STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in Tallahassee, Florida, on July 11-13, 18-20, 1988, and September 23, 1988. The issue in this case is whether a certificate of need should be issued to Charter Medical-Orange County, Inc., for a 50 short term bed free standing specialty psychiatric hospital, and whether a certificate of need should be issued to Orlando General Hospital, Inc., to convert 24 medical-surgical hospitals beds to 24 short term psychiatric beds. Appearing for the parties were:

For Petitioner: Fred W. Baggett, Esquire Charter Medical Stephen A. Ecenia, Esquire

Roberts, Baggett, LaFace & Richard

101 East College Avenue Tallahassee, Florida 32301

For Petitioner: Eric J. Haugdahl, Esquire

Orlando General 1363 East Lafayette Street, Suite C

Tallahassee, Florida 32301

For Respondent: Theodore D. Mack, Esquire DHRS 2727 Mahan Drive

Tallahassee, Florida 32308

For Intervenor: Stephen K. Boone, Esquire Florida Hospital Robert Mudge, Esquire

Boone, Boone, Klingbeil & Boone, P.A. Post Office Box 1596

Venice, Florida 34284

The Petitioner, Charter Medical, presented 28 exhibits which were admitted into evidence, and the testimony of Jack A. Morgenstern, M.D., Eileen M. Lowery, Albert A. Joyner, David Anthony Mobley, Joseph C. Little, William Stephen Love, and Ronald T. Luke, Ph. D. The Petitioner, Orlando General, presented 15 exhibits which were admitted into evidence, and the testimony of Andrea L. Walsh, Judith L. Horowitz, Jane Moch, Carl E. Beling, Randall B. Greene, and Randy Salmons. The Intervenor, Florida Hospital, presented 9 exhibits which were admitted into evidence, and the testimony of Jack M. Holton, Jr., Cynthia Rector, Dennis Menard, Irving B. Sawyers, Ted Hirsch, Wendy Thomas, and Richard Hall, M.D. The Respondent, HRS, presented 2 exhibits which were admitted into evidence, and the testimony of Reid Jaffe. There is a transcript. The parties submitted proposed findings of fact and conclusions of law. Appendix 1 contains rulings upon proposed findings of fact, and appendix 2 contains an analysis of the law concerning amended applications.

FINDINGS OF FACT

Introduction

1. Orlando General Hospital applied in April, 1987, for a certificate of need to allow it to convert 24 existing medical-surgical beds to short term psychiatric beds. O.G. Ex. 2, p. 1. It did not explicitly apply for beds limited to serve adults. It did, however, state that adolescent care would not be provided "at this time," leaving open the use of the 24 beds in the future for possible adolescent use. Id. at p. 5.

   
   

2. Charter Medical-Orange County, Inc., applied for a certificate of need for a 50 bed short term psychiatric specialty hospital. It explicitly applied for a specialty hospital having 50 beds of "short term adult psychiatric care."

   C.M. Ex. 1, application, section I. In the executive summary, it characterized its proposal as a specialty hospital "for adults." Id. at p. 1. Charter does not intend to treat child or adolescent short term psychiatric patients. T. 23.

   
   

3. The applications were filed in early 1987 to meet need in the January, 1992, planning horizon.

   
   

4. The rule that applies in this case is the one contained in the prehearing stipulation. T. 392. It is rule 10-5.011(1)(o), Fla. Admin. Code. A copy of the rule is contained in O.G. Ex. 7, p. 33.

   
   

5. The provisions of the local health plan at issue in this case are accurately reproduced in the State Agency Action Report (SAAR) which is C.M. Ex. 5.

   
   

   Net Short Term Psychiatric Bed Need (Numeric Need)

   
   

6. Rule 10-5.011(1)(o)4a-c, Fla. Admin. Code, provides that the projected number of beds shall be based on a bed need ratio of .35 beds per 1,000 population projected five years into the future and based, in this case, on the January, 1987, projections for January, 1992. That 1992 population for District VII is projected to be 1,505,564, and thus the gross short term psychiatric bed need is 527 beds.

7. For this batching cycle, the inventory of licensed and approved short term psychiatric beds was 410. These were:

   
   

   General Hospitals Florida Hospital-Altamonte	20
   Florida Hospital-Orlando	85
   Orlando Regional Med. Center	32
   Wuesthoff Memorial Hospital	25
   Subtotal	162
   Specialty Hospitals Brevard Mental Health Center	52
   CPC Palm Bay (began 10/86)	40
   Laurel Oaks (began 10/86)	60
   Lynnhaven (approved only)	39
   Park Place (approved only)	17
   West Lake	40
   Subtotal	248
   TOTAL (Licensed and approved)	410
   TOTAL (Licensed only)	354

   
   

8. Thus, there is a net need for 117 short term psychiatric beds In District VII by 1992.

   
   

9. The rule further specifies that a minimum of .15 per 1,000 population should be allocated to hospitals holding a general license, and that .20 per 1,000 of the beds may be located in either speciality hospitals or hospitals holding a general license.

   
   

10. HRS interprets the word "should" in the rule with respect to .15 per 1,000 allocated to hospitals with a general license as being mandatory. C.M. Ex. 5, pp. 13-14. This is a reasonable construction of the rule.

    
    

11. By 1992 there must be 226 short term psychiatric beds located in hospitals holding a general license. Since currently there are 162 beds in such hospitals, there is a net need by January, 1992, for 64 short term psychiatric beds to be opened in hospitals holding a general license. The remainder of the net bed need, 53 beds, may be located in either a specialty hospital or a hospital holding a general license. T. 500-02.

    
    

    The Occupancy Rate for "All Existing Adult Short Term Inpatient Psychiatric Beds"

    
    

12. Rule 10-5.011(1)(o)4e, Fla. Admin. Code, provides in part that "no additional short term inpatient hospital adult psychiatric beds shall normally be approved unless the average annual occupancy rate for all existing adult short term inpatient psychiatric beds in a service district is at or exceeds 75 percent for the preceding 12 month period." (E.S.).

    
    

13. Calendar year 1986 is the period of time accepted by all parties as the "preceding 12 month period" as specified by the rule, that is, the period of time to calculate the occupancy rate for this batching cycle. See, e.g., T. 285; C.M. Ex. 5.

    The State Agency Action Report Occupancy Rate

    
    

14. The State Agency Action Report computed the occupancy rate for all licensed short term psychiatric beds in District VII in calendar year 1986 at

    70.13 percent. C.M. Ex. 5, p. 10. This figure was based upon data as to patient days as reported by District hospitals to the District VII local health council and was based upon 354 licensed beds in the District during the full calendar year, but excluded 56 beds the re approved but not opened. O.G. Ex. 7,

    p. 6.

    
    

    Exclusion of CPC Palm Bay and Laurel Oaks

    
    

15. CPC Palm Bay and Laurel Oaks have been designated by certificate of need issued by HRS to serve only children and adolescents. T. 507. Since those facilities by law cannot serve adults, their beds are not "adult beds," their patient days are not adult patient days, and their occupancy rate is not an adult occupancy rate. T. 1128.

    
    

16. If CPC Palm Bay and Laurel Oaks were excluded from the calculation of the occupancy rate in the SAAR, the occupancy rate would be 73.7 percent.

    
    

17. This rate is a weighted average based upon a 86,779 patient days that were possible at 100 percent occupancy of all licensed short term psychiatric beds in District VII in 1986, excluding Palm Bay and Laurel Oaks. C.M. Ex. 17, p. 11, fn. 9.

    
    

    How Many Adult Patient Days and Beds?

    
    

18. HRS often issues certificates of need without age restrictions, allowing the facility to provide short term psychiatric treatment to everyone, regardless of age. Such hospitals can and do serve all ages, and their licensed short term psychiatric beds are not designated as, or restricted to, adults. T. 1128-29.

    
    

19. With the exception of Palm Bay and Laurel Oaks, none of the other licensed short term psychiatric hospitals in the District are restricted by HRS by patient age.

    
    

20. HRS does not have data to enable it to determine which short term psychiatric beds were used by adult patients in the District in 1986. T. 1169. Use of beds for age cohorts can dramatically and continuously change during a calendar year, and 41 has no reliable means to know about such changes. T. 1229-30.

    
    

21. Hospitals issued certificates of need without limitation as to the age of the patient are not required by HRS to report the number of patient days served by the hospital by age or age group of the patient. See T. 1218-19; HRS Ex. 2. HRS Ex. 2. Consequently, the reported short term psychiatric patient days for District VII for calendar year 1986 mix adult patient days with patient days for children and adolescents.

    
    

22. Thus, with the exception of Laurel Oaks and Palm Bay, it is impossible in this case for the applicants and other parties in this batching cycle to untangle pure adult psychiatric patient days from the available data. T. 392, 353, 287, 291, 371, 1169-71.

23. It is impossible on this record to make a finding of fact as to what would happen to the mixed occupancy rate all patient days attributable to adolescents and children could be excluded from the adult patient days. The only bit of evidence is found in C.M. Ex. 17, the data from Florida Hospital, which shows for that hospital that the 16 adolescent unit in 1986 had an occupancy rate of 60.92 percent, and the open adult unit had an occupancy rate of 82.42 percent. C.M. Ex. 17, p. 3. But that percentage is more a reflection of Florida Hospital's choice in how it set up the beds in the two programs than it is a reflection of need. For example, had Florida Hospital chosen to allocate only 12 beds to its adolescent program, instead of 16, the 1986 occupancy rate for that unit, based on 3,558 patients a day, would have been

    81.23 percent. One wonders why Florida Hospital did not simply allocate a lower number of beds to the adolescent unit, since it had only 13 admissions to that unit in 1986. In any event, since a hospital like Florida Hospital has discretion as to how it sets up its beds with respect to the ages of patients. In those beds, the fact that it had an occupancy rate of 60.92 percent in the subunit it called the adolescent unit in 1986 is relatively meaningless when trying to predict which way a pure adult occupancy rate might change if adolescent and child patient days could be excluded.

    
    

24. In summary, there is no accurate count of beds licensed only as adult beds, there is no accurate count of beds used only as adult beds, and there is no accurate count of adult patient days.

    
    

    The Problem of West Lake Hospital

    
    

25. The record has an additional data problem with respect to calculation of the occupancy rate of adult short term psychiatric beds. West Lake Hospital is licensed for 40 short term beds (not restricted by age), and 30 long term psychiatric beds. Data for calendar year 1986, the only year relevant in this case, is a mixture of short term and long term patient days. C.M. Ex. 17. As will be discussed ahead, additional evidence as to the patient days at West Lake Hospital was excluded from evidence for failure to comply with the prehearing order.

    
    

    The Problem of Short Term Psychiatric Patient Days Occurring in General Hospitals Without Licensed Short Term Psychiatric Beds

    
    

26. A general hospital with no licensed short term psychiatric care can lawfully provide temporary and sporadic short term psychiatric care in its medical-surgical beds. T. 1191.

    
    

27. In calendar year 1986, Orlando General Hospital reported to the Hospital Cost Containment Board that it provided 4,969 psychiatric (MDC 19) patient days of care. O.G. Ex. 7, p. 11. By 1988, it had over 30 psychiatric patients in the hospital at any given time. T. 753.

    
    

28. Orlando General Hospital does not have any beds licensed for short term psychiatric care, or for long term psychiatric care, for that matter.

    
    

29. Orlando General Hospital's psychiatric patients are currently receiving inpatient psychiatric care that is substantially the same as would be provided in a licensed short term psychiatric bed, with the exception that the care is osteopathic in nature. See T. 797, 1355-58, 1360-62, 788-90, 792-93.

    HRS Policy as to the Data Problems

    
    

30. HRS stated that it "... would not attempt to fix a specific occupancy for a specific age cohort" in this case, T. 1220. A good faith attempt was made, however. Following a new policy, HRS argued that the adult bed occupancy rate should exclude the beds and patient days of hospitals having certificates of need explicitly limited to service of the needs of children and adolescents (Palm Bay and Laurel Oaks), but should include all of the licensed short term psychiatric beds at any other facility that is not restricted by patient age.

