STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROOKWOOD-JACKSON COUNTY )
CONVALESCENT CENTER, )
)
Petitioner, )
)
vs. ) DOAH CASE No. 88-1890
) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Following the provision of notice a formal hearing was held in this case in accordance with Section 120.57(1), Florida Statutes. The hearing was conducted on July 13 and 15, 1988 in Tallahassee, Florida. Charles C. Adams served as the Hearing Officer. This Recommended Order is being entered following the receipt and review of the transcript of proceedings and upon examination of the exhibits admitted into evidence. The parties have also filed proposed recommended orders which have been taken into account in preparing the recommended order. The fact proposals are commented on in an appendix to the Recommended Order, explaining those instances in which the facts suggested have not been used by the Hearing Officer.
APPEARANCES
For Petitioner: James M. Barclay, Esquire
Law Offices of James M. Barclay
215 E. Virginia Street Tallahassee, Florida 32301
For Respondent: Stephen M. Presnell, Esquire
MacFarlane, Ferguson, Allison & Kelly Post Office Box 82
Tallahassee, Florida 32302 PRELIMINARY MATTERS
Petitioner presented the testimony of Kenneth Gummels, an official with the petitioning group in ownership capacity, and Gene Nelson, a health planning consultant who gave expert opinion testimony. Two exhibits were offered by the Petitioner. The first exhibit is received into evidence for all Information contained through February 19, 1988 the date upon which Respondent signed the State Agency Action Report (SAAR) denoting its substantive response to the certificate of need application which underlies this dispute. Petitioner offered a second exhibit that dealt with the application for a separate certificate of need felt to be similar enough in its particulars to allow its admission into evidence in furtherance of Petitioner's attempt to prove that the
Respondent had been inconsistent in pursuing its policies related to certificate of need application review. That exhibit is admitted.
Respondent presented the testimony of Elizabeth Dudek, a health planning consultant with the State of Florida, Department of Health and Rehabilitative Services (HRS). Four exhibits were offered by Respondent and were received.
HRS also sought official recognition of what it describes as an excerpt from the Florida Statistical Abstract for 1987, page 663. Having considered that submission, and the objection to this item it is concluded that the written information presented is not appropriately received under the theory of official recognition expressed in Section 90.202(12), Florida Statutes or upon any other theory of evidence.
ISSUES
The issues under consideration concern the request by Petitioner,
Brookwood-Jackson County Convalescent Center (Brookwood) to be granted a certificate of need for dual certification of skilled and immediate care nursing home beds associated with the second review cycle in 1987. See Section 381.494, Florida Statutes (1985) and Rule 10-5.011(1)(k) , Florida Administrative Code.
FINDINGS OF FACT
On October 5, 1987 Brookwood filed an application with HRS seeking to expand its facility in Graceville, Jackson County, Florida, one with 120 licensed beds and 30 beds approved effective June 12, 1986, to one with 30 additional beds for a total of 180 beds. Beds being sought in this instance were upon dual certification as skilled and intermediate nursing home beds. The nursing home is located in Subdistrict A to District II which is constituted of Gadsden, Holmes, Jackson and Washington counties. This applicant is associated with Brookwood, Investments, a Georgia corporation qualified to do business and registered in the State of Florida and other states in the southeastern United States. That corporation has as its principal function the development and operation of nursing homes and other forms of residential placement of the elderly. The actual ownership of the applicant nursing home is through a general partnership. Kenneth Gummels is one of two partners who own the facility.
The Brookwood group has a number of nursing home facilities which it operates in the southeastern United States. Florida facilities that it operates are found in DeFuniak Springs, Walton County, Florida; Panama City, Bay County, Florida; Chipley, Washington County, Florida; Homestead, Dade County, Florida; Hialeah Gardens, Dade County, Florida, as well as the present applicant's facility.
The applicant as to the beds which it now operates, serves Medicare, Medicaid, Veteran Administration, private pay and other third party pay patients. The number of Medicaid patients in the 120 licensed beds is well in excess of 90 percent. The ratio of Medicaid patients with the advent of the 30 approved beds was diminished. As to those beds, 75 percent were attributed to Medicaid. If the 30 beds now sought were approved, the projection is for 87 percent private pay and 13 percent Medicaid for those new beds. The nursing home administration feels that the new beds must be vied for under those ratios in order for it to continue to be able to serve a high number of Medicaid patients, an observation which has not been refuted by the Respondent. Nonetheless, if these beds are approved the percentage of Medicaid patients would be reduced to the neighborhood of 80 percent within the facility which
compares to the approximately 81 percent experience of Medicaid beds within the district at present and the approximately 88 percent of Medicaid beds within the subdistrict at present.
