STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL MEMORIAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1839H

) HEALTH CARE COST CONTAINMENT ) BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to formal notice, a formal hearing was held before Hearing Officer Stephen F. Dean on July 6 and August 1, 1989, in Tallahassee, Florida.

APPEARANCES

The parties were represented as follows:

For Petitioner: James M. Barclay, Esquire

Cobb, Cole and Bell

Suite 500, 315 South Calhoun Street

Tallahassee, Florida 32301

For Respondent: David R. Terry, Esquire

Health Care Cost Containment Board

325 John Knox Road Building L. Suite 101 Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

1. Whether Petitioner is a hospital as defined in:

   
   

   1. Section 395.002(6), Florida Statutes.

   2. Section 395.002(8), Florida Statutes.

   3. Section 395.002(14), Florida Statutes.

   4. Section 407.002(13), Florida Statutes.

      
      

2. Whether Petitioner is subject to the Health Care Cost Containment Board (HCCCB) reporting and assessment requirements established in Chapter 407, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner requested a formal hearing to challenge the determination by the HCCCB that the Petitioner was a hospital subject to the Board's reporting and assessment requirements. At the hearing, Petitioner presented the testimony of Daniel Cook, Gene Nelson, and Philip Rond III. Petitioner's Exhibits one

through twelve were admitted into evidence. Respondent presented the testimony of Harry Smith, Jr., James Bracher, and Amy Jones. Respondent's Exhibits one through three and seven through eighteen were admitted into evidence. Both parties submitted proposed findings of fact which were read and considered.

Appendix A contains a detailed consideration of these findings.

FINDINGS OF FACT

1. Daniel Memorial Hospital (Daniel Memorial) is a 63 bed Intensive Residential Treatment Program (IRTP) for children and adolescents located at 3725 Belfort Road in Jacksonville, Florida. It is a not-for-profit organization deriving financial support from several community organization including the United Way, city of Jacksonville, and School Board of Duval County. (T- 23,25,28,33)

   
   

2. Prior to 1979, Daniel Memorial served adults and neglected children in a group care setting. The Department of Health and Rehabilitative Services (HRS) began to refer severely emotionally disturbed adolescent patients to Daniel Memorial. At that time, Daniel Memorial was an "open" facility lacking the facilities to confine patients to the facility. Because they could not be secured and they ran away, many children had to be referred to facilities in other parts of the state and out-of- state. (T-25,26,27)

   
   

3. In 1983, HRS and the Duval County School Board had increasing problems meeting the costs of providing these services and Daniel Memorial had increasingly difficulty sustaining its operation. As a result Daniel Memorial agreed to upgrade it facilities to provide 24 hour confinement of the patients and DHRS agreed to place patients in the facility. DHRS also encouraged Daniel Memorial to become eligible for third party insurance payments by being licensed as a hospital. (T-26,38)

   
   

4. By summer 1984, Daniel Memorial had renovated its facilities and had 45 beds in facilities which could be secured and the patients confined. Daniel Memorial was accredited by the Joint Commission on Accreditation of Hospitals (JCAH). Daniel Memorial meets all JCAH standards. By becoming accredited by JCAH, Daniel Memorial qualified for third party payment from insurance companies and health plans which broadened its financial support. It did this with DHRS encouragement and support. (T-219,220) About one-third of the patients are paid for by HRS, one-third by CHAMPUS (military insurance program), and one- third by private insurance. (T-53,54)

   
   

5. In October of 1984 it applied for a Certificate of Need (CON # 3524) as an intensive residential treatment facility for children and adolescents. CON # 3524 was for intensive residential treatment facility beds for which HRS did not have a bed need methodology. (T-39-41)

   
   

6. HRS did not count intensive residential treatment facility beds in the inventory of short or long term psychiatric or substance abuse beds. HRS had separate CON rules and licensing provisions for long-term, short-term, and substance abuse beds which are characterized as specialty beds by HRS under Section 395.002(14), Florida Statutes. Intensive residential treatment facility beds were not classified under this section. (T-148 ,149)

   
   

7. CON # 3524 was challenged but the case was settled. A Final Order adopted the settlement which licensed Daniel Memorial as an intensive residential treatment facility for children and adolescents pursuant to Section

   395.002(8), Florida Statutes and did not classify the beds as short-term, long- term, or substance abuse beds under 395.002(14) or (6), Florida Statutes. See DM's Exhibit 5.

   
   

8. Daniel Memorial is located on a pie-shaped wood tract of land with six individual residential cottages of between 1,800 and 6,000 square feet in size. Each cottage has from six to 13 beds. In addition to the residential cottages, there is a covered pavilion, swimming pool, small recreational field, eight school buildings, and an activities building on campus. (T- 29,30)

   
   

9. Each cottage houses a group between six and 13 residential patients, ages six to 17. Each cottage or unit has a unit manager and staff trained in managing and treating disturbed children. Each cottage has an interdisciplinary team (IDT) comprised of a physician, a psychiatrist, nurse, adjunctive therapist, teacher and the unit manager. The IDT reviews the background, psychiatric and psychological assessment, and social history of each student, and develops a treatment plan for that patient.

