STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: Nursing Home Certificate ) | CASE NOS. 87-3409 87-3422 |
Need Applications, HRS ) | 87-3410 87-3425 |
District VI, July 1987, ) | 87-3412 87-3429 |
Notice of Intent ) | 87-3414 87-3431 |
) | 87-3417 87-3433 |
) | 87-3421 87-3434 |
RECOMMENDED ORDER
A formal hearing was held in these consolidated cases on May 9-13, 16-20 and 23-24, 1988, in Tallahassee, Florida, before Hearing Officer, J. Lawrence Johnston, Division of Administrative Hearings.
APPEARANCES
For Cypress Total Care Robert S. Cohen, Esquire
306 North Monroe Street Tallahassee, Florida 32302
For Hillsborough Health W. David Watkins, Esquire Care Post Office Box 6507
Tallahassee, Florida 32314
For Forum Group, Inc. R. Terry Rigsby, Esquire
J. David Holder, Esquire
325 John Knox Rd., Ste. C-135 Tallahassee, Florida 32303
For Manor Care of James C. Hauser, Esquire
Florida, Inc. Joy Heath Thomas, Esquire
215 South Monroe, Ste. 701 Tallahassee, Florida 32301
For Palm Court James M. Barclay, Esquire
Nursing Home 215 East Virginia Street Tallahassee, Florida 32301
For VHA/Oxford Senior Guy Collier, Esquire Living Ventures Bryon B. Mathews, Esquire
Vicki Kaufman, Esquire 700 Brickell Avenue
Miami, Florida 33131-2802
For Health Care and Alfred W. Clark, Esquire Retirement Corporation Post Office Box 623
of America Tallahassee, Florida 32302
For Florida Country Douglas L. Mannheimer, Esquire Place, Ltd. Sandra P. Stockwell, Esquire
820 East Park Avenue, Bldg. F Tallahassee, Florida 32301
For Department of Richard Patterson, Esquire Health & Rehabilitative 2727 Mahan Drive, 3rd Floor Services Tallahassee, Florida 32308
PRELIMINARY STATEMENT
These proceedings result from the Department of Health and Rehabilitative Services' ("DHRS") denial of the applications for certificate of need ("CON") to construct community nursing home beds in Hillsborough County submitted in the January, 1987, batching cycle by Forum Group, Inc., Sponsor of Retirement Living of Hillsborough County ("Forum"), Hillsborough Healthcare, Ltd., d/b/a Convalescent Nursing Center of Hillsborough County ("HHL"), Manor Care of Florida, Inc., d/b/a Manor Care of Hillsborough County ("Manor Care"), Cypress Total Care ("Cypress"), Palm Court Nursing Home ("Palm Court"), and other applicants who subsequently voluntarily dismissed their petitions before final hearing, and their respective challenges to the DHRS preliminary approval of: Florida Country Place, Ltd., ("FCP"), for 30 beds; THA/Oxford Senior Living Ventures, d/b/a Oxford Hillsborough Nursing Associates ("VHA/Oxford"), for 120 beds; and Health Care and Retirement Corporation of America ("HCR"), for 120 beds. VHA/Oxford voluntarily dismissed its application on the record during the first day of the final hearing.
The transcript of the final hearing was filed August 8, 1988. The parties asked for and were given until September 14, 1988, within which to file proposed recommended orders. Explicit ruling on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case Nos. 87-3409, etc.
ISSUE
The issue in this proceeding is whether DHRS should approve the application for certificate of need of any one or more of the January, 1987, applicants for community nursing home beds in Hillsborough County.
STIPULATIONS
The parties stipulated to the following facts: All applicants timely filed their respective letters of intent, applications and omission responses with DHRS and the appropriate local health council for the January, 1987, batching cycle. The petitioners each timely filed a petition requesting a Section 120.57(1) hearing and have standing in this proceeding. The parties agree the Division of Administrative Hearings has jurisdiction over this matter and the parties. The CON application content requirements of Section 381.494, Florida Statutes (1985), apply as that was the statute in effect at the time the applications were filed. The review criteria in Section 381.705(1) and (2), Florida Statutes (1987), apply to this proceeding. The following statutory criteria have been met orare not applicable in this proceeding: Section 381.705(1)(d), (f), (g), (j) and (k) and all of Section 381.705(2), Florida Statutes (1987). Except for the effects the project will have on clinical needs of health professional training programs, the extent to which services will be accessible to schools for health professionals and the availability of alternative uses of such resources for the provision of other health services, Section 381.705(1)(h) is in dispute and remains to be litigated.
FINDINGS OF FACT
SUMMARY DESCRIPTION OF THE PARTIES.
HCR's application (CON Action No. 5000) is to construct a 120-bed nursing home consisting of 40,000 square feet at a cost of $3,964,000.00, or
$33,033 per bed (including adult day care; $32,1127 when the cost for day care is excluded.) The HCR application describes special programs and services for Alzheimer's Disease and related disorder patients in a distinct special care unit and an Alzheimer's day care center, both Identified in the plans submitted by HCR showing special design elements. HCR also proposes to offer sub-acute care and respite care. The HCR nursing home will have 2.08 (120/57.6) patients per staff, which includes the assistant director of nursing and occupational therapy and recreational therapy aides listed by HCR in its application.
FCP submitted an application for 30 nursing home beds to be constructed as a part of a retirement facility (CON Action NO. 4993). The 30 beds will comprise approximately 17,558 square feet at a cost of $1,549,599.00, or $51,653 per bed. The Florida Country Place application proposes a patient staff ratio of approximately 2.3 (30/13).
Palm Court submitted an application for a 60-bed addition to its existing 120-bed facility (CON Action No. 4987). The 60-bed addition would consist of 15,260 square feet at a cost of $1,472,435.00, or $24,571 per bed. The Palm Court facility is located in Plant City in the far eastern portion of Hillsborough County, near the Polk County line. Palm Court proposed a ratio of
2.31 (60/26) patients per nursing staff.
Manor Care submitted an application (CON Action No. 5006) to add 60 beds to an approved certificate of need for 60-beds for which construction has not yet begun. The area to be added would consist of 19,000 square feet at a cost of $2,187,045.00, or $36,451 per bed. The Manor Care addition would include a distinct special care unit for Alzheimer's Disease and related disorder victims and the 60-bed addition would provide a patient staff ratio of
1.98 (60/30.3), which includes a half-time physical therapy aide, a half-time recreational therapy assistant and an assistant director of nursing.
Forum submitted an application (CON Action No. 4999) to construct a 120-bed nursing home as a part of a retirement complex. The nursing home element will consist of 49,283 square feet at a cost of $5,053,301.00, or
$42,111 per bed. Forum proposes a staffing ratio of 3.0 patients per staff FTE. Forum proposed to provide respite care and hospice care, and adult day care and meals on wheels during or after the second year of operation.
HHL submitted an application (CON Action No. 4978) for 120-bed nursing home consisting of 37,700 square feet at a cost of $3,900,000.00, or $32,500 per bed. The HHL facility proposes 2.27 (120/52.8) patients per staff, which includes the rehabilitation assistants and the assistant director of nursing listed by HHL. HHL proposes sub-acute care, respite care, programs for Alzheimer's Disease victims (but not a distinct special care unit) and an Alzheimer's adult day care program of from four to six patients.
Cypress submitted an application (CON Action No. 5004) to construct a 60-bed nursing home in Sun City Center in southeastern Hillsborough County. The nursing home described in the application would contain 24,069 square feet at a cost of $2,125,000.00, or $35,419 per bed. But Cypress' estimated construction cost per square foot of $49.81 does not account for inflation and is
unreasonably low. Median cost of nursing home construction in Florida is $55 per square foot. It is estimated that Cypress' construction cost estimate is
10-15 percent too low. Assuming that the cost estimate is 12.5 percent too low, the cost of construction would increase to approximately $2,274.485 or $37,914 per bed.
Cypress did not detail any special programs in its application and proposed
2.45 (60/24.5) patients per staff. However, this ratio is questionable in view of the confusion surrounding Cypress' evidence regarding staffing and the apparent inaccuracy of the staffing presented by the application.
DHRS is the state agency that preliminarily reviewed and passed on the applications and is responsible for final agency action on them.
DHRS PRELIMINARY REVIEW AND ACTION.
HCR, FCP, Palm Court, Manor Care, Forum, HHL, Cypress, and others filed their applications for community nursing home bed certificates of need for Hillsborough County in the January, 1987, batching cycle.
On June 18, 1987, DHRS issued its State Agency Action Report (SAAR), in which it denied all of the applications except HCR's, FCP's and VHA/Oxford's (for 120 beds).
Review of the SAAR in light of the evidence introduced at the final hearing indicates that DHRS erred in reviewing the applications in at least the following respects:
Manor Care. --
The SAAR indicates that DHRS was not cognizant that Manor Care had a final approval for a 60-bed nursing home CON (No. 4155) to which to add the 60 beds applied for in this case, CON Action No. 5006.
The SAAR was somewhat critical of the Manor Care proposal for being a two-story structure. It appears that DHRS confused the proposal to add 60-beds (CON Action No. 5006) with a parallel contingent proposal to build a new 120-bed facility (CON Action No. 5005), which Manor Care eventually withdrew during the final hearing. Actually, CON Action No. 5006, added to the approved CON No. 4155 for a new 60-bed nursing home, would result in a one-story 120-bed nursing home.
On page 7 of the SAAR, DHRS indicated its understanding that Manor Care had not specified a location for its proposal. Later, on page 11, the SAAR acknowledges the true fact that Manor Care's proposed nursIng home would be located in the Northwest Hillsborough County subdistrict, which is the Local Health Plan's first priority for location of additional nursing home beds in DHRS District 6.
HHL.
The SAAR (p. 13) states that Convalescent Services, Inc. (CSI), the management corporation HHL and other limited partnerships for which the Kellett Brothers are the general partners, has no other nursing homes in Florida. While technically correct, Kellett limited partnerships do have other nursing homes in Florida.
Staffing tables on page 17 of the SAAR are incorrect, attributing no LPNs to the HHL proposal instead of 6 and only 36 aides instead of 38.
On page 18 of the SAAR, the table of patient privileges incorrectly states that the HHL applications had no patients' bill of rights.
Also on page 18 of the SAAR, DHRS incorrectly omitted adult day care and community outreach from the table of programs provided by HHL.
On page 26 of the SAkR, it gives HHL's private pay private room rate ($101) as its semi-private room rate (actually $69.92)
The SAAR Review Matrix incorrectly omits adult day care, community outreach and sub-acute care from HHL's proposed programs and omits HHL's patients' bill of rights.
Forum. --
The SAAR starts out on page 3 by misidentifying Forum as being affiliated with Hospital Corporation of America.
On pages 4, 6 and 15, the SAAR incorrectly fails to recognize that a retirement living center (apartments) is part of the overall development Forum proposes.
The semi-private room rate of $110 attributed to Forum's application on page 26 of the SAAR is wrong; it should have been $85.
Cypress. --
The Review Matrix in the SAAR failed to identify several services and programs Cypress stated in its application that it would offer. The matrix did not recognize that Cypress would offer social activity functions within the community, would offer rehabilitation, would provide some Alzheimer's type services, (which Cypress called supportive care and mentally frail services) and physically frail services. Cypress also spoke of hospice care and respite care in its application, as well as specialized rehabilitation, physical therapy, and speech therapy. Cypress also spoke of community outreach programs, psychiatric services, home health agencies, and numerous other areas that were not recognized by DHRS in its matrix. However, there are valid reasons for some of these omissions.
On May 9, 1988, the first day of the final hearing, VHA/Oxford withdrew its application.
On the afternoon of May 17, 1988, DHRS announced it was supporting the grant of Palm Court's application since VHA/Oxford had withdrawn. But the only evidence to support the new DHRS position was through the testimony of Reid Jaffe, DHRS Health Services and Facilities Consultants Supervisor, who did not express a personal opinion but acted as a messsenger to relay the positions taken by others at DHRS who did not testify.
NUMERIC NEED.
Rule 10.5.011(1)(k), Florida Administrative Code, is a methodology for calculating net numeric need for nursing home beds. Under the methodology, gross numeric need is calculated essentially by multiplying the population of
two age cohorts projected on the planning horizon by a use rate. The use rate is calculated by divIding current population by the current number of licensed beds. To obtain net need in a health planning sub-district, the methodology first prorates the gross need in the entire district, using the proportion of current licensed beds in the subdistrict to the current licensed beds in the district, and adjusts the resultant by a current occupancy rate factor (occupancy rate /0.90); then, the number of licensed beds, plus 90 percent of the number of approved beds in the subdistrict, are subtracted from the adjusted gross need in the subdistrict.