The cost of the addition of the 30 beds in question would be $495,000. Financial feasibility of this project has been stipulated to by the parties assuming that need is found for the addition of those beds.
The basic area within the Florida panhandle wherein the applicant facility may be found, together with other facilities in the Florida panhandle is depicted in a map found at page 101 of Petitioner's Exhibit 1 admitted into evidence. This map also shows that a second licensed nursing home facility is located in Jackson County in Marianna, Florida, known as Marianna Convalescent Center. The applicant facility is directly below the Alabama-Florida border, immediately south of Dothan, Alabama, a metropolitan community. The significance of the relative location of the applicant's facility to Dothan, Alabama concerns the fact that since 1984 roughly 50 percent of its nursing home patients have been from out-of-state, the majority of those out-of-state patients coming from Alabama. Alabama is a state which has had a moratorium on the approval of new nursing home beds for eight years. The proximity of one of that state's relatively high population areas, Dothan, Alabama, has caused its patients to seek nursing home care in other places such as the subject facility. The applicant has encouraged that arrangement by its business practices.
Among the services provided by the nursing home facility are physical therapy, physical examination and treatment, dietary services, laundry, medical records, recreational activity programs and, by the use of third party consultants, occupational and social therapy and barber and beauty services, as well as sub-acute care.
The facility is adjacent to the Campbellton-Graceville Hospital in Graceville, Florida.
The nursing home was developed sometime in 1978 or 1979 with an original complement of 90 beds expanding to 120 beds around 1983 or 1984. The Chamber of Commerce of Marianna, Florida had held the certificate of need upon the expectation that grant funds might be available to conclude the project. When that did not materialize, the County Commissioners of Jackson County, Florida sought the assistance of Brookwood Investments and that organization took over the development of the 90 beds. The original certificate holder voluntarily terminated and the Brookwood partnership then took over after receiving a certificate of need for Brookwood-Jackson County Convalescent Center.
The nursing home in Marianna, Florida which is located about 16 miles from Graceville has 180 beds having undergone a 60 bed expansion several years ago.
Concerning the Brookwood organization's nursing home beds in Florida, the Walton County Convalescent Center was a 100 bed facility that expanded to
120 beds at a later date and has received permission to expand by another 32 beds approved in the same review cycle associated with the present applicant. Gulf Coast Convalescent Center in Panama City, is a 120 bed facility of Brookwood. Brookwood also has the Washington County Convalescent Center in Washington County, in particular in Chipley, Florida which has 180 beds. That facility was expanded by 60 beds as licensed in October, 1987 and those additional beds have been occupied by patients. Brookwood has a 120 bed
facility in Homestead and a 180 bed facility in Hialeah Gardens. With the exception of its two South Florida facilities in Homestead and Hialeah Gardens, recent acquisitions under joint ownership, the Brookwood group has earned a superior performance rating in its Florida facilities.
No attempt has been made by this applicant to utilize the 30 beds which were approved, effective June 12, 1986. Its management prefers to await the outcome in this dispute before determining its next action concerning the 30 approved beds. The applicant asserted that the 30 beds that had been approved would be quickly occupied based upon experience in nursing home facilities within Subdistrict A to District II following the advent of nursing home bed approval. That surmise is much less valuable than the real life experience and does not lend effective support for the grant of the certificate of need in this instance.
The waiting list for the 120 licensed beds in the facility has been reduced to five names. This was done in recognition of the fact that there is very limited patient turnover within the facility. Therefore, to maintain a significant number of people on the waiting list would tend to frustrate the sponsors for those patients and social workers who assist in placement if too many names were carried on the waiting list. At the point in time when the hearing was conducted, the facility was not in a position to accept any patients into its 120 licensed facility. This condition of virtually 100 percent occupancy has been present since about 1984 or 1985.
The applicant has transfer agreements with Campbellton-Graceville Hospital and with two hospitals in Dothan, Alabama, they are Flower's Hospital and Southeast Alabama Medical Center. The applicant also has a transfer agreement with the Marianna Community Hospital in Marianna, Florida. The referral arrangements with the Alabama hospitals were made by the applicant in recognition of the proximity of those hospitals to the nursing home facility and the belief in the need to conduct its business, which is the provision of nursing home care, without regard for the patient origin.
