STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTRO ASTURIANO HOSPITAL )

)

Petitioner, )

)

vs. ) CASE NO. 88-2643H

) STATE OF FLORIDA, HEALTH CARE ) COST CONTAINMENT BOARD, )

)

Respondent, )

and )

) CITIZENS OF THE STATE OF FLORIDA, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 26, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David D. Eastman, Esquire

Patrick J. Phelan, Jr. Esquire PARKER, SKELDING, LABASKY & CORRY

318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302

For Respondent: Robert D. Newell, Jr., Esquire

NEWELL & STAHL, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

For Intervenor: Jack Shreve, Public Counsel

David Terry, Esquire Peter Schwarz, Esquire

Office of the Public Counsel

111 West Madison Street, Room 812 Tallahassee, Florida 32399-1400

STATEMENT OF THE ISSUES

Whether the Petitioner should be subjected to a penalty pursuant to Section 395.5094, Florida Statutes (1987), or Section 407.51, Florida Statutes (1989)?

PRELIMINARY STATEMENT

The Respondent, the Health Care Cost Containment Board, proposed to impose a penalty pursuant to Section 395.5094, Florida Statutes (1987), on the Petitioner, Centro Asturiano Hospital. The Petitioner filed a letter dated May 24, 1988, with the Respondent requesting a formal administrative hearing to contest the Respondent's proposed action. The request for hearing was filed with the Division of Administrative Hearings on June 1, 1988.

The request for hearing was assigned case number 88-2643H and was assigned to Hearing Officer William C. Sherrill, Jr. Hearing Officer Sherrill set the case for hearing by notice of June 6, 1988.

By order entered August 26, 1988, the case was placed in abeyance to give the parties an opportunity to settle their dispute. The abeyance was extended and the case was transferred to Hearing Officer Stephen F. Dean by Order entered October 24, 1988.

On June 19, 1989, the parties filed a Joint Motion for Remand. This Motion was filed because the parties believed that they could resolve their dispute without a formal administrative hearing. By Order entered June 21, 1989, the Joint Motion was granted and the Division of Administrative Hearings' file was closed.

The parties failed to resolve their dispute. Therefore, on January 16, 1990, a Joint Motion to Reopen File and to Schedule Formal Hearing was filed with the Division of Administrative Hearings by the parties. The case was assigned to the undersigned. By Order entered January 31, 1990, the Joint Motion to Reopen File was granted.

On February 12, 1990, Citizens Notice on Intervention in Penalty Proceeding was filed. Intervention was granted by Order dated February 27, 1990.

At the formal hearing the Petitioner presented the testimony of Hilda C. Smith. Petitioner's exhibits 1-9 were accepted into evidence. Petitioner's exhibit 8 was to be filed by the Petitioner following the conclusion of the formal hearing. That exhibit has not been filed.

The Respondent presented the testimony of Duane A. Ashe. Mr. Ashe was accepted as an expert in health care cost containment and hospital financial analysis. "HCCCB" exhibit 1 was accepted into evidence.

The Intervenor did not call any witnesses or offer any exhibits. On June 7, 1990, a Notice of Appearance of Substitute Counsel for

Petitioner was filed. Petitioner also filed Petitioner's Motion for Extension of Time to Submit Proposed Recommended Order. It was represented in the Motion that the Respondent and Intervenor were not opposed to the extension. The extension was granted by Order entered June 8, 1990.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Respondent, the Health Care Cost Containment Board, is an agency of the State of Florida charged with the responsibility of regulating hospital budgets.

   
   

2. The Office of the Public Counsel is authorized pursuant to Section 407.54, Florida Statutes, to represent the general public in budget review proceedings before the Respondent.

   
   

3. The Petitioner, Centro Asturiano Hospital, is a 144-bed acute care hospital located in Tampa, Florida.

   
   

4. During all times relevant to this proceeding, the Petitioner's fiscal year was the calendar year.

   
   

5. During 1984, 1985 and 1986, the accounting firm of Peat, Marwick and Main (hereinafter referred to as "Peat") prepared financial statements and Medicare reports for the Petitioner. Peat also performed audits of the Petitioner during 1984, 1985 and 1986.

   
   

6. During all times relevant to this proceeding, the Petitioner's comptroller, Hilda Smith, prepared reports filed with the Respondent on behalf of the Petitioner.

