There was no evidence which would indicate that there was need for special equipment or services which are not reasonably and economically accessible in district VI or in adjoining areas.
There was no evidence which would indicate that there was need for research or educational facilities beyond what is currently available within and adjacent to district VI. The proposed HCAC facility is not specifically designated as a research or educational facility and would provide no opportunity for such, beyond what any additional long term psychiatric hospital would provide.
The HCAC facility would be designed and constructed by Project Advisors Corporation (PAC). PAC is wholly owned and controlled by Anthony J. Estevez. Mr. Estevez has never designed or constructed a long term psychiatric hospital. Mr. Estevez has not purchased property in the district VI area. However, PAC and Mr. Estevez have been involved in constructing short term psychiatric facilities. Construction of short term and long-term psychiatric facilities are essentially similar. Mr. Estevez's background and knowledge indicate that, assuming the project were otherwise permitted, the proposed project could be constructed in a timely manner and at a reasonable cost.
The projected costs of land acquisition, equipment and initial operating costs are based upon the establishment of need for the facility. Such need was not established, and accordingly the projections have not been considered.
The evidence indicated that financing was available to Mr. Estevez at an annual rate of 13%. Mr. Estevez's has a continuing relationship with NCNB Bank which has indicated interest in providing financing for the project. The annual rate is reasonable. The projected construction cost is based on similar projects for which Mr. Estevez has been responsible and appears reasonable; however, such costs are related to need for the project, which was not established by the evidence, and accordingly such projections have been disregarded. Further Mr. Estevez has stated his intention to provide personal funds for capital, if necessary, and the evidence indicates that he is able to do so.
The proposed staffing and salary levels are based upon the establishment of need for the proposed facility. Such need was not established, and accordingly the projections are irrelevant.
HCAC states that the project will be accessible to all residents of district VI in need of services. However HCAC failed to establish that there is need for 50 additional long term psychiatric beds in district VI.
In asserting that the proposed project was financially feasible, HCAC projected costs and revenue for the proposed facility. Such projections necessarily rely on the assumed need for the facility. However, the evidence has failed to establish that there is need in district VI for 50 additional long term psychiatric hospital beds. Accordingly, the financial information filed with the application, as well as the updated information provided subsequently, has not been considered to the extent based upon the assumption of need and resulting projected levels of occupancy. In that there is no demonstrable need for the project, the project is not financially feasible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
HCAC has the burden to demonstrate that it is entitled to the certificate of need. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). A balanced consideration of applicable statutory and rule criteria must be made. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). Such consideration requires that varying weight be accorded each criterion depending 20 on the facts of each case. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985). Based upon consideration of the applicable criteria as related to the facts of the case, HCAC has not met the burden of establishing that it is entitled to award of the CON.
Rule 10-5.01(p)1, Florida Administrative Code, states that long term psychiatric services means a category of services which provides hospital based inpatient services averaging a length of stay of 90 days.
Rule 10-5.011(p)2, Florida Administrative Code, states that long term inpatient hospital psychiatric services may be provided in specifically designated beds in a hospital holding a general license, or in a facility holding a specialty hospital license.
In relevant part, section 381.494(6)(c), Florida Statutes, and rule 10-5.011(p), Florida Administrative Code, direct the focus of the agency analysis towards specific criteria which are to be considered in making a determination regarding an application for a CON.
Section 381.494(6)(c)1, Florida Statutes, requires consideration of the need for the proposed health care facilities and services in relation to the applicable district plan and state health plan. The evidence did not establish that such need, in relation to the applicable district plan and state health plan, exists for 50 additional long term psychiatric hospital beds.
Rule 10-5.011(p)3, Florida Administrative Code, provides additional guidance in making the determination of need. The rule states that a favorable need determination for long term hospital inpatient psychiatric beds will not normally be given to an applicant unless the following criteria and standards are met:
No additional long term psychiatric beds shall be added in a Department service district unless the average annual occupancy rate for all existing long term hospital psychiatric beds in a Department district is at or exceeds 80% for the preceding year. The evidence established that the average annual occupancy rate for all existing long term hospital psychiatric beds in district VI was less than 80%.
An applicant proposing additional long term psychiatric hospital inpatient services must be able to project an annual average occupancy rate of 80% for the third year of operation. The HCAC application projected an occupancy rate based upon the need for additional long term psychiatric beds in district VI. The need for such beds was not established, and accordingly the resulting projected occupancy rate is unreasonable.
Access Standard. Long term hospital inpatient psychiatric services should be available within a maximum travel time of two hours under average travel conditions for at least 90% of the service area's population.
The evidence established that long term psychiatric hospital services are currently available to district VI residents within the two hour maximum driving time.
Applicants for long term hospital inpatient psychiatric services shall show evidence that the type of service and the number of proposed beds is consistent with the needs in the community as perceived by the local health council, the mental health district board, the state mental health plan, and other available needs assessment data. The evidence indicates that the approval of the HCAC application is inconsistent with the needs of the communities as expressed in the applicable health plans.
