Judges: JAMES E. BRADWELL
Agency: Agency for Health Care Administration
Latest Update: Feb. 28, 1989
Summary: The issue presented herein is whether or not a CON to construct a 60-bed short-term psychiatric hospital in District XI should be issued to Florida Medical Center (FMC).Whether petitioners' application for a certificate of need to operate a 60- bed psychiatric hospital should be granted.
87-4725STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA MEDICAL CENTER, )
)
Petitioner, )
)
v. ) CASE NO. 87-4725
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
)
GRANT CENTER HOSPITAL OF MIAMI, ) and CHARTER HOSPITAL OF MIAMI, INC., )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 15, 1988, in Tallahassee, Florida.
The parties filed post-hearing submissions subsequent to receipt of the transcript which were considered in preparation of this Recommended Order.
Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.
APPEARANCES
For Petitioner Eric B. Tilton, Esquire Florida Medical Eric B. Tilton, P.A. Center: 810 Thomasville Road
Tallahassee, Florida 32302
For Respondent
Department of Richard A. Patterson, Esquire
Health and Suite 103 Fort Knox Executive Center Rehabilitative 2727 Mahan Drive
Services: Tallahassee, Florida 32308 For Intervenors: No Appearance
INTRODUCTION AND BACKGROUND
Florida Medical Center (FMC) submitted an application for a Certificate of Need (CON) to operate a psychiatric hospital in District 11 as follows:
Florida Medical Center desires to build a new 60-bed psychiatric hospital at a cost of
$6,060,000.
FMC properly submitted its application to Respondent, Department of Health and Rehabilitative Services (HRS) in a timely manner and the application was considered in the September 19, 1987 batching cycle for the January, 1992 planning horizon. After consideration and evaluation of the application, HRS, on or about September 10, 1987, denied the CON application. FMC timely filed a petition for a formal administrative hearing challenging HRS' denial of its application. Subsequently, Charter Hospital of Miami, Inc., and HCA Grant Center Hospital of Miami each intervened in the case. However, prior to hearing, they each voluntarily dismissed their petitions to intervene.
At the hearing, FMC presented the testimony of Thomas J. Konrad and introduced Exhibits 1-18 which were received. FMC also presented the testimony of Dr. Richard Matthews, Ph.D., Walter Grono, Islara Souto, Robert L. Newman and Jane Coraggio via deposition.
HRS presented the testimony of Reid Jaffe and introduced Exhibits 1-5. Florida Medical Center objected to HRS' Exhibit 5 and it was not received in evidence.
ISSUE PRESENTED
The issue presented herein is whether or not a CON to construct a 60-bed short-term psychiatric hospital in District XI should be issued to Florida Medical Center (FMC).
STIPULATION
The parties stipulated that the substantive criteria to be satisfied by the applicant are those which were in effect as of the date the application was submitted (prior to the effective date of the new CON law, Chapter 87-92).
They also stipulated that:
The project will enhance availability and accessibility of care in the service district.
The project promotes access to services for chronically underserved groups.
As to the criteria contained in subparagraph 381.494(6)(c)8., the only issue is the availability of resources, including help, manpower and management personnel. There is no dispute that FMC has the financial resources for the operation of the project. The issue is whether it will be able to attract the help, manpower and management personnel to adequately staff the project.
Subparagraph 381.494(6)(c)9., is in dispute only as to long-term financial feasibility. Immediate financial feasibility is not at issue. The parties agree that FMC has adequate financial resources to construct the project and open the hospital. The parties stipulate that if need is proven, then long- term financial feasibility will be proven.
The parties stipulated that the criteria under 381.494(6)(d) are not at issue herein. (FMC Exhibit 11, page 3).
The criteria and issues, as above limited, are contained in Sections 381.494(6)(c)1, 2, 8, 9, and 10. The parties stipulated that all other criteria are either satisfied by the proposal or are not applicable to this proceeding.
FMC and Intervenor, HCA Grant Center Hospital entered a stipulation on September 9, 1988, wherein FMC agreed that it would not treat children under the age of 14 at its proposed facility and that it would not establish a separate adolescent unit although it may treat adolescents. 1/
FINDINGS OF FACT
FMC seeks a CON for a 60-bed free-standing psychiatric facility to be located in the Key Largo area of Monroe County in HRS District XI.
FMC intends to provide 6.25 percent of its patient days at no charge to indigent patients. It further intends to provide another 6.25 percent of its patient days to HRS' clients and Baker Act patients at 50 percent of its projected charge, or $200 per day. (FMC Exhibit 2, Table 7).
FMC proposes to build this facility at a cost of $6,060,000.