   
   

7. For the fiscal year 1987, the Respondent had approved the Petitioner's budgeted gross revenue per adjusted admission (hereinafter referred to as "GRAA") of $7,536.00 and net revenue per adjusted admission (hereinafter referred to as "NRAA") of $4,913.00.

   
   

8. Based upon the Petitioner's audited actual experience for fiscal year 1987, the Petitioner's actual NRAA exceeded its budgeted NRAA. Therefore, the Respondent proposed to impose a penalty (hereinafter referred to as the "Main Penalty") on the Petitioner pursuant to Section 395.5094, Florida Statutes (1987), and Rule 10N-1.062, Florida Administrative Code.

   
   

9. By letter dated May 12, 1988, the Respondent notified the Petitioner that it was imposing a Main Penalty on the Petitioner for 1987.

   
   

10. A second letter dated August 15, 1988, was sent by the Respondent to the Petitioner revising the amount of the penalty. In calculating the revised penalty the Respondent took into account the Petitioner's case-mix and outlier activity. The total recommended penalty was $609,218.00. The penalty consists of a budget reduction to net revenue of $566,938.00 with a corresponding reduction to gross revenue of $854,425.00, and a cash fine of $42,280.00.

    
    

11. The reason for imposing the Main Penalty was explained in the Respondent's letter of August 15, 1988, as follows:

    
    

    Preliminary findings indicated that an excess of net revenue per adjusted admission in the amount of $381.00 had occurred. These findings are based upon a comparison [sic] of the previous year's audited actual experience inflated by the MARI, and the Board approved budget for the fiscal year ended December 31, 1987. The total excess has been adjusted by

    case-mix and outlier activity and results in

    a total recommended penalty of $609,218. . . .

    
    

12. The proposed penalty could have been avoided if the Petitioner had sought a budget amendment for 1987 or if the Petitioner had modified its operations during 1987 when it learned that its actual experience would exceed its approved budget.

    
    

13. The Petitioner believes that the difference in the Petitioner's actual experience for 1987 and its approved budget for 1987 was caused primarily by an adjustment to Medicare contractual allowances.

    
    

14. When a hospital treats a patient eligible for Medicare payment for the patient's services, the hospital records the gross amount of the hospital's charges for the patient's services. Medicare, however, only pays a portion of the total charges. The difference between the hospital's charges and the amount actually paid by Medicare is referred to as "Medicare contractuals." For example, if a patient is charged $1,000.00 by a hospital for services but Medicare will only pay $800.00 for those services, the $200.00 difference is referred to as a Medicare contractual. If the $200.00 is not paid from some other source it must be deducted from gross revenue to arrive at net revenue on the books of the hospital.

    
    

15. The Petitioner receives a substantial portion of its revenue for Medicare reimbursed services. Therefore, Medicare contractuals constitute a significant item in the Petitioner's budget. An adjustment to the Petitioner's Medicare contractuals could have a significant impact on the Petitioner's budget.

    
    

16. During April, 1987, Peat notified the Petitioner's comptroller, Ms. Smith, that the Petitioner's Medicare contractuals needed to be adjusted by

    $488,000.00. This adjustment was the result of Peat's audit of Petitioner's 1986 financial records and was related to Medicare cost reports for 1983, 1984 and 1985. Peat also determined that an additional $200,000.00 adjustment was required. The Petitioner knew that the adjustments were material.

    
    

17. The net effect of Peat's 1986 audit was that the Petitioner was required in 1987 to reduce 1986 Medicare and other contractual deductions from gross revenue by $688,000.00. This amount was a significant amount.

    
    

18. The $688,000.00 adjustment was reported by Peat to the Board of Directors of the Petitioner and accepted by the Board in April, 1987.

    
    

19. Between June, 1987, and July, 1987, Ms. Smith, the Petitioner's comptroller, prepared a Current Year Actual and Estimated Interim Report (hereinafter referred to as the "1987 Interim Report"). In the 1987 Interim Report the Petitioner compared actual GRAA for the first 6 months of 1987 and projected GRAA for the last 6 months of 1987 with 1987 budgeted GRAA. Based upon this computation it was apparent that the Petitioner was operating in excess of the Petitioner's budget for 1987 as approved by the Respondent. The Petitioner, therefore, could have sought a budget amendment or modified its operations.

    
    

20. Ms. Smith testified that she believed that the excess of actual GRAA and NRAA over budgeted GRAA and NRAA had been caused by the Medicare contractual adjustment recommended by Peat for 1986. The Petitioner failed to prove what the cause of the excess actually was.