With three exceptions, the parties agree on how net numeric need is calculated under the rule methodology. The parties disagree only on the current licensed bed count, the current approved bed count, and the occupancy rate at one facility that has both community nursing home beds and sheltered nursing home beds. (Sheltered nursing home beds generally are not factored into the formula.)
As for the licensed bed count, the issue is whether The Home Association, a 96-bed facility in Hillsborough County, should be included as a licensed community nursing home facility or excluded as a sheltered facility. At hearing, all of the parties presenting evidence on the issue except Forum counted The Home Association's 96 beds as licensed community beds. Forum excluded The Home Association from the licensed bed count because it was not listed on the Department's Community Nursing Home Report for January 1, 1988.
This same report reflects three other facilities in Hillsborough County in which the beds were formerly sheltered but as of August 1, 1987, began to be counted by the Department as community beds. Forum conceded, however, that if the Department recognizes The Home Association as a community facility, then it would be appropriate to include those beds in the licensed bed count under the rule formula. In its proposed recommended order, even Forum agrees that The Home Association beds are included in the licensed bed count.
Two issues are presented relating to the inventory of approved beds under the rule formula: the date at which approved beds are to be counted; and whether the 120 beds under Careage CON #4714 and Manor Care's 60 beds under CON #4155 were approved at the pertinent time. On the first question, Forum again stands alone. In the face of a rule which is silent as to the date on which approved beds are to be counted, Forum suggests that they be counted cn the same day licensed beds are counted, December 1, 1986, for this batch. All other interested parties follow the Department's general practice of counting approved beds as of the date the State Agency Action Report for this batch was executed, June 18, 1987. Forum supports its position on the ground that use of the same date for both licensed and approved beds avoids the prospect that beds may be "lost" from the calculation if they are not licensed as of December 1, 1986, but become licensed before June 18, 1987, and therefore are no longer approved beds on that latter date. The argument is meritless. There is no evidence of any "lost" beds under this policy for this batch. Indeed, the evidence is that such beds are not lost: 120 beds at Carrollwood were licensed on December 15, 1986, after the December 1 licensed bed cut-off and before the June 18, 1987, SAAR date. These beds were included in the approved bed inventory on June 18, 1987.
The Department's policy under its numeric need rule is to count approved beds as of the execution date of the SAAR. Under this policy, the need for beds in the future is predicated on the number of beds currently or soon to be available to meet the need. When more than seven months can elapse after licensed beds are counted but before the agency decision is formulated, it makes sense to count beds approved during this intervening period.
A 120-bed award to Careage in the prior batch was published by DHRS in the Florida Administrative Weekly of January 23, 1987, reflecting approval on January 7, 1987.
However, DHRS then received criticism.of the approval, and a new supervisor in charge initiated a second review of the circumstances and of the Careage approval. The second review did not conclude until after June 18, 1987. When it did, DHRS re- affirmed its decision to approve Careage and issued a CON for
120 beds on August 18, 1987.
Although the Careage CON was issued after June 18, 1987, DHRS proved that there is a rational basis for including it in the approved bed count under these unusual circumstances. The Careage CON represents 120 beds approved in the batching cycle preceding the one at issue in this case. Counting the 120 beds as approved promotes sound health planning. The projection of net need on the planning horizon is predicated on the most accurate count of approved beds from prior batching cycles that can be anticipated to come on line in the near future.
As of June 18, 1987, there were 308 other beds approved but not yet licensed in Hillsborough County. Included among these 308 approved beds are 60 beds awarded to Manor Care under CON 4155 by Stipulation dated March 30, 1987. By mistake, DHRS did not count Manor Care's 60-bed CON in the SAAR. This mistake was not discovered, and DHRS served discovery responses and took a final position on need, as required by prehearing orders, that did not count the Manor Care CON. But this mistake f fact should now be corrected, even if it could have been discovered earlier through the use of due diligence, so that the health planning decision resulting from these de novo proceedings will be predicated on the correct facts. See Gulf Court Nursing Center v. HRS, 483 So.2d 700, 712 (Fla. 1st DCA 1986). It is appropriate to include Manor Care's finally approved 60 beds in the rule formula. Adding Careage's 120 beds, the total approved bed count is 428.
The final variation accounting for the differences in the parties' calculations under the formula is the manner in which the occupancy rate should be computed at John Knox Village, a facility containing both community and sheltered beds. The issue is whether the patient days in this mixed facility should be prorated between the two types of beds or whether the full patient days for both types of beds should be used in calculating the occupancy rate in the facility. There is no separate report of occupancy by bed type for this mixed facility. The number of patient days delivered in the community beds at John Knox is not known. If the patient days for the entire facility are prorated according to the percentage the community beds bear to the total number of beds, there is a necessary but wholly unsupported and speculative assumption that the proportion of patient days delivered in community beds is identical to the proportion of community beds. DHRS historically has been unwilling to make this assumption and has always included the total number of beds and patient days in mixed facilities to determine the occupancy rate under the community bed rule. The rationale supporting this policy has been appropriately explicated on the record.
The use of prorated patient days to determine occupancy in mixed facilities, as suggested by DHRS for the first time at final hearing, also is a change from the position the Department took when exhibits were exchanged and the prehearing stipulation was executed and then relied on by the parties. Because the Department, as a party litigant, did not prorate in its prehearing
submissions, it cannot do so at hearing in the absence of fraud, mistake of fact, or newly discovered evidence. No evidence of any such extenuating circumstances was presented. The only explanation DHRS gave for changing its treatment of the John Knox occupancy data was that more accurate recent data (using daily census data instead of first day of the month census data) furnished by the Local Health Council was prorated. But DHRS just as easily could have prorated the older, less accurate data if it had chosen to take that position at the time the parties were required to take final positions in prehearing procedures. The Department, therefore, is precluded from adopting a posture at hearing relating to the treatment of patient days in mixed facilities which is different from that reflected in the Department's prehearing stipulation and exchanged exhibits.
In summary, the appropriate numeric need calculation must include The Home Association in licensed beds, count both Careage's 120-bed CON and Manor Care's 60-bed CON in the approved bed count, and use the full John Knox bed complement and patient days in determining the Hillsborough County occupancy rate. Using these factors in the rule methodology, the net need for community nursing home beds in Hillsborough County for the January, 1990, planning horizon is 231, as reflected in the calculation included in the attached Appendix To Recommended Order, Case Nos. 87-3409, etc.
Rule 10-5.011(1)(k), Florida Administrative Code, provides that DHRS normally may not approve more beds than the numeric net need calculated under rule methodology. In this case, none of the circumstances specified in the rule that would justify exceeding the numeric net need were proven by the evidence. At the same time, the rule does not require DHRS to fill all, or as much as possible, of the numeric net need by attempting to "mix and match" applications to come as close as possible to the calculated number.
LOCAL GEOGRAPHIC NEED PRIORITIES.
The current, 1985 District VI Local Health Plan provides that, after consideration of numeric bed need under the rule need methodology, its "priority need rankings" should be considered in the competitive review for new nursing homes. Hil1sborough County, Northwest, is priority rank number one. HCR, FCP, Manor Care, Forum and HHL all propose to locate their nursing homes there. Cypress proposes to locate in Sun City Center and Palm Court is in Plant City, both in Hillsborough County, Southeast, an area ranked fifth in priority in District VI. Plant City is close to Polk County, which the Local Health Plan designates as the fourth ranked area in priority.
Cypress proposes its 60-bed nursing home approximately 1/4 mile down the road from an existing nursing home called Sun Terrace, operated by CSI. Quality of care concerns have arisen due to rapid fill-up of 60 additional beds recently licensed at Sun Terrace and opened in September, 1987. See Findings of Fact 83-87, below. As a result, Sun Terrace has imposed on itself a moratorium on new admissions until quality of care concerns can be addressed. In part as a result of the moratorium, Sun Terrace's occupancy rate at the time of the final hearing was only approximately 65 percent, leaving 42 empty beds.
MEDICAID NEED.
One of the three major considerations for competitive review of nursing home CON applications in the Longterm Care section of the 1985-1987 State Health Plan is "resource access." Except as reflected in the priority rankings, geographic access is not an issue in this proceeding.
(Priority/Policy 7 of the Local Health Plan, setting a goal of providing for nursing home services within 30 minutes travel time of 90 percent of urban residents and within 45 minutes travel time of 90 percent of rural residents, already has been achieved in District VI.) But, to address concern for financial access, Priority/Policy 2 of the Local Health Plan provides that applicants "should commit, at a minimum, to serve Medicaid eligible patients in proportion to the representation of elderly poor in the subdistrict." In Hillsborough County, Northwest, where all but two of the applicants propose to locate, the elderly poverty rate is 18.6; in Hillsborough County, Southeast, where Cypress and Pal:n Court would be located, the elderly poverty rate is 15.6 percent.
The applicants propose to commit the following percentages of their nursing home beds to the care of Medicaid- 4 eligible patients: HCR, 70 percent; FCP, 70 percent; Manor Care, 30 percent; HHL, 45 percent; Palm Court,
70 percent; and Cypress, approximately 10 percent.
Cypress proposed in its application to commit 10 percent of its beds for Medicaid use. It attempted to update its application to provide for a 15 percent Medicaid commitment. The update was said to have been the result of a decrease in the average age of the residents of Sun City Center, Cypress' proposed primary service area, from 73 to 70. But the percentage was calculated by first estimating 60 percent private pay and "backing down" to a Medicare percentage of 25 percent, leaving 15 percent Medicaid. The evidence was persuasive that this attempted update was not due to extrinsic factors. See Conclusions of Law 20 to 25, below.
Forum has committed only to have 50 percent of its beds Medicaid- certified and to meet the requirements of Priority/Policy 2.
Although Priority/Policy 2 is written as a minimum Medicaid percentage, no evidence was presented from which to determine how high a percentage of Medicaid commitment is desirable. There was, e.g., no evidence on which to find that a Medicaid percentage as high as four times the elderly poverty rate is more desirable than a percentage approximately equal to or perhaps just a bit higher than the elderly poverty rate. To the contrary, the only evidence on the subject was that DHRS does not now consider the Medicaid percentage to be as important as it was considered to be in the past and that DHRS now just checks to see that the percentage approximates the elderly poor rate in the County.
NEED FOR ALZHEIMER'S DISEASE PROGRAMS.
Description Of The Disease And The Need.
There is a need in Hillsborough County for additional nursing home beds and services for Alzheimer's Disease and related disorder victims. There is no known nursing home in Hillsborough County which provides a distinct care unit for Alzheimer's Disease and related disorder victims. There is an estimated unmet need by Alzheimer's patients for nursing home care in Hillsborough County of approximately 1,271 by July, 1989. DHRS has recommended that "preference should be given to applicants for new nursing home beds which propose the development of special Alzheimer's units" and "greater preference should be given to units that will also provide adult day care and/or respite care."
Alzheimer's Disease is a brain disorder that was discovered at the turn of the century. It primarily affects persons over the age of 60. The term "related disorders" is used because some non-Alzheimer's disorders mimic Alzheimer's Disease symptoms and create many of the same needs for specialized care. Typically, Alzheimer's Disease results in gradual memory loss and, as memory loss progresses, results in the need for ever- increasing personal care. In the earlier stages, the victim is often in reasonably good physical condition and simply exhibits signs of recent memory loss. However, as memory loss increases, various activities of daily living are disrupted. Victims encounter more serious physical problems and exhibit symptoms such as wandering, significant weight loss, clumsiness, incontinence and antisocial behavior. In the last stages of the disease, the victim requires increasingly intense medical attention, becomes totally dependent on others, and may eventually require total skilled nursing care.
The intensity of care required for the Alzheimer's Disease and related disorder victim increases as the disease progresses. In early stages, the victims are typically cared for at home by a family member. The nature of care required for an Alzheimer's Disease or related disorders victim is very exhausting for the care giver. Toward the end of the first stage of the disease when the victim requires increasing supervision, the victim can be maintained longer in the home if there is available to the care giver some form of occasional rest, such as adult day care or respite care. Adult day care and respite care provide opportunities for the primary care giver to "take a break". See Findings of Fact 133 to 135, below.
An Alzheimer's Disease patient usually requires inpatient nursing home care late in the second stage of the disease. If the patient is ambulatory, he often exhibits a wandering behavior. Approximately 50 percent of the Alzheimer's victims admitted to a nursing home have the potential to wander. Ultimately, Alzheimer's victims become bed-ridden and require skilled or sub- acute nursing home care, including tube feedings, cathethers, and artificial life support.
Historically, ambulatory Alzheimer's patients in nursing homes have been mixed with other patients. The Alzheimer's victim has often disrupted life in the nursing home because of the victim's wandering, incontinence, confusion, and socially unacceptable behavior. Because of these characteristics, some nursing homes avoid admitting Alzheimer's patients and others control problem behavior with sedation and physical restraint. A separate Alzheimer's care unit enables the nursing home to utilize special techniques to manage the Alzheimer's disease victim and allows the victim to maintain his cognitive capabilities for as long as possible, without restraint and sedation.