Dr. Richard Matthews, Ph.D., has been executive director of the Guidance Clinic of the Upper Keys since 1973 and is a clinical psychologist. He is responsible for the overall administration and supervision of mental health, alcohol, drug abuse and out-patient services provided under contract with HRS. Dr. Matthews was qualified as an expert in clinical psychology and the mental health delivery health system in Monroe County. (FMC Exhibit 13).
There are three guidance clinics in Monroe County, one each for the upper, lower and middle Keys. HRS contracts through each of these clinics to provide mental health care for its clients. There are no community mental health centers in Monroe County and the clinics are the sole means of delivering mental health care on behalf of HRS' clients within the county.
Currently, the guidance clinic of the upper Keys places its in- patients in Harbor View Hospital in Dade County at a cost of $236 per day. Neither Harbor View nor any other hospital provides free days to any of the guidance clinics for in-patient psychiatric care. (FMC Exhibit 13, P. 9)
Jackson Memorial Hospital does not accept indigent or charity psychiatric patients from Monroe County. There have been occasions where patients without resources have been unable to be hospitalized although hospitalization was indicated.
The middle Keys has a crisis hospitalization unit with a limited number of beds. Patients needing hospitalization longer than three days must be transferred to Harbor View or some other facility in the District.
The 15 beds at Depoo Hospital in Key West are not readily accessible to residents of the upper Keys. Residents needing psychiatric services usually go to hospitals in Dade County.
Coral Reef Hospital, the nearest psychiatric facility to Petitioner's proposed facility, has in the past refused to negotiate a discounted rate with the guidance clinic. Dr. Matthews, on one occasion, sent a patient to Coral Reef who was refused treatment.
Currently, no psychiatrist practices in Key Largo because there are no psychiatric beds to which a psychiatrist could admit patients.
The discounted rate of $200 per day quoted by FMC is some $36 per day less than the guidance clinic currently pays to providers for referrals of its patients for psychiatric care. Additionally, the 6.25 percent of free care that Petitioner proposes is greater than the free care which the guidance clinic currently receives from any facility since no facility presently gives any free care to the clinic.
The guidance clinic supports Petitioner's CON application and will contract with Petitioner who provides services for in-patients.
Grant Center is a long-term 140-bed psychiatric hospital specializing in the treatment of children and adolescents. It is the nearest facility to Petitioner's proposed facility.
Grant Center has agreed to refer adult patients to Petitioner. Grant Center treats 2-3 adults a month who need psychiatric care. (FMC Exhibit 14).
There is one hospital providing psychiatric care in Dade County which was surveyed by the Health Care Finance Administration (HCFA) in March, 1988.
Currently, a third party insurance carrier no longer utilizes Grant Center because of price. If a facility has prices which carriers consider too expensive, utilization will go down. (FMC Exhibit 14, P. 7).
Grant Center currently contracts with HRS to provide its clients care at a rate of approximately $350 per day, a rate one half of Grant Center's normal rate.
Jackson Memorial is the only Dade County hospital which will treat an indigent psychiatric patient.
Grant Center intends to assist Petitioner with staffing or programmatic needs. It has 80-100 professional staff, most of whom live in close proximity to Key Largo.
Robert L. Newman, C.P.A., is the chief financial officer at FMC. He testified, by deposition, as an expert in hospital accounting and finance. Newman analyzed the Hospital Cost Containment Board (HCCB) reports for each hospital in District XI which provides psychiatric care. There is no free standing psychiatric hospital in the District which reports any indigent or uncompensated care.
Among area acute care hospitals which have psychiatric units, Miami Jackson rendered 38.89 percent indigent care, Miami Children's rendered 6.5 percent indigent care, and no other facility reported that it rendered more than
1.75 percent indigent care. (FMC see Exhibit 11, disposition exhibit 1).
Jackson provides no free care to Monroe County residents and Miami Children's care is limited to treating children while Petitioner is seeking adult beds.
Jayne Coraggio testified (by deposition) as an expert in psychiatric staffing and hiring. She is currently Petitioner's director of behavioral sciences. The ideal patient to staff ratio is 4 to 5 patients per day per
professional staff member. During the evening shift, the ideal patient ratio per professional staff member is 7 to 8 patients. (FMC Exhibit 12, PP. 6-7).
Petitioner's facility is adequately staffed based on the above ratios.
FMC is considered overstaffed in the psychiatric unit by some of the other area hospitals since they do not staff as heavily as does Petitioner.
Lower staffing ratios can affect quality of care since patients and their families would not receive as much therapy.
Family therapy is important because the family needs to know about changes in the patient in order to make corrective adjustments. The family that is required to travel in excess of 45 minutes or more one way is less likely to be involved in family therapy.
Islara Souto was the HRS primary reviewer who prepared the state agency action report (SAAR) for Petitioner's CON application. (FMC Exhibit 15). District 11 has subdivided into five subdistricts for psychiatric beds.