Early on in its history with the nursing home, Brookwood promised and attempted in some fashion to primarily serve the needs of Jackson County, Florida residents, but the explanation of its more recent activities in this regard does not portray any meaningful distinction between service to the Jackson County residents and to those from other places, especially Alabama. This reflects the concern expressed by Kenneth Gummels, owner and principal with the applicant nursing home, who believes that under federal law the nursing home may not discriminate between citizens in Florida and Alabama when considering placement in the nursing home. In this connection, during 1987 the experience within the applicant nursing home was to the effect that for every patient admitted from Florida five Florida patients were turned away.
By contrast, to deal with the idea of priority of placing patients some effort was made by Gummels to explain how priority is still given to Jackson County residents in the placement for nursing home care. Again, in the end analysis, there does not seem to be any meaningful difference in approach and this is evidenced by the fact that the level of out-of-state patients in the facility has remained relatively constant after 1984. If there was some meaningful differentiation in the placement of Florida patients and those from out-of-state, one would expect to see a change in the number of patients from out-of-state reflecting a downward trend.
As described, historically the experience which Brookwood has had with the facility occupancy rates is one of high utilization except for brief periods of time when additional beds were added at the facility or in the Marianna Nursing Home.
At time of the application the primary service area for the applicant was Jackson County with a secondary service area basically described as a 25 mile radius outside of Graceville extending into Alabama and portions of Washington and Holmes Counties.
As stated, at present the occupancy rate is as high as it has ever been, essentially 100 percent, with that percentage only decreasing on those occasions where beds come empty based upon transfers between nursing homes or between the nursing home and a hospital or related to the death of a resident. Those vacancies are filled through the waiting list described or through recommendations of physicians who have a referral association with the facility.
The patients who are in the facility at the place of consideration of this application were 50 percent from Florida and 50 percent from out-of-state, of which 56 of the 60 out-of-state patients were formerly from Alabama, with one patient being from Ohio and three others from Georgia.
More specifically, related to the history of out-of-state patients coming to reside in the nursing home, in 1984 basically 25 percent patients were from Alabama, moving from there into 1985 at 47 percent of the patient population from Alabama, in 1986 50 percent from Alabama, in 1987 48 percent from Alabama and in 1988 the point of consideration of the case at hearing the figure was 47 percent of Alabama patients, of the 50 percent patients described in the preceding paragraph.
Of the patients who are in the facility from Florida, the majority of those are believed to be from Jackson County.
Those patients who come to Florida from Alabama, by history of placement, seem to be put in the applicant's facility in Graceville as a first choice because it is closest to the Dothan, Alabama area. The next preference appears to be Chipley and the Brookwood nursing home facility in Chipley, and thence to Bonifay and then to other places in the Florida panhandle, in particular Panama City.
In the Brookwood-Washington County facility at Chipley, Florida 35 percent of the patients are from Alabama which tends to correspond to the observation that the Alabama placements as they come into Florida are highest in Graceville and decrease in other places. This is further borne out by the experience in the Brookwood-Walton County facility at DeFuniak Springs, Florida which has an Alabama patient percentage of approximately 10 to 12 percent.
When the nursing home facilities in Chipley and Bonifay received 60 additional beds each in October, 1987, they began to experience rapid occupancy in those beds as depicted in the Petitioner's Exhibit 1 at pages 228 through 230.
The other facility in Jackson County, namely Jackson County Convalescent Center, within the last six months has shown an occupancy rate in excess of 98 percent, thereby being unavailable to attend the needs of additional Jackson County patients who need placement and other patients within
the subdistrict. This same basic circumstance has existed in other facilities within Subdistrict A to District II.
When the applicant is unable to place patients in its facility it then attempts placement in Chipley, Bonifay, DeFuniak Springs, and Panama City, Florida, and from there to other places as nearby as possible.
The proximity of the patient to family members and friends is important for therapeutic reasons in that the more remote the patient placement from family and friends, the more difficult it is for the family and friends to provide support which is a vital part of the therapy. Consequently, this is a significant issue. Notwithstanding problems in achieving a more desirable placement for some patients who must find space in outlying locales, there was no showing of the inability to place a patient who needed nursing home care.
Most of the Alabama referrals are Medicaid referrals. Those patient referrals are treated like any other resident within the nursing home related to that payment class for services. Effectively, they are treated in the same way as patients who have come from locations within Florida to reside in the nursing home.