Nursing home patients who do not suffer from Alzheimer's and related diseases are often agitated and disrupted by the Alzheimer's patients' unacceptable social behavior. A separate unit for Alzheimer's Disease victims accommodates the needs of the non-Alzheimer's patient by eliminating unpleasant, often violent encounters between dementia victims and other patients.
Distinct Alzheimer's special care units provide better care for Alzheimer's disease and related disorder victims for several reasons. A separate unit eliminates the tendency of the Alzheimer's disease patient to disrupt the remainder of the nursing home. A separate unit provides a smaller, safer, specially designed area with specially trained staff to address the unique needs of the Alzheimer's disease victim. A separate unit is preferable
to mixing Alzheimer's patients with non- Alzheimer's patients. Traditional nursing home programs and activities are often inappropriate and counterproductive for the Alzheimer's patient.
HCR's Proposal.
The 120-bed nursing home proposed by HCR will help meet the needs in Hillsborough County for adult day care, respite care, sub-acute care and a special care unit for Alzheimer's Disease and related disorder victims. The programs and services will enable the HCR nursing home to provide at one location a complete continuum of care from the least intense level of care in adult day care to total (sub-acute) care.
HCR's Alzheimer's special care unit will incorporate special design features, special patient activities and programs and higher staffing levels to meet the unique needs cf Alzheimer's disease victims. These features are intended to compensate for memory loss and provide a safe environment where cognitive capabilities can be maintained for as long as possible while patients enjoy personal freedom without the use of restraints and sedation which have typified the treatment of unmanageable Alzheimer's and dementia patients.
The architectural design of the HCR nursing home will accommodate the tendency of Alzheimer's victims to wander by allowing the victims to ambulate in circular patterns through the facility and the adjacent court yard and by providing an electronic warning system to prevent inadvertent exit from the nursing home. Patient bathrooms are specially designed to avoid fright and confusion through the use of automatic lighting fixtures, appropriate coloring and distinctly shaped fixtures and waste baskets. Calming colors, color coding, carefully selected art work, special floor coverings and labeling are provided. Separate dining and activities areas enable the nursing home to provide programs and activities for Alzheimer's disease victims in a more effective and efficient manner than would be possible if the same areas also had to be used for non- Alzheimer's Disease victims.
The proposed HCR nursing home includes a discreet area designed for an adult day care center, which will share some resources with the nursing home. The program will accommodate 12 persons and be operated in accordance with adult day care regulations. The physical spaces include an entry separate from the main nursing home entry, a lobby, an office, a therapeutic kitchen for use by the patients, toilet facilities, an activities center, and a lounge with an adjacent covered porch. The adult day care program will be staffed by a nurse director, an assistant and volunteers. The participants in this program will be provided with various activities of daily living in an environment developed for Alzheimer's Disease victiMs. This program is intended to provide placement for persons not yet in need of in-patient care and will provide an alternative to premature nursing home admission.
Manor Care's Proposal.
Manor Care proposes a dedicated 30-bed specialized unit for persons suffering from Alzheimer's disease and related disorders.
In 1985, Manor Care perceived the need to treat Alzheimer's patients in a manner different than patients in the general nursing home population. Manor Care's task force of nurses, administrators, architects, and designers developed an Alzheimer's program which recognizes the special needs of the patient.
Manor Care now operates 21 special dedicated Alzheimer's units throughout the country and is planning 16 additional Alzheimer's units.
Manor Care's comprehensive Alzheimer's program encompasses five components: (1) environment, (2) staffing and training, (3) programming, (4) specialized medical services, and (5) family support.
Environment.
The proposed 30-bed Alzheimer's unit will be separate from the rest of the facility and self-contained, with its own dining room, activities room, lounge, quiet/privacy room, nurses sub-station, director's office, and outdoor courtyard.
A separate dining room for Alzheimer's residents enables staff to provide individualized attention and special assistance. By providing a simple and separate dining environment, residents are no longer embarrassed by confusion and agitation displayed in the presence of non-Alzheimer's residents during mealtime.
A separate lounge area is provided for families to visit with residents. In a typical nursing center, the family must visit a confused resident in the presence of other families; families of Alzheimer's residents can find this embarrassing. A separate lounge makes visitation more desirable for Alzheimer's residents and families.
The quiet/privacy room can be used by families as a quiet area to visit with a family member, by residents who want to spend time alone, or by staff persons and residents for individualized programming away from the activity on the unit.
The outdoor courtyard, which is enclosed and accessible to the unit through the activities room and hallway door, allows Alzheimer's residents to walk outside freely without wandering off.
The Manor Care Alzheimer's unit is specially designed with features which reduce environmental stress by minimizing glare (using parabolic lenses), noise and bold patterns which increase agitation in Alzheimer's residents. Throughout the unit, a residential, uncluttered atmosphere is emphasized, using soft, contrasting colors and textures. The unit also contains visual cues to increase orientation. Furnishings are functional, durable and easy to maintain.
Staffing and Training.
The Alzheimer's unit has its own specialized staff including a Unit Director, Activities Director, and nursing staff. The unit is staffed at a higher "nurse to resident" ratio than the rest of the facility.
Staffing patterns emphasizu continuity to ensure that residents receive individualized care. The nurses become f;i1iar with the behavior and abilities of each resident and are able to render care appropriately.
Programming.
The goal of programming and activities in the Alzheimer's unit is to improve the quality of life of the Alzheimer's resident. This specialized programming results in reducing the use of medications and restraints necessary to manage the Alzheimer's resident.
The Manor Care Alzheimer's activity program is success-oriented; staff provide activities designed to allow Alzheimer's residents to succeed more frequently. (They usually fail when mixed in with the general nursing home population.)
specialized Medical Services.
The use of consultant medical specialists is an integral part of Manor Care's Alzheimer's Program. Specialists provide diagnostic and treatment services for Alzheimer's residents upon admission to the unit, and thereafter when deemed medically appropriate.
Family support.
Family support is another important aspect of the Manor Care Alzheimer's program. Families are very supportive of the unit's programming and have benef itted from the understanding and support available to them.
The Others' Proposals.
None of the other applicants propose specialized units for the care of patients with Alzheimer's disease and related disorders.
Alzheimer's sufferers will be treated in an "open unit" at the HHL facility and will be placed as compatibly as possible with other residents. Although these residents will be able to intermingle with other residents, their movements will be monitored by the "wander guard" system and all doors will be equipped with buzzers connected to the nurse's stations. The HHL facility will be designed to incorporate secure courtyards and other areas where residents will be free to wander safely throughout the living areas. The facility's nursing personnel will be specially trained to provide services to Alzheimer's sufferers.
The proposed HHL facility will also offer an adult Alzheimer's day care program. Although the program will be small (accommodating between four to six individuals) it will interface with the Alzheimer's program offered to the in-house residents. As with the respite program, the Alzheimer's adult day care program will give the families of Alzheimer's disease sufferers an opportunity to take a breather during the day, and the participants will benefit from the special Alzheimer's programs and activities offered.
With its proposed 60-bed addition, Palm Court plans to add a program directed specifically at persons suffering from Alzheimers and related brain disorders. Currently, it does not have one.
Neither FCP nor Forum make any particular provision for the care of Alzheimer's patients. FCP points out that its facilities in other states historically have cared for this special category of patient, primarily through use of high quality, thereapy-oriented programs, especially at the earlier stages of the disease.
Cypress proposes to locate off of a central core: a 60-bed nursing home, offering both intermediate and skilled care, with its own recreation area and dining, serviced from the central kitchen; (2) a 20-bed assisted living unit (which Cypress also calls "supportive care") for mentally frail and physically strong individuals which has its own outdoor recreation area and dining area; and (3) another 40 assisted living beds broken into two 20-unit wings for mentally strong and physically frail individuals, with their own dining and recreation area, including outdoor recreation. The various levels of care are separate since each of the levels have different needs and methods of treatment. However, Cypress will only accept in the mentally frail, physically strong wing, Alzheimer's-type patients who are in the earlier stages of the disease.
QUALITY OF CARE.
Priority/Policy 9 of the 1985 Local Health Plan states: "Applicants should be evaluated as to their achievement of superior quality ratings by DHRS and other indications of quality as available."
Track Record.
At the time of application, three of the nursing homes operated by HCR in Florida had superior licenses and the remaining homes had standard licenses.
FCP has one nursing home in Florida. It is rated standard by DHRS.
None of the facilities operated by FCP's principals, the Phillipses, has ever been in receivership or had a Medicaid or Medicare certification revoked.
The Phillipses have an excellent reputation in Ohio for their operation and management of nursing homes and have remained in positive standing with federal and state certification agencies.
Manor Care's proposed 60-bed addition will be owned by Manor Care of Florida, Inc., a wholly-owned subsidiary of Manor HealthCare Corporation.
Manor HealthCare Corporation is a publicly-held corporation which owns and operates about 130 nursing homes in various states. Manor Care owns and operates nine nursing homes and three adult congregate living facilities (ACLFs) in Florida.
All nine Florida nursing homes exceed DHRS licensure standards; the majority of Manor Care's Florida facilities hold a superior license rating.
Manor Care has never had a license denied, revoked, or suspended in Florida.
Manor Care has opened three nursing homes in Florida in recent years. All three are superior rated.
Palm Court Nursing Home has a superior license, with zero deficiencies, from DHRS' Office of Licensure and Certification with the most recent inspection having occurred between May 2 and May 4 immediately preceding the beginning of the final hearing. It is managed by National Health Corp., Murpheesboro, Tennessee. National Health Corp is an owner-operator of other facilities and either owns or operates some 19 facilities in Florida. It has
managed Palm Court Nursing Home since its inception and, if the 60 bed addition is approved, will manage the addition.
Forum has never had a license denied, revoked or suspended, nor had a facility placed in receivership.
Forum has never had any nursing home placed in receivership at any time during its ownership, management or leasing.
Forum has a history of providing quality of care and owns and operates facilities in other states which hold superior ratings.
Forum has a corporate policy of seeking to attain a superior rating in those states which have such a system.
Forum presently owns and operates one facility in Florida. That facility is rated standard and was acquired by Forum within the past two years. That facility, which only has 35 nursing beds, is not a prototype of what Forum proposes in this case.
Seventeen (17) of the twenty-one (21) nursing homes currently managed by CSI are located in states which utilize a superior rating system. Of the facilities that are eligible to receive superior licenses, CSI maintains superior ratings in over 80 percent of its beds.
CSI's Sun Terrace in Sun City Center was the subject of an extensive survey issued by the Office of Licensure and Certification, an arm of DHRS, in April, 1988, that cited numerous deficiencies in the areas of quality of care, staffing, and programs at the Sun Terrace facility. The licensure survey also cited violations of state and federal laws in the handling of controlled substances and problems with resident care plans at the facility. The findings of DHRS in its licensure survey of Sun Terrace appear to be serious matters, the resolution of which is clearly within the control of CSI.
Following the opening of the second 60 beds at Sun Terrace in September, 1987, the facility experienced a shortage of nursing personnel which necessitated a greater use of agency personnel to staff the facility. The problems cited by DHRS at Sun Terrace were largely the result of the increased use of agency personnel, lack of documentation, a newly licensed administrator, and the unexpected resignation of the director of nursing.
Even before the DHRS licensure survey, CSI had taken affirmative action to address the problems at Sun Terrace, including a voluntary moratorium on new admissions.
In response to the recent problems at Sun Terrac, CSI has moved toward more centralized management of its facilities. CSI now requires administrators to adhere very closely to the corporate policies and procedures. Further, the addition of a second full-time nurse/consultant will double the frequency of quality of care monitoring visits at CSI facilities.
The problems experienced at Sun Terrace are atypical of CSI-managed facilities. When CSI's policies and procedures are properly followed, the result is excellent nursing care and services. But the problems at Sun Terrace are examples of what can happen when an organization attempts to expand operations more rapidly than it should. In this connection, CSI has received seven CONs since July 1984. Two of the seven are preliminary approvals that
have been challenged and have not yet gone to hearing. One was the 60-bed addition to Sun Terrace which is now licensed. Another is a 73-bed nursing home in Brevard County which is expected to open within the next several months, and another is a 21-bed addition project in Collier County.
Cypress has never operated a nursing home and has no track record.
Staffing.
Staffing arrangments are important considerations in assessing the quality of care to be expected from a proposal, but there is not necessarily a proportional correlation between staffing and quality. How staffing affects quality also depends on the breadth and types of programs to be offered. For example, Alzheimer's programs and sub-acute care will require higher staffing ratios.
HCR, FCP, Manor Care, Palm Court and Forum all propose staffing arrangments that meet or exceed state requirements. See Findings Of Fact 1-5, above.
