STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPRINGTREE WALK ASSOCIATES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0022

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on April 24 and 25, 1990, in Tallahassee, Florida.

APPEARANCES

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

Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

For Respondent: Richard A Patterson, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 2727 Mahan Drive - Suite 103 Fort Knox Executive Center Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

At issue in this proceeding is whether the application of Springtree Walk Associates (Springtree) for a certificate of need to add 35 community nursing home beds to its existing 85-bed facility in Broward County, Florida, should be approved.

PRELIMINARY STATEMENT

Although conceding that there is no need under the Department of Health and Rehabilitative Service's (Department's) numeric need methodology for community nursing home beds in District X (Broward County) at the January 1992 planning horizon, Springtree has requested a certificate of need to add 35 beds to its previously approved certificate of need (CON). That CON authorized the construction of an 85-bed nursing home in Broward County, and that nursing home was, following the submittal of the subject application, duly constructed and licensed by the Department.

Springtree's existing facility has been, at its election, designed to cater to the needs of the elderly Jewish community in Broward County, and it has constructed such facility so that its food services will conform with the dietary and food preparation laws for keeping kosher. Here, Springtree contends that elderly Jews who keep kosher are an identifiable ethnic minority in Broward County, and that such Jews will be effectively denied access to long-term care unless its application to add 35 beds to its existing facility is granted.

The Department denied Springtree's application, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. The basis for the Department's denial was its conclusion that Springtree had failed to adequately quantify any need for kosher beds that may exist in Broward County, and therefore its claim of special circumstances was ill founded. 1/

At hearing, Springtree called as witnesses: Ira Sheskin, accepted as an expert demographer and geographer; Rabbi Morton Malavski; Rabbi Albert B. Schwartz; Phillip C. Rond, accepted as an expert in health care planning; Andrew Weisman, accepted as an expert in nursing home administration; Stephen Cimerberg, accepted as an expert osteopathic physician in the State of Florida; Barton D. Weisman; Lewis S. Albert, certified public accountant, accepted as an expert in health care auditing; Rabbi Avrom Dazin; and Ella Louise Apsley.

Springtree's exhibits 1-19 were received into evidence. The Department called Elizabeth Dudex, accepted as an expert in health planning, and its exhibits 1-4 were received into evidence.

The transcript of hearing was filed May 10, 1990, and the parties were granted leave, at their request, until June 22, 1990, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. On April 14, 1989, the Department of Health and Rehabilitative Services (Department) published notice of the nursing home fixed need pool for the January 1992 planning horizon in the Florida Administrative Weekly. Pertinent to this case, such notice established a projected net bed need of zero (0) for community nursing homes in District X (Broward County).

   
   

2. Notwithstanding a lack of numeric need under the Department's established nursing home bed need methodology, Springtree Walk Associates (Springtree) filed a timely application for a certificate of need (CON) to add

   35 community nursing home beds to an 85-bed nursing home, then under construction. The premise for Springtree's application was a claim of special circumstances, which claim was based on Springtree's contention that elderly Jews who keep kosher are an identifiable ethnic minority in Broward County that will be effectively denied access to long-term care unless Springtree's application is approved. The Department denied Springtree's application, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   The Springtree facility

   
   

3. During the pendency of the subject application, Springtree completed the construction of its 85-bed nursing home, and on February 20, 1990, admitted its first patient.

   
   

4. The existing facility consists of approximately 39,250 square feet, and was designed to accommodate 120 beds, although Springtree only held a CON for 85 beds. As constructed, the facility has 56 rooms that meet Department standards for semi-private rooms as well as 8 private rooms. Of the 56 "semi- private rooms," 35 are currently dedicated as private rooms, but could be easily converted to semi-private through the expenditure of not more than $100,000 for necessary furnishings. If converted, existing common spaces and ancillary spaces have the capacity to accommodate the programs and services for the additional 35 residents, and the modification and occupancy of the 35 rooms as semi-private would not violate any Department design or life safety fire code standards.