    T. 1127-29. It was acknowledged that the information is faulty, but the Department urges that it is the best that it can do under the circumstances. T. 1174.

    
    

31. With respect to patient days, HRS also urges that only the patient days reported to the local health council by hospitals having licensed adult short term psychiatric beds should be counted in the mixed rate.

    
    

32. In particular, HRS argues that it should not use patient day data reported to the Hospital Cost Containment Board because such data is not limited to hospitals having "designated" psychiatric units. T. 1126-27.

    
    

33. This argument is not reasonable. Hospitals that are legally authorized to provide short term psychiatric care to adults (i.e., having a certificate of need and a license) can provide such care in any licensed bed in the hospital, even though the bed is not licensed as a psychiatric bed. Moreover, a general hospital with no licensed short term psychiatric care, according to HRS witnesses, can lawfully provide temporary and sporadic short term psychiatric care in its medical-surgical beds. It may even provide such care on a continuous, ongoing basis, as in the case of Orlando General Hospital, although the legality of doing so is questioned by HRS. The critical question is not whether these licensed hospitals have legal authority to provide short term psychiatric care, but whether the care in fact given results in a short term psychiatric patient day in the District. If the care given is essentially the same as if the patient had been in a licensed short term psychiatric bed, it would be unreasonable not to treat the resulting statistic as a short term psychiatric patient day.

    
    

34. What is at stake is a true measurement of District capacity. If tomorrow all of the District short term psychiatric patients and the patient days generated by such patients transferred to the District licensed short term psychiatric beds, these short term psychiatric patient days would certainly be counted in the occupancy rate. When trying to assess the real extent of availability of District capacity, a false picture of excess and unused capacity would be shown if real short term psychiatric patient days are occurring somewhere in the District, but are not counted in determining the occupancy rate.

    
    

35. On the other hand, if the facility is not even a licensed hospital, it is presumptively providing an alternative kind of inpatient psychiatric care that is different from a licensed psychiatric hospital. Thus, its patient days are irrelevant absent some specific proof that the care given in such a bed is essentially the same as a short term psychiatric patient day in a licensed general or specialty hospital.

    What is an "Existing" Adult Short Term Bed?

    
    

36. Rule 10-5.011(1)(o)4e, Fla. Admin. Code, calls for the occupancy rate for "all existing" adult short term psychiatric beds in the service district, and does not define the word "existing."

    
    

37. Petitioners assert that "existing" adult beds of the facility for purposes of determining occupancy rate is the number of beds characterized by the facility as having been in fact used for psychiatric care during the year, but only if that number is less than the number of licensed short term psychiatric beds. T. 391, 354-55.

    
    

38. The Respondent and the Intervenor argue that "existing" adult beds is fixed by the number of licensed short term psychiatric beds granted to the facility by the state if available to serve adult patients.

    
    

39. Normally, to be licensed a bed must be available within 24 hours. T. 1121.

    
    

    Orlando Regional Medical Center

    
    

40. In calendar year 1986, Orlando Regional Medical Center had 32 licensed short term psychiatric beds. T. 348. These 32 beds were not restricted by patient age.

    
    

41. In calendar year 1986, Orlando Regional Medical Center characterized as "in service" 32 beds for the first 7 months of 1986, 22 beds for the month of August, 18 beds for the month of September, and 12 beds for the remaining 3 months of the year. The figure of 25 beds used by the Petitioners is the weighted average. T. 348.

    
    

42. These licensed short term psychiatric beds at Orlando Regional Medical Center were temporarily not in service because of the construction of new facilities at the hospital. Orlando Regional Medical Facility intended to reopen those beds in the future because the hospital reminded the party seeking discovery that it had 32 licensed beds, and characterized the missing beds as having been "warehoused," that is, saved for future use. T. 509-10; O.G. Ex. 7, appendix 3.

    
    

43. Thus, all 32 of Orlando Regional Medical Center's licensed beds would be available and would be used for adult short term psychiatric care if demand existed.

    
    

    Florida Hospital

    
    

44. Florida Hospital has two facilities relevant to this case, one in Orlando, in Orange County, and one in Altamonte Springs, in Seminole County.

    
    

45. In calendar year 1986, Florida Hospital had 105 beds licensed as short term psychiatric beds. Florida Hospital would serve patients of any age in these 105 beds.

    
    

46. C.M. Ex. 18 is a document which was obtained from Florida Hospital through discovery. T. 286. The document is entitled "Florida Hospital Center for Psychiatry Monthly Operating Statistics," and thus was assumed by Charter's expert to be Florida Hospital's characterization of its data as psychiatric data. T. 289.

47. C.M. Ex. 18 could not have been obtained by Charter at the time it made application. It was obtainable only through the discovery process after commencement of section 120.57(1), Fla. Stat., proceedings. T. 314-16, 386-87.

    
    

48. Florida Hospital reported in discovery that in calendar year 1986, it had 113 beds operating in its "Center for Psychiatry." Of these, 16 were substance abuse beds, 13 were beds in an eating disorders unit, and 16 were adolescent beds. That left 24 beds in the intensive care unit, 24 beds in an open unit, and 20 beds at a unit at Altamonte Springs. C.M. Ex. 18.

    
    

49. The 16 substance abuse beds clearly were not psychiatric beds. If the

    13 eating disorders beds were short term psychiatric beds, Florida Hospital had

    97 of its 105 licensed short term psychiatric beds in actual operation in 1986. If they were not, Florida Hospital had 84 of its 105 licensed short term psychiatric beds in actual operation in 1986.

    
    

50. There is no evidence in this record that Florida Hospital could not and would not have readily opened 8 more short term psychiatric beds during 1986 if demand for those beds had existed, thus having "open" all 105 of its licensed beds. There is no evidence in this record that in 1986, Florida Hospital could not have closed its 16 bed adolescent unit and devoted all of those beds to adult short term psychiatric care, had there been a need. Indeed, it appears that generally speaking, that is how Florida Hospital operates: by shifting beds to other uses within its licensed authority according to demand. See T. 1322-26.

    
    

51. Thus, all 105 of Florida Hospital's licensed beds would have been available and would have been used for adult short term psychiatric patients if the demand existed.

    
    

    Counting Patient Days - Are Eating Disorder Patient Days Psychiatric Patient Days?

    
    

52. Florida Hospital reported in discovery that it had 2,982 patient days in its eating disorder unit, and that the unit operated with 13 beds. C.M. Ex. 18, P. 3, lines 8 and 26.

    
    

53. The eating disorder unit reports to the administrative director of the Florida Hospital Center for Psychiatry. T. 977. The administrative director could not explain why the unit reported to the Center for Psychiatry. T. 977. The unit has co-directors, one a psychiatrist, and the other a specialist in internal medicine. Id. The administrative director of the Center for Psychiatry characterizes the 13 eating disorders beds as medical-surgical beds, and classifies patients in those beds as primarily having a medical problem, T. 976, but the psychiatrist co-director of the program hedged, and would not say whether the primary diagnosis is medical or psychiatric. T. 1315. The patients typically are, however, very ill from a medical point of view. T. 1314.

    
    

54. Florida Hospital's characterization of the nature of the care given in its eating disorders unit, as summarized in the preceding paragraph, in view of the manner in which the witnesses were unclear as to how to characterize the eating disorder unit, is not evidence that the care given in that unit is not psychiatric care in view of Florida Hospital's interest in these cases in opposition to the applications.

55. Charter's expert concluded from C.M. Ex. 18 that Florida Hospital was serving short term psychiatric patients in its eating disorders unit at Altamonte Springs. T. 287. He characterized this as a short term psychiatric service in medical-surgical beds. T. 289. But he also characterized the 13 beds as psychiatric beds. T. 287-88.

    
    

56. HRS has issued a certificate of need to a short term psychiatric hospital limiting that certificate of need to treatment of eating disorders, thereby recognizing treatment of eating disorders in that case as a form of psychiatric treatment. T. 1191. From testimony at the hearing, it would appear that HRS's expert would view the eating disorder unit at Altamonte Springs as a short term psychiatric program. T. 1191-1192, 1194.

    
    

57. It is concluded that the preponderance of the evidence shows that the care rendered to patients in the eating disorders unit was psychiatric care. The unit is administratively a part of the hospital's Center for Psychiatry. While the patients are very ill, medically speaking, they also have substantial mental health problems. Finally, and most persuasive, HRS has previously characterized such care as short term psychiatric care.

    
    

58. If these 2,982 eating disorder patient days are counted as psychiatric patient days in 1986 for District VII, and if the number of beds at Florida Hospital remains as it was in the SAAR calculation (105 licensed beds), then the total patient days for the District changes from 63,976 to 66,958. The result is that the occupancy rate for District VII for 1986 for adult and mixed short term psychiatric beds changes from 73.72 percent to 77.16 percent. C.M. Ex. 17,

    p. 13. This calculation is the result of a weighted average discussed above.

    
    

    Psychiatric Patient Days Reported to the Hospital Cost Containment Board

    
    

59. Orlando Regional Medical Center and Florida Hospital report patient days by Medicare major diagnostic categories (MDC). MDC 19 is the category for psychiatric care. T. 512; O.G. Ex. 7. The data collected in this record was for calendar year 1986. T. 603-604.

    
    

60. Relying upon MDC 19 statistics for calendar year 1986, Florida Hospital (Orlando and Altamonte Springs combined) had 28,372 MDC 19 patient days, and Orlando Regional Medical Center had 7,328 MDC 19 patient days.

    
    

61. The Florida Hospital MDC 19 patient days shown in table 6, O.G. Ex. 7, are very close to the number of patient days shown on C.M. Ex. 18, the operating statistics from the "Center for Psychiatry" obtained from Florida Hospital in discovery. The MDC 19 patient days, 28,372, exceed the "Center for Psychiatry" reported data by only 452.

    
    

62. The Orlando Regional Medical Center's MDO 19 patient days, 7,328, is 618 patient days greater than the patient days reported by Orlando Regional Medical Center to the local health council.

    
    

63. If these MDC 19 patient days are assumed to be short term adult psychiatric patient days, following the same mathematical calculation used by HRS both in the SAAR and in testimony during the hearing (with the same weighted averages), the occupancy rate for adult and mixed short term psychiatric care in District VII, using licensed beds, was 78.39 percent in calendar year 1986.

    O.G. Ex. 7, table 6. This calculation uses the same weighted average (86,779 patient days at 100 percent occupancy) as used by all the other parties. C.M. Ex. 17, p. 11, fn. 9.

    
    

64. There is no evidence in the record that the foregoing MDC 19 patient days are limited to short term psychiatric days, or the extent to which the data considers long term patient days as well. Of course, there is also no evidence available to separate the MDC 19 patient days into adult patient days and patient days attributable to children and adolescents.

    
    

    Westlake Hospital Data as to Short Term Psychiatric Patient Days in 1986

    
    

65. The Intervenor, Florida Hospital, has renewed its effort to have F.H. Ex. 3, and testimony based upon that exhibit admitted, into evidence. The exhibit and testimony involves data as to short term psychiatric patient days for 1986 at Westlake Hospital, located in Seminole County.

    
    

66. Florida Hospital argues that the ruling excluding F.H. Ex. 3 from evidence, as well as testimony related to that exhibit, is inconsistent with the ruling that allowed Charter Medical to introduce C.M. Ex. 19. It is argued that the only difference is that in the case of Charter Medical, the witness first testified as to the contents of the exhibit, whereas in Florida Hospital's case, the exhibit was admitted, the witness testified, and then the exhibit was excluded. Florida Hospital argues that as a result of this sequence of events, its witness was not afforded an opportunity to present the same evidence from memory without the exhibit.

    
    

67. From a review of the sequence of events, it is apparent that there is a substantial difference between the two exhibits, as well as a substantial difference in the procedures used by counsel, and that difference necessitates the two rulings.