Cypress' application, on the other hand, leaves much to be desired in its proposed staffing. The staffing plan presented by Cypress on its Updated Table 11 fails to meet the requirements of Rule 10D-29, F.A.C. Specifically, no provision has been made for an activity director (10D-29.116), a medical director (10D-29.107), a pharmacy consultant (10D-29.112), or a medical records consultant (10D-29.118), all of which are required by rule. (Cypress attempted to explain that it would have a pharmacy consultant on contract who would bill patients separately.) Further, no provision has been made for utilization review to monitor the appropriateness of the placement of residents, as required by Rule 10D-29.
Cypress' Updated Table 11 provides for LPNs of 1.5 FTEs on the first shift and night shift and 6.0 FTEs on the second shift. The second shift LPN coverage is over-staffed by 4 1/2 FTEs which will result in inefficiency.
Rule 10D-29.108, F.A.C., requires staffing of nursing assistants on all shifts. The Cypress staffing plan makes no provision for nursing assistants on the second shift.
In testimony, Cypress attempted to explain that Table 11 was wrong and that the second shift LPNs should have been aides.
The proposes Cypress nursing home will not offer 24-hour RN coverage. The third shift has no RN coverage.
Based upon the proposed staffing pattern appearing in Cypress' Updated Table 11, its proposed facililty would not qualify for licensure under Florida regulations, much less qualify for a superior rating.
Cypress has not secured or identified the day-to-day management of the proposed nursing home. No medical director has been secured or identified.
Quality Assurance programs.
All of the applicants except Cypress have existing quality assurance (QA) programs that are adequate to assL're quality of care. From the evidence HCR's, Manor Care's, HHL's and Forum's QA programs are comparable and are the best among the applicants.
Palm Court has had results comparable to or better than the others , which is itself evidence of an adequate QA program.
Meanwhile, CSI, despite an evidently superior QA program, has experienced quality programs due to rapid fill-up of its 60 additiional beds at Sun Terrace.
Cypress has no experience operating a nursing home. Not surprisingly, it professes to desire quality and to plan to implement stringent QA programs. But its plans at this stage are not as developed and detailed as the existing QA programs being used by the other applicants at other facilities.
Other Factors.
Whether Therapies Are In-House or Contracted.
Assuming a need for it, and reasonable cost of providing it, provision of therapies--e.g., physical therapy, occupational therapy and speech therapy-- in-house generally is preferable to providing them by contracts with third parties. From an operational and administrative perspective, there are advantages to providing physical therapy services (PT) on an in- house basis. Contracted physical therapy staff tend to be available only for scheduled treatments; in-house staff are always available to assist staff and perform unscheduled maintenance therapy. In-house physical therapy staff work regularly with the nursing home staff. They are present within the facility anc learn the operation of the nursing home facility better than outside agencies.
Manor Care proposes to provide in-house physical therapy staff, as opposed to employing outside physical therapy staff on a contract basis. The evidence was that the other applicants plan to provide all of these therapies through third- party contracts.
Palm Court has one full-time PT assistant who works under the direction of a licensed physical therapist who now divides time among three 120- bed nursing homes managed by National Health Corp. The service of this licensed physical therapist is provided as part of National Health Corp's management services. Having to cover another 60 beds at Palm Court will spread the service even thinner. In addition, Palm Court's administrator conceded that the single PT assistant in Palm Court's application will not be enough once 60-beds are added to the facility; two will be required.
Of course, the trade-off (implied in Finding of Fact 102, above) for providing in-house therapy is that it is less efficient if full use of the services is not required.
De-institutionalization.
FCP, Forum and Cypress have made special efforts to "de- institutionalize" nursing home care at their proposed facilities. All three proposals emphasize the provision of nursing care within aresidential development--a combination of retirement apartments, assisted living
accommodations and nursing home. (See also this concept's impact on Continuum of Care concerns, Findings of Fact 114-127, below.)
FCP's proposed facility is designed with a residential appearance to facilitate and implement the philosophy of de-institutionalization co:tained in its application. It reflects FCP's modular approach to care with residential units in wings tied to a common area of support services. The support services are extensive. There are activities areas, craft areas, exercise rooms, therapy areas, a beauty salon and barber shop, men's and women's recreational areas, private dining rooms, a community dining room, screened patios and porches, a newsstand, a bank, a post office, a library, a chapel, a screened-in gazebo, and a swimming pool. The exterior amenities of the design include a pond, an exercise course, a sitting deck, and a putting green. The center core and its recreation and therapy programs are designed to encourage interact ion among the residents in all the different levels of care. Although the third floor, where the nursing home is located, also has a secondary lounge and supplemental dining area, the primary dining area, as well as all of the other amenities, are on the first floor to enhance the interaction.
The 30-bed size of FCP's proposed nursing home unit is a part of the original Phillips concept of a de- institutionalized setting, enabling the provision of more personalized care. Where there are fewer residents to care for, a better rapport between the residents and the care givers and a more family-type, personal atmosphere are achieved. This 30-bed concept previously has been approved by the Department in Lee and Polk Counties. Those projects are operationally, structurally, and physically identical to this proposed project.
The symmetrical, 3-story design minimizes the amount of travel distance for the resident at the farthest unit to the amenities of the center core and its services. The nursing unit is on the third and smallest floor so that the distance by elevator to the central core for the nursing home iesidents is at a minimum'while still providing those residents with the greatest opportunity for quiet time.
Privacy is an essential element in achieving high quality of care. The semi-private room plan utilized in this proposal is a unique approach to maximizing privacy for each resident. A permanent partial partition separating the two beds in each room effectively creates two private rooms. This provides a private space for each resident with his or her own thermostat, window, storage space, television, and telephone accommodation, and heightened auditory privacy. There will be equal access to and control of the vestibule and bathroom for each resident. The 585 gross square feet per bed in the FCP proposal is approximately one-third greater than standard nursing home room configuration.
Forum's proposal's chief effort in furtherance of the goal of deinstitutiona1izationother than the continuum of care concept and overall residential appearance--is in the relatively large and "up-scale" living areas.
The Cypress facility will include a central core dividing the two 60- bed portions of the project. The central core will include an administrative area, a chapel, a beauty and barber shop, enclosed courtyard, physical and occupational therapy, dining, a central kitchen, and a laundry area.
One trade-off for de-institutionalization is cost. Both FCP and Forum generally cost more than the others. Cypress claims not to, but its projected construction cost of $49 per square foot is unrealistically low. See Findings of Fact 147 and 149, below.
PROGRAMS (OTHER THAN ALZHEIMER'S).
Continnum of Care.
As just alluded to, several of the proposals emphasize the placement of their nursing home within a larger community of persons needing different levels of care.
FCP.
FCP proposes the construction of a 30-bed nursing unit as part of a family owned and operated, 120-unit, full continuum of care facility for the elderly. The facility also contains 60 independent living apartments and 30 adult congregate living units. The full continuum of care is proposed in a uniquely designed, de-institutionalized, home-like atmosphere. FCP offers a therapeutic community offering individualized, personalIzed care in small self- contained units, each specializing in various levels of care ranging from day care and respite care, through apartments for the elderly and assisted living, to skilled, post-hospital rehabilitation. The continuum of care will provide a homogeneous environment through which residents can move as their medical and personal needs change.
Forum.
Forum Group, Inc., is a national company which owns, develops and operates retirement living centers in a number of states.
Forum's proposed nursing home will be part of a total retirement living center containing two other levels of care, assisted living (or ACLF units) and independent apartment units.
Forum's proposal calls for provision of a continuum of care, from independent living to assisted living to nursing care, all on the same campus.
Cypress.
Cypress Total Care would be part of an overall medical project known as Cypress Park. The corporation was formed and a master plan was created, to be developed in two phases. Phase I is a 120-bed nursing facility consisting of
60 skilled and intermediate nursing beds, the subject of these proceedings, and
60 personal care units. Phase II would consist of a 290-unit adult congregate living facility (ACLF) and 143 units of independent villa housing on a golf course with nature trails and other amenities. Also proposed in Phase II would be units of medical offices and commercial health-related facilities to support the community.
The area selected by Cypress is adjacent to the Sun Hill Medical Arts Building and the Community Arts Building, as well as a hospital owned by Hospital Corporation of America known as Sun City Hospital. These components would be worked into the overall master plan proposed by Cypress.
Cypress proposes a multi-level assessment program. The 120-bed Cypress Park Community facility will have an independent level one facility in Sun City Center which will admit healthy elderly residents. These elderly may have canes, but no walkers or wheelchairs, and they will function normally in their activities of daily living. These individuals may prepare two meals a day in their apartments, or have them in the dining room. The main meal will be in the dining room. Social services and activities will be provided and recommended to the independent living residents to enhance their lifestyles. A home health agency is planned as a part of the center so that house calls can be made to insure that any necessary medications are taken and that residents receive the services they might need from time to time. (Cypress has not yet applied for a CON for its home health agency.)
The next level of living is for patients who need more assistance. These are residents who require 24-hour companion service. These patients do not require skilled nursing care and do not require the institutional environment of a nursing home. Some of these paients may be in the first stage of Alzheimer's, or they may be physically frail, but not enough to require skilled nursing care. This level is primarily for those individuals who are physically frail and mentally strong or mentally frail and physically strong. The physically frail and mentally strong may have limited ambulatory capabilities, need assistance in activities of daily living, need medication, or need all their meals prepared. As noted above, this level of services also will be provided to individuals who are physically strong but mentally frail. The majority of these people will be Alzheimer's residents, they must be carefully monitored 24 hours a day and receive strong psychological support.
The next level of care offered is for individuals who require some nursing care and no longer qualify for the level two care described above. This will be intermediate nursing care and will consist of care from certified nursing aides and licensed practical nurses. These individuals do not require skilled nursing care. Rehabilitation is the key to this portion of the plan, and the rehabilitative center will be involved to constantly push these individuals to the point of rehabilitation where they can reenter an independent lifestyle.
If individuals progress further, they can move into the skilled nursing care center in which they will receive care not only from nursing aides and licensed practical nurses, but also from registered nurses.
The final level would be acute hospital care which would be provided by the existing Sun City Hospital. The medical staff who are involved in the Cypress project also are on the medical staff of the Sun City Hospital and will be working and consulting with individuals both in the acute hospital care and the nursing home setting to provide appropriate levels of care to the individuals who need it. The nursing home will share IV teams, work with tracheotomy patients, A.D.A. dieticians, accounting services, and other services with the existing hospital in Sun City Center.
Palm Court.
Palm Court, while currently a free-standing 120- bed nursing home, is located on property where construction of a 360-bed adult congregate living facility (ACLF) is now starting. In addition, Palm Court has transfer agreements with area hospitals including Plant City Hospital, South Florida Baptist Hospital, Brandon Humana Hospital and Lakeland Regional Medical Center.
It also has formal working relationships with home health agencies and with elderly programs in the area.
The Others.
The other applicants--HCR, Manor Care and HHL-- propose free-standing nursing homes. But all can be expected to make efforts to achieve transfer and other agreements with local hospitals, home health agencies and providers of care for the elderly where reasonable and appropriate.
Sub-Acute Care.
The HCR nursing home will be staffed and equipped to provide sub- acute care. The sub-acute care services provided by HCR will include high tech services such as ventilator care, IV therapy, pulmonary aids, tube feeding, hyperalimentation, and short and long term rehabilitation. HCR currently provides a wide variety of these sub-acute services in its existing nursing homes.
CSI currently provides sub-acute nursing services at its existing Florida facilities. Those services include ventilators, hyperalimentation, intravenous therapy, Clinitron beds, heparin pumps, nosogastric and Jejunoscopy tube feedings, subclavian lines, and Hickman catheters. These service will be provided at HHL's proposed facility.
Forum will provide skilled and intermediate care, and the following services will be offered at the proposed facility:
Sterile dressing changes for decubitus care.
Brittle diabetics on sliding scale insulin.
Continuous administration of oxygen.
Sterile case of tracheotomies.
Ventilators.
Continuous bladder irrigation.
Hyper-alimentation or N-G feeding.
IV treatment.
Special medication monitoring (e.g. heparin, comadin).
New post-operative cases facing hospital discharge as a result of D.R.G. reimbursement.
The skilled nursing services to be provided by FCP include parenteral nutrition, internal nutrition, tracheostomy care, respirator care, skin wound decubitus care, ostomy care, and head trauma care.
Palm Court also will provide sub-acute care.
Adult Day Care
Adult day care is a part of the specialized Azfleimer's program HCR proposes. In addition, HHL, FCP and Forum offer adult day care.
Respite Care.
HCR and Manor Care offer respite care as part of their Alzheimer's programs. Both will have no minimum length of stay and no extra charge over the regular daily rate for nursing home care.
All the others except Palm Court also offer respite care, but Cypress' proposal for respite care is sketchy. HHL says it will offer respite care at no extra charge.