21. Ms. Smith testified that the Petitioner did not realize what the affect of the contractual adjustment was until the 1987 Interim Report was prepared. The Petitioner, however, could have determined in April of 1987 what affect the Medicare contractual adjustment would have on its 1987 budget. Therefore, if the Medicare contractual adjustment was the cause of the excess of its actual experience over its budget, the Petitioner could have taken steps as early as April, 1987, to seek a budget amendment for its 1987 fiscal year or to modify its operations.

    
    

22. In July, 1987, Ms. Smith contacted staff of the Respondent. She spoke with Pete Pearcy and Bill Summers. She also spoke to these staff members in September, 1987.

    
    

23. Ms. Smith contacted the Respondent because of her concern about the excess of the Petitioner's actual 1987 experience over its 1987 approved budget. She contacted the Respondent seeking assistance in determining what steps the Petitioner should take to resolve the potential problem the excess in the Petitioner's actual experience over its approved budget could cause. The Petitioner failed to prove that Ms. Smith's explanation of the problem adequately informed the Respondent what the Petitioner's problem was.

    
    

24. Generally, the Respondent's staff will consult and/or counsel hospitals concerning matters within the Respondent's responsibilities. The Respondent's policy prohibits staff from advising hospitals, however, as to whether a budget amendment should be filed; that decision is left up to each individual hospital. Consistent with the Respondent's policy, staff of the Respondent attempted to assist Ms. Smith.

    
    

25. During September, 1987, Ms. Smith asked Mr. Summer of the Respondent's staff whether the Petitioner should file a budget amendment. Mr. Summer responded "amend what?" This response was based upon the inability of Ms. Smith to explain to Mr. Summer what exactly the Petitioner believed it needed to amend or exactly how the Medicare contractual adjustments affected the Petitioner's 1987 budget. Mr. Summer did not specifically recommend to Ms. Smith that the Petitioner file or not file a budget amendment. Nor did anyone else on the Respondent's staff advise the Petitioner that a budget amendment should or should not be filed.

    
    

26. Mr. Summer asked Ms. Smith to send him information concerning the problem. Mr. Summer told Ms. Smith that he would review the material before discussing the problem further. Mr. Summer did not, however, contact Ms. Smith. Nor did Ms. Smith attempt to contact Ms. Summer before the end of the Petitioner's 1987 fiscal year.

    
    

27. The Petitioner was aware of the fact that any budget amendment for its 1987 fiscal year had to be filed before the end of the 1987 fiscal year. The Petitioner was also familiar with the manner in which a budget amendment was to be filed since the Petitioner had obtained approval of a budget amendment for its 1986 fiscal year.

    
    

28. The Petitioner did not file a budget amendment for its 1987 fiscal year.

    
    

29. The Petitioner was aware that it was required to operate within its 1987 approved budget.

30. Ms. Smith indicated that she believed that the Respondent's staff would have warned her if the Petitioner had been in danger of having a penalty imposed. The Petitioner, however, was not informed by the Respondent that the Main Penalty would not be imposed upon it for its 1987 fiscal year.

    
    

31. The Petitioner's actual GRAA for 1987 was $8,096.00 and its approved GRAA was $7,536. Therefore, the Petitioner's actual GRAA for 1987 exceeded its approved GRAA by 7.4%. The Petitioner's actual NRAA for 1987 was $5,294.00 and its approved NRAA was $4,913.00. The excess of actual NRAA over approved NRAA was 7.7%. The percentage of excess of actual GRAA and NRAA over budget is almost the same. Therefore, it is possible that whatever caused the Petitioner's excessive GRAA also caused its excessive NRAA.

    
    

32. GRAA is not affected by Medicare contractual adjustments. NRAA is affected by Medicare contractual adjustments. Therefore, since the Petitioner's percentage excess in GRAA (7.4%) and NRAA (7/7%) for 1987 was almost the same, it is questionable whether the Petitioner's Medicare contractual adjustments were the sole cause for the excess of the Petitioner's actual experience over its budget for 1987. It is more likely that the excessive GRAA and NRAA were caused by the same problem. The Petitioner, therefore, failed to prove that its discussions with the Respondent about the Medicare contractual adjustment would have helped the Petitioner avoid the penalty proposed in this proceeding.