    
    

68. C.M. Ex. 19 is nearly identical to C.M. Ex. 17, with three exceptions. In C.M. Ex. 19 the patient days at the Florida Hospital eating disorder unit were moved from the Orlando facility to the Altamonte Springs facility. C.M. Ex. 19 also excluded adolescent patient days from the Florida Hospital count changed the number of "existing" beds at Orlando Regional Medical Center to 25 instead of 32. T. 295. C.M. Ex. 19 made no other changes to C.M. Ex. 17 with respect to patient days or number of beds.

    
    

69. Two objections were made by Florida Hospital to the admission of C.M. Ex. 19, that C.M. Ex. 19 had not been provided to opposing counsel at the exchange of exhibits, in violation of the prehearing order, and that C.M. Ex. 19 was an impermissible amendment to Charter Medical's application for certificate of need. T. 295-296. Only the first objection is the subject of Florida Hospital's renewed argument.

    
    

70. The Hearing Officer at the time overruled the first objection because it was determined that C.M. Ex. 19 merely summarized the testimony of Dr. Luke as to changes he would make to C.M. Ex. 17.

    
    

71. That ruling was correct, and should not be changed at this time. All of the underlying data for the expert analysis in C.M. Ex. 19 came into evidence without objection that it had not been exchanged among the parties. C.M. Ex. 18 contained the data as to adolescent patient days and eating disorder patient days at Florida Hospital in 196. That data came into evidence without objection

    that it had not been exchanged. T. 316. Dr. Luke's testimony that Orlando Regional Medical Center had only 25 beds operational in 1986 came into evidence without objection. T. 292. Dr. Luke's testimony concerning the location of the eating disorders unit at Altamonte Springs came into evidence without objection.

    T. 287, 291. Both of these latter evidentiary matters were of a type that easily could have been known to Dr. Luke without reference to a document to refresh his memory.

    
    

72. Additionally, the parties were well aware of the argument that Orlando Regional Medical Center had only 25 operational beds in 1986, and that Florida Hospital had only 48 adult beds in operation in 1986, since that evidence and argument was a fundamental part of Orlando General Hospital's basic bed need exhibit, O.G. Ex. 7, and the testimony of Ms. Horowitz. Moreover, the type of analysis of the data contained in C.M. Ex. 19 is the same as that of Ms. Horowitz in O.G. Ex. 7.

    
    

73. Thus, Florida Hospital was not caught by surprise by C.M. Ex. 19. The exhibit did not contain new data or new modes of analysis.

    
    

74. Florida Hospital's attempt to introduce data as to the actual number of short term psychiatric patient days at Westlake Hospital in 1986 was quite different. The data as to patient days at Westlake had not been produced during the deposition of Florida Hospital's witness, although similar data for 1987 and 1988 was produced. T. 867. Had it been made available in discovery, the failure to exchange the data as an exhibit as required by the prehearing order would have been less serious. But the exhibit had not been given by Florida Hospital to opposing parties, in violation of the prehearing order. T. 869.

    F.H. Ex. 3 did not reorganize data that otherwise was exchanged between the parties. It attempted to introduce new raw statistical data that had not been furnished opposing counsel as required by the prehearing order.

    
    

75. The Hearing Officer initially ruled that F.H. Ex. 3 should be admitted into evidence and allowed the witness to testify concerning the data contained in the document. T. 870-871.

    
    

76. That initial ruling was in error. The data contained in F.H. Ex. 3 is not at all simple. The document consists of four pages of numbers representing monthly statistics in 1986 at Westlake Hospital for each of its units. It is highly unlikely that a witness could have remembered all of that data presented the data in testimony without reliance upon the exhibit. Indeed, the witness testified that all of his testimony was based upon F.H. Ex. 3. T. 907. The witness had apparently given a different impression as to Westlake's occupancy rate in 1986 during his deposition, and did so without the benefit of

    F.H. Ex. 3. T. 910. Florida Hospital could have asked the witness if he could have presented his testimony without reference to F.H. Ex. 3, but it did not ask the witness that critical question. In sum, the witness could not have presented his analysis from memory. He had to have F.H. Ex. 3 in front of him as he testified.

    
    

77. On December 2, 1987, an order was entered setting this case for formal administrative hearing beginning on July 11, 1988. That order established prehearing procedures. Paragraph 3 of that order requires counsel to meet no later than 10 days before the hearing to, among other things, "examine and number all exhibits and documents proposed to be introduced into evidence at the hearing." Later in the same paragraph is the requirement that the parties file a prehearing stipulation containing a list of all exhibits to be offered at the

    hearing. Paragraph 3D of the prehearing order states in part that failure to comply with the requirements of the order "may result in the exclusion of testimony or exhibits."

    
    

78. The first time that opposing counsel were given the opportunity to see the data in F.H. Ex. 3 was in the middle of the formal administrative hearing. The exhibit contained detailed raw statistical data. C.M. Ex. 19 did not try to present new raw statistical data.

    
    

79. For these reasons, F.H. Ex. 3 and all testimony related to that exhibit by Mr. Menard was excluded from evidence.

    
    

80. Later in the hearing, Florida Hospital sought to introduce the same data through the testimony of Wendy Thomas, the planning director and data manager for the local health council. T. 1050. Counsel for Florida Hospital first attempted to show the witness the document that had been excluded from evidence, and counsel for the other parties objected. T. 1047-1049. The Hearing Officer suggested to counsel that counsel should first ask the witness whether she had made a computation and then ask what was the basis of the computation, rather than show the witness the document. T. 1049. Counsel then attempted to do that. But when counsel asked the witness for her computation, it was still unclear whether the witness based her calculation upon data in the excluded document. T. 1053. After a number of other questions, it still was unclear whether the data in the excluded document was the basis for the calculation. T. 1053-1055. The Hearing Officer then asked the witness if she could identify F.H. Ex. 3. The witness said that F.H. Ex. 3 contained the exact type of information that she had in her own files, and that her document looked like F.H. Ex. 3, except it was photocopied smaller. T. 1056. During all of this exchange, the witness was never asked by counsel for Florida Hospital if she ever had an independent memory of the details of the underlying data, or whether, if that memory now had faded, looking at F.H. Ex. 3 would refresh her memory. Since it was apparent that the basis for the witness's calculation was the same raw statistical data as contained in F.H. Ex. 3, the Hearing Officer granted the motion to exclude the testimony. Later, in cross examination of the proffered testimony, the witness testified that the basis for her calculation was the use of a document containing the same data as F.H. Ex. 3. T. 1087-1088, 1091.

    
    

81. Thus, counsel for Florida Hospital did not lay a proper predicate for attempting to use F.H. Ex. 3 to refresh the memory of either witness. As discussed above, had it done so, it is unlikely that either witness could have testified from memory as to the statistics because the data contained in F.H. Ex. 3 was too detailed to have ever been in the memory of either witness.

    
    

82. Florida Hospital argued that Ms. Thomas's calculation should be admitted because the raw data had been in her possession for over a year. That argument is unpersuasive. The raw data was in the possession of Westlake Hospital as well. The issue is not whether opposing parties might have discovered the data on their own, but compliance with the prehearing order requiring exchange of important exhibits.

    
    

83. For these reasons, the Hearing Officer's rulings as to exclusion of the foregoing evidence will remain unchanged.

    
    

    The Local Health Plan Applicability

84. No part of the District VII local health plan was adopted by HRS as a rule when these applications were and reviewed. T. 1214.

    
    

85. Several years ago, with respect to applications for certificates of need for short term psychiatric beds, HRS considered need and occupancy rates only on a district-wide basis. T. 1184. See e.g. C.M. Ex. 20, where HRS did not refer to the local health plan as to these issues in District VII.

    
    

86. HRS has now changed that policy, however, and considers need and occupancy at the district level and by portions of the District if those issues are effectively required by the local health plan. T. 1184.

    
    

87. For purposes of planning for short term psychiatric services, the local health plan divides District VII into county "planning areas." Orange County is thus a local health plan planning area.

    
    

88. The local health plan does not use planning areas for substance abuse planning, and it does not explain why there is a difference in planning.

    
    

89. Orlando General and Charter both propose to locate their proposed short term adult psychiatric beds in Orange County if granted certificates of need.

    
    

90. Counties are convenient units for health planning purposes because population data exists by county. T. 1180.

    
    

91. Census tracts and zip code areas are also convenient geographical units for health planning. T. 1180-81.

    
    

92. If a proposed facility is to be located very close to the county line, it would make no difference which side of the line it was on with respect to the ability of the facility to serve patients originating in either county. T. 1181.

    
    

    Allocation of Net Need to Orange County

    
    

93. The local health plan, policy 3, provides that if the application of rule 10-5.011(1)(o) indicates a need (at the District level), the need is to be allocated among the counties in the district using the state numeric need method by county. T. 1027-29; C.M. Ex. 5.

    
    

94. Applying all of the age calculations for the projected populations and bed inventory of Orange County only, the local health plan allocates 55 new short term psychiatric beds to Orange County by 1992.

    
    

95. However, applying the allocation ratios of the rule, there is an excess of 18 short term psychiatric beds in general hospitals, and thus none of the 55 beds would be mainly allocable to a general hospital.

    
    

96. There is, nonetheless, a potential allocation of need of 73 beds in either a specialty or a general hospital, and the net need of 55 beds could be allocated to either a specialty hospital or a general hospital.

    The Orange County Mixed Occupancy Rate

    
    

97. The local health plan, policy 4, applies the 75 percent occupancy standard to the county level. The policy explicitly calls for an average annual occupancy rate for all existing facilities in the planning area with respect to adult short term psychiatric beds. C.M. Ex. 5.

    
    

98. Relying upon the calculation in the SAAR, but deleting Laurel Oaks, the mixed occupancy rate for Grange County in 1986 was less than 58.4 percent. This calculation only includes the beds at Florida Hospital (Orlando) and Orlando Regional Medical Center. The calculation is based upon 18,696 patient days at Florida Hospital (Orlando) in 85 beds, and 6,242 patient days in Orlando Regional Medical Center in 32 beds.

    
    

99. There were 4,969 MDC 19 patient days occurring at Orlando General Hospital in 1986. There were 7,328 MDC 19 patient days occurring at Orlando Regional Medical Center in 1986. The eating disorder patient days occurred in Seminole County (Altamonte springs) and should not be counted in an Orlando occupancy rate. The only data as to patient days at Florida Hospital, Orlando only, is that found in C.M. Ex. 18, which is the same as the SAAR, which reports 18,696 patient days. (The MDC 19 data mixes the two units.)

    
    

100. The number of licensed short term psychiatric beds in Orange County in 1986 was 117. All of these beds were licensed the entire year, and thus there was no need to do a weighted average of potential patient days for these beds. See C.M. Ex. 17, p. 11; O.G. Ex. 7, table 6.

     
     

101. Using all of the foregoing patient days, the number of patient days was 30,993, the number of licensed short term psychiatric beds was 117, and the mixed occupancy rate for Orange County for 1986 was 72.6 percent.

     
     

102. If it is not appropriate to count the 4,969 patient days at Orlando General Hospital in the Orange County occupancy rate, the 1986 Orange County occupancy rate was only 60.09 percent.

     
     

     Conversion of Existing Beds and Service to Indigent Patients

     
     

103. Policy 5 of the local health plan states that excess bed capacity in, among other types of beds, medical/surgical beds, should be eliminated by reallocation of beds among the services, including psychiatric services.

     
     

104. Policy 6 of the local health plan states that primary consideration should be given for project approval to applicants who satisfy to the greatest extent the following priorities:

     
     

     1. The first priority is to applicants who commit to serving "underserved client groups," including Medicaid, Baker Act, and medically indigent patients.

        
        

     2. The second priority is to applicants who convert underutilized existing beds.

     
     

105. As will be discussed in the conclusions of law, Orlando General's application satisfies these priorities, and Charter Medical's application does not.

     Other Evidence as to Future Need

     
     

106. Historically, health care providers have been reimbursed on a fee- for-service basis. The more services provided, the greater the payment. These insurance arrangements had little incentive to decrease the level of services. T. 720.

     
     

107. In the last three or four years, the health insurance industry has changed its methods of providing insurance. A very large percentage of insured patient care is now managed by use of flat rates based upon a per person count (capitation). The rates do not increase related to utilization.