D. Hospice.
Only HCR, Forum and HHL offer hospice care as part of their nursing home programs.
F. Rehabilitation and Community Outreach.
All of the applicants propose rehabilitative (or restorative) care and some kind of community outreach programs. The distinctions among the ideas expressed by the applicants are not particularly competitively significant. However, the manner in which the therapies are delivered can be significant. See Finding of Facts 102 to 105, above.
HOW SOON THE PROJECT BECOMES OPERATIONAL.
Because there is a shortage of nursing home beds in Hillsborough County, there is a valid concern how long it would take for the holder of a CON to get its facility operational.
Priority/Policy 3 of the 1985 Local Health Plan gives expression to this concern as follows:
In competitive reviews, preference should be given to applicants with a documented history of implementing certificates of need within the statutory time frames.
Of the applicants who have developed nursing homes in the past (i.e., excluding Cypress), all but Palm Court have a history of timely implementing their CONs.
Palm Court had to request an extension of time in implementing its existing 120-bed facility. But Palm Court bought the CON for that project from the original owners in 1982 or 1983. Palm Court then had to secure another, more suitable location, re-design the facility, get construction financing and enter into a construction contract before construction could begin. This delayed the project and resulted in administrative litigation to decide whether Palm Court should lose the CON for failure to timely implement it or be given an extension of time. Palm Court prevailed, and the facility opened in September, 1985.
HHL, through CSI, also has a history of timely implementing CONs but recent expansion in Florida raises some question whether it can continue to be as timely in implementing this CON, along with the others. See Findings of Fact 82-87,98, and 100, above.
Generally, an addition of beds to an existing nursing home can be constructed more quickly than a new facility, giving Palm Court an advantage in potential speed of implementation. similarly, Manor Care, which is prepared to begin construction on its finally approved 60-bed CON, has an advantage over the others, as well as a potential construction cost savings over Palm Court. See Findings of Fact 146, below.
COST OF CARE.
Cost of Construction And Development.
Advantage of Additions.
Within limits placed on recovery of capital costs under the Medicaid and Medicare reimbursement programs now in place (which, to some extent, are emulated by private health care insurers and employers' health benefit plans),
construction and development costs generally are reflected in the charges patients pay for nursing home care.
Additions, such as Palm Court's and Manor Care's proposals, have a cost advantage over the other proposals. Construction sites already have been prepared, and it is not ncessary to duplicate some features already incorporated in the original structure, such as the kitchen, laundry and building plant.
Due to delays in finalization of its approved CON for 60 beds, Manor Care has the fortuitous additional potential cost advantage of being able to construct both the "original facility" and the 60-bed "addition" at the same time.
Quality vs. Cost Trade-Off.
Other than the cost advantage of adding on, and of saving the contractor's fee by using an in-house construction team (as HCR does), reduced cost of construction generally will reflect reduced quality. For example, some of the quality features incorporated in the proposals of Forum, FCP and Cypress will cost more. See Finding of Fact 113, above. Put another way, lower costs may result in lower patient charges but also may result in lower quality, everything else being equal.
The costs of construction of the various proposals may be found in Findings of Fact 1 to 7, above.
It should also be noted at this point that Cypress' facility design has features--primarily unusual wall and roof angles and one water heater requiring larger pipe sizing-- which make its construction costs appear lower than they should be.
Cost Overruns.
The applicants' respective records for cost overruns in implementing CONs mirror their records for timeliness. See Findings of Fact 138-143, above. Cypress has no track record; all the others except Palm Court have experienced no cost overruns; Palm Court's $1.3 million cost overrun was precipitated by the need to secure another site and re-design the facility after it acquired the CON for 120 beds; and CSI, which would be responsible for implementing HHL's proposal, is involved in recent expansion which could affect its ability to bring all of its' CONs on line within budget.
Cost of Operations.
Economies of Scale--Size of Facility.
In addition to construction and development costs, cost of operations are reflected in patient charges.
It generally is accepted that a 120-bed nursing home is the optimal size for operational efficiencies. In this respect, the proposals by HCR, Forum and HHL have an advantage over the others.
Manor Care has the advantage of proposing to expand a less efficient 60-bed nursing home to an optimally efficient 120-bed facility.
To some extent, the generally accepted principle that 120-bed nursing homes are more desirable may have become dated. Two of the proposals--FCP's and Cypress'--combine some of the operating efficiencies of a 120-bed nursing home with the continuum of care and quality of care that can be achieved in a 120-bed living complex that incorporates a smaller nursing unit with other living units of different levels of care. By c(Jmparison, these type facilities are less institutionalized than a 120-bed nursing home, whether free-standing or incorporated within a larger complex with other living units. See Findings of Fact 106 to 113, above.
Economies of Scale--Size of Organization.
Economies of scale also can be realized from the size of the organization that owns or manages a nursing home. The proposals of all of the applicants except Cypress benefit from this principle, Palm Court to a lesser extent than the others, including in the area of quality assurance, nurse training and nurse recruiting.
At the time of hearing, HCR operated nine nursing homes in Florida. HCR has approximately twelve nursing homes scheduled to begin construction in Florida within the next year. Nationwide, HCR operates more than 125 facilities containing approximately 16,000 beds. HCR has designed and built over 200 nursing homes and related health care facilities. HCR realizes substantial savings by using national contracts for the purchase of furniture, equipment, hardware and other operating supplies.
Forum, as a national company, has the experience and purchasing power to cut operational costs through national purchase contracts and through economies and improvements experienced at the local level with a total retirement facility all on one campus.
The Manor Care Florida Regional Office offers the services of a Regional Director, a Regional Nurse, a Nurse Recruiter, and a Comptroller to work with the corresponding departments of the Manor Care Florida nursing homes.
FCP's long term plans are to develop homes in clusters, currently concentrating on the central west coast area of Florida. FCP has previously been granted certificates of need in Lee County and Polk County and has been recommended by the Department for a certificate of need in Hillsborough County. This cluster will operate under a unified local administration and share rehabilitative, medical, social, dietary and transportation personnel, enhancing economies of operation.
CSI was formed in 1978 for the purpose of operating extended care facilities, including nursing homes and retirement centers. Since that time, the company has grown to its current operations of twenty-one (21) nursing homes, two (2) retirement centers and one (1) home for the aged located in seven
states. Historically, much of this growth has occurred through the acquisition of existing facilities, although more recently the focus has shifted to the development of new facilities.
Because CSI has established "national accounts" for the acquisition of movable equipment CSI can purchase nursing home equipment and furnishings and other operating supplies for HHL at reduced prices.
(3) Patient Charges.
The applicants propose the following room charges for semi-private rooms.
Applicant Medicaid Medicare Private Pay
HCR | 60.94 | 76.00 | 75.00 | ||
FCP | 60.00 | 65.00 | 80.00 | ||
Manor Care | 1/ | 69.37 | ---- | 72.57 | |
HHL | 66.30 | 109.33 | 2/ | 72.76 | |
Forum | 67.18 | 80.67 | 79.50 | ||
Palm Court | 77.00 | 100.00 | 77.00 | ||
Cypress | 58.00 | 65.00 | 69.00 |
However, Cypress' charges are suspect; they probably are unrealistically low. Palm Court's charges also are suspect. It is difficult to understand from the evidence whether they are charges or Medicaid reimbursements. It also is difficult to tell if they are current or projected. In any event, they do not relate to the information in Palm Court's pro forma.
As previously alluded to, patient charges do not necessarily proportionately reflect construction and development and operating efficiencies. They also are affected by programs and quality.
BUILDING DESIGN AND ENERGY FEATURES.
Patient Care and Safety.
Overall, HCR's design is excellent. Functional elements are effectively inter-related, the building is designed to be open to landscaping, sunlight and court yards, and there is a wide range of amenities.
Cypress' patient rooms are smaller than allowed under state requirments. The state minimum in Chapter 10D-29, Florida Administrative Code, is 80 net square feet per bed for multi-bed and 100 net square feet in a single room. Cypress' proposal only has approximately 65.58 gross square feet per bed.
Cypress' building design also has rooms that are approximately 130 feet from the nurses' stations and clean utility and soiled utility rooms, 10 feet over the state maximum under Rule 10D-29.121(24), Florida Administrative Code. Forum's :4 floor plan also violates this standard.
Rule 10D-29.121(6), Florida Administrative Code, requires a 20 foot clear view out room windows. Cypress' design also violates this standard.
Manor Care's floorplan is the most compact one- story design. It has four compact wings off a central core.
Forum proposes a two-story structure, creating a potential increased hazard for patients with reduced mobility. But DHRS rules provide for nursing homes of more than one floor, and required safety features, which Forum will provide, keep the potential to an insignificant minimum.
FCP proposes a three-story facility with the nursing home on the third floor adjacent to the elevators connecting it to the first floor central
core and amenities. FCP, too, adequately addresses DHRS safety concerns and actually could be more convenient to more nursing home patients than a one-story structure.
Energy Conservation Features.
All of the applicants propose to insulate their facilities for energy efficiency, some, e.q., HHL, somewhat better than others.
Building design itself also affects energy consumption. Cypress' high exterior building surface area makes it a less energy-efficient design; Manor Care's compact design aces it a more energy-efficient design. FCP's three-story design also is a more energy-efficient design.
Cypress' design incorporates only one water heater. This will produce line loss and lower energy efficiency, as well as potential total loss of hot water. (Cypress also has only one electrical plant.)
Other Unique Design Features.
Several unique features in FCP's room design helps "de- institutionalize" the facility and contributes to overall quality of care. Similarly, residents at FCP will be able to offer their guests refreshments from the kitchen at any time of the day or nights and children, spouses, and entire families will be encouraged to join residents for meals as often as they wish, assisting in the maintenance of ties with the community. Dining may be either communal or in the several lounge areas and private dining rooms.
One of Cypress' unique design features is of the bizarre and morbid variety--a room designed to store deceased residents.
FINANCIAL FEASIBILITY.
The short-term and long-term feasibility of the proposals of HCR, FCP, Manor Care, Forum and HHL was never seriously questioned and was easily proven. Not so with Palm Court and Cypress.
Palm Court.
The duty to defend the immediate and long term financial feasibility of Palm Court's project rested with Steve Jones.
Mr. Jones, who was not involved in the preparation of the application, offered his opinion that the Palm Court 60-bed addition would be feasible in the immediate and long terms.
In giving his opinion of the project's financial feasibility, Mr. Jones stated he believed the pro forma in years 1 and 2 relate back to the corresponding tables in the application; but acknowledged he performed no analysis of his own, but rather he took the information provided him at face value.
The pro forma is one of the key components of an application, as literally the heart of the application ties directly or indirectly into developing the pro forma, including Tables 1, 2, 3, 7, 8, 10, 11 and 25, as well as the amortization schedule. It is a required component of the application. Section 381.494(4)(e), F.S. (1985).
Mr. Jones was asked to render an opinion on the reasonableness of Tables 8, 10, 11 and 25, which he did. On cross examination, however, Mr. Jones acknowledged he did not evaluate existing staff at Palm Court to determine the reasonableness of the pro forma. He did not verify the projected management fee and, in fact, stated he didn't know if it was included as a line item under "administration and general" on the pro forma nor how the management fee was computed. Mr. Jones, who has never prepared all the financial information in a CON application, also admitted he didn't know what current nursing salaries were in Hillsborough County, or any other salaries for that matter. He further acknowledged that he could not testify that the application's hourly wage times the number of working hours in a year would give you the stated nursing salaries.
In sum, Mr. Jones admitted his opinion of the project's feasibility was based solely on his review of Tables 8, 11, 20 and 25 and his firm's involvement in the preparation of Palm Court's two most recent cost reports and not on the pro forma filed with Palm Court's application.
Mr. Jones' accounting firm, in preparing Palm Court's cost reports, does not conduct an audit or express any opinion relating to the reasonableness of the statement of revenues and expenses.
Joseph Lennartz, an expert in financial feasibility analysis, gave persuasive testimony outlining the inconsistencies in Palm Court's application.
Palm Court's total revenue projections appearing in Table 7 for years
1 and 2 do correspond to the daily room and board revenues appearing in the pro forma, yet none of the Table 7 revenue projections correspond to the projected charges on Table 8.
Assuming the salaries on Table 11 do not include fringe benefits, all FTE's and salaries on Table 11 are not accounted for in the pro forma. The pro forma salaries are significantly lower than on Table 11:
RNs ,- understated by $12,426 LPNs - understated by $30,518 CNAS -understated by $239,541
Social Worker - understated by $2,983 Dietary - understated by $3,009 Maintenance - understated by $10,165 Activities - understated by $4,486 Housekeeping - understated by $6,365 Laundry & Linen - understated by $6,498 Admin & General - understated by $2,560
Palm Court's salary information on Table 11 is in 1987 dollars and needs to be inflated forward at least two to three years.