    
    

33. The Petitioner filed its 1988 budget and the 1987 Interim Report with the Respondent on or about September 29, 1987. The 1987 Interim Report includes information concerning the Petitioner's actual experience for the first 7 months of 1987 and projections for the remaining 5 months of 1987. The 1987 Interim Report was submitted for informational purposes.

    
    

34. For the first 7 months of 1987 the Petitioner's actual gross revenue was $10,171,658.00. Gross revenue for the last 5 months of 1987 was projected at $7,265,470.00.

    
    

35. The Petitioner's estimated adjusted admissions for 1987 were 1,221 for the first 7 months and 873 for the last 5 months.

    
    

36. Gross revenue divided by adjusted admissions for 1987 yields GRAA of

    $8,337.00 for the first 7 months and projected GRAA of $8,322.00 for last 5 months. Based upon the information contained in the 1987 Interim Report, the Petitioner's GRAA for the entire 1987 fiscal year was projected to be $8,331.00. The Petitioner's approved GRAA, which was included in the 1987 Interim Report, was only $7,536.00. Therefore, the Petitioner should have been aware that it would very likely exceed its approved 1987 budgeted GRAA by approximately

    $795.00 (approximately 10.5%) in June of 1987. Accordingly, the Petitioner should have taken steps in September of 1987 to amend its budget or to modify its operations.

    
    

37. The Petitioner had sufficient information during 1987 (April, June and September, 1987) to warn it that its actual experience would exceed its approved budget. Although the Petitioner's comptroller did discuss what she believed to be the cause of the Petitioner's problem (the Medicare contractual adjustment) with the Respondent, the evidence failed to prove that it was reasonable for the Petitioner to wait for the Respondent to take some action while the Petitioner took no action on its own behalf to rectify the problem.

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

39. Section 395.5094, Florida Statutes (1987), provides, in pertinent part, the following:

    
    

    1. The board shall annually compare the audited actual experience of each hospital to the auditor actual experience of that hospital for the previous year. If the board determines that the audited actual experience of a hospital exceeded its previous year's audited actual experience by more than the maximum allowable rate of increase or exceeded the projected budget as approved by the board, whichever, is greater, the amount of such excess shall be determined by the board, and a penalty shall be levied against such hospital based thereon, as follows:

       (a) For the first occurrence within a

       5-year period, the board shall prospectively reduce the current budget of the hospital by the amount of the excess up to 5 percent; and, if such excess is greater than 5 percent over the maximum allowable rate of increase, any amount in excess of 5 percent shall be levied by the board as a fine against such hospital, to be deposited in the Public Medical Assistance Trust Fund, as created in s.

       409.2662.

       
       

40. The Petitioner has not disputed that the Respondent has properly determined the amount of the Main Penalty the Petitioner is subject to pursuant to Section 395.5094, Florida Statutes (1987). Instead, the Petitioner has argued that the Respondent is equitably estopped from imposing a Main Penalty on the Petitioner for 1987. In the alternative, the Petitioner has argued that, if a Main Penalty is imposed, the amount of the Main Penalty should be reduced by certain mitigating factors.

    
    

41. The doctrine of equitable estoppel will not normally be applied against the state. The doctrine will be applied only in rare instances and upon a showing of exceptional circumstances. See Department of Revenue v. Anderson,

    403 So. 2d 397 (Fla. 1981); Calusa Golf, Inc. v. Dade County, 426 So. 2d 1165 (Fla. 3d DCA 1983); and Department of Administration v. Flowers, 356 So. 2d 14 (Fla. 1st DCA 1978).

    
    

42. The elements which a party must prove in order for the doctrine of equitable estoppel to be applied are:

    
    

    1) a representation as to a material fact that is contrary to a later-asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party

    claiming estoppel, caused by the representation and reliance thereon.

    
    

    Department of Revenue v. Anderson, 403 So. 2d at 400. See also, Tri-State Systems, Inc. v. Department of Transportation, 500 So. 2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1041 (1987); Reedy Creek Improvement District v. State of Florida, Department of Environmental Regulation, 486 So. 2d 642 (Fla. 1st DCA 1986); Florida State University v. Brown, 436 So. 2d 287 (Fla. 1st DCA 1983); and Greenhut Construction Company v. Henry A. Knott, Inc., 247 So. 2d

    517 (Fla. 1st DCA 1971).