     
     

108. Managed health care reimbursement uses a system whereby the health care provider is paid a flat rate annually for each insured person, and agrees to provide for the health care needs of all such persons generally without considering the degree of utilization during the year. T. 722-723.

     
     

109. Under the capitation system, the provider has the incentive to provide only such care that, in intensity or duration, is the minimum that is clinically acceptable. T. 724.

     
     

110. Psychiatric services have been included in the movement of the industry toward managed health care reimbursement rather than fee-for-service reimbursement. T. 722.

     
     

111. The health care industry now offers competitive managed health care plans in central Florida, and the trend is for an increase in the availability of such methods of reimbursement in central Florida. T. 726-727. It is now 40 percent of the insurance market, and in the early 1990's, the percentage of managed health care may be twice that percentage. T. 727.

     
     

112. The effect of the new reimbursement system is to substantially lower the length of stay, and to lower the rate of admission as well, at short term psychiatric hospitals. T. 724-725, 881-882, 1319-1320.

     
     

113. Orlando General Hospital projected that its average length of stay would be 30 days in 1992. It has discovered from current experience that its average length of stay is about 15 days. T. 433, 464.

     
     

114. District VII has recently experienced an increase in the availability of community based mental health facilities. These facilities provide a variety of mental health services, including brief inpatient care. The facilities do not require a certificate of need. T. 1046-1047, 1319.

     
     

     The Nature of the Proposed Programs Orlando General Hospital

     General

     
     

115. Orlando General is a 197 bed acute care general osteopathic hospital located in Orlando, Florida, in Orange County.

     
     

116. Orlando General proposes to convert a 35 bed medical-surgical unit to

     24 short term psychiatric beds at a capital cost of $689,272. It would relocate

     11 of its medical-surgical beds, and convert the remainder to short term psychiatric beds.

117. Orlando General Hospital is located in the southeast portion of Orange County. T. 1107. It is the most eastward facility in Orange County with the exception of a long term psychiatric hospital now under construction. T. 1107. The primary service area of Orlando General by location of physicians offices is the southern half of Seminole County and the northern portion of Orange County. In particular, the hospital serves northeastern Orange County through the location of its physicians' offices. T. 412; O.G. Ex. 2, p. 27.

     
     

118. The program of treatment described in Orlando General's application is no longer an accurate description of Orlando General's current program or of the intended program. T. 453.

     
     

119. The treatment programs planned for the new short term psychiatric unit are comparable to the programs planned by Charter Medical-Orange County, Inc., and are adequate and appropriate programs for short term psychiatric care.

     
     

     Psychiatric Care for the Elderly

     
     

120. Orlando General Hospital would provide adequate and appropriate specialized short term psychiatric care for elderly patients, but would not provide such care in a unit physically separated from other patients.

     
     

121. There currently is a split of professional opinion as to whether or not geriatric patients should be treated in a psychiatric unit separated (physically as well as programmatically) from other patients. There are benefits from both approaches. T. 1315-1317, 68, 74-76, 43-45, 770. Various Charter Medical hospitals do it both ways. T. 70.

     
     

     Osteopathic Medicine at Orlando General Hospital

     
     

122. Osteopathic medicine differs from allopathic medicine in its emphasis upon viewing the interaction of all parts of the body, rather than a single part, and the use of muscular and skeletal manipulation. T. 1349, 753-754.

     
     

123. Orlando General Hospital is an osteopathic hospital and has been osteopathic in nature since the 1960's. It was founded by osteopathic physicians, and the hospital abides by osteopathic philosophies. The Board of Trustees at the hospital are all osteopathic physicians. Although it has medical doctors on staff, the majority are osteopathic physicians Orlando General Hospital is accredited by the American Osteopathic Association to train osteopathic physicians, and has such training programs, primarily in family medicine. T. 412-414, 755.

     
     

124. There are about 80 osteopathic physicians in Orange County, and the vast majority are on the staff at Orlando General Hospital. T. 760.

     
     

125. Patients who prefer osteopathy, and osteopathic physicians, prefer an osteopathic hospital. Osteopathic physicians believe that they deliver better care to their patients in an osteopathic facility rather than an allopathic facility.

     
     

126. About 30 percent of the psychiatric patients treated by Dr. Greene at Orlando General Hospital receive manipulation as a therapy. T. 1351.

     
     

127. There is a shortage of osteopathic psychiatrists. T. 756. Other than Randall Greene, D.O., there are no osteopathic psychiatrists in the Orange County area. Id.

128. There is a shortage of places for psychiatric resident training. There is no osteopathic psychiatric residency in Florida, and only a few in the country. T. 764, 1349. Consequently, osteopaths seeking to become psychiatrists often have to go to allopathic hospitals for residencies. T. 1349 Residency in an allopathic hospital is often not approved by the American College of osteopathic psychiatrists. Thus the osteopath who has had his or her residency in an allopathic hospital and lacks such approval will not be readily accepted as an osteopathic psychiatrist on the staff of an osteopathic hospital. T. 1350.

     
     

129. Orlando General Intends to have a residency program in osteopathic psychiatric for at least two positions if it is granted a certificate of need. T. 762, 415.

     
     

     The Evolution of Osteo-Psychiatric Care at Orlando General Hospital

     
     

130. Dr. Randall Greene came to Orlando in 1982. He is an osteopathic physician and psychiatrist. He initially was on the staff at four hospitals but soon discovered that other osteopathic physicians were referring patients needing psychiatric care to Orlando General Hospital because it was an osteopathic hospital. These physicians frequently asked Dr. Greene to provide psychiatric care at Orlando General. T. 754.

     
     

131. Osteopathic physicians who referred their patients to Dr. Greene and to Orlando General Hospital continued to treat the physical ailments of those patients at Orlando General Hospital. T. 760.

     
     

132. Dr. Greene now limits his psychiatric practice to Orlando General Hospital because of the large number of psychiatric patients being treated at the hospital. T. 756.

     
     

133. Thirty to forty percent of the psychiatric patients come to Orlando General via the emergency room. T. 421, 445. Additionally, patients admitted to the new substance abuse program often need psychiatric care. T. 407.

     
     

134. Orlando General has difficulty transferring its psychiatric patients to other hospitals. A number of the patients have no insurance or have only Medicaid coverage. T. 420. Orlando General Hospital is located in a lower economic area, and thus attracts patients of this type. Id. Patients who prefer osteopathic treatment also prefer not to be transferred to an allopathic hospital. T. 759.

     
     

135. The increase in numbers of psychiatric patients served at Orlando General Hospital in medical-surgical beds helped to offset the hospital's loss of medical-surgical patient days during the same period. T. 452

     
     

136. Due to the large number of psychiatric patients, and the decline in need for medical-surgical beds, Orlando General hospital decided to apply for the instant certificate of need. Due to the osteopathic nature of the hospital, physicians, patients and the hospital prefer to keep these patients at Orlando General Hospital rather than refer them to an allopathic hospital.

137. It is HRS's position that if a hospital does not advertise itself as having a distinct psychiatric unit and does not organize within itself a distinct psychiatric unit, the admission and treatment of psychiatric patients to medical-surgical beds on an "random" and unplanned basis is proper even the hospital does not have licensed psychiatric beds. T. 1191.

     
     

138. Orlando General hospital does not hold itself out to the public through advertising as having a separate psychiatric unit. T. 468.

     
     

     Patient Mix & Commitment to Charity Care

     
     

139. Orlando General Hospital currently provides a large portion of charity care for Orange County. T. 1100.

     
     

140. In its 26 bed chemical dependency unit, Orlando General reserves 2 beds for indigents. T. 785. The unit also sets aside, as needed, one bed for any Florida nurse whose license is in jeopardy due to chemical dependence and who has no financial means to pay for treatment. Id.

     
     

141. Orlando General Hospital typically has a larger amount of bad debt and charity care (for people who do not pay) than other hospitals in the area.

     T. 423. In 1987, Orlando General Hospital reported to the Hospital Cost Containment Board that it had $141,404 in charity care, and that it had

     $3,244,530 in bad debt. T. 657, 660. Bad debt constituted 9.7 percent of gross revenue. T. 660. Since it is very difficult to determine at admission whether the patient realistically can pay for services, a lot of this bad debt is, in a functional sense, charity care. T. 659-660.

     
     

142. It is concluded from the foregoing that Orlando General Hospital has a genuine commitment to providing health care to persons who cannot pay. T. 422, 662.

     
     

143. Orlando General Hospital projects that it will in its proposed

     24 bed short term psychiatric unit 5 percent indigent patients, 8 percent Medicaid patients, 20 percent Medicare patients, 50 percent insured patients, and 17 percent private pay patients. These projections are reasonable and are consistent with Orlando General Hospital's current experience. T. 662-664; O.G. Ex. 2, p. 16.

     
     

     Charter Medical-Orange County, Inc. General

     
     

144. Charter Medical proposes to construct a 50 bed free standing short term psychiatric hospital in Orange County, Florida. The capital cost of the proposed project would $5,85,000. C.M. Ex. 1.

     
     

145. Charter Medical would offer adult and geriatric short term psychiatric services in the proposed short term beds.

     
     

146. As a free standing specialty hospital devoted entirely to short term psychiatric care, Charter Medical's proposal should be able to provide more space and additional therapies than would typically be found at a general hospital with a short term psychiatric unit. T. 47-50, 890-91.

     
     

147. Charter Medical would provide adequate geriatric short term psychiatric care in a separate unit with separate programs consisting of the latest techniques for caring for the mentally ill elderly patient.

148. Charter Medical's proposed facility would not be able to treat short term psychiatric patients who also have serious medical problems, which undoubtedly will include elderly patients.

     
     

149. Charter Medical would have adequate transfer arrangements with a general hospital to serve the medical needs of its patients, and would have adequate staffing and equipment within the free standing specialty hospital to meet the routine and emergency medical needs of its patients.

     
     

     Staffing

     
     

150. Orlando General and Charter Medical would be able to recruit, train, and retain adequate staff to operate its proposed short term psychiatric unit. T. 635-648, 849-852, T. 137-143.

     
     

     Lone Term Financial Feasibility Orlando General Hospital Charges

     
     

151. When these applications were filed, HRS did not have standards for the contents of a pro forma of income and expenses.

     
     

152. Orlando General Hospital initially projected a charge rate of $350 in 1987 and $375 in 1988. This charge rate was based upon the charge rate for Orlando General's substance abuse unit at that time, compared with a survey of five other hospitals having short term psychiatric beds. T. 425; O.G. Ex. 2, p. 24, 49.

     
     

153. As of the summer of 1988, the Medicaid program reimbursed Orlando General Hospital for its MDC 19 (psychiatric) patients at the rate of $418 per day. T. 585.

     
     

154. Charter Medical proposes to charge $475 per day during 1988.

     
     

155. Florida Hospital currently charges between $425 and $445 per short term psychiatric patient day, and these charges do not include ancillary charges. T. 992.

     
     

156. Westlake Hospital currently charges about $550 per short term psychiatric patient day. T. 888.

     
     

157. Winter Park Pavilion is a freestanding psychiatric hospital with 39 adult psychiatric beds. The record does not indicate whether it is licensed for short or long term care. The facility charges about $500 per patient day, which does not include ancillary costs. T. 913, 918.

     
     

158. Crossroads University Behavioral Center is a freestanding 100 bed long term psychiatric hospital that is under construction. T. 808. Crossroads has considered charges in the range of $500 to $600 per day, but has not definitely settled on the rate. T. 832-833.

     
     

159. The charges proposed by Orlando General Hospital in its application are very reasonable, if not very conservative.

     Projected Utilization

     
     

160. Orlando General Hospital's MDC 19 patient days (psychiatric patient days) have increased steadily from 1986. In 1986, the hospital had 4,969 MDC 19 patient days; in 1987, it had 7,779 MDC 19 patient days; and extrapolating (multiplying by 4) from the data for the first three months of 196, Orlando General could reasonably expect 11,804 MDC 19 patient days in 1988. O.G. Ex. 2, p. 11; T. 516.