Palm Court's current average salaries exceeded the proposed salaries on Table 11--including the administrator's salary, proposed at an annual salary of just over $31,000 when it actually was over $50,000 in 1987.
Based on Palm Court's answers to interrogatories, Palm Court's management fee is not accurately reflected in the pro forma and is $44,559 too low in year 2; the projected dietary expense is understated by $112,386 in year 2; the projected housekeeping expense is understated by $46,609 in year 2; the
projected laundry expense is understated by $35,308 in year 2; and plant expenses are understated by $100,116 in year 2.
The terms of debt financing appearing on Table 2 of Palm Court's application do not conform to the amortization table, causing the interest expense line item on the pro forma to be understated.
Cypress.
As previously alluded to, the reasonableness of Cypress' projected Medicaid and Medicare rates appearing on its Updated Table 8 has not been established by competent substantial evidence.
The Cypress pro forma fails to make provision for interest expense, depreciation, and property tax expense. These omissions represent an understatement of expenses as follows:
YEAR ONE | YEAR TWO | ||
INTEREST | $177,818 | $176,186 | |
DEPRECIATION | $110,000 | $100,000 | |
PROPERTY TAXES | 2,200 | 25,000 | |
(at assessed | value | ||
75 percent of market)
TOTAL $290,018 $301,186
When interest, depreciation, and property taxes are included in the Cypress pro forma, the result is a loss of $90,000 in year one and $80,000 in year two. Furthermore, from a cash flow perspective, Cypress will incur a cash loss of $2,037 in year one and a cash gain of just $6,342 in year two.
If property taxes are based on an assessed value at 100 percent of fair market value, there would be a $2,000 cash loss even in year two.
It is not unusual for a nursing home to experience a negative cash flow in its first year of operation due to its low occupancy. However, it is unusual for a nursing home to experience a negative cash flow, as the Cypress facility will, while operating at optimal occupancy (95 percent).
Cypress' owner/investors are willing to proceed with the project because they expect to be able to use some of the approximately $90,000 per year tax loss in years one and two to offset personal income, resulting in a cash on cash return of approximately $23,000 or 5.4 percent.
Cypress' Table 1, "source of funds" states that the applicant has
$425,000 "in hand". In fact, Cypress does not have those funds in hand. They are in the hands of the Cypress owner/investors. So far they have contributed
$90,000 to the venture and will have to contribute not only an additional
$425,000 to fund the nursing home but also an unspecified larger sum to fund Cypress planned ACLF and other projects. The evidence suggests that at least
$425,000 more of equity contribution would be required for the rest of the project.
Cypress did not prove that its proposed facility is financially feasible, either in the immediate or long term.
BALANCED CONSIDERATION.
Giving a balanced consideration to all of the statutory and rule factors addressed in the preceding findings, it is found that there is a net need for 231 community nursing home beds in Hillsborough County, that the applications of HCR, FCP and Manor Care should be granted and that the other applications should be denied.
CONCLUSIONS OF LAW
These proceedings are governed by the provisions of Section 381.494, Florida Statutes (1985), and Section 381.705, Flordia Statutes (1987). Section 381.494(4) describes the content required in a CON application at the time the applications at issue were filed with DHRS. Section 381.705 describes the review criteria against which applications must be reviewed and supersedes the former Subsections 381.494(6)(c) and (d). Since the new statutory review criteria became effective prior to the de novo administrative hearing and, since the parties had an opportunity to conform their evidence presented at hearing to the new statute, Section 381.705, Florida Statutes (1987), is applicable and controlling. Turro v. Department of Health and Rehabilitative Services, 458 So.2d 345 (Fla. 1st DCA 1984)
By stipulation of the parties, the following portions of Section 381.705, Florida Statutes (1987), are pertinent to this proceeding:
The department shall determine the reviewabillty of applications and shall re- view applications for certificate-of-need determinations for health care facilities and services, hospices, and health mainte- nance organizations in context with the following criteria:
The need for the health care facilities and services and hospices being proposed
in relation to the applicable district plan and state health plan, except in emergency circumstances which pose a threat to the public health.
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 pro- vide quality of care and the applicant's record of providing quality of care.
The availability of resources, including health manpower, management personnel, and funds of capital and operating expenditures, for project accomplishment and operation; . . . and the extent to which the proposed services will be accessible to all residents of the service district.
The immediate and long-term financial feasibility of the proposal.
The probable impact of the proposed project on the costs of providing health services proposed by the applicant, upon consideration of factors including, but not limited to, the effects of competition
on the supply of health services being pro- posed and the improvements of innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost-effectiveness.
The costs and methods of the proposed construction, including the costs and methods of energy provision and the avail- ability of alternative, less costly, or more effective methods of construction.
The applicant's past and proposed provision of health care services to
Medicaid patients and the medically indigent.
By stipulation, the other statutory criteria either have been met by all the applicants or are inapplicable.
A balanced review of competing applications and a weighing of the various criteria as they apply to the services being proposed is required. DHRS v. Johnson and Johnson Home Health Care, Inc., 447 so.2d 361 (Fla. 1st DCA 1984); Northridge General Hospital, Inc. v. Capital NME Hospitals, Inc., 478 So.2d 1138 (Fla. 1st DCA 1985). The appropriate weight afforded to each criterion is not fixed, but varies on a case-by-case basis. Collier Medical Center, Inc. v. DHRS, 462 So.2d 83 (Fla. 1st DCA 1985)
Numeric Need.
Section 381.704(3), Florida Statutes (1987), provides: The department shall establish, by rule,
uniform need methodologies for health services and health facilities. In developing uniform need methodologies, the department shall, at a minimum, consider the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, and market economics.
DHRS has promulgated Rule 10-5.011(1)(k), Florida Administrative Code, as its uniform need methodology for nursing homes. The parties agreed to the application of Rule 10-5.011(1)(k) to the facts of this case with three exceptions: (1) whether the Home Association's 96 beds should be counted in the inventory of current licensed beds; (2) whether Careage's approved 120-bed CON and Manor Care's finally approved 60-bed CON should be counted in the inventory of current approved beds; and (3) whether the overall occupancy rate at John Knox Village, a mixed sheltered/community beds facility, should be prorated to attempt to reflect only community beds. By the time for submission of proposed recommended orders, the parties eliminated the first issue by all agreeing that The Home Association should be counted.
The evidence proved that DHRS has a general policy to count in the inventory of current approved beds all beds that have been approved, either preliminarily or finally, by the issuance of the SAAR, in this case on June 18, 1987. DHRS, rationally, does this so as to be able to use the most up-to-date health planning information possIble at the time of the SAAR. Broward Healthcare, Ltd. v.DHRS, 9 FALR 1973 (DHRS 1987), aff'd, So.2d
,Case NO. BT-258, (Fla. 1st DCA, January 21, 1988); and Florida Health Facilities Corp v. DHRS, 9 FALR 2708 (DHRS 1987), aff'd, So.2d , Case NO. 87-503, (Fla. 1st DCA, January 20, 1988). Rationality does not require approved beds to be counted on the same day licensed beds expressly are required to be counted under the rule, in this case December 18, 1986. There is no real danger that beds will be "lost" in the intervening seven month period and not counted at all, at least not enough danger to make the DHRS policy arbitrary or capricious.
The courts have long recognized that they should defer to state agencies in matters of policy in areas for which an agency is responsible. Accordingly, an agency's interpretation of its own rules is entitled to great weight and persuasive force in the appellate courts. Humana, Inc. vs. DHRS, 492 So.2d 388, 392 (Fla. 4th DCA 1986); Good Samaritan Hospital, Inc., v. DHRS, 485 So.2d 871 (Fla. 1st DA 1986); Federal Property Mgt. Corp. vs. DHRS, 482 So.2d 475, 477 (Fla. 1st DCA 1986); Cohen vs. school Board of Dade County, 450 So.2d 1238, 1241 (Fla. 3rd DCA 1984); Franklin Ambulance Services vs. Dept. of Health and Rehabilitative Services, 450 So.2d 580 (Fla. 1st DCA 1984); Dept. of Commerce, Div. of Labor vs. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). The interpretation, being non-rule policy, must be explicated and defended adequately in the record. Florida Cities Water Co. v. Florida Public Service Comm'n., 384 So.2d 1280 (Fla. 1980); Cape Cave Corp. v. Dept. of Environmental Reg., 498 So.2d 1309 (Fla. 1st DCA 1986); E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583 (Fla. 1st DCA 1982). It must be within the range of permissible interpretations. Dept. of Corrections v. Provin, 515 So.2d 302 (Fla. 1st DCA 1987); Natelson v. Debt. of Ins., 454 So.2d 31 (Fla. 1st DCA 1984); Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). And the agency's interpretation may not be inconsistent with the rule, as written. Section 120.68(12)(b), Florida Statutes (1985); Woodley v. DHRS, 505 So.2d 676 (Fla. 1st DCA 1987); Boca Raton Artificial Kidney Center v. DHRS, 493 So.2d 1055 (Fla. 1st DCA 1986); Kearse vs. DHRS, 474 So.2d 819 (Fla. 1st DCA 1985). The DHRS interpretation of its rule on when to count approved beds meets these requirements.
By mistake, DHRS did not count Manor Care's 60-bed CON that was finally approved and issued by a stipulation in March, 1987. This mistake was not discovered, and DHRS served discovery responses and took a final position on need, as required by prehearing orders, that did not count the Manor Care CON. But this mistake of fact should now be corrected, even if it could have been discovered earlier through the use of due diligence, so that the health planning decision resulting from these de novo proceedings will be predicated on the correct facts. See Gulf Court Nursing Center v. DHRS, 483 So.2d 700, 712 (Fla. 1st DCA 1986).
Under DHRS' policy interpretation of Rule 10- 5.011(1)(k) as counting approved beds as of the date of the SAAR, the Careage 120-bed CON properly is counted in the inventory. Under the peculiar facts of this case, Careage was preliminarily approved in the prior batching cycle in January, 1987. The approval was published in the Florida Administrative Weekly. In a highly unusual procedure, DHRS conducted a second review of the Careage approval which did not conclude until August 18, 1987, when DHRS confirmed the earlier approval
and actually issued Careage a CON. The evidence proves that principles of sound health care planning support DHRS' decision to count the Careage CON. The policy choice is proper and should be sustained. See Conclusion of Law 8, above.
DHRS' policy choice, expressed at final hearing, to prorate occupancy data at John Knox Village must be treated differently than its choices with respect to the Manor Care- and Careage approvals. As some of the parties pointed out at final hearing, DHRS took the position in response to discovery requests, and to prehearing orders requiring expert witnesses to formulate their opinions by a date certain in advance of the final hearing, that the occupancy data should not be prorated. The evidence also was that DHRS historically did not prorate the data. Unlike the mistake of fact as to the Manor Care 60-bed approval, DHRS' position involved the opinion of DHRS' expert witnesses. DHRS, like any other litigant, must be bound by the position to which it committed itself in discovery responses and prehearing procedures. Cf. Section 120.57(1)(b)3., Florida Statutes (1987)
That Rule 10-5.011(1)(k)2 requires the use of occupancy data from the HRS office of Health Planning and Development or a contractor assigned to collect the data for its dcs not excuse DHRS from the position it took throughout this proceeding up to final hearing. It is true that new data secured under contract from the Health Council of West Central Florida was more accurate than the DHRS data on which DHRS earlier relied. But the reason the data was more accurate was not related to the proration of the John Knox data by the local health council. DHRS could just as easily have prorated its earlier, less accurate John Knox data had it chosen to take the position earlier that proration was appropriate.
Counting The Home Association's 96 beds as licensed community beds, counting the Manor Care 60-bed finally approved CON and Careage's 120-bed approval, and not prorating the John Knox Village occupancy data, Rule 10- 5.011(1)(k), Florida Administrative Code, shows a net numeric need for 231 nursing home beds in Hillsborough County in 1990.
None of the factors in Rule 10-5.011(1)(k) that would justify exceeding the net numeric bed need are present on the evidence of this case.
Medicaid Need.
Section 38l.705(1)(n), Florida statutes (1987), addresses the applicants' past and proposed provision of health care services to Medicaid patients and the medically indigent. Section 400.071(7), Florida Statutes (1987), also provides:
The Department shall consider, in addition to the other criteria specified in Section 381.705, the statement of intent by the applicant to designate a percentage of the beds of the facility for use by patients eligible for care under Title XIV of the social security Act (Medicaid), the percentage to be all or a portion of the need for such beds as identified in the local health plan. It is the intent of the legislature that preference be given to an applicant which most closely meets the need for such beds.
Provision of nursing home care for Medicaid patients clearly is important. But, as reflected in Finding Of Fact 31, it is not clear from the evidence, nor is it clear from the law, what "most closely meets the need for Medicaid beds in Hillsborough County. In other words, it is not clear whether it should be to the advantage of an applicant to commit to provide Medicaid service three to four times over the elderly poverty rate vis-a-vis an applicant who proposes to provide less Medicaid services but still approximately in proportion to, or somewhat more than, the elderly poverty rate.