Notwithstanding the management choice to delay its use of the 30 approved beds dating from June 12, 1986, which were challenged and which challenge was resolved in the fall, 1987, those beds may not be ignored in terms of their significance. They must be seen as available for patient placement. The fact that the experience in this service area has been such that beds fill up rapidly following construction does not change this reality. This circumstance becomes more significant when realizing that use of the needs formula for the project at issue reveals a surplus of 19 beds in Subdistrict A to District II for the planning horizon associated with July, 1990. See Rule
10-5.011(1)(k), Florida Administrative Code. The 19 bed surplus takes into account the 30 approved beds just described.
Having recognized the inability to demonstrate need by resort to the formula which is found within the rule's provision referenced in the previous paragraph, the applicant sought to demonstrate its entitlement to a certificate through reference to what it calls "special circumstances." Those circumstances are variously described as:
Patient wishing to be located in Jackson County.
Lack of accessibility to currently approved CON beds.
High rate of poverty, Medicaid utilization and occupancy.
Jackson County Convalescent Center utilization by out-of- state patients.
The applicant in asking for special relief relies upon the recommendation of the Big Bend Health Council, District II in its health plan and the Statewide Health Council remarks, whose suggestions would modify the basis for calculation of need found in the HRS rule with more emphasis being placed on the adjustment for poverty. Those suggestions for health planning are not controlling. The HRS rule takes precedence. Consequently, those suggestions not being available to substitute for the HRS rule, Petitioner is left to demonstrate the "special circumstances" or "exceptional circumstances" in the context of the HRS rule and Section 381.494(6), Florida Statutes (1985). Compliance per se with local and statewide planning ideas is required in the remaining instances where those precepts do not conflict with the HRS rule and statute concerning the need calculations by formula.
Turning to the claim for an exception to the rule on need, the first argument is associated with the patient wishing to be located in Jackson County. This would be preferable but is not mandated.
On the topic of this second reason for exceptions to the need formula, the matter is not so much a lack of accessibility to currently approved CON beds as it is an argument which is to the effect that there are no beds available be they licensed or approved. This theory is not convincing for reasons to be discussed, infra.
Next, there is an extremely high rate of poverty in District II. It has the highest rate of poverty in the state. Moreover Subdistrict A to District II has an even greater degree of poverty and this equates to high Medicaid use and contributes to high occupancy. This coincides with the observation by the Big Bend Health Council when it takes issue with the HRS methodology rule concerning recognition of the significance of poverty within the HRS rule and the belief by the local health council that given the high poverty rates in District II some adjustments should be made to the need formula in the HRS rule. Under its theory, 161 additional beds would be needed at the planning horizon for July 1990 in Subdistrict A. Concerning the attempt by the applicant to make this rationalization its own, the record does not reflect reason to defer to the Big Bend Health Council theory as an exception to the normal poverty adjustment set forth in the HRS rule.
When the applicant describes the effects of the out-of-state patients, in particularly those from Alabama in what some have described as in-migration, it argues that Rule 10-5.011(1)(k), Florida Administrative Code makes no allowance for those influences. The applicant chooses to describe these beds, the beds used by out-of-state residents, as unavailable or Inaccessible. This concept of inaccessibility is one which departs from the definition of inaccessibility set forth at Rule 10-5.011(1)(k)2.j., Florida Administrative Code. The specific exception to the requirement for compliance with the numeric need methodology in demonstration of a net need is set forth in that reference, and the proof presented did not show entitlement to the benefits of that exception. That leaves the applicant arguing in favor of recognition of its entitlement to a certificate of need premised upon a theory not specifically announced in that reference. This is the in-migration idea. It ties in the basic idea of poverty but does not depend on rigid adherence to the Big Bend Health Council idea of a substitute element in the HRS needs formula related to poverty. It also promotes the significance of problems which a number of physicians, who testified by deposition in this case, observed when attempting to place patients in the subject nursing home and other nursing homes in the surrounding area. They found high occupancy rates in the present facility and others within Subdistrict A to District II. These problems with placement as described by the physicians can have short term adverse effects on the patient and the family members, but they are not sufficient reason to grant the certification.
In considering the formula for deriving need as promulgated by HRS, the proof does not seem to suggest that the nursing home residents themselves who came from out-of-state are excluded from the population census for Florida. On the other hand, unlike the situation in Florida in which the population at large is considered in trying to anticipate future nursing home bed needs, it make no assumptions concerning the Alabama population at large. Ultimately, it becomes a question of whether this unknown factor, given the history of migration of patients from Alabama into Florida and in particular into the
subject nursing home, together with other relevant considerations, may properly form the basis for granting the certificate of need to the applicant.