   
   

10. Intensive residential treatment programs provide a very special form of treatment to children who are essentially healthy but suffering from a psychiatric disorder. About 85% of the children treated at Daniel Memorial are referred from acute-care or crisis stabilization units. The multidiscipline staff provide care and nurturing in the group setting enhancing the child's experiences in those areas in which the child is not successful. The medical director and other psychiatrists work primarily with staff to plan for the individual child's needs. Treatment include, but is not limited to, counseling, psychotropic medicine, adjunctive therapy (music, painting, gardening, etc), and scholastic tutoring. The average stay at the facility is one year. The average stay at a psychiatric hospital is 30-60 days. (T-32, 64)

    
    

11. There are two nurses on duty from 7 p.m. until 11 a.m., and one nurse on duty from 11 a.m. until 7 p.m. There are ten special education certified teachers and five teaching aides. A pediatrician is regularly on duty Wednesday for admission physicals, and at other times upon request. There is a psychiatrist on call for dealing with psychiatric emergencies, but individual psychiatric treatment is not provided routinely to patients. Medical emergencies are referred to the parents or guardians. (T-33,34)

    
    

12. The small clinic is equipped to permit the nurses to treat colds and bruises, and to permit the pediatrician to conduct physicals. Urine and blood samples can be taken here, but analysis would be in off-site facilities. Daniel Memorial does not have regular clinical laboratory services. (T-65,66)

    
    

13. Emergency services and diagnostic X-ray services are provided off site at St. Luke's Hospital under agency agreements with St. Luke's which is located close by. Dental services are provided off site under contract with a local dentist. Pharmacy support is also provided under agreement with Eckerds. Specialized children's medical services are provided by Nemours Children's Clinic. (T-110-120)

    
    

14. Medications are not purchased by Daniel Memorial. Laboratory work is not paid for by Daniel Memorial. These items and services are provided by the parent or guardian. (T-110-120)

    
    

15. Daniel Memorial has been licensed under several different classifications over the years. The application form does not make provision

    for IRTP's. In its applications, Daniel Memorial consistently selected the choices which were felt most closely reflected what it does. (T-88-100)

    
    

16. Rates for services are developed at Daniel Memorial in conjunction with development of the facility's budget. Preferred provider rates for providing services to those who HRS places with Daniel Memorial are negotiated each year.

    
    

17. There are currently only four IRTP's in Florida.

    
    

18. Daniel Memorial Hospital is not a long-term or short-term psychiatric hospital or a substance abuse hospital. It is not a general hospital under Section 395.002(6), Florida Statutes or a specialty hospital under Section 395.002(14), Florida Statutes. Daniel Memorial Hospital is an intensive residential treatment facility for children and adolescents licensed under Section 395.002(8), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

    
    

20. The HCCCB asserts its authority to regulate Daniel Memorial because:

    
    

    1. It is licensed as a specialty hospital;

       
       

    2. A specialty hospital is any facility "which meets the provisions of Subsection (6), (of Section 395.002, Florida Statutes,)" pursuant to Subsection 395.002(14), supra; and

       
       

    3. The definition of hospital in Chapter 407, Florida Statutes, incorporates by reference the definition of "hospital" contained in Subsection 395.002(6), supra.

       
       

21. The HCCCB position assumes that all specialty hospitals are specialty hospitals under Subsection 395.002(14), supra. As stated above, Subsection 395.002(14), supra, provides that a specialty hospital first must meet the provisions of Subsection 395.002(6), supra.

    
    

22. Subsection 395.002(6), Florida Statutes, defines hospital as any establishment that:

    
    

    1. Offers services more intensive that those required for room, board, personal services, and general nursing care, and offers facilities and beds for use beyond 24 hours by individuals requiring diagnosis, treatment, or care for illness, injury, deformity, infirmity, abnormality, disease, or pregnancy; and

       
       

    2. Regularly makes available at least clinical laboratory services, diagnostic X-ray services, and treatment facilities for surgery or obstetrical care, or other definitive medical treatment of similar extent."

    
    

23. Daniel Memorial provides services within the scope of Subparagraph (a), above; however, it does not make clinical laboratory and diagnostic X-ray services regularly available, although it provides these services for its patients on an as needed basis off site by contractual agreements with a

    clinical laboratory and a hospital. These services are not needed or provided "regularly" as part of the treatment regimen of Daniel Memorial, and are contractually available primarily to meet specific licensing requirements.

    
    

24. To meet the provisions of Subsection 396.002(6), supra, Daniel Memorial would have to provide the services set forth in both Subparagraphs (a) and (b), above. Because Daniel Memorial does not regularly provide the services defined in Subparagraph (b), above, it is not a hospital with the scope of Subsection 396.002(6), supra. However, Subsection 395.002(8), supra, defines Intensive Residential Treatment Programs (IRTP's) as specialty hospitals without reference to the provisions of Subsection 395.002(6), supra. It is under Subsection 395.002(8), supra, that Daniel Memorial specifically is licensed.

    Its beds are excluded specifically from consideration under Subsections (6) and

    (14) of Section 395.002, supra. It is concluded that IRTP's are not specialty hospitals defined by Subsection 395.002(14), supra.