Section 381.494(6)(c)2, Florida Statutes, requires consideration of the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the service district of the applicant. The evidence established that existing services similar to those proposed by HCAC are accessible and available for use in district VI.
Section 381.494(6)(c)3, Florida Statutes, requires consideration of the ability of the applicant to provide quality of care. Although the applicant is clearly qualified to, and in fact does, operate short term psychiatric hospital facilities, the evidence did not establish that the applicant is currently qualified to operate a long term psychiatric hospital.
Section 381.494(6)(c)4, Florida Statutes, requires consideration of the availability and adequacy of alternative health care facilities and services in the service district of the applicant. There are adequate, available alternatives to long term psychiatric hospitalization in district VI.
Section 381.494(6)(c)5, Florida Statutes, requires consideration of the probable economies and improvements in service that may be derived from the operation of joint, cooperative, or shared health care resources. The evidence did not establish that there is any planned operation of joint, cooperative or shared health care resources.
Section 381.494(6)(c)6, Florida Statutes, requires consideration of the need in the service district for special equipment and services which are not reasonably and economically accessible in adjoining areas. The evidence did not indicate that a need exists for equipment and services beyond those currently available and accessible both inside, and adjacent to, district VI.
Section 381.494(6)(c)7, Florida Statutes, requires consideration of the need for research and educational facilities. Beyond HCAC's stated intent to provide such opportunities, the evidence did not establish that HCAC would provide research or educational facilities which are not currently available in the district.
Section 381.494(6)(c)8, Florida Statutes, requires consideration of the availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health professional training programs in the service district; the extent to which the
services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities; the availability of alternative uses of such resources for the provision of other health services; and the extent to which the proposed services will be accessible to all residents of the service district. The evidence established that the fiscal resources for the project are available; that there will be no impact on clinical programs in the district; that there is no additional need for health profession training services beyond what is currently available in the district; and that residents of the district have no need for additional access to services such as are proposed by HCAC.
Section 381.494(6)(c)9, Florida Statutes, requires consideration of the immediate and long-term financial feasibility of the proposal. In that no need exists for the proposed 50 long term psychiatric beds in district VI, the project is not financially feasible.
Section 381.494(6)(d), Florida Statutes, provides that in cases of capital expenditure proposals for the provision of new health services to inpatients, the department shall also reference each of the following in its findings of fact:
Section 381.494(6)(d)1, Florida Statutes, requires consideration of whether less costly, more efficient, or more appropriate alternatives to such inpatient services are not available and the development of such alternatives has been studied and found not practicable. The evidence indicates that such appropriate alternatives currently exist in the district and that there is no need for additional long term psychiatric hospital beds.
Section 381.494(6)(d)2, Florida Statutes, requires consideration of whether existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner. The limited evidence indicates that such facilities are used appropriately and efficiently.
Section 381.494(6)(d)3, Florida Statutes, requires consideration, in the case of new construction, of whether alternatives to new construction, for example, modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable. No evidence of modernization or sharing arrangements was introduced.
Section 381.494(6)(d)4, Florida Statutes, requires consideration of whether patients will experience serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service. Evidence did not indicate that persons in need of such care' are presently unable to obtain the care needed.
Rule 10-5.011(p)4, Florida Administrative Code, states that applicants applying for long term hospital inpatient psychiatric beds shall identify the target population to be served, the service level, the expected source of referrals, the expected length of stay, and the relationship of the proposed services to other components of the community mental health system within the defined service area. The HCAC application complied with such requirements.
Rule 10-5.011(p)5, Florida Administrative Code, states that in order for the Department to assure that the long term psychiatric hospital inpatient needs of all clients in a giant service area are adequately met, the applicant shall indicate the percentage of patient days allocated to indigent clients,
medicaid clients, private pay patients, and other patients. The HCAC application and updated information provided information in substantial compliance with this reporting requirement. However, in that the information was based upon need for the facility, and such need was not proven, the information is irrelevant and has been disregarded.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter
a Final Order denying the application of HCAC for certificate of need #4526. DONE and ENTERED this 17th day of April, 1989, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1989.
APPENDIX
CASES NO. 86-4378, 86-4379, and 83-4380
The following constitute rulings on proposed findings of facts submitted by the parties.
UPC
UPC's proposed findings of fact are accepted as modified in the Recommended order except as follows:
15-26. Rejected. Unnecessary.
28. Rejected. Unnecessary.
48. Accepted insofar as relevant. 49-53. Rejected. Unnecessary.
58-70. Rejected. Unnecessary.
73. Rejected. Must be within service district.
80. Rejected. Conclusion of law.
87. Rejected. Unnecessary.
Charter
Charter's proposed findings of fact are accepted as modified in the Recommended Order except as follows:
32-35. Rejected. Statute directs consideration of beds within district.