     
     

161. Since a 24 bed unit at 100 percent occupancy would only generate 8,760 patient days, it is unreasonable to use 11,804 as the estimate of patient days in 1988. However, it is concluded that Orlando General Hospital would have no difficulty at all in very quickly filling its proposed 24 bed unit to capacity.

     
     

     Expenses

     
     

162. Orlando General Hospital's application estimated that direct expenses of the proposed 24 bed short term psychiatric unit would be $801,505 in 1987,

     $839,080. In 1988, and $887,030 in 1989. O.G. Ex. 2. These are reasonable projections of direct expenses.

     
     

163. The pro forma filed by Orlando General Hospital in its application did not include an estimate of allocated expenses. The allocated expenses would typically have been 60 percent of total expenses, and the direct expenses only

     40 percent of total expenses. T. 698.

     
     

164. The projected direct expenses for 1988 in Orlando General Hospital's application were $839,080. Since that is only 40 percent of the total expense, the total projected expense (including 60 percent for indirect allocated expense) would be $2,097,700.

     
     

     Long Term Financial Feasibility

     
     

165. If Orlando General Hospital charged $375 per patient day in 1988, and had 8,760 patient days, as is reasonable to expect, given its actual experience, Orlando General would have $3,285,000 in gross revenue for 1988. Assuming that net revenue, after additions and after accounting for contractuals and bad debt, will be the same percentage of gross revenue as shown in Orlando General's application, which was 76.74 percent, this would generate a net revenue of

     $2,520,909. This net revenue would entirely cover not only the direct expenses but also the allocated expenses, and would leave profit of $423,209.

     
     

166. All of the remaining issues raised by the parties as to the accuracy of Orlando General's estimates of nursing expense or bad debt are irrelevant given the large amount of leeway Orlando General would have, if necessary, to raise its charges from $375 to something closer to the charges of other area hospitals.

     
     

167. In summary, Orlando General Hospital's proposal is financially feasible in the long term.

     
     

     Charter Medical-Orange County, Inc.

     
     

168. Charter Medical's proposed charges include charges for physicians who admit patients, perform histories and physicals, and make daily medical rounds. The proposed charges are reasonable.

169. If there were need, Charter Medical's proposal would be financially feasible in the long term.

     
     

170. The need for Charter Medical's proposed facility has not been proven by a preponderance of the evidence, however. See the Conclusions of Law herein.

     
     

171. While the numerical need rule as applied to Orange County shows a need for 55 beds, in actual practice that need is a need for osteopathic psychiatric care. The thirty or so patients currently treated on a daily basis at Orlando General Hospital ended up at that hospital, rather than Orlando Regional Medical Center or Florida Hospital, primarily because the patients preferred osteopathic care and were admitted to Orlando General Hospital by osteopathic physicians. Absent action by HRS to stop Orlando General Hospital from treating these patients, the patients would not be available to Charter Medical in its proposed facility. This would leave Charter Medical in a situation of opening a new 50 bed facility when the county occupancy rate in 1986 was 60 percent in the only two licensed facilities in the area. It would also leave Charter Medical in a situation of opening a new facility in the face of the trend to managed health care and the certainty that the average length of stay for short term psychiatric care by 1992 will decrease from current levels.

     
     

172. For these reasons, Charter Medical has not proven financially feasibility in the long term by a preponderance of the evidence.

     
     

     Quality of Care

     Orlando General Hospital

     
     

173. Orlando General Hospital would provide care of good quality comparable to care that would be provided by Charter Medical.

     
     

     Charter Medical-Orange County, Inc.

     
     

174. Charter Medical Corporation is a large corporation that has experience in the operation of a large number of psychiatric hospitals. That expertise would be available to insure that the care provided in Orange County would be of good quality.

     
     

175. Charter Medical-Orange County, Inc., would provide care of good quality comparable to care that would be provided by Orlando General.

     
     

     Comparative Review as to Important Differences The Orlando General Hospital Application

     
     

176. Orlando General Hospital intends to convert 24 underutilized medical and surgical beds to 24 short term psychiatric beds. T. 517.

     
     

177. Since the project calls for conversion of existing facilities, the capital cost is $700,000, and does not include the construction of new buildings. T. 517.

     
     

178. Since the capital cost is relatively low, the project will not drain away a large amount of reimbursement from reimbursement funding sources, thus making those funds available to other health care facilities. T. 1223.

179. As a licensed general hospital, Orlando General Hospital's patients including the patients that would be served by the proposed short term psychiatric unit, would be eligible for Medicaid reimbursement T. 1224.

     
     

180. Orlando General Hospital has a good record in Orange County of serving indigent patients, and currently is providing care to a large portion of the indigents cared for by Orange County. T. 1099-1100.

     
     

181. As discussed in the section concerning osteopathic care, Orlando General Hospital's proposal for a short term psychiatric unit would have a number of benefits to the practice of osteopathic medicine in the region, and the availability of osteopathic care to patients desiring that form of care.

     
     

182. Patients in the short term psychiatric unit at Orlando General Hospital could be transferred to a medical bed when a medical need arises without having to be transported by an ambulance.

     
     

     The Charter Medical Application

     
     

183. Charter Medical-Orange County, Inc., is a wholly owned subsidiary of Charter Medical Corporation. Charter Medical Corporation has been in existence for 20 years and has 81 hospitals. Of these, 68 are psychiatric or substance abuse facilities. Charter Medical thus has extensive resources and experience to provide very good psychiatric care at the proposed facility.

     
     

184. As a free standing hospital dedicated solely to short term psychiatric care, it is reasonable to expect that Charter Medical's facility will tend to provide more space, more varied programs, and more intensive patient care than a general hospital. This would occur because in a general hospital, the psychiatric unit must compete with medical units for allocation of resources, and in some hospitals, the psychiatric unit is given a lower priority due to the tendency of such hospitals to emphasize the medical aspect of their services. T. 47-49.

     
     

185. Charter Medical's facility would not treat Medicaid patients, and it proposes to serve a very small percentage of indigent patients. Charter proposes in future years after the second year to provide 1.5 percent of gross revenue as charity care, and 5 percent as bad debt. T. 377-79, 197. Charter Medical's facility would serve primarily private pay and insured patients, thus draining away these paying patients from other hospitals, to the detriment of other hospitals. T. 971.

     
     

     The Substantial Interest of Florida Hospital

     
     

186. If a certificate of need were granted to Charter Medical, Florida Hospital would suffer an adverse impact by loss of patients and additional competition for staff. T. 971-972, 1318-1321, 1327.

     
     

     CONCLUSIONS OF LAW

     
     

187. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding.

     
     

188. During the formal administrative hearing, the parties raised numerous objections that evidence offered by opposing parties constituted an impermissible amendment to the applicant's certificate of need application, and thus should be excluded from the evidence. Rulings upon these numerous

     objections were made on the record, and will not be revisited here. The legal analysis that guided those rulings is contained in appendix 2 to this recommended order.

     
     

189. A balanced consideration of statutory and rule criteria is required in this case. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986).

     
     

190. Pursuant to the numeric need methodology in rule 10-5.011(1)(o)4a, b, and c, Fla. Admin. Code, there is a need for 117 short term psychiatric beds.

     Of this number, 64 must be allocated to hospitals holding a general license, and the remaining 53 must be allocated to hospitals holding either a general license or a specialty license. Both applicants would thus be approved if numeric need under the rule were the only issue.

     
     

191. The rule also provides that "no additional short term inpatient hospital adult psychiatric beds shall normally be approved unless the average annual occupancy rate for all existing adult short term inpatient psychiatric beds in a service district is at or exceeds 75 percent for the preceding 12 month period."

     
     

192. As urged by the applicants, "existing" beds could mean physically in existence and currently being used, in an operational sense, to serve adult short term psychiatric patients. With considerable force and logic, the applicants point out that if HRS meant "licensed" beds, it simply could have used that word, as it does in other rules. "Existing," it is argued, is a different adjective and must have a different meaning.

     
     

193. The problem with the applicants' argument is that it results in a meaningless test of need for new short term psychiatric beds. After all, the intent of the certificate of need regulatory program is to allow new facilities to open only if there is need. To construe "existing" to mean "operational" is to confuse capacity and need. If a hospital chooses to operate only 15 of its

     20 licensed beds, that means that at that time only 15 beds are needed. It does not mean that the District capacity to serve need is 15 beds. The equation of capacity with current need, as urged by the applicants, would mean that typically the occupancy rate would normally be near 100 percent because hospitals would only set up beds that in fact would be occupied.

     
     

194. The apparent intent of the occupancy rate provision of the rule is to test the degree to which authorized District 6 capacity to serve adult short term psychiatric patients is currently used up. New beds should be added when the capacity for serving new patients is less than 25 percent, that is, when the current capacity is more than 75 percent filled.

     
     

195. The intent of the rule is to allow new beds to come on line to meet need five years into the future. For this reason, beds that are temporarily not in operation, but which would be available. In 1992 to meet demand and remain licensed, must be counted as a part of District capacity for purposes of the occupancy rate. That is why the applicants attempt to diminish the number of "existing" beds at Orlando Regional Medical Center and at Florida Hospital must be rejected.

     
     

196. With the exception of Laurel Oaks and Palm Bay, all licensed short term psychiatric beds in District VII in 1986 are available to serve both adults and children. Thus, all other licensed short term psychiatric beds were both "adult" and "child and adolescent" beds at the same time. The denominator of

     the fraction that is the occupancy rate of "adult" beds thus must be total number of licensed short term psychiatric beds in the district which were lawfully available to serve an adult patient.

     
     

197. The numerator of the fraction poses a different problem. The parties in this case have been concerned because it is impossible to separate "adult" short term patient days from the available data as to patient days. That concern is actually not relevant. Rule 10-5.011(1)(o)4e does not ask for a determination of whether the adult bed was occupied by an adult patient. It only asks for a determination as to whether the beds available for adults were occupied. For purposes of determining the remaining capacity within the District to serve the needs of adults, it does not matter who occupied the bed. It could have been a child, a substance abuse patient, or a psychiatric patient. The only critical questions are: was the bed licensed so that an adult short term patient could have occupied the bed, was the bed occupied, and was there at least 25 percent of the licensed beds still unoccupied and available, should the need arise, to serve adults?

     
     

198. Thus, the numerator of the occupancy rate fraction should include all patient days, even though some of the patient days were undoubtedly attributable to children and adolescents.

     
     

199. With respect to determining the mixed patient days for purposes of the occupancy standard in the rule, HRS's difference for the data reported by each hospital to the local health council is fundamentally reasonable, absent credible proof of substantial inaccuracies.

     
     

200. It would be unreasonable, however, absent a rule that explicitly limited patient day data to one source, for HRS to continue to rely upon data which a party might subsequently show through subpoenas and the process of discovery to be inaccurate. In the following respects, the parties have shown by a preponderance of the evidence that the patient day data reported to the local health council was inaccurate:

     
     

     1. The parties have shown than there were 7,328 psychiatric patient days at Orlando Regional Medical Center using MDC 19 data reported to the Hospital Cost Containment Board. This exceeds the 6,242 patient days reported to the local health council by 618.

        
        

     2. It was also proven that there were 28,372 psychiatric patient days at Florida Hospital (Orlando and Altamonte Springs combined) using MDC 19 data reported to the Hospital Cost Containment Board. This figure is 3,434 patient days greater than the combined number of patient days reported to the local health council for Florida Hospital. Since it was proven that 2,982 psychiatric patient days occurred in the Florida Hospital eating disorder unit located at Altamonte Springs, which were not counted in the report to the local health council, it is inferred that the MDC 19 combined report of 28,372 patient days includes the 2,982 patient days at the eating disorders unit. Thus, it would not be proper to add another 2,982 patient days to the 28,372 patient data reported as MDC 19 patient days.

     
     

201. The parties have shown that 4,969 psychiatric patient days occurred at Orlando General Hospital in calendar year 1986 using MDC 19 data reported to the Hospital Cost Containment Board. It was also shown that the care given at Orlando General Hospital was essentially the same kind of psychiatric care that is provided in a licensed short term psychiatric bed.