It is concluded that there is a fundamental difference in the situation found within this application compared to other planning areas within Florida which do not have to contend with the level of poverty, the proximity to Alabama and the advent of Alabama placements in this nursing home, the high occupancy rates in the subdistrict and the resulting difficulty in placement of patients near their homes. Posed against this troublesome circumstance is the fact that the applicant has failed to use its 30 approved beds or to make a decision for such use, that it had invited and continues to invite the placement of Alabama residents through the referral arrangements with the two Dothan, Alabama hospitals, realizing that such an arrangement tends to exclude opportunities for Florida residents to some extent, and the recognition that patients are being placed; that is patients are not going without nursing home care. The two Alabama hospitals with whom the applicant has referral agreements provide a substantial number of the patients who are admitted. This recount acknowledges what the ownership considers to be their obligation in law and morally to serve the interest of all patients without regard for their home of origin; however, the thrust of the certificate of need licensing process in Florida is to develop the apparatus necessary to service the needs of Florida residents, not Alabama residents. This does not include the necessity of trying to redress the circumstance which appears to exist in Alabama in which the government in that state is unable or unwilling to meet the needs of its citizens. On balance, the applicant has not demonstrated a sufficient reason to depart from the normal requirements of statute and rule, which departure would have as much benefit for Alabama residents as it would for Florida Residents. Contrary to the applicant's assertions it could legitimately de-emphasize its association with Alabama. It has chosen not to and should not be indulged In this choice in an enterprise which is not sufficiently related to the needs of Florida residents to condone the licensure of the beds sought, even when other factors described are taken into account.
The applicant has also alluded to a certificate of need request made by Walton County Convalescent Center, a Brookwood facility in District I which sought a certificate of need in the same batch which pertains to the present applicant. The application and the review and comment by HRS may be found within Composite Exhibit 2 by the Petitioner admitted as evidence. Petitioner asserts that the Walton County experience in which 32 beds were granted is so similar to the present case that it would be inappropriate for the agency to act inconsistently in denying the present applicant after having granted a certificate of need to the Walton County applicant. Without making a line-by- line comparison, it suffices to say that in many respects these projects are similar. In other respects they are not. On the whole, it cannot be found that the agency is acting unfairly in denying the present applicant while granting a certificate to the applicant in the Walton County case. The differences are substantial enough to allow the agency to come to the conclusion that the present applicant should be denied and the applicant in Walton County should have its certificate granted. Likewise, no procedural impropriety on the part of HRS in its review function has been shown.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.
The burden of proof in this case resides with the applicant to establish that it is entitled to the grant of a certificate of need. It must do so in keeping with the requirements as announced in Section 381.494(6), Florida Statutes (1985) and Rule 10-5.011(1)(k), Florida Administrative Code, as well as demonstrating it compliance with state and local health plans. This process of proof is envisioned by the Florida Department of Transportation vs. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA)(1981). The proof is in the context of a de novo hearing held under Section 120.57(1), Florida Statutes.
As announced by HRS through its consulting witness and agreed by the Petitioner, criteria set forth in Section 381.494(6)(c) 5. 6. 7. and 8. and (d)
through 5., Florida Statutes do not pertain.
The criteria that are being examined in this case are weighted and the weight they are afforded may vary from one case to the next depending on the circumstances. See Collier Medical Center, Inc., vs. Department of Health and Rehabilitative Services, 462 So.2d B3 (Fla. 1st DCA 1985)
When the numeric need methodology is examined as found at Rule 10- 5.011(1)(k), Florida Administrative Code, no numeric need is demonstrated at the July 1990 planning horizon within Subdistrict A of District II, of which this facility is part. Likewise, the exception contemplated within Rule 10- 5.011(1)(k)2.j., Florida Administrative Code, which allows the grant of a certificate even where need has not been shown are unavailing. Thus, the applicant must prove that even though it has not complied with the numeric need rule or the recognized exception to the application of that rule, it's "special circumstances" should entitle it to recognition in the grant of a certificate of need. This requires resort to an examination of other criteria that have application to this case to see if they strike a balance in favor of the applicant even upon the failure to demonstrate compliance with the aforementioned rule. They do not.