    
    

25. For an IRTP to be subject to general regulation by the HCCCB it must meet the definition of Subsection 407.002(13), 1988 Supplement to the Florida Statutes, which incorporates by reference the definition of "hospital" of Subsection 395.002(6), Florida Statutes. The authority of the HCCCB to require the submission of reports is limited to "hospitals" as defined by Subsection 407.002(13), 1988 Supplement to the Florida Statutes, except for the provisions of Subsection 407.13(3) and Subparagraph 407.07(1)(b), 1988 Supplement to the Florida Statutes.

    
    

26. Subsection 407.13(3), 1988 Supplement to the Florida Statutes, extends the reporting requirement to hospitals as defined by Subsection 395.002, Florida Statutes. This would include IRTP's as defined in Subsection (8) of Section 395.002, Florida Statutes. Further, Subparagraph 407.07(1)(b), 1988 Supplement to the Florida Statutes, provides that the board has authority to conduct analysis and research relating to the financial status of any hospital or hospitals subject to the provisions of this act. Because IRTP's are subject to the provisions of Subsection 407.13(3), 1988 Supplement to the Florida Statutes, they are also subject to the provisions of Subparagraph 407.07(1)(b), 1988 Supplement to the Florida Statutes.

    
    

27. Having found that Daniel Memorial is not a specialty hospital under Subsection 395.002(14), Florida Statutes, and that Daniel Memorial does not provide services as defined in Subsection 395.002(6), Florida Statutes, it is determined that Daniel Memorial does not come within the definition of "hospital" as defined generally by Subsection 407.002(13), 1988 Supplement to the Florida Statues, and not subject to general regulation by the HCCCB.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the HCCCB enter its final order restricting the reporting and other requirements of Chapter 407, 1988 Supplement to the Florida Statutes, by Daniel Memorial to those requirements of Section 407.13 and Subparagraph 407.07(1)(b) 1988 Supplement to the Florida Statutes, which are applicable to any hospital defined by Section 395.002, Florida Statutes.

DONE and ORDERED this 26th day of October, 1989, in Tallahassee, Florida.

STEPHEN F. DEAN

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 26th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1839H

Consideration of Proposed Findings

The following determinations were made with regard to the findings presented by the HCCCB:

Paragraphs 1 to 6 Adopted

Paragraph 7 Irrelevant

Paragraphs 8 to 13 Adopted

Paragraph 14, sentence 1 Rejected as distorting the facts

which are set out in the remainder of Paragraph 14 and adopted.

Paragraph 14 See above

Paragraph 15 True, but is a statement of the position of HRS and rejected as argument

Paragraph 16 True, but there was no application form for IRTP's and IRTP's are specialty hospitals but not pursuant to Subsections 395.002(6) or (14) , F.S.

Paragraphs 17 to 19 Irrelevant

Paragraphs 20 to 27 See comments to Para 16, above Paragraph 29 Adopted

Paragraph 30 Irrelevant because HRS does not have a IRTP license

Paragraph 31 Adopted

Paragraph 32 Irrelevant

Paragraph 33 See Comments to Paragraphs 16 & 30

Paragraph 34 Adopted

Paragraph 35 Adopted in part, remainder rejected as irrelevant

Paragraphs 36 to 38 Adopted

Paragraphs 39,40,44,47,48 Irrelevant

Paragraphs 41,51,57,59-63 Adopted

Paragraphs 42,43,45,46,49,50 Rejected as distorting the

relevant facts

Paragraphs 52-56,58,64-66 Irrelevant and distorts facts Paragraphs 67-71 Rejected as argument

Paragraph 72 Irrelevant

Paragraph 73, sentence 1 Adopted

Paragraph 73 Contrary to more believable evidence

Paragraph 74 Adopted

Paragraphs 75-78 Rejected as argument/irrelevant

The following determinations were made with regard to the findings presented by Daniel Memorial:

Paragraphs 1 to 4 Adopted

Paragraph 5 Irrelevant

Paragraphs 6-7 Adopted

Paragraph 8 Irrelevant

Paragraphs 9-20 Adopted

Paragraphs 21-30 While true, these facts are repetitious and not necessary

to determine the issues presented

Paragraphs 31 to 33 Adopted

Paragraph 34 Irrelevant

Paragraphs 35 to 41 Adopted

Paragraph 42 Irrelevant

Paragraphs 43 to 46 Adopted

Paragraphs 47 to 65 Rejected as argument and conclusions of law

COPIES FURNISHED:

James M. Barclay, Esquire Cobb, Cole and Bell

Suite 500, 315 South Calhoun Street

Tallahassee, Florida 32301

David R. Terry, Esquire

Health Care Cost Containment Board

325 John Knox Road Building L, Suite 101 Tallahassee, Florida 32303

Stephen Presnell, General Counsel Woodcrest Office Plaza

Building L, Suite 101

325 John Knox Road Tallahassee, Florida 32303

Gary Walker, Director Woodcrest Office Plaza Building L, Suite 101

325 John Knox Road Tallahassee, Florida 32303

Docket for Case No: 89-001839

Orders for Case No: 89-001839