202. Whether or not Orlando General Hospital has acted legally or illegally is irrelevant to the issue of counting District VII short term psychiatric patient days for purposes of the occupancy rate. To ignore these psychiatric patient days is to ignore a fundamental component of District VII need for short term psychiatric care, and utilization of District VII capacity. The patients had to be served somewhere within District VII capacity. Indeed, had Orlando General Hospital not served these patients, undoubtedly Orlando Regional Medical Center and Florida Hospital would have had more of their licensed beds set up and in operation, or would have served these patients in medical-surgical beds. Thus, the patient days at Orlando General Hospital should be counted in determining the occupancy rate of District VII capacity.

     
     

203. Using the foregoing more accurate data for patient days, and using licensed beds as "existing" beds, the most reasonable short term psychiatric bed occupancy rate adult short term psychiatric beds for calendar year 1986 is 84.12 percent. This occupancy rate is calculated as follows. Using the weighted averages adopted by the parties, there were 86,779 patient days possible in the licensed short term psychiatric beds in 1986, in District VII, excluding Laurel Oaks and Palm Bay. C.M. Ex. 17, p. 11, fn. 9. The patient days are 68,028, the number presented by Dr. Horowitz. In O.G. Ex. 7, Table 6, plus 4,969 at Orlando General Hospital, a total of 72,997 mixed patient days. Dividing the two results in 84.12 percent.

     
     

     The District VII Local Health Plan

     
     

204. The applicants argue that HRS should not consider portions of the local health plan to the extent such portions are different from HRS's own need rule. In particular, it is argued that the way in which the local health plan applies the state rule methodology to planning areas (counties) should not be used in this case because it is different from the state rule.

     
     

205. Section 381.705(1), Fla. Stat. (1987) provides that the Department shall review applications for certificates of need in the context of certain criteria, and the first criteria is subparagraph (a) is:

     
     

     1. 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. (E.S.)

        
        

206. Thus, the District VII local health plan must be considered, and cannot be ignored. However, since it has not been adopted as a rule, the provisions of the local health plan are not automatically dispositive of the question of need, but simply become factors to be weighed in conjunction with other factors.

     
     

207. The provisions of the District VII local health plan that apply the state need rule to counties within the District is not inconsistent with the state rule, but is an addition to that rule.

     
     

208. Pursuant to the local health plan, policy 3, once there is an indication of need pursuant to the state rule, that need is allocated to each county using the same numerical formula as the state rule. Policy 3 does not, in and of itself, determine need in the District. Allocation of need is not inconsistent with the state rule, but is an addition to that rule.

209. Pursuant to policy 3 of the local health plan, there is a net need for only 55 short term psychiatric beds in Orange County by 1992. Approval of both applications would be inconsistent with the local health plan.

     
     

210. Pursuant to the local health plan, the needed 55 beds could be located in either a general hospital or a specialty hospital. Thus, approval of either applicant would, to this extent, be consistent with the local health plan.

     
     

211. The local health plan, policy 4, applies the 75 percent occupancy standard to the county level. The policy explicitly calls for an average annual occupancy rate for all existing facilities in the planning area with respect to adult short term psychiatric beds.

     
     

212. The most reasonable mixed occupancy rate on this record for calendar year 1986 in Orange County was 72.6 percent. This rate included all of the MDC

     19 patient days at Orlando General Hospital, which had no licensed short term psychiatric beds. In effect, the rate assumed that these patients would have been treated in other Orange County licensed short term psychiatric beds had Orlando General Hospital not provided mental health services to these patients.

     
     

     Other Evidence of Future Need

     
     

213. By 1992, a substantial portion of insured short term mental health care will be managed care. The portion may be percent by that date, and surely will be more than 50 percent. Managed health care plans will cause the average length of stay. In short term psychiatric beds to decline substantially, and will suppress the number of admissions as well.

     
     

214. As a result, future need for short term psychiatric beds will be lower than it would have been had the reimbursement systems of the past continued to remain in effect.

     
     

     Summary With Respect to Need

     
     

215. Considering only the numeric methodology, there is a net need for 117 short term psychiatric beds in District VII by 1992.

     
     

216. By operation of the local health plan, 55 of these beds are allocated to Orange County, and these 55 beds may be located in either a general or a specialty hospital.

     
     

217. The occupancy standard of rule 10-5.011(1)(o)4e has been satisfied because the occupancy rate was 84.12 percent. It would have been satisfied even if the 4,969 patient days at Orlando General Hospital were not counted since the rate in that event was 78.39 percent.

     
     

218. The occupancy standard of the local health plan, policy 4, calls for a rate of 75 percent. The 1986 Orange County occupancy rate was 72.6 percent. This rate includes patients who are currently not served in a hospital having licensed short term psychiatric beds. If the patient days at Orlando General Hospital in 1986 were not included in the Orange County calculation, the County occupancy rate for 1986 was only 60.09 percent. Approval of these applications, therefore, would be contrary to policy 4 of the local health plan.

219. The existence of the patients at Orlando General Hospital, however, does show need relative to the Orlando General Hospital application, a need that is osteopathic. A substantial number of these patients ended up at Orlando General Hospital because they preferred osteopathic care. The record also shows the need for an osteopathic psychiatric hospital for training in osteopathic psychiatry.

     
     

220. Balanced against this analysis, however is the evidence that in the very near future, the average length of stay in short term psychiatric beds will decline due to the substantial increase in reimbursement by the capitation method rather than fee-for-services.

     
     

221. It must be concluded from the foregoing that need has been proven only with respect to the application of Orlando General Hospital. One starts with the proposition that 117 short term beds are needed in the District by 1992, and that the local health plan directs that 55 of these beds be placed in Orange county. But the 55 net bed allocation of need is tempered by the evidence that the average length of stay for short term psychiatric care will be substantially less in 1992 than it is today due to important changes in insurance reimbursement policies. This will inevitably result in fewer beds needed. Orlando General Hospital seeks approval for slightly less than one-half of the 55 net beds needed, which is consistent with the evidence that fewer beds will be needed because the average length of stay will decrease. While it is true that the occupancy rate in Orange County falls short of the 75 percent mark by only 2.4 percent, that factor must be weighed against the very clear and substantial proven need for osteopathic short term psychiatric care, and the need for a facility that will provide training in such osteopathic care, including residencies for osteopaths who seek to become psychiatrists. The shortfall at the Orange County level in meeting the 75 percent occupancy standard is less important than the need shown for osteopathic psychiatric care.

     
     

222. Need for Charter Medical's proposed new 50 bed hospital has not been shown by a preponderance of the evidence. It is concluded that the need in Orange County is not 55 beds, but is less than 50 beds due to the predicted substantial decrease in average length of stay due to changes in insurance plans. Moreover, Charter Medical does not propose to fill a special need (such as osteopathic need). Charter Medical does propose LAD serve geriatric patients. But it did not show a particularized need for those services, that is, in terms of numbers of elderly patients needing short term psychiatric care currently not served elsewhere, with the same credibility and persuasive force as did Orlando General Hospital with respect to its osteopathic patients. Finally, but of less significance, is the fact that the local health plan occupancy standard has not been met.

     
     

223. For these reasons, the application of Orlando General Hospital should be granted, and the application of Charter Medical should be denied.

     
     

     Comparative Review

     
     

224. If the conclusion as to the lack of need for the Charter Medical application is incorrect, and if the only need is for 55 beds in Orange County, then Orlando General Hospital is the preferred applicant.

     
     

225. Orlando General Hospital is the preferred applicant for the following reasons:

1. The proposal converts underutilized medical/surgical beds into a needed service.

   
   

2. Conversion of existing beds requires far less capital expenditure than construction of a new hospital.

   
   

3. Orlando General Hospital is eligible to receive reimbursement by Medicaid, and has a stronger commitment to serving indigent patients.

   
   

4. Orlando General Hospital already has a patient base and referral patterns established.

   
   

5. The needs of the osteopathic profession for an osteopathic facility for patients and an osteopathic training facility would be enhanced.

   
   

6. Patients who prefer osteopathic psychiatric care would have a place to go in Orange County and in District VII.

RECOMMENDATION

For these reasons, it is recommended in case number 87-4748 that a final order be entered denying the application of Charter Medical-Orange County, Inc., to construct and operate a new 50 bed short term psychiatric hospital, and in case number 87-4753 that a final order be entered granting the application of Orlando General Hospital to convert 24 medical-surgical beds to short term psychiatric beds.

DONE and ENTERED this 28th day of November, 1988, in Tallahassee, Florida.

WILLIAM C. SHERRILL, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1988.

APPENDIX 1 TO RECOMMENDED ORDER, CASE NOS. 87-4748 and 87-4753

The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Statements of fact in this appendix or proposed findings of fact adopted by reference in this appendix are additional findings of fact.

Findings of fact proposed by Charter Medical:

3-5. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. The need is for beds in either a specialty or a general hospital.

2. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. The operational use of the beds is not relevant to the occupancy rate. Had the beds been restricted as a matter of licensure to children, like Palm Bay or Laurel Oaks, the beds would not have been potentially available for adults. Only in that case would exclusion of these beds have been proper.

2. The operational use of the beds is not relevant to the occupancy rate.

3. The testimony regarding the use of the word "existing" in the health planning field has been rejected as not persuasive. The context of such use was not explained, and thus a finding cannot be made that the use of the word is properly applicable to the way HRS intends the word to be used in its occupancy rule. The equation of "existing" with "operational" confuses capacity and need as discussed elsewhere in this recommended order. The HRS interpretation is the most reasonable construction of the word, and leads to a meaning far more consistent with the purposes of the certificate of need regulatory law than does the equation of "existing" with merely being operational. The certificate of need law is aimed at determining need five years into the future. How a hospital may temporarily operate its licensed beds during that period to respond to fluctuations in demand and operational idiosyncrasies at the particular hospital is irrelevant to the question of whether HRS should grant certificates of need and additional licensed capacity within the District.

4. Dr. Luke's calculation was conservative and correct, but a better calculation is the one by Orlando General's expert (78 percent) that uses MDC 19 patient days.

1. The only relevant count is 105 licensed beds at the two facilities.

2. The last sentence is rejected for lack of credible evidence from which to draw that inference, as explained elsewhere in this recommended order.

20-21. The only relevant count is licensed beds.

22. Orlando General's average daily census was 13.6 based upon 4,969 MDC

19 patient days in 1986.

23-24. The only relevant count is licensed beds.

28. These are matters of law, and thus not appropriate as proposed findings of fact.

30. It is true that the health care needs of the metropolitan Orlando impact counties adjacent to Orange County due to the sprawl of that urban area across several county lines. But there is sufficient expert evidence in this record to conclude that generally speaking, the local health council has not acted arbitrarily and capriciously in its choices of counties as health planning areas for purposes of allocation of bed need and for purposes of applying occupancy rates. Nonetheless, the that the urban extent of the metropolitan Orlando area is important has been accepted in this recommended order with respect to the conclusion that the factor that the Orange County occupancy rate is only slightly below 75 percent is entitled to less weight in this case.

32, 33, 35, 37-63. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

64 (first sentence). It is realistically expected that Charter Medical will devote 1.5 percent of its gross patient revenue to barity care. T. 377- 379.

65-70. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

71-72. Financial feasibility has not been shown due to lack of need. Lack of need will result in insufficient occupancy and revenue.

73-74. The extrapolation from the actual trend of increase in patient days in District VII for the years 1983-1987 to create a projection of patient days in 1988 through 1992 would have been a valid and important way to show need, and

would have been accepted had the projection accounted for the trend in the industry toward shorter lengths of stay due to changes in methods of payments for mental health care. The extrapolation simply assumes that the past will continue. In this case, there is substantial reason to believe that the past will not continue, that the base data, 1983-1987, is not valid for predicting patient days in 1992 because the patient days in 1992 will largely be paid for under a new system, a system that discourages inpatient stays beyond that which is absolutely necessary from a clinical point of view. Charter Medical projects that it will rely upon insurance for payment 67 percent of the time, so the changes in insurance payments will substantially affect patient days in 1992 at its proposed facility.