Petitioner has essentially complied with state and local planning concepts, especially since the local plan contemplates greater recognition of the poverty circumstance in this district and in particular in the Subdistrict A to District II. Nonetheless, the suggestion by the local planners that the numeric need calculations take into account the higher level of poverty in Subdistrict A of District II by a substituted formula does not take precedence over the HRS statewide calculations set forth in the HRS rule and the fundamental philosophy that underlies that local approach should not either.
The applicant's performance in dealing with Medicaid as envisioned by the local plan is adequate. With the advent of these 30 beds the applicant basically approximates the district average for Medicaid but is less than the subdistrict average. The applicant deals with high occupancy rates as envisioned by the local plan and identifies with the guiding principles set forth in the State Health Plan.
The exceptionality outside of the exception recognized by HRS rule which the Petitioner wishes to have form the basis of its claims would be the high poverty rate coupled with high occupancy rates and in migration of out-of- state patients, while ignoring the influence of any action it took in promoting the migration and the 30 beds which have been approved that are being held by the applicant pending disposition in this case. As identified in fact-finding, the HRS obligation is to examine the needs of Florida residents for nursing home care. The statute and rule criteria contemplate consideration of that question limited to Florida residents. It was not the intention of the legislature nor HRS to design health planning to accommodate Alabama citizens in need of nursing
home care. The policy pursued by this applicant in dealing With those Alabama patients has tended to encourage their in-migration to Florida without reason in law or morality. To accept a further installment of beds which would be in keeping with that choice is not in compliance with the health planning principles associated with Florida. Moreover, the present circumstance for the Florida residents though admittedly difficult was not shown to be so grave as to contemplate the grant of these beds as an exception to the general prohibition against their grant contemplated in the needs methodology rule. In summary, the weighing or balancing of the various criteria that pertain to this case does not favor the Petitioner and for that reason Petitioner has not demonstrated its entitlement to the certificate of need.
Reference to the Walton County Convalescent Center application within the same review cycle in urging that the agency should act consistently in its treatment of that application and the present application was relevant inquiry. Having considered the evidence, it does not point to the fact that the agency has been so inconsistent in its policy choice that it should be caused to grant the application under consideration. The differences are such that the agency was justified in acting differently in its decision to grant the Walton County Convalescent Center a certificate of need and deny the one at issue.
Having considered the facts found in the conclusions of law reached, it is, RECOMMENDED:
That a final order be entered which denies the request by this applicant for the grant of a certificate of need for an additional 30 beds to be placed at the Brookwood-Jackson County Convalescent Center from the second review cycle 1987.
DONE AND ENTERED this 7th day of September, 1987, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
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 7th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1890
The following constitutes the discussion of the fact proposals set forth in the proposed recommended orders to the extent that those proposals were not utilized in the preparation of the Recommended Order: Petitioner's Facts Paragraph 3 is contrary to facts found. Paragraphs 5-7 is subordinate to facts found. Paragraph 9 with the exception of the discussion of out-of-state facilities held by Brookwood is subordinate to facts found. That discussion of the out-of-state facilities is not necessary to the resolution of dispute.
Paragraph 10 is subordinate to facts found. Paragraphs 12-18 are subordinate to facts found with the exception of the discussion in paragraph 18 dealing with march and April, 1988 data which is outside the scope of the inquiry as ruled at hearing. Paragraphs 19-21 are subordinate to facts found. Respondent's Facts Paragraphs 1-4 are subordinate to facts found. Paragraph 5 is not necessary to resolution of dispute. Paragraphs 6-11 and the first sentence in paragraph 12 are subordinate to facts found. The remaining sentences within paragraph 12 are rejected as being contrary to the treatment of this dispute. Paragraph 13 is rejected as being a matter for which official recognition was not sought at hearing or upon request for post hearing recognition and is denied acceptance with the attempt of Respondent to submit that factual information without prior notice. Paragraphs 14-18 are subordinate to facts found.
COPIES FURNISHED:
James M. Barclay, Esquire
Law Offices of James M. Barclay
215 E. Virginia Street Tallahassee, Florida 32301
Stephen M. Presnell, Esquire MACFARLANE, FERGUSON, ALLISON & KELLY
Suite 804, First Florida Bank Building Post Office Box 82
Tallahassee, Florida 32302
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Richard S. Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller, Esquire General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
| Issue Date | Proceedings |
|---|---|
| Sep. 07, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 03, 1988 | Agency Final Order | |
| Sep. 07, 1988 | Recommended Order | CON request for nursing home beds. Recommend denial. Raises exceptional cir- cumstance claims of high poverty rate & immigration from another state. |