Burden of Proof And Persuasion.
214. Dept. of Transp. v. J.W.C., Co., Inc., 396 So.2d 778, 787, 789, (Fla.
1st DCA 1981), states:
We view it as fundamental that an applicant for a license or permit carries the "ultimate burden of persuasion" of entitlement through all proceedings, of whatever nature, until
such time as final action has been taken by the agency. This burden is not subject to any "shifting" by the hearing officer, al-
though it is entirely possible that a shifting of the burden of going forward with the evidence may occur during the course of the permitting proceeding.
* * *
Being somewhat more specific, as a general proposition a party should be able to antici- pate that when agency employees or officials having special knowledge or expertise in the field accept data and information supp1ie by the applicant, the same data and information, when properly identified and authenticated
as accurate and reliable by agency or other witnesses, will be readily accepted by the hearing officer, in the absence of evidence showing its inaccuracy or unreliability. We emphasize again, however, that once a formal hearing is requested, there is no "presump- tion of correctness" in the mere fact that in preliminary proceedings the Department has issued its "notice of intent" to issue the permit that would relieve the applicant of carrying the "ultimate burden of persuasion."
In this case, DHRS' SAAR passed on 23 competing applications for nursing home beds in Hillsborough County. DHRS gave notice of its intent to grant the applications of HCR, FCP and WHA/Oxford. On May 9, 1988, the first day of the final hearing, VHA/Oxford withdrew its application. Later in the course of the final hearing, on May 17, 1988, DHRS announced that it was supporting the Palm Court application, as well as continuing its support of the HCR and FCP proposals.
While DHRS' reasons for supporting the HCR and FCP applictions over those of the other applicants (including Palm Court) are set out in the SAAR, the same cannot, of course, be said for its support of Palm Court. Instead,
DHRS attempted to explain its late support of Palm Court through the testimony of Reid Jaffe, its Health Services and Facilities Consultants Supervisor. But Jaffe's testimony revealed that he was not prepared to express a personal opinion on the relative merits of the competing applications (and, indeed, had not sufficiently reviewed the facts to arrive at an opinion) but was in effect serving merely as a messenger to relay the positions announced to him by others at DHRS who did not testify.
DHRS' evidence was insufficient to support a finding of fact that Palm Court's application is superior to the others. See Section 120.58(1)(b), Florida statutes (1987); Juste v. DHRS, 520 So.2d 69, 71 (Fla. 1st DCA 1988); Harris v. Game and Fresh Water Fish Comm'n, 495 So.2d 806, 809 (Fla. 1st DCA 1986). It also was insufficient to confer on Palm Court the benefits, expressed in the J.W.C. decision, of having been a preliminarily approved applicant
The benefits J.W.C. would confer on HCR and FCP also are in question. The SAAR evidences misapprehension of certain substantive aspects of the applications of Manor Care, HHL, Forum and Cypress. See Finding of Fact 11, above. Since there is no way to know how DHRS would have evaluated these proposals vis-a-vis the HCR and FCP proposals, HCR and FCP enjoy less benefit from their preliminary approvals than they otherwise would under J.W.C..
Application Updates.
DHRS interprets Rule 10-5.008(3), Florida Administrative Code, as barring amendment of CON applications during Section 120.57 proceedings. The explicit language of the rule is clear and makes no exception for Section 120.57 proceedings. Under this interpretation, the de novo review contemplated under Section 120.57 is a quasi-judicial discovery and trial review of the original application reviewed by DHRS, not a trial of a new or amended application submitted during the proceedings. In simple terms, the application which received initial review at DHRS is the application which receives review at the hearing.
Much time (almost a year in this case) may pass between the preliminary decision by DHRS and the formal administrative hearing. This passage of time may necessitate the updating of an application by evidence of changed circumstances such as the effect of inflation on interest, and construction cost, salaries, patient charges, and other expense items. DHRS would avoid the use of the word "amendment" to describe such updating. Evidence of changed circumstances beyond the control of the applicant is relevant to the original application and admissible at an administrative hearing. See Final Order, Meridian, Inc. v. DHRS, DOAH Case No. 86-0063 (DHRS, June 24, 1987)
In the Final Order, Hialeah Hosital, Inc. v. DHRS, 9 FALR 2363 (DHRS, May 1, 1987), the Department concluded:
New information presented at the formal ad- ministrative hearing which is a substantial change to an important portion of the applica- tion, and which reasonably might have caused HRS to decide the application differently
if believed to be true, is the type of in- formation which should be excluded at the formal hearing pursuant to Rule 10-5.008(4). New information based on more current estimates of population, more current calculations of
cost, more detailed schematic drawings, and the like, however, should be allowed and con- sidered at the formal administrative hearing, so long as such new information does not meet
the above definition of a substantial change to the application.
In Meridian Inc. vs. DHRS, DHRS recognized three important goals of Gulf Court Nursing Center v. DHRS, 483 So.2d 700 (Fla. 1st DCA 1986):
To discourage the filing of applications in every batching cycle on the chance that developments coming to light between the denial of an application, and the 120.57 hearing would breathe new life into a project, 483 So.2d at 708;
To emphasize the importance of HRS' statutorily mandated role of initial in- vestigation and review of CON applications. Chapters 120 and 381, Fla. stat. and 483 So.2d at 708.
To prohibit amendment during the 120.57 proceedings of the application reviewed by HRS. Hialeah Hospital, Inc. v. HRS, Case
No. 85-3998, Final Order entered May 1, 1987.
In Health Care and Retirement Corporation of America, d/b/a Heartland of Palm Beach, v. DHRS, 8 FALR 4650, 4651 (DHRS 1986) DHRS declared:
During 120.57 proceedings, an application may be updated to address facts extrinsic to the application such as interest rates, inflation of construction costs, current occupancies, compliance with new state or local health plans, and changes in bed or service inventories. An applicant is not allowed to update by adding additional services, beds, construction, or other con- cepts not initially reviewed by HRS.
The following application updates were presented by Cypress at final hearing and were not shown to be due to factors extrinsic to the application: changes in Medicaid commitment; and the addition of adult day care, sub-acute care, and Alzheimer's disease programs. Cypress' original application contained a sketchy reference to respite care and reference to "support care and mentally frail services" but not to an Alzheimer's disease program. Updates to the payor mix and private pay room rates were acceptable under DHRS policy.
Palm Court did not make a formal attempt to update its application at all. Section 381.494(4)(e), Florida Statutes (1985), requires that each application contain:
(e) A detailed statement of financial feasibility for the proposed project to in- clude, but not be limited to, a statement
of the projected income and expense on a pro forma basis for the first 2 years of
operation after completion of the project ...
Palm Court's pro forma is riddled with errors and inconsistencies. It attempted to prove financial feasibility without referene to the pro forma, or the component parts of it, in its application. Rather, its expert witness expressed opinions based on information not in the application. This amounted to an amendment of the application which cannot be accepted under DHRS policy.
Comparative Review.
Since the net numeric bed need is limited in this case (231 beds), the essence of the decision to be reached is a comparison of the relative merits of seven competing applications. 3/ Yet the parties, other than DHRS, made no real effort to rank their proposals against the others. The closest the applicants came to engaging in this process was, in some cases, to proclaim their proposal to be the best and, in some cases, to attack the Cypress or Palm Court proposals. (Cypress and Palm Court also tended to counterattack.)
The parties' approach to this proceeding is more understandable when considered in light of the statutory criteria against which CON applications must be measured. The governing statute, Section 381.705(1) and (2), Florida Statutes (1987), sets out thirteen criteria and five additional areas of inquiry in determining need for, and the relative merits of, CON proposals. Some of these criteria and areas appear to overlap, some are mutually inconsistent and some are plain hard to understand. As alluded to in Conclusion of Law 203, above, DHRS (and the Hearing Officer) must give a balanced consideration to the applications in light of all the criteria. But neither the statute nor DHRS rules make any effort to weigh the relative importance of the various criteria.
As reflected in the Findings Of Fact, a balanced consideration has been given to all of the applications in light of all of the criteria that the parties have agreed are pertinent. It has been found, and must be concluded, that the applications of HCR, FCP and Manor Care should be granted, and that the applications of the others should be denied.
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 granting the applications of HCR (CON Action No. 5000), FCP (CON Action No. 4993) and Manor Care (CON Action No. 5006) and denying the applications of Forum (CON Action No. 4999), HHL (CON Action No. 4978) Palm Court (CON Action No. 4987) and Cypress (CON Action No. 5004).
RECOMMENDED this 14th day of November, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 14th day of November, 1988.
ENDNOTE
1/ Manor Care set separate rates for Alzheimer's patients--$76.84 semi-private 2/ HHL charges separately for intermediate ($70.56) and skilled ($74.97) care.
3/ As imposing a task as that might be, it could have been even larger. Twenty-three competing applications were the subjects of the SAAR. The record in this case will reflect that seven-teen disappointed applicants filed for a
120.5(1) hearing. As initially comprised, this proceeding would have required a comparison of twenty competing applicants. Through prehearing voluntary dismissals the number was reduced to the participants at final hearing.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3409
SUMMARY OF NET NUMERIC NEED CALCULATION UNDER RULE 10.5.011(1)(k)
HILLSBOROUGH COUNTY - JANUARY 1987 APPLICATIONS
BA= LB1/(POPC 2 + (6 X POPD3)) BA= 6180/(134,752 + (6 X 94,381)) BA= 6180/701,038
BA= .00881550
BB= 6 x BA
BB= 6 x .00881550
BB= .052892300
A= (POPA4 x BA)=(POPB 5 x BB)
A= (150,743 x .00881550) + (111,198 x .052892300)
A= 1328.8749 + 5881.5179
A 7210
SA= A x (LBD6/LB) x (OR7/.9)
SA= 7210 x (2828/6180 x (.9395/.9) SA= 7210 x .4576051 x 1.0438888
SA= 3444 5.
There is no "poverty" adjustment.
SA - LBD (90 percent of subdistrict approved beds8)= Net need 3444 - 2828 - (.9 x 428)
3444 - 2828 - 277= 231
231= beds needed to be allocated in the January 1990 planning horizon.
NOTES
Licensed community nursing home beds in District 6 as of December 1, 1986 (includes 574 previously sheltered beds)
= 6180
District 6 population aged 65-75 as of July 1, 1986, from population projections generated January, 1987, by Governor's office= 134,752
District 6 population aged 75+ as of July 1, 1986, from population projections generated January, 1987, by Governor's office= 94,381
District 6 population aged 65-75 as of January 1, 1990, from population projections generated January, 1987, by Governor's office 150,743
District 6 population aged 75+ as of January 1, 1990, from population projections generated January, 1987, by Governor's office= 111,198
Licensed community nursing home beds in Hillsborough County as of December 1, 1986 (includes 256 previously sheltered beds) 2828
Occupancy rate of Hillsborough County community nursing homes from April, 1986, - September, 1986. Patient days provided/total bed days available (prorating the John Knox Village data)= 474163/504714= 93.95 percent
Approved beds in Hillsborough County as of June 18, 1987
=428
FCC 103
Sun City 25
Carrollwood 120
Manor Care 60
Careage 120
428
II. SECTION 120.59(2), FLORIDA STATUTES (1987), EXPLICIT RULINGS ON PROPOSED FINDINGS OF FACT.
HCR's Proposed Findings of Fact.
1. See rulings on Forum's proposed findings of fact. 2.-3. Accepted but subordinate.
4.-10. Accepted and incorporated.
11.-12. Accepted and incorporated to the extent necessary. 13.-24. Accepted and incorporated.
25.-56. Accepted and incorporated to the extent not subordinate or unnecessary.
57. Depending on one's definition of "special", Palm Court did identify some "special" programs that would be offered in the resulting 180-bed nursing home after the 60-bed addition. Otherwise, accepted and incorporated.
58.-63. Accepted and incorporated to the extent not subordinate or unnecessary.
Depending on one's definition of "special," FCP did identify some other "special" programs. Otherwise, accepted and incorporated.
Forum proposed a staffing ratio of 3.0 FTEs staff-per patient. Otherwise, accepted and incorpo-rated.
66.-67. Accepted and incorporated.
FCP's Proposed Findings of Fact.
Accepted and incorporated.
2.-3. Accepted and incorporated to the extent not sub-ordinate or unnecessary.
Accepted and incorporated.
Except for overstatements, accepted and incorporated. 6.-8. Accepted and incorporated.
Accepted but subordinate and unnecessary.
First two sentences, subordinate to facts found; third sentence, accepted and incorporated.
11.-23. Except for overstatements, accepted and incorporated to the extent not subordinate or unncesessarily.