75-85. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

89. While osteopathic psychiatric care is essentially the same as allopathic psychiatric care, there are two critical differences. Osteopathic medicine in general emphasizes consideration of the functioning of the body as a whole; allopathic medicine does not. Secondly, osteopathic medicine utilizes muscular and skeletal manipulation in treatment, including psychiatric treatment, and allopathic medicine does not. These two differences are sufficiently marked for patients to have a preference for one or the other approach.

91-92. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

93-94. These proposed findings are true and are adopted by reference, but the findings do not prove that the quality of care at Orlando General Hospital would not be adequate in 1992. It was apparent that Dr. Greene's heavy caseload was not an optimum circumstance. However, at the time of the , Orlando General had four staff psychiatrists. T. 1355.

1. Dr. Greene testified that the care was "basically" the same, but his testimony clearly reflected his opinion that the "deeper" differences were significant. T. 756, 1350-1354.

2. The record cited does not support a finding that the majority of the patients transferred were indigent. That question was not asked.

3. This proposed finding places the cart before the horse. Osteopathic physicians gravitate to Orlando General Hospital to practice osteopathy. In the practice of osteopathy, they achieve many job satisfactions, including care of patients and making money.

98-99. These proposed findings of fact are irrelevant because based upon the past, not upon a future having more staff psychiatrists. Moreover, it is clinically acceptable for other professionals to provide therapy and counseling.

1. These proposed findings of fact are irrelevant. The program description in the application was superseded by evidence during the formal administrative hearing.

2. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

3. Orlando General Hospital is an existing hospital that already has these functions. It may need some augmentation of staff in these areas, but if it does, it would be an unreasonable conclusion to make that it would fail to add such

103-106. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. The only exception is the last sentence in proposed finding 106. The number 18 is not supported by the record cited.

1. This method has not been shown to be unreasonable. It is true that it was the method used.

2. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

3. There was an accounting for bad debt. O.G. Ex. 2, p. 48.

4. The point is essentially irrelevant. A 10 percent increase based upon 1987 salaries would be only about 20,000. Moreover, Charter Medical stipulated in the prehearing stipulation that the salaries of all personnel are reasonable.

5. The proposed finding of fact is true but irrelevant. A pro forma does not have to comport with generally accepted accounting principles.

6. Even with the addition of these charges, the resultant charge is comparable to charges of other area hospitals, including. Charter Medical's proposed charge of $475, which with inflation would increase rapidly to $500.

113-122, 124. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

125-127. Proof that an existing health care program is in sound financial condition is essentially irrelevant to the question of whether that program has a substantial interest sufficient to permit intervention into a section 120.57(1), Fla. Stat., formal proceeding. Proof of competition for the same patients in the same service area is sufficient to show that the existing program will be "substantially affected" to entitle it to intervene. Section 381.709(5)(b), Fla. Stat. (1987). Florida Hospital has proven its substantial interest by showing that the addition of new short term psychiatric beds, particularily a new facility like proposed by Charter Medical, will increase competition in Orange County for patients and staff. T. 881, 883, 649, 855-856.

128-129. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference

130. Mr. Holton's testimony was not only based upon consideration of the data mentioned in this proposed finding of fact, but also his experience in general with managed health care plans and the effect such plans have had upon the market place. The proposed finding that his testimony was not credible is rejected.

131 (first two sentences), 132-133. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

Findings of Fact proposed by Orlando General Hospital:

7-12, 17, 19, 29. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. The statement is true only from the perspective of the osteopathic psychiatrist and with respect to osteopathic care. Allopathic physicians disagree.

2. The second sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference.

34. The second sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference.

38-49, 51-60. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. The proposition that separate geriatric units offer no benefits to geriatric patients is contrary to the preponderance of the evidence.

2. The proposition that there is no problem in mixing the elderly with younger patients, or that an elderly patient does much better in a mixed population, is contrary to the preponderance of the evidence.

3. The second and third sentences are contrary to the preponderance of the evidence.

67-71, 73-80. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

86-87. While these proposed findings of fact are true, they are only marginally relevant since the ratio is measured as of 1992, not 1988.

1. These are matters of law, and thus not appropriate as proposed findings of fact.

2. It is unclear when Dr. Greene meant when he testified that his census was 35 to 40 patients. For the first 90 days of 1988, the hospital had 2,951 MDC 19 patient days, or 32.8 patients per day.

1. The analysis with respect to "existing" beds and the county analysis have been rejected as explained in this recommended order.

2. The last sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference.

97-102. The legal argument that beds temporarily not in operation are not "existing" has been rejected as explained in this recommended order. Thus, these findings are not relevant.

105, 107 (last sentence). These are matters of law, and thus not appropriate as proposed findings of fact.

109. The second sentence is rejected as a finding of fact because the health planning context was not adequately explained.

110-111. These are matters of law, and thus not appropriate as proposed findings of fact.

114-115. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

117. These are matters of law, and thus not appropriate as proposed findings of fact.

118-120. These proposed findings of fact are irrelevant.

122. These are matters of law, and thus not appropriate as proposed findings of fact.

123, 124, 126, 127, 129-131, 133. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. The proposed finding of fact is true, but has not been shown to impact the financial feasibility of the Charter Medical proposal.

2. The indirect costs within a single hospital are more relevant to long term financial feasibility of the proposed project than the indirect costs to a single hospital from a parent corporation that has over 60 such hospitals.

136, 147, 151, 152. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. The patient body count for the first three months of 1988 was 32.8.

   O.G. Ex. 2, p. 11.

2. The "consciousness" of a corporation is difficult . Orlando General Hospital was well aware that its medical-surgical census was decreasing and its psychiatric population was increasing. It is true that the increase of its psychiatric population was largely due to causes outside the control of the hospital, however, and not due to marketing efforts by the hospital.

161 (last sentence), 162. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. These are matters of law, and thus not appropriate as proposed findings of fact.

2. This proposed finding of fact is only marginally relevant because the result could be an average caused a minority of states who do things differently. Moreover, there Is no evidence that Florida is like this.

3. The third sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference.

167. The statement is true only if HRS allows Orlando General Hospital to continue to serve this large number of psychiatric patients without having a certificate of need. If the practice were discontinued, some of the patients would be served by other hospitals in the District, including Florida Hospital.

1. These are matters of law, and thus not appropriate as proposed findings of fact.

2. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 174, 176. These are matters of law, and thus not appropriate as proposed

findings of fact.

177. The current state of access to short term psychiatric services in eastern Orange County was not credibly proven.

179. These are matters of law, and thus not appropriate as proposed findings of fact.

Findings of fact proposed by HRS:

1, 2, 3, 4. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

5, 6. These are matters of law, and thus not appropriate as proposed findings of fact.

13. The number should be 64, not 63.

22. The occupancy rate is a mathematical attempt to measure the degree to which the District VII capacity to serve adult short term psychiatric patients has been used up. The theory implicit in the rule is that, with respect to adult capacity, the decision to add new capacity should be delayed until the old capacity is at least 75 percent or more used up. The rate has a numerator (patient days) and a denominator (the real capacity). Any argument that tries to ignore real patient days occurring in the District, or real capacity to serve those patients, is unreasonable.

Findings of fact proposed by Florida Hospital:

1. The second sentence is true, but the issue is not she license of the beds is, but what type of patient day is generated by that service. The preponderance of the evidence is that those were short term psychiatric patient days.

2. The first sentence is rejected for the reasons stated above.

19-21. These are matters of law, and thus not appropriate as proposed findings of fact.

20-27. F.H. Ex. 3 was excluded from evidence, and the testimony related to that exhibit was also excluded from evidence for the reasons stated elsewhere in this recommended order.

28. This proposed finding fails to consider the MDC 19 evidence of patient days at Florida Hospital and Orlando Regional Medical Center.

29-30. These proposed findings of fact are true, and the reasoning therein is part of the reason why the denominator of the fraction that is the occupancy rate must be licensed beds.

31. A correction to the number of patient days at Westlake Hospital is legally appropriate, but the evidence for such a correction has been excluded from the record for reasons having nothing to do with the legal propriety of such a correction.

33. These are matters of law, and thus not appropriate as proposed findings of fact.

34-39. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

The fact that existing facilities may have beds available to treat future patients is not inconsistent with a decision to grant a certificate of need for additional licensed beds. The occupancy rate threshold in the rule is 75 percent occupancy, not 100 percent occupancy. It is to be expected that the District will have 25 percent or less of its beds unoccupied when new beds are approved.

41, 43-44, 46-47. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

1. This proposed finding of fact is contrary to the credible evidence.

2. These proposed findings of fact are irrelevant. See section 381.705(1)(g) and (h), Fla. Stat. (1987).

3. This proposed finding of fact is contrary to the credible evidence.

4. This proposed finding of fact is contrary to the

credible evidence. To the contrary, where need exists, these are grounds for determining which of the competing applicants should be approved.

60. A conclusion that the occupancy rates are "stable" cannot be made from data based only upon calendar year 1986, which was two years ago, and six years from 1992, the time when need is projected.

61-69. These findings of fact are true. Even where there is need, the opening of the new facility normally lures some patients away from existing facilities. But if need exists sufficient to grant a certificate of need, this short term harm to existing providers is irrelevant. Finally, health care costs would not increase if there is need.

1. While it is true that the Charter Medical utilization projections were initially prepared without a close analysis of District VII, the projections are nonetheless reasonable as discussed elsewhere in this recommenced order.

2. Inflation of expenses without projection of inflation in revenues is an incomplete and unreasonable mode of projection. T. 229-230. Given the size of the Charter Medical Corporation and the number of hospitals it owns and operates, the condition of one more hospital will not Increase home office expenses. Those expenses will exist whether this project exists or not. The financial feasibility of the project in Orlando, therefor, need not consider home office expenses. T. 242-244.

1. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.

2. The quantitative relevancy of this proposed finding of fact has not been shown. The proposed finding of fact is otherwise true.

1. Orlando General Hospital's current patient census is a sufficient basis for a finding that its projected occupancy rate is reasonable.

2. Charges proposed in an application for a certificate of need are not promises binding upon the applicant. In future years, the applicant is reasonably expected to make substantial changes in its charge structure based upon market conditions. Proposed charges, as well as proposed changes to charges to meet altered contingencies beyond the control of the applicant, is entirely appropriate for analysis in a certificate of need case. The only relevant question is whether the altered charge compares favorably with competing applicants.

81-83. Florida Hospital proved that the market for staff is competitive and that hiring staff is difficult at the moment. But it did not prove that the applicants would fail to hire adequate staff to operate their proposed facilities. T. 1327.

92-102. These proposed findings of fact summarize proposed findings of fact which have previously been addressed.

APPENDIX 2 TO RECOMMENDED ORDER, CASE NOS. 87-4748 and 87-4753

1. Rule 10-5.008(3), Fla. Admin. Code, provides that "[s]ubsequent to an application being deemed complete by the Office of Health Planning and Development, no further information or amendment will be accepted by the Department." (E.S.)

2. The rule states that the Department will accept no information after the application is deemed complete. The words used are not ambiguous or unclear. Thus, if normal rules of construction were to be followed, the conclusion would be drawn $ha the Department is bound by its own clear rule, and cannot, by interpretation, add exceptions.

3. But an equally valid rule of construction is that absurd results must be avoided. Certificate of need cases, particular ones like the case at bar, are highly competitive and complicated. It would be unreasonable to require the applicants to prove applications that have become erroneous due to the passage of time.

4. While the question is a close one, the Hearing Officer has concluded that it would be better to ignore the clear words of the rule, and attempt to apply the evolving interpretative policy of the Department to avoid an absurd result.