Florida is deinstitutionalizing patients from its mental hospitals. To the extent that private psychiatric hospitals do not accept nonpaying patients, their existence will not solve the problem of caring for such patients.
Souto acknowledged that the local health councils conversion policy discriminates against subdistrict 5 because there are so few acute care beds in the subdistrict. In fact, the conversion policy actually exacerbates the maldistribution of beds in the district. (FMC 15, page 26).
The psychiatric facility nearest the proposed site (Coral Reef), had an occupancy of 90.3 percent.
Souto utilized a document entitled Florida Primary Health Care Need Indicators, February 1, 1986, and determined that Monroe County has not been designated as a health manpower shortage area, nor a medically underserved area. This information is relied upon by health planners to determine the availability of health manpower in an area. This report refers both to physicians and R.N.'s.
The average adult per diem for free-standing hospitals in District 11 range from $430 at Charter to just over $500 at Harbor View.
Although districts have established subdistricts for psychiatric beds, no psychiatric bed subdistrict in any district has been promulgated by HRS as a rule.
The access standard that is relevant to this proceeding is a 45-minute travel standard contained in Rule 10-5.011(1)(o)5.G. That standard states:
G. Access Standard. Short-term inpatient hospital psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of this service area's population.
Here, the standard refers to the service area which is determined to be an area different than a service district. Applying the travel time standard on a service area basis makes the most sense since the subdistrict is established by the local health council and not the applicant.
Analyzing this access standard on a sub-district level, 90% of the sub-districts population is not within 45 minutes of any facility anywhere in sub-district V since the sub-district is more than two hours long by ordinary
travel and the population is split two-thirds in lower Dade County and one-third in Monroe County, the bulk of which is in Key West. (FMC Exhibit 17).
Therefore, a facility located on either end of this sub-district is not readily accessible by the applicable travel standards to citizens at the other end of the sub-district. This access standard must however be measured and considered with the needs for psychiatric services of the kind Petitioner is proposing to provide. Petitioner has not presented any access surveys or assessments of the caliber relied upon by the Department in the past.
Petitioner's facility which would be located in the Key Largo area will no doubt provide better geographic accessibility to residents of District XI who live in the Key Largo area.
HRS has in the past used a sub-district analysis to determine geographic accessibility for psychiatric beds even though it has not promulgated a rule for sub-districts for psychiatric beds. See, for example, Psychiatric Hospital of Florida vs. Department of Health and Rehabilitative Services and Pasco Psychiatric Center, DOAH Case No. 85-0780. Likewise, the Department has approved the conversion of acute-care beds to psychiatric beds even though it found that there was a surplus of psychiatric beds in the district. (Petitioner's Exhibit 7). The Department has in the past used a geographic access analysis to approve psychiatric beds in District XI and has used the sub- district analysis or a time travel analysis in its review of Cedars, Coral Reef, Depoo (for psychiatric beds) and the Glenbiegh case (for long term substance abuse).
The bed need calculations for the January, 1992 planning horizon shows a surplus of 180 short-term in-patient psychiatric beds. (HRS Exhibit 2).
The occupancy level for short-term psychiatric beds in the district is below 70%. (HRS Exhibit 2, pages 11-12).
Additionally, the occupancy standards of the local and state health plan, of which the department is required to review CON applications, have not been met in this instance. (HRS Exhibit 2, Pages 6-7).
Petitioner has not submitted any documentation to HRS regarding special circumstances need.
Petitioner's proposal at final hearing for a staff referral agreement with another local hospital was not contained in the CON application filed with HRS. (FMC Exhibit 14, pages 11-12).
Although Petitioner has alluded to some unspecified access problem for residents in the Florida Keys, Petitioner has not documented a real access problem and certainly not a demonstration of inaccessibility under the rule access standard. (Florida Administrative Code Rule 10-5.011(1)(o)5.g.)(HRS Exhibit 2, pages 14-15). Although the proposed project would increase availability and access for underserved groups in the district, the percentage
of total patient days for "indigents" is not substantial and certainly not to the point to warrant deviation from the usual access criteria. 2/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Respondent is derived from Chapter 381, Florida Statutes.
Petitioner bears the burden of establishing entitlement to the CON it is now seeking. In so doing, Petitioner here sought to show that its CON application should be approved by demonstrating that a "not normal" situation exists in the Key Largo area. See, e.g., Humana Inc. v. Department of Health and Rehabilitative Services 469 So.2d 889 (Fla. 1st DCA 1985), Humana Inc. v. Department of Health and Rehabilitative Services, 492 So.2d 388 (Fla. 4th DCA 1986) and NME Hospitals Inc. v. DHRS 494 So.2d 256 (Fla. 1st DCA 1986). Once Petitioner makes an initial showing of a " not-normal" situation, the Department must make a balanced consideration of all criteria. Balsom v. DHRS, 486 So.2d 1341 (Fla. 1st DCA 1986).