   
   

5. From its inception, Springtree has been a uniquely Jewish nursing home, dedicated to serve the needs of the elderly Jewish community of Broward County. 2/ Springtree's unique character as a Jewish nursing home arises from a number of factors, the first of which is its commitment to keeping kosher. The keeping of kosher is an ancient aspect of Judaism founded on a deeply religious base. Many Jews have kept kosher all of their lives and, in their elderly years, the ability to maintain a kosher lifestyle is essential to their emotional and physical well being. The Code of Jewish Law specifies strict dietary and food preparation laws for keeping kosher. Such laws deal not only with what foods may be eaten, but also with the manner in which animals are slaughtered, the manner in which food is prepared, when food may be prepared, and what foods may be eaten together.

   
   

6. Because meat and dairy products can never be mixed, a kosher kitchen requires substantially more space and equipment than would normally be allocated in a nursing home. In this case, Springtree has constructed and equipped two separate kitchens, and trained its staff in Jewish laws relating to food separation, to assure compliance with kosher dietary laws. As a consequence, the Broward County Rabbinical Supervisory Association has certified, and Broward County has licensed, Springtree as a kosher facility. 3/

   
   

7. Springtree's unique character also arises from its focus on the special religious needs of its Jewish residents. As of the date of hearing, no nursing home in Broward County included a synagogue within its facility but, rather, relied on the Jewish Federation of Fort Lauderdale, through its chaplaincy program, to provide regular visits to the nursing home by Yiddish speaking volunteers or a patient's own Rabbi to address the communal and religious needs of the residents. Springtree will, however, soon have a permanent synagogue within its facility, as well as a full time chaplain, to address the specific religious and cultural needs of its Jewish residents.

   
   

   Springtree's commitment to the Provision of health care services to Medicaid patients and the medically indigent

   
   

8. Springtree is currently committed to provide a minimum of 40 percent of its total annual patient days to Medicaid patients, and has agreed to a like commitment on the proposed 35 beds. Such commitment is proximate to the prevailing Medicaid utilization rate in Broward County, which for the year

   preceding the subject application was 41.98 percent. Springtree has not, however, proposed any mechanism or commitment to facilitate the care of the medically indigent not covered by Medicaid.

   
   

   Quality of care

   
   

9. Since its inception, Springtree has been managed by HBA Corporation (HBA), a demonstrated provider of quality care. HBA was formed in 1974, and has been actively engaged in the management of 14 facilities, six of which are located in Florida. All Florida facilities managed by HBA have achieved superior ratings from the Department. Under the circumstances, Springtree has demonstrated its commitment to, and its ability to provide, quality care.

   
   

   The immediate and long-term financial feasibility of the proposal

   
   

10. Springtree's pro forma assumptions for payor mix, fill rate, cost, and revenue projections are reasonable, and demonstrate the immediate and long-term financial feasibility of the project. 4/

    
    

11. With regard to Springtree's financial feasibility it is worthy of note that, while Springtree does not propose to exclude non-Jews from its facility, it does propose to target and cater to the elderly Jewish population of Broward County by operating what is, essentially, a Jewish nursing home. Considering the number of elderly Jews in Broward County, the length of their residency in Broward County, the extent of their participation in religious events, and their close linguistic and cultural ties, it is reasonable to conclude that Springtree will be successful in its endeavor. Such financial success does not, however, demonstrate a need for the additional beds or the existence of special circumstances justifying their approval, as discussed infra. Rather, it demonstrates that the elderly Jewish population of Broward County would prefer a secular nursing home, with its uniquely Jewish ambiance, and that Springtree will likely divert elderly Jews to its facility that otherwise could have been adequately served by existing non-sectarian beds in Broward County.

    
    

    The need for the proposed facility in relation to the district plan and the state health plan

    
    

12. Applicable to this case is the 1985-87 state health plan, which establishes certain goals and objectives for the development and utilization of long term care services in Florida. Although none of the objectives of the plan can be addressed by the applicant because they are mandates to the Department, the following goals of the plan are pertinent to an evaluation of Springtree's application:

    
    

    GOAL 1: TO DEVELOP AN ADEQUATE SUPPLY OF LONG TERM CARE SERVICES THROUGHOUT FLORIDA.