5. The following appear to be the existing final orders of the Department interpreting rule 10-5.008(3), and its predecessor, published in the Florida Administrative Law Reports. Health Care and Retirement Corporation of America, d/b/a Heartland of Palm Beach, 8 F.A.L.R. 4650 (September 24, 1986); Arbor Health Care Company, Inc., d/b/a Martin Health Center, Inc., v. Department of Health and Rehabilitative Services et al., 9 F.A.L.R. 709 (October 13, 1986); Mease Hospital and Clinic v. Department of Health and Rehabilitative Services, et al., 9 F.A.L.R. 159 (October 13, 1986); Health Care and Retirement Corporation of America, d/b/a Heartland of Collier County v. Department of Health and Rehabilitative Services, 8 F.A.L.R. 5883 (December 8, 1986); Health Care and Retirement Corporation of America, d/b/a Nursing Center of Highlands County, v. Department of Health and Rehabilitative Services, 9 F.A.L.R. 1081 (December, 1986); Manatee Mental Health Center, Inc. d/b/a Manatee Crisis Center

   v. Department of Health and Rehabilitative Services, et al., 9 F.A.L.R. 1430 (February 2, 1987); Health Care and Retirement Corporation of America, d/b/a Heartland of Hillsborouh, v. Department of Health and Rehabilitative Services, 9

   F.A.L.R. 1630 (February 5, 1987); Manor Care, Inc. v. Department of Health and Rehabilitative Services, 9 F.A.L.R. 1628 (March 2, 1987); Psychiatric Institutes of America, Inc., d/b/a Psychiatric Institute of Orlando v. Department of Health and Rehabilitative Services, et al., 9 F.A.L.R. 1626a (March 5, 1987) ; Manor Care, Inc. v. Department of Health and Rehabilitative Services, et al., 9

   F.A.L.R. 2139 (March 24, 1987); Wuesthoff Health Services, Inc. v. Department of Health and Rehabilitative Services, et al., 9 F.A.L.R. 2110 (April 17, 1987); Hialeah Hospital, Inc. v. Department of Health and Rehabilitative Services, et al., 9 F.A.L.R. 2363 (May 1, 1987); Palms Residential Treatment Center, Inc., d/b/a Manatee Palms Residential Treatment Center v. Department of Health and Rehabilitative Services, et al., 10 F.A.L.R. 1425 (February 15, 1988).

6. These final orders contain the following statements concerning the Department's interpretation of rule 10-5.008(3) and its evolving policy with respect to changes to applications for certificates of need during section

   1. proceedings and admissibility of new information not contained in the original applications:

      1. Health Care and Retirement, supra, 8 F.A.L.R. 1081:

         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 concepts not initially reviewed by HRS.

      2. Manatee Mental Health Center, supra, 9 F.A.L.R. at 1431:

         ... HRS has authority by statute to issue a CON for an identifiable portion of . Section 381.4C4(8), Florida Statutes.

         MMHC's "amended" proposal reduced the number of beds sought, and was properly considered during the 120.57 proceedings.

      3. Manor Care. Inc., supra, 9 F.A.L.R. at 1628: The amended applications [amended to address needs of Alzheimer's disease patients] changed the scope and character of the proposed facilities and services and thus, must be reviewed initially at HRS...

         [ limited the denovo concept by requiring that evidence of changed circumstances be considered only if relevant to the application.

      4. Hialeah Hospital, Inc., 9 F.A.L.R. at 2366: It is recognized that more than a year may pass between the free form decision by HRS

   and the final 120.57 hearing and this passage of time may require updating an application by evidence of changed circumstances such as the' effect of inflation on interest and construction costs. For the sake of clarity HRS would avoid the use of the word "amendment" to describe such updating. Such evidence of changed circumstances beyond the control of the applicant is relevant to the original application and is admissible at the

   120.57 hearing.

7. Taking the easiest first, those items explicitly listed by the Department in the first Health Care and Retirement case, "interest rates, inflation of construction costs, current occupancies, compliance with new state or local health plans, and changes in bed or service inventories," which change after the application is initially filed, are permitted. Not permitted are "additional services, beds, construction, or other concepts not initially reviewed by HRS."

8. The remainder of the Department's incipient policy, as presently articulated, is obscure. The word "extrinsic" without the list of examples is of little guidance. The application is only an idea on paper. Anything new, other than the bare words on the paper as originally filed, is literally "extrinsic" thereto.

9. The concept of whether the new information changes the "scope and character of the facilities and services" originally reviewed in free form action by the Department is similarly of little guidance because the phrase "scope and character" can mean practically anything. Of fundamental difficulty is whether this phrase is intended to select substantial changes to the original application, or all changes. For example, if the original application proposes separate shower stalls and tubs for double rooms, but the amended application

   proposes a combination shower and tub, has the "scope and character" of the "facilities and services" changed?

10. The phrase "additional services, beds, construction, or other concepts not initially reviewed by HRS" is similarly vague. What is a service or construction or a concept not originally reviewed? Would this include the change in bathing equipment discussed above?

11. The concept of "control" of the applicant over the information that goes into the original application is the only phrase that gives applicants any guidance. The word "control" probably is intended as a "knew or reasonably should have "known" standard. If the applicant reasonably should have known about the information and should have provided the Department with the information as a part of its original application, then the new information cannot be considered during the formal administrative hearing.

12. The Hearing Officer will be guided, thus, by the explicit list of items provided by the Department in the Health Care and Retirement case, and by the concept of "control" provided by the Hialeah case.

COPIES FURNISHED:

For Agency HRS

Theodore D. Mack. Esquire Department of Health and

Rehabilitative Services 2727 Mahan Drive

Fort Knox Executive Building Tallahassee, Florida 32308

(904) 488-8673

Charter Medical-Orange County, Inc. Fred W. Baggett, Esquire

Stephen A. Ecenia, Esquire Roberts, Baggett, LaFace & Richard

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 (904) 222-6891

William D. Hoffman, Jr., Esquire Deborah J. Winegard, Esquire King & Spalding

2500 Trust Company Tower Atlanta, GA 30303

(404) 572-4600

Orlando Regional Medical Center, Inc. Steven R. Bechtel, Esquire

Mateer, Harbert & Bates, P. A.

100 East Robinson Street Post Office Box 2854 Orlando, Florida 32802 (305) 425-9044

Orlando General Hospital, Inc. Eric J. Haugdahl, Esquire

1363 East Lafayette Street Suite C

Tallahassee, Florida 32301

(904) 878-0215

Florida Hospital

Stephen K. Boone, Esquire Robert P. Mudge, Esquire Boone, Boone, Klingbeil

& Boone, P. A.

1001 Avenida del Circo Post Office Box 1596 Venice, Florida 34284

(813) 488-6716

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, 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

CHARTER MEDICAL-ORANGE COUNTY, INC.,

Petitioner,

CASE NO.: 87-4748

vs. CON NO.: 5156

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent,

and

FLORIDA HOSPITAL,

Intervenor.

/ ORLANDO GENERAL HOSPITAL, INC.,

Petitioner,

CASE NO.: 87-4753

vs. CON NO.: 5162

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY HRS

Counsel excepts to the Hearing Officer's legal conclusion found in findings of fact 33, 34, and 101 and conclusions of law 16 and 17 that data concerning the treatment of psychiatric patients in general acute care hospital beds should be used in calculating numeric need for short term psychiatric beds under Section 10-5.011(1)(0), Florida Administrative Code. Psychiatric care may be provided under certain circumstances, in an acute care hospital but the use of data denoting such care in the rule formula would yield an inaccurate calculation of the occupancy of licensed short term psychiatric beds.

Incorporation of patient days for psychiatric care given in acute care beds in the numerator of the rule formula without an adjustment to the denominators which reflects the number of licensed psychiatric beds-leads to a mathematically illogical result. There is no way to include the number of licensed acute care beds being used for short term psychiatric treatment in the denominator since such data is not available. If data reflecting the short term psychiatric care given in acute care beds were to be included in the numerator, it would be necessary to incorporate the total number of licensed acute care beds in the denominator since all such beds are theoretically available for short term psychiatric care. Such calculation would lead to absurd results and would not accurately reflect the occupancy of adult short term psychiatric beds. The issue is occupancy of licensed short term psychiatric beds; thus, psychiatric treatment given in general acute care beds must be excluded. The exception is granted.

RULING ON EXCEPTIONS FILED BY FLORIDA HOSPITAL

1. Exceptions 1, 7, 13, 15, 16, and 17 reiterate the department's exceptions. See the ruling on the department's exceptions.

2. Florida Hospital excepts to the Hearing Officer's finding that psychiatric care is provided in its "eating disorders unit". The finding is supported by competent, substantial evidence; therefore, the exceptions are denied.

   
   

3. Florida Hospital excepts to findings of fact 63 and conclusion of law

   14 regarding the accuracy and use of local health council occupancy data. The finding is supported by competent, substantial evidence; therefore, the exception is denied. Balsam vs. HRS, 486 So2d 1341 at 1346 (Fla. 1st DCA 1986)

   
   

4. Florida Hospital excepts to the findings regarding the admission of Charter exhibit 19 and Florida Hospital exhibit 3. The Hearing Officer's rulings do not constitute an abuse of discretion; therefore, the exceptions are denied.

   
   

5. Florida Hospital excepts to specified findings regarding the Charter proposal. The findings are supported by competent, substantial evidence; therefore, the exceptions are denied.

   
   

6. Except as noted in paragraph 1 of the rulings on Florida Hospitals exceptions, the exceptions to the conclusions of law are denied.

RULING ON EXCEPTIONS FILED BY ORLANDO GENERAL HOSPITAL

Orlando General's requests regarding addition or modification of findings of fact are denied. Exception number 3 is also denied.

RULING ON EXCEPTIONS FILED BY CHARTER MEDICAL (CHARTER)

1. Charter excepts to finding of fact 29 that psychiatric care provided at

   0 General is osteopathic in nature. See the conclusions of law expressed in this Final Order for the weight given to the fact that Orlando General is an osteopathic facility.

   
   

2. Charter excepts to findings of fact 33, 43, 50, 51, 86, 105, 106 through 112, 119, 120, 127 through 129, 140, 159, 162, 164, 165, 166, 167, 170, 171, 172, 185, and 186. The challenged findings are supported by competent, substantial evidence; therefore, the exceptions are denied.

   
   

3. Charter's exceptions to the conclusions of law are denied.

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 this Final Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with this Final Order. The occupancy threshold of the numeric need rule is satisfied when corrected to conform to the rulings on the exceptions filed by counsel for the department. See finding of fact 63 and conclusion of law 31. I concur with the Hearing Officer's conclusions that Orlando General's proposal is superior to

Charter's proposal for the reasons given by the Hearing Officer and that there is insufficient need in Orange County to justify approval of both proposals. I disagree with the Hearing Officer in one respect. I am not satisfied that there is any substantial difference between osteopathic and allopathic psychiatry; therefore, little weight has been given to the fact that Orlando General is an osteopathic facility.

Based on a balanced weighing of all applicable criteria, it is ADJUDGED, that Orlando General Hospital's application for CON 5162 to

convert 24 of its medical surgical beds to short term psychiatric beds be approved. It is further adjudged that Charter Medical's application for CON 5156 to construct a 50 bed psychiatric hospital be denied.

DONE and ORDERED this 2nd day of February, 1989, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Programs

Copies furnished to:

Fred W. Baggett, Esquire Theodore Mack, Esquire

Stephen A. Ecenia, Esquire Assistant General Counsel

ROBERTS, BAGGETT, LaFACE & Department of Health and

RICHARD Rehabilitative Services

101 East College Avenue 2727 Mahan Drive

Post Office Drawer 1838 Fort Knox Executive Center Tallahassee, Florida 32301 Tallahassee, Florida 32308

William C. Sherrill Stephen K. Boone, Esquire

Hearing Officer Robert Mudge, Esquire

DOAH,The Oakland Building BOONE, BOONE, KLINGBEIL

2009 Apalachee Parkway & BOONE, P.A. Tallahassee, Florida 32399-1550 Post Office Box 1596

Venice, Florida 34284

Eric T. Haugdahl, Esquire

1363 East Lafayette Street FALR

Suite C Post Office Box 385

Tallahassee, Florida 32301 Gainesville, Florida 32602

Janie Block (PDDR)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 27th day of May, 1987.

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: 87-004748

Orders for Case No: 87-004748