    
    

43. The Petitioner has argued that the representation by the Respondent which the Petitioner relied upon was a representation that "a budget amendment for FY 1987 was an inappropriate means to correct its contractual adjustment dilemma, and that the problem could be resolve by other means." See page 11 of the Petitioner's proposed recommended order. The Petitioner asserts that it relied upon this advice and did not file a budget amendment, which could have prevented the imposition of the Main Penalty at issue in this proceeding. According to the Petitioner, the Respondent then imposed the Main Penalty on the Petitioner upon the expiration of the deadline for filing budget amendments for 1987.

    
    

44. The weight of the evidence in this case failed to prove that the Respondent represented to the Petitioner that a budget amendment was an inappropriate means of dealing with the Petitioner's 1987 budget problems or that the Petitioner should not take any other steps to avoid exceeding its 1987 approved budget. At best the evidence proved that the Respondent attempted to assist the Petitioner to resolve a problem which the Petitioner did not even comprehend and did not adequately explain to the Respondent. The evidence failed to prove that the Respondent told the Petitioner not to file a budget amendment; the Respondent merely told the Petitioner that, based upon the Petitioner's lack of a clear explanation of the problem, the Respondent did not know what the Petitioner was proposing to amend. The evidence also failed to prove that the Respondent represented to the Petitioner that its efforts to assist the Petitioner would resolve the Petitioner from suffering any consequences of the Petitioner's actions, including imposition of a Main Penalty. See Florida State University v. Brown, supra. The weight of the evidence therefore failed to prove that the first element of estoppel is present in this case.

    
    

45. The Respondent's staff did fail to follow-up with the Petitioner after being provided information concerning the Medicare contractual adjustments. The Respondent's failure to follow-up, although inappropriate, did not excuse the Petitioner from taking some action to avoid the imposition of the Main Penalty. See Fraga v. Department of Health and Rehabilitative Services, 464 So. 2d 144 (Fla. 3d DCA 1985). The Respondent's offer to assist the Petitioner was not an offer to assume all responsibility for correcting the Petitioner's problem.

    That responsibility remained with the Petitioner. The Petitioner's comptroller had filed a budget amendment in 1986 and was, therefore, familiar with the process. The Petitioner's comptroller was also familiar with the Petitioner's responsibility to comply with its approved budget. Therefore, when the Respondent's staff did not follow-up on the Petitioner's inquiries, the Petitioner should have taken steps to resolve the problem it had created with its 1987 budget.

    
    

46. Based upon the foregoing, it is concluded that the Petitioner has failed to meet its burden to prove that all of the elements of equitable

    estoppel are present in this case. See Jarrad v. Associates Discount Corporation, 99 So. 2d 272 (Fla. 1957). The Petitioner has, therefore, failed to prove that the Respondent should be estopped from imposing a Main Penalty on the Petitioner for its 1987 fiscal year.

    
    

47. The Petitioner has also argued that, if it is subject to the Main Penalty, the amount of the penalty should be reduced because of mitigating circumstances which the Petitioner believes the Respondent is authorized to take into account in determining the amount of a Main Penalty. The mitigating factors the Petitioner suggests should be considered are not included in Section 395.5094, Florida Statutes (1987); they are included in Section 407.51(3), Florida Statutes (1989). Section 407.51, Florida Statutes (1989), is an amended and renumbered version of Section 395.5094, Florida Statutes (1987). Section 407.51, Florida Statutes (1989), was effective October 1, 1988.

    
    

48. Although recognizing that the events which gave rise to the imposition of the Main Penalty in this case took place before Section 395.5094, Florida Statutes (1987), was amended and renumbered as Section 407.51, Florida Statutes, the Petitioner has argued in its proposed recommended order that the mitigating factors of Section 407.51(3), Florida Statutes, "are certainly relevant to this dispute." The Respondent and Intervenor have argued that the Respondent is not authorized to take into account mitigating circumstances.

    
    

49. Generally, new or amended statutes are presumed to apply prospectively in the absence of a clear legislative expression to the contrary. See State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983); Dewberry v. Auto-Owners Insurance Company, 363 So. 2d 1077 (Fla. 1978); Klase v. Wendy's Old Fashion Hamburgers,

    466 So. 2d 441 (Fla. 1st DCA 1985); and Rothermel v. Florida Parole and Probation Commission, 441 So. 2d 663 (Fla. 1st DCA 1983). All of the operative facts in this case occurred prior to the effective date of the amendment of Section 395.5094, Florida Statutes (1987). The amendment to Section 395.5094, Florida Statutes (1987), does not expressly apply retroactively. Therefore, Section 395.5094, Florida Statutes (1987), governs the imposition of the Main Penalty in this case. Pursuant to Section 395.5094, Florida Statutes (1987), it would not be appropriate to take into account mitigating factors in determining the amount of the Main Penalty to be imposed upon the Petitioner.