    * * *

    GOAL 2: TO ENSURE THAT APPROPRIATE LONG TERM CARE SERVICES ARE ACCESSIBLE TO ALL RESIDENTS OF FLORIDA.

    * * *

    GOAL 3: TO ENSURE THAT LONG TERM CARE SERVICES ARE APPROPRIATELY UTILIZED THROUGHOUT FLORIDA.

    Here, since there was no need demonstrated for the additional beds sought by Springtree, the goals of the state health plan are not advanced by the subject application.

    
    

13. Also applicable to this case is the District X local health plan which contains the following pertinent review criteria:

    
    

    1. Priority will be given to those applications for certificate of need that request approval for expansion of existing facilities reflecting an average annual occupancy rate which meets or exceeds 90%.

    2. Priority will be given to those applicants for certificate of need which propose to meet community need by co-locating nursing home facilities with or adjacent to other existing health care facilities.

    3. Priority will be given those certificate of need applications who propose to meet community need through the construction of

       new freestanding facilities that are a minimum of 120 beds in size.

       1. Priority will be given to those certificate of need applications that are accompanied with a commitment to serve a proportionate number of Medicaid patients as is represented in the Medicaid to total population ration.

       2. Priority will be given to those certificate of need applicants that propose a mechanism to facilitate the care of the medically indigent not covered by Medicaid.

       3. For those certificate of need applicants proposing to serve the medicaid patient; propriety will be given those applicants who can document superior ratings by Florida's Department of HRS in the provision of Nursing Home Services.

       4. Priority will be given those applicants who can demonstrate a concern for patient

          care through presentation of an approved bill of rights in accordance with F.S. 400.

       5. Priority will be given those applicants that document formalized patient transfer mechanisms with proper informational flow (e.g., uniform patient records) between related levels of care consistent with the State.

       6. Priority will be given those applicants that can document a history of the applicant meeting nationally accepted standards developed by recognized professional organizations and accrediting agencies.

14. Here, the proof demonstrates that Springtree's application is not consistent with local health plan review criteria c, g, h, and l, because Springtree's annual occupancy rate has not yet met or exceeded 90 percent, 5/ Springtree has not committed to serve a proportionate number of Medicaid patients as is represented in the Medicaid to total population ratio, Springtree has not proposed any mechanism to facilitate the care of the medically indigent not covered by Medicaid, and Springtree has not proposed to meet nationally accepted accrediting standards. The Springtree application is, however, consistent with the remaining review criteria since the nursing home is co- located with an adult congregate living facility, Springtree will achieve a minimum of 120 beds in its facility if the subject application is approved, Springtree's management company has achieved superior ratings from the Department in the provision of nursing home services, Springtree has presented an approved bill of rights, and Springtree has reasonably addressed the need for patient transfer agreements between different related levels of care.

    
    

    The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the service district

    
    

15. As a touchstone for assessing need within a service district, the Department has established a community nursing home bed need methodology that must normally be satisfied before an application will be approved. That methodology, codified in Rule 10-5.011(1) (k)2a-i, Florida Administrative Code, calculates a surplus of beds in Broward County at the January 1992 planing horizon and, therefore, a projected net need of zero.

    
    

16. At the time of the Department's review of Springtree's application, there were 3,401 licensed nursing home beds in Broward County, and an additional

    520 approved beds. For the six-month period preceding January 1, 1989, there were approximately 400 utilized beds on an average daily basis within the nursing homes then licensed by the Department in Broward County.

    
    

17. While acknowledging a lack of need under the Department's numeric need methodology, Springtree contends that the special needs of the elderly Jew who keeps kosher warrant the approval of its application to add 35 beds to its existing facility. Springtree's assertion, and the proof offered to support it, are not persuasive.