A Petitioner demonstrating a special exception under the "not normal" circumstances must show either (a) documentation by attending physicians plans, care or orders, (b) assessments performed by HRS staff or (c) equivalent assessments performed by attending physicians. Health Care and Retirement Corporation of America v. Department of Health and Rehabilitative Services, 12 FLU 2702 (1st DCA 1987). Petitioner has failed to make such a showing.
There is insufficient need for an additional short-term psychiatric hospital in District XI in the January, 1992 planning horizon. A surplus of 180 beds exists in that planning horizon. (Florida Administrative Code Rule 10- 5.011(1)(o)4.c.).
There is insufficient utilization of existing short-term in-patient psychiatric services to warrant approval of a new short-term psychiatric hospital in this service district. (Florida Administrative Code Rule 10- 5.011(1)(o)4.e.). Petitioner's CON application does not comply with the local health plan policies concerning conversion and occupancy standards. Petitioner has failed to demonstrate a geographic inaccessibility in the service district pursuant to Florida Administrative Code Rule 10-5.011(1)(o)5.g.
Additionally, Petitioner has failed to document that persons in need of psychiatric services cannot access those services in currently available beds in this service district. Cf., Psychiatric Hospital of Florida, supra.
Petitioner has failed to present any other statutory or rule criteria to justify issuance of a CON in this case.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law,
IT IS RECOMMENDED THAT:
Petitioner's application for a Certificate of Need to build a 60-bed free- standing psychiatric hospital in District XI be DENIED.
DONE and ENTERED this 28th day of February, 1989 in Tallahassee, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1989.
ENDNOTES
1/ The above findings are based on the parties' stipulation entered on November 30, 1987.
2/ In view of this finding, issues relating to the availability of resources including help, manpower and management personnel and long-term financial feasibility were rendered moot.
COPIES FURNISHED:
Eric B. Tilton, Esquire 810 Thomasville Road
Tallahassee, Florida 32302
Richard A. Patterson, Esquire
Suite 103 Fort Knox Executive Center 2727 Mahan Drive
Tallahassee, Florida 32308
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
FLORIDA MEDICAL CENTER,
Petitioner, CASE NO.: 87-4725 CON NO.: 5211
vs.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent,
and
HCA GRANT CENTER HOSPITAL OF MIAMI, & CHARTER HOSPITAL OF MIAMI, INC.,
Intervenors.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
FINDINGS OF FACT
The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the following:
It is noted that the citation for the access standard referred to in paragraph 43 is Section 10-5.011(1)(o)5h, Florida Administrative Code. The department rejects as an incorrect conclusion of law the Hearing Officer's conclusion in paragraph 43 that the service area is a subdistrict. The service area is the department's service district. Thus, the findings on subdistrict access in paragraph 44 are based on an incorrect conclusion of law and have been disregarded in evaluating petitioner's CON application.
CONCLUSIONS OF LAW
The department hereby adopts and incorporates by reference the conclusions of law set forth ion the Recommended Order except where inconsistent with the following:
The second paragraph of conclusion of law 4 refers to the Rule criteria for demonstrating special circumstances justifying approval of a CON application for nursing home beds. This language is not found in the psychiatric need rule. See Section 10-50.11(1)(o)(3), Florida Administrative Code.
Based on balanced consideration of all applicable criteria, I conclude that petitioner's application for a certificate of need should be DENIED.
Based on the foregoing, it is
ADJUDGED, that Florida Medical Center's application for CON number 5211 be DENIED.
DONE AND ORDERED this 9th day of May, 1989, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Deputy Secretary for Programs
COPIES FURNISHED:
Eric B. Tilton, Esquire James D. Bradwell ERIC B. TILTON, P. A. Hearing Officer
204-B South Monroe Street DOAH, The DeSoto Building Tallahassee, FL 32301 1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Richard Patterson, Esquire Assistant General Counsel FALR
Department of Health and Post Office Box 385 Rehabilitative Services Gainesville, FL 32602
2727 Mahan Drive
Fort Knox Executive Center Janie Block (PDDR) Tallahassee, FL 32308
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 12th day of May, 1989.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Docket for Case No: 87-004725
Orders for Case No: 87-004725
| Issue Date |
Document |
Summary |
|
May 09, 1989 |
Agency Final Order
|
|
|
Feb. 28, 1989 |
Recommended Order
|
Whether petitioners' application for a certificate of need to operate a 60- bed psychiatric hospital should be granted.
|