    
    

50. Even if it were concluded that the mitigating factors of Section 407.51(3), Florida Statutes (1989), applied to this case, the evidence failed to prove that the amount of the Main Penalty should be mitigated in this case. Accordingly, the amount of the Main Penalty proposed by the Respondent for the Petitioner's 1987 fiscal year would not be reduced even if Section 407.51(3), Florida Statutes (1989), applied in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent issue a final order dismissing the

Petitioner's petition.

DONE and ENTERED this 23rd day of July, 1990, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1990.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 3.

1. 1 and hereby accepted.

2. hereby accepted.

3. 2 and hereby accepted.

5 4.

6 15.

7-8 16.

9 17.

10-11 Hereby accepted.

12-13 Not supported by the weight of the evidence.

14 7. NRAA was $4,913.00 and not

$4,938.00.

15 19.

16 33.

1. 31 and hereby accepted.

2. Not supported by the weight of the evidence.

19 22.

20 24.

1. Hereby accepted. The last sentence is not supported by the weight of the evidence.

2. Not supported by the weight of the evidence.

3. Not relevant.

4. Not supported by the weight of the evidence.

5. See 22 and 25. Several of the contacts with the Respondent took place after 1987 and are not relevant to this proceeding. The second sentence is hereby accepted. The last sentence is not supported by the weight of the evidence.

6. Not supported by the weight of the evidence.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 3.

2 4.

3 5-6.

4 8-9.

1. 10 and hereby accepted.

2. Hereby accepted.

7 11.

8 8 and 11.

9 13 and 20.

10 16.

1. See 21.

2. 18 and hereby accepted.

3. See 22.

4. See 25.

15 27.

16 Hereby accepted.

17-18 Although true, not relevant to this proceeding.

19-21 Hereby accepted.

22 21.

23 See 21.

24 19 and 33-36.

25 11.

1. Not relevant.

2. See 21.

3. Incorrect conclusion of law. Ms. Smith testified what she was told. Her testimony about what she heard is not hearsay.

29 14.

30-32 Hereby accepted.

33 33-34.

34 35 and hereby accepted.

35 36.

36 32

37 Cumulative.

38 12.

39 31-32.

The Intervenor's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 3.

2 4.

3 6.

4 5 and hereby accepted.

5 5-6.

6 hereby accepted.

7 7.

8 14.

9-10 15.

11 16.

12-13 17.

14 16.

15 18.

16 16.

1. Hereby accepted.

2. See 21.

3. Hereby accepted.

4. See 16.

21-22 Hereby accepted.

23-24 Not relevant.

25 Hereby accepted.

26 27.

27 21. First contact with the Respondent was in July, and not August.

28 19.

29 19-20.

30 Cumulative.

31 22.

32-33 24.

34-35 Hereby accepted.

36-37 25.

38 30.

39 Hereby accepted.

40 29.

1. Not relevant.

2. Hereby accepted.

43-44 Not relevant.

45 31-32.

46 33.

47-51 36.

52-54 19.

55-57 31.

58-59 32.

60 Not supported by the weight of the evidence.

61-62 Hereby accepted.

63 31-32.

64 Hereby accepted.

65 9.

66 10-11.

COPIES FURNISHED:

Julia P. Forrester Senior Attorney

Health Care Cost Containment Board Building L, Suite 101

325 John Knox Road Tallahassee, Florida 32303

David D. Eastman, Esquire Patrick J. Phelan, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302

Jack Shreve, Public Counsel

David R. Terry, Associate Public Counsel Peter Schwarz, Associate Public Counsel c/o The Florida Legislature

111 West Madison Street, Room 801 Tallahassee, Florida 32399-1400

Stephen Presnell, General Counsel Health Care Cost Containment Board Woodcrest Office Park

325 John Knox Road Building L, Suite 101

Tallahassee, Florida 32303

Docket for Case No: 88-002643

Orders for Case No: 88-002643