    
    

18. Here, the proof demonstrates that elderly Jews, age 65 and over, who have kept kosher are an ethnic minority that would be denied appropriate access to long term care if they could not, when needed, access a kosher nursing home. In this regard, the proof is persuasive that such persons require a facility dedicated to the dietary and social laws of Judaism, and that absent accessibility to such a facility their health care needs will not be adequately met. The proof fails, however, to quantify any such need, and therefore fails to demonstrate the reasonableness of Springtree's request to add 35 beds to its existing facility. 6/

    
    

19. In its effort to quantify need, Springtree offered the testimony of Dr. Ira Sheskin, an expert demographer and geographer, who offered certain data and opinions concerning a number of surveys he had undertaken of the Jewish population of Broward County. By a survey in 1988, Dr. Sheskin established the Jewish population of Broward County at, 249,524 (78,096 in South Broward and 124,762 in North Broward). Reasonably updated, such survey demonstrated a 1992 Jewish population of 288,572 (86,664 in South Broward and 201,908 in North

    Broward). By a survey of January and February 1989, undertaken on behalf of the Jewish Federation of South Broward, Dr. Sheskin developed the following data on Jews living south of State Road 84 in Broward County:

    
    

    1. Age distribution -- 44.3 percent of the Jewish population of South Broward is age 65 or older. More particularly, 22.2 percent are age 65-74, 18.1 percent are age 75-84, and 4.0 percent are age 85 and over.

       
       

    2. Keeping kosher -- of the elderly Jew, age 65 and over, 8.0 percent keep kosher inside and outside their home, 14.7 percent keep kosher only in their home, and 77.3 percent do not keep kosher at all.

    
    

20. In Dr. Sheskin's opinion, which is credited, the age distribution, as well as the percentage distribution of Jewish elderly keeping kosher, in north Broward County is reasonably similar to the data developed for those residing in south Broward County.

    
    

21. Based on the results of Dr. Sheskin's surveys, Philip Rond, an expert health planner, applied the Department's numeric need methodology to the "Kosher Jewish" population of Broward County, which he considered as being those Jews who keep kosher inside and outside their homes and those Jews who keep kosher only in their homes (a total of approximately 23% of the elderly Jewish population), and calculated a gross need for 400 kosher beds for the 1992 planning horizon. Reducing that number by the existing 205 beds that are dedicated as kosher, Mr. Rond calculated a net need for an additional 195 kosher beds in 1992.

    
    

22. Mr. Rond's conclusion that a need exists for 195 kosher beds is not, however, credible since his analysis did not persuasively address the needs of the elderly Jew who has kept kosher, which is the discrete ethnic minority for whom additional beds are ostensibly sought in this proceeding. Rather, Mr. Rond's analysis addressed the more global needs or desires of Jews who have expressed a preference for kosher food, but all of whom have not necessarily expressed through their lifestyle that they require a kosher facility. As such, Mr. Rond's conclusion may be of value in assessing potential demand, and therefore the financial feasibility of a kosher facility, but it is of no persuasive value in assessing or attempting to calculate the number of elderly Jews who, because of their strict adherence to Jewish dietary laws, require a kosher facility if they are to be accorded appropriate long term care. 7/

    
    

23. Here, Springtree has premised its request for beds on a claim of special circumstances. These circumstances, it suggests, exist in Broward County because of the number of elderly Jews who have kept kosher and who, because of that commitment, would not be appropriately served in any facility but a kosher facility. The only qualitative proof offered to identify this ethnic minority was Dr. Sheskin's survey which demonstrated that 77.3 percent of elderly Jews do not keep kosher, that 14.7 percent only keep kosher inside their home, and that 8 percent keep kosher inside and outside their home.

    
    

24. While it may be reasonable to conclude that the 8 percent who keep kosher inside and outside their home are so committed that they require a kosher facility, it is not reasonable to conclude, absence more compelling proof that was introduced in this case, that the 14.7 percent who only keep kosher in their home are likewise so committed as to require a kosher facility. Accordingly, Mr. Rond's election to identify the ethnic minority in this case by using a factor of 23 percent of the elderly Jewish population was not reasonable. If at all, a factor of 8 percent would have been reasonable based on the proof in this

    case and if that factor were applied it would have demonstrated a current surplus of kosher beds in Broward County, and a net need of zero at the planning horizon.