24.-26. Accepted and incorporated.
27.-34. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that they are "equivalent," but the Findings of Fact reflect tht they are approximate; otherwise, accepted and incorporated.
Accepted and incorporated.
37.-42. Accepted and incorporated to the extent not subordinate or unnecessary.
43. Subordinate and unnecessary. 44.-45. Accepted and incorporated.
Except for overstatements, accepted and incorporated.
First two sentences, unnecessary; third sentence, accepted and incorporated; last sentence, rejected as contrary to facts found.
Rejected as contrary to facts found.
Rejected in part since either choice results in "unfounded speculation and assumption" as to the occupancy rate for the community beds at John Knox; otherwise, accepted and incorporated to the extent not cumulative.
Accepted and incorporated.
In part, rejected as contrary to facts found; in part, accepted and incorporated.
Accepted and incorporated.
Rejected as not proven that FCP is the best or that net numeric need is 339.
Manor Care's Proposed Findings of Fact.
1.-7. Accepted and incorporated. 8.-9. Accepted but unnecessary. 10.-11. Accepted and incorporated.
Accepted but unnecessary.
Except for overstatement, accepted and incorporated.
Accepted and incorporated.
Accepted but unnecessary.
16.-19. Accepted and incorporated to the extent not subordinate or unnecessary.
20.-36. Accepted and incorporated.
Except for overstatement, accepted and incorporated.
Accepted and incorporated.
Except for overstatement, accepted and incorporated.
40.-42. Accepted and incorporated to the extent not subordinate or unnecessary.
43. Subordinate to facts found.
44.-46. Accepted and incorporated. However, this is only one of the factors to be considered.
47.-52. Accepted and incorporated to the extent not subordinate or unnecessary.
53.-63. Accepted but largely unnecessary.
64.-67. Accepted and incorporated to the extent not subordinate or unnecessary. However, in-house therapies can be inefficient if not fully utilized.
68.-69. Accepted and incorporated to the extent-not subordinate or unnecessary.
70. Accepted but unnecessary.
71.-73. Accepted and incorporated.
74. Except for overstatement, accepted and incorporated. 75.-76. Accepted and incorporated.
77.-79. Accepted but largely unnecessary.
80.-82. Accepted but subordinate to facts found and unnecessary.
83. Accepted. First sentence unnecessary; second sentence, incorporated to the extent necessary.
84.-90. Accepted but subordinate to facts found and unnecessary.
91. Accepted and incorporated to the extent necessary.
92.-114. Accepted and incorporated to the extent not subordinate or unnecessary.
115.-116. Rejected as contrary to facts found.
Rejected as subordinate to facts contrary to those found.
Accepted and incorporated.
119.-120. Accepted and, with other findings, incorporated.
121.-135. Accepted and incorporated to the extent not subordinate or unnecessary.
In part, rejected as contrary to facts found--Palm Court probably could bring its 60-bed addition on line somewhat quicker. Last two sentences, accepted and subordinate to facts found.
Subordinate to facts found and cumulative. (As to the Medicaid rates, there is confusion whether the Palm Court rates are charges or reimbursements.)
In-house therapies are preferable only if properly utilized.
Besides that and other overstatements, generally accepted and sub- ordinate to facts found.
139.-145. Accepted and incorporated to the extent not subordinate or unnecessary.
With the caveat that prcper utilization is necessary, accepted but cumulative.
Accepted but not necessary. 148.-150. Accepted and incorporated.
Accepted but subordinate and unnecessary.
Accepted but unnecessary.
Accepted and incorporated.
154.-155. Accepted but unnecessary. 156.-158. Accepted and incorporated.
Accepted and unnecessary.
Accepted and incorporated.
Accepted but unnecessary.
D). HHL's Proposed Findincs of Fact. 1.-2. Accepted and incorporated.
3. Rejected as not proven.
4.-5. Accepted and incorporated.
Rejected as contrary to facts found.
Accepted and incorporated to the extent necessary.
Accepted and incorporated.
9.-20. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to facts found.
Accepted and incorporated.
23.-29. Accepted and incorporated to the extent not subordinate or unnecessary.
Except as to Sun Terrance, accepted and incorporated; as to Sun Terrance, rejected as contrary to facts found.
Accepted and incorporated to the extent not subordinate or unnecessary.
See 30., above.
33.-38. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to facts found.
Rejected as not proven.
41.-44. Accepted and incorporated to the extent not subordinate or unnecessary.
Except for overstatement, accepted and incorporated to the extent not subordinate or unnecessary.
Appropriate, yes; the best, no.
Except for overstatement, accepted and incorporated.
48.-56. Accepted and incorporated to the extent not subordinate or unnecessary.
57. By stipulation, irrelevant except as subordinate to recruiting plans. 58.-61. Accepted and incorporated to the extent not subordinate or
unnecessary.
62.-111. First sentence of 62., overstated and not proven; except for some overstatement, the rest is accepted and incorporated to the extent not subordinate or unnecessary.
112. Rejected as not proven by the evidence.
113.-122. Accepted and incorporated to the extent not subordinate or unnecessary.
123. Rejected as contrary to the evidence. However, accepted and incorporated that the rationale was not persuasive.
124.-136. Accepted and incorporated to the extent not subordinate or unnecessary.
137.-138. Rejected as contrary to facts found.
Accepted and incorporated.
Accepted and subordinate to facts found.
Accepted. First sentence, incorporated; second sentence, subordinate.
142.-146. Accepted and incorporated. 147.-150. Accepted but unnecessary.
Accepted and incorporated.
Accepted but unnecessary.
153.-154. Accepted and incorporated.
155. Accepted but unnecessary.
156.-160. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to facts found.
Accepted but unnecessary.
Accepted and incorporated.
See explicit rulings on Forum's proposed findings of fact.
Forum's Proposed Findings of Fact.
1.-19. In part, accepted and incorporated to the extent not subordinate or unnecessary; in part, rejected as contrary to facts found.
20. Accepted but largely subordinate and unnecessary.
21.-23. Accepted but largely subordinate and unnecessary.
24.-30. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to facts found.
Accepted but unnecessary.
By stipulation, irrelevant except as subordinate to recruiting plans.
Accepted and incorporated.
Accepted but unnecessary.
Accepted and incorporated.
37.-39. Accepted and incorporated to the extent not subordinate or unnecessary.
40. Accepted but subordinate.
41.-49. Accepted but largely unnecessary.
Accepted and incorporated.
Accepted but unnecessary.
52.-54. Accepted and incorporated.
55.-56. Accepted but subordinate and unnecessary. 57.-59. Accepted and incorporated.
60. Accepted but subordinate and unnecessary. 61.-65. Accepted and incorporated.
66. Subordinate.
67.-69. Accepted but largely unnecessary.
70. Accepted and incorporated.
71.-78. Accepted, largely unnecessary, 76 incorporated. 79.-92. Accepted but largely subordinate or unnecessary.
Accepted and incorporated.
Subordinate.
95.-105. Accepted and incorporated to the extent not subordinate or unnecessary.
106.-108. Subordinate.
109. Rejected as contrary to the evidence. 110.-124. Accepted and incorporated.
125.-127. Subordinate.
First sentence, contrary to the greater weight of the evidence; second sentence, accepted but not probative.
Accepted and incorporated.
130.-132. Subordiante to facts found.
133. Accepted and incorporated.
Palm Court's Proposed Findings of Fact.
(The unnumbered paragraphs of Palm Court's proposed findings of fact have been assigned consecutive numbers for purposes of these rulings.)
1.-11. Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but there was some confusion between charges and reimbursement.
Accepted and incorporated.
Accepted but unnecessary.
15.-18. Accepted and incorporated.
19.-33. Acepted and incorporated to the extent not subordinate or unnecessary.
34. Rejected as not proven. There was confusion what were supposed to be the actual rates and whether they were rates or reimbursement.
35.-36. Accepted and incorporated to the extent not subordinate or unnecessary.
37.-38. Rejected as not proven and contrary to findings of fact. Also, evidence in support of this proposed finding was an attempt to up date the application impermissibly.
39.-42. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven and contrary to findings of fact. Palm Court plainly is inconsistent with Priority/Policy 1. It is true, however, that Priority/Policy 1 is only one factor to be considered and does not preclude approval of the Palm Court application.
Accepted and incorporated. 45.-47. Accepted but unnecessary.
48. Accepted and incorporated.
49.-59. See rulings on FCP's proposed findings of fact 43-52.
60. Rejected as contrary to facts found.
Cypress' Proposed Findings of Fact.
1.-2. Stipulations. Unnecessary.
Subordinate.
Except for the argument and overstatement, accepted and incorporated to the extent not subordinate.
5.-10. Accepted and incorporated.
Except for the argument and overstatement, accepted and incorporated.
Subordinate.
Accepted and incorporated.
Accepted and incorporated to the extent necessary.
Rejected as, variously, overstatement, subordinate, unnecessary and contrary to findings of fact on staffing.
First sentence, accepted but unnecessary. Second and third sentences, accepted and incorporated. Fourth and fifth sentences, rejected as not proven and contrary to facts found. Sixth sentence, accepted and incorporated. The rest, rejected as subordinate to facts contrary to those found.
17.-19. Accepted but largely unnecessary.
Second sentence, rejected as contrary to facts found. Rest, accepted but largely unnecessary.
By stipulation, irrelevant.
Subordinate to facts contrary to those found.
First two and last two sentences, accepted and incorporated to the extent necessary. The rest, rejected as not proven and contrary to facts found.
24.-26. Subordinate (the third sentence, to facts contrary to those found) and unnecessary.
Generally, and except for overstatement, accepted and incorporated.
Generally, rejected as not proven and contrary to facts found. Before comparison to other applicants can be probative, reasonableness of the Cypress application must be proven.
Accepted and incorporated.
Generally, accepted and subordinate to facts found. However, the owner/investors also will have to contribute the equity portion of the financing for the rest of the overall project.
Rejected as contrary to facts found.
Accepted and incorporated to the extent necessary.
First sentence, subordinate to facts contrary to those found. The rest, accepted but subordinate and unnecessary.
34.-35. Subordinate and unnecessary.
36. First sentence, subordinate and unnecessary; second sentence, rejected as not proven and contrary to facts found.
37.-39. Accepted but largely subordinate and un- necessary.
Accepted and incorporated to the extent necessary.
Firt part, accepted but subordinate and unnecessary. Last sentence, rejected because Mr. Smith was not qualified to opoine the area health planning.
First part, generally accepted but subordinate and unnecessary. Last sentence, rejected because Dr. Eisenburg was not qualified to opine in the area of health planning.
Seventh and last three sentences rejected as subordinate to facts not proven and contrary to facts found. The rest is generally accepted, but subordinate and unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Of the 23 sentences in this proposed finding: 1, 7, 12, 14 and 19 are rejected as not proven or contrary to facts found; the rest is generally accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
DHRS' Proposed Findings of Fact.
1.-2. Accepted and incorporated.
3. Acepted but subordinate to facts contrary to those found. 4.-8. Accepted and incorporated.
Rejected as contrary to facts found (and also contrary to the position on the method of determining occupancy at John Knox Village to which DHRS, as party litigant, committed itself in this proceeding.)
Accepted and incorporated to the extent necessary.
Accepted but subordinate, in part to facts contrary to those found. 12.-13. Accepted and incorporated.
14. Generally accepted and incorporated but DHRS support is subordinate to facts contrary to those found.
15.-16. Accepted and incorporated.
COPIES FURNISHED:
James C. Hauser, Esquire Joy Heath Thomas, Esquire Post Office Box 1876 Tallahassee, Florida 32302
James M. Barclay, Esquire Suite 200
215 East Virginia Street Tallahassee, Florida 32301
W. David Watkins, Esquire Oertel & Hoffman, P.A. Post Office Box 6507
Tallahassee, Florida 32314-6507
Richard A. Patterson, Esquire Department of Health and
Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Douglas L. Mannheimer, Esquire Sandra Stockwell, Esquire
Post Office Box 11300 Tallahassee, Florida 32302-3300
Alfred W. Clark, Esquire Post Office Box 623 Tallahassee, Florida 32302
Robert S. Cohen, Esquire Post Office Box 10095 Tallahassee, Florida 32302
Byron B. Mathews, Jr., Esquire Vicki Gordon Kaufman, Esquire Guy Collier, Esquire
700 Brickell Avenue
Miami, Florida 33131-2802
R. Terry Rigsby, Esquire
J. David Holder, Esquire
1408 North Piedmont Way, Suite 200
Tallahassee, Florida 32312
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0500
John Miller, Esquire Acting General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0500
| Issue Date | Proceedings |
|---|---|
| Nov. 14, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 1988 | Recommended Order | Error w/numeric bed need insubstantial. Considering all criteria (ie serious errors on denied apps), HRS properly granted CONs among competing parties. |