40. Rejected. Restatement of testimony.
75. Rejected. Conclusion of law. 77-82. Rejected. Unnecessary.
83-95. Rejected. Not supported by weight of evidence. 96-121. Rejected. Unnecessary.
122. Rejected. Not supported by weight of evidence. 123-127. Rejected. Unnecessary.
128-132. Rejected. Not supported by weight of evidence. 133-134. Rejected.. Unnecessary.
135-139. Rejected. Not supported by weight-of evidence. 146-153. Rejected. Unnecessary.
St. Francis
St. Francis' proposed findings of fact are accepted as modified in the Recommended Order except as follows:
18. Third sentence rejected. Irrelevant.
25. Rejected. Unnecessary.
32. Rejected. Irrelevant.
36-40. Rejected insofar as related to projects not at issue in this proceeding.
41. Rejected. Not required to provide firm loan commitment. 42-43. Rejected. Unnecessary.
54. Rejected. Subordinate.
55-64. Rejected. Unnecessary.
65. Rejected. Restatement of testimony.
76. Rejected. Conclusion of law.
91. Rejected. Testimony cited relates solely to occupancy requirement for existing beds, not other agency criteria.
113. Rejected. Not supported by weight of evidence. 114-147. Rejected. Unnecessary.
Rejected. Implementation of staffing plan not required.
Rejected. Unnecessary.
Rejected. Restatement of testimony.
Rejected. Irrelevant.
156. Rejected. Methodology not' supported by evidence.
HCAC
HCAC's proposed findings of fact are accepted as modified in the
Recommended Order except as follows:
Accepted, but irrelevant.
Rejected. Irrelevant.
11. Rejected insofar as related to updated information not related to the DHRS-mandated reduction in scale of project or due to changed economic conditions.
19. First sentence rejected. Not supported by weight of evidence.
31. Rejected. Irrelevant.
Rejected. Irrelevant.
Rejected. HCAC is not operator of facility. Flowers Is Operator and Flowers experience insufficient.
51-52. Rejected. Not supported by weight of evidence.
53. Rejected. Need not established. 63-68. Rejected. Unnecessary.
69. Rejected. Not supported by weight of evidence. 70-92. Rejected. Assumes need, not established.
Rejected. Not supported by weight of evidence.
Rejected. Assumes need, not established.
Rejected. Inconsistent with HCAC-stated admission of non- local patients.
Rejected. Service districts not necessarily related to accessibility.
Rejected. Not supported by weight of evidence.
Second sentence rejected. Rule does not authorize separate calculation of adult/geriatric and child/adolescent long term beds.
103-108. Rejected. Not supported by weight of evidence.
110. Rejected. Assumes need, not established.
111-112. Rejected. Not supported by weight of evidence.
Rejected. Unnecessary.
Rejected. Conclusion of law.
115-117. Rejected. Not supported by weight of evidence.
Rejected. Unnecessary.
Rejected. Not supported by weight of evidence.
Rejected. Unnecessary.
121-129. Rejected. Methodology not supported by weight of evidence. 131-139. Rejected. Not supported by weight of evidence.
DHRS
DHRS's proposed findings of fact are accepted as modified in the
Recommended Order except as follows:
6. Rejected. Need for project not established.
COPIES FURNISHED:
Christopher R. Haughee, Esq. Moffitt, Hart & Herron
216 South Monroe Street, Suite 300 Tallahassee, Florida 32301-1859
Susan Greco Tuttle, Esq. Moffitt, Hart & Herron
401 South Florida Avenue, Suite 200 Tampa, Florida 33602-5417
Lesley Mendelson, Esq. Assistant General Counsel
Department of Health and Rehabilitative Services Regulation and Health Facilities
Fort Knox Executive Center 2727 Mahan Drive, Suite 103
Tallahassee, Florida 32308
Gerald B. Sternstein, Esq. Darrell White, Esq.
McFarlain, Sternstein, Wiley & Cassedy, P.A. Post Office Box 2174
Tallahassee, Florida 32316-2174
Michael D. Ross, Esq.
J. Robert Williamson, Esq. King & Spalding
2500 Trust Company Tower Atlanta, Georgia 30303
George N. Meros, Jr., Esq.
Rumberger, Kirk, Caldwell, Cabaniss & Burke
101 North Monroe Street, Suite 900 Tallahassee, Florida 32301
Judith S. Marber, Esq. Wood, Lucksinger & Epstein Southeast Financial Center
Two South Biscayne Boulevard, 31st Floor Miami, Florida 33131-2359
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
| Issue Date | Proceedings |
|---|---|
| Apr. 17, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 23, 1989 | Agency Final Order | |
| Apr. 17, 1989 | Recommended Order | No need for long term psychiatric hospital. Financial projections based on patient capacity reflecting assumed need are unreliable if no need exists |