    
    

25. It is further worthy of note in assessing the proof offered on behalf of Springtree to demonstrate special circumstances, that Springtree failed to demonstrate that any elderly Jew who kept kosher had been denied access to existent beds at the kosher facilities. Here, Aviva Manor was not shown to have a waiting list, and Springtree's existing beds are not yet fully occupied. 8/

    
    

    The criteria on balance

    
    

26. In evaluating the application at issue in this proceeding, none of the criteria established by Section 381.705, Florida Statutes, or Rule 10-5.011, Florida Administrative Code, has been overlooked. Springtree's failure to demonstrate need, as well as its failure to conform to- the district and state health plans, is, however, dispositive of its application, and such failure is not outweighed by any other, or combination of any other, criteria.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 381.709(5), Florida Statutes.

    
    

28. At issue in this proceeding is whether the application of Springtree to add 35 community nursing home beds to its existing facility should be approved. As the applicant, Springtree has the burden of demonstrating its entitlement to the subject certificate of need. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985), and Florida Department of Transportation v. J.W.C. Co., 396 So.2d 788 (Fla. 1st DCA 1981).

    
    

29. Pertinent to an evaluation of Springtree's application, Section 381.705, Florida Statutes, and Rule 10- 5.011, Florida Administrative Code, establish the criteria which must be considered in evaluating an application for a certificate of need. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986), and Department of Health and Rehabilitative Services v. Johnson and Johnson Home Health Care, Inc., 447 So.2d

    361 (Fla. 1st DCA 1984). The weight to be accorded each criterion and the consequent balancing of the criteria will vary, however, depending on the facts and circumstances of each case. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985). See also: Graham v. Estuary Properties, Ins., 399 So.2d 1374 (Fla. 1981).

    
    

30. Under the facts and circumstances of this case, as heretofore found, Springtree has failed to demonstrate its entitlement to a certificate of need since it has failed to demonstrate any need for additional community nursing home beds in District X, and has failed to demonstrate that its proposal is consistent with the district and state health plans.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Springtree's application

for a certificate of need.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July 1990.

WILLIAM J. KENDRICK

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 23 day of July 1990.

ENDNOTES

1/ Health Quest Management Corporation VII (Health Quest) was an intervenor in these proceeding, and aligned with the Department in opposition to the subject application. At the

commencement of hearing, Springtree stipulated with Health Quest, as consideration for its withdrawal of its petition to intervene, that Springtree would accept a condition on the certificate of need that it would "keep kosher," and that the entire facility (120 beds), should the certificate of need be approved, would be operated as a kosher facility. The parties further agreed that such stipulation was an agreement which was, should the Department elect not to place such a condition on the certificate of need, enforceable between the parties. Upon such agreement, Health-Quest withdrew it petition to intervene.

2/ While Springtree is a strictly kosher facility which caters to the needs of the elderly Jewish population, non-Jews are eligible for admission. Such applicants will, however, be fully acquainted with the facilities' orientation prior to admission, as well as its commitment to keeping kosher.

3/ The Broward County Rabbinical Supervisory Association currently supervises food preparation in 40 facilities in Broward County, including two nursing homes: Aviva Manor and Springtree. Supervised facilities must apply for and pass an examination and remain under continual supervision. Such supervision is attained through unannounced visits by a Mashgiach who is licensed as a supervisor by the Rabbinical Association, and occurs from two to four times a week. Broward County licenses kosher establishments under its Consumer Protection Ordinance. That licensure program

is supervised by an ordained Rabbi, and currently includes 57 licensed establishments, including Aviva Manor and Springtree, with six applications pending.

4/ The pro formas in Springtree's application were

inadvertently based on a Medicaid payor mix of 47 percent instead of 40 percent. However, since the projected charge rate for Medicaid patients, at $82.00 a day, is less than the private pay rates, this merely means that the pro formas, based on 47 percent Medicaid instead of 40 percent Medicaid, are conservative, and do not reflect adversely on the feasibility of the project.

Notably, the financial feasibility of the project would not be adversely affected even if Springtree were required to meet the prevailing Medicaid occupancy rate for similar beds in Broward County.

5/ Springtree admitted its first patient on February 20, 1990, and had admitted 24 residents as of the date of hearing.

6/ The elderly Jew who keeps kosher is a minority of the Jewish population, and has been recognized by the Department as an ethnic minority. The testimony of the Rabbis in this case, as well as the testimony of Dr. Stephen Crimerberg, establish that the needs of the elderly Jew who has kept kosher are significantly different from the needs of the population as a whole, and more particularly, the Jewish population as a whole, when addressing the need for long-term nursing home care. In this regard, non-kosher homes can not, or have chosen not to, address the peculiar physiological, mental and spiritual needs of these patients, which require a facility committed to the dietary and social laws of Judaism. The testimony of the Rabbis and Dr. Crimerberg was, however, quite unpersuasive in quantifying the extent of any such need.

7/ In addition to Mr. Rond's failure to use persuasive data to drive the Department's numeric need methodology, there is another flaw in his analysis. That flaw was his use of the Department's methodology, which addresses the needs of the general population, to derive a need for a discrete segment of the population without any demonstration that, so applied, a meaningful result will be attained. As importantly, while Mr. Rond purports to identify a need for beds on behalf of elderly Jews who keep kosher, Springtree does not propose to limit its admissions to that ethnic minority but will admit the general population as well.

Under such circumstances, assuming a need were quantified, an award of beds to Springtree would address that need, if at all, only by chance.

8/ Springtree offered proof that its administrator had inquired of Aviva Manor whether it had a waiting list and, if so, information on those applicants. Aviva Manor apparently declined to voluntarily respond to Springtree's request. There is, however, no proof that Springtree ever sought to subpoena such information from Aviva Manor during the course of this proceeding.

As to Springtree's existing beds, the proof demonstrated that 24 of its 85 beds were filled in its first two months of

operation. This, Springtree suggests, is evidence of the need for additional kosher beds in Broward County. While Springtree's fill rate may evidence demand for kosher beds, it does not support its claim of special circumstance. Here, Springtree was unable to identify whether any of its existing residents had kept kosher prior to admission to its facility, and in fact four of its residents are not Jewish. Rather than demonstrating the need for kosher beds based on special circumstance, Springtree's, as well as Aviva Manor's, occupancy is more likely a result of the preference the Jewish population has expressed for a Jewish facility (approximately 76% of the elderly Jewish population expressed such preference) than it is a reflection of the need of only the elderly Jew who has kept kosher.

APPENDIX

Springtree's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

2. Addressed in paragraph 3. 3-6. Addressed in paragraph 4.

7-8. Addressed in paragraph 3 and footnote 5.

9-17. Addressed in paragraph 9, or subordinate thereto.

18. Addressed in paragraph 8.

19-23. Addressed in paragraphs 10 and 11, or subordinate thereto.

24-27. Addressed in paragraphs 9 and 14.

28-56. Addressed in paragraphs 5-7 and footnote 6, or subordinate thereto.

57-66. Addressed in paragraphs 5-7 and footnote 6, or subordinate thereto. Regarding Dr. Crimerberg's "random" selection of patient charts, it is not a reliable indicator of need because it was not shown to be statistically valid.

Further, no competent proof was officed to demonstrate that the patients' choice of nursing homes was essentially compelled because of an absence of kosher facilities, rather than a preferential choice based on other factors.

1. Not supported by the proof.

2. Factually accurate but not necessary to the result

   reached. 19.

   
   

3. Addressed in footnote 8.

4. Rejected as contrary to the proof. See paragraph

71-73. Addressed in paragraphs 11 and 19.

74. Rejected as contrary to the proof.

75-78. Addressed in paragraphs 19 and 20.

79-87. Addressed in paragraphs 21-25, and footnote 7.

88-90. Addressed in paragraphs 12-14.

The Department's proposed findings are addressed as follows: 1-2. Addressed in paragraph 2.

3. Addressed in paragraph 15.

4-5. Addressed in paragraph 1.

6-9. Addressed in paragraphs 15-25.

1. Addressed in footnote 8.

2. Addressed in paragraph 16.

3. Addressed in paragraphs 12-14.

4. Addressed in paragraphs 15-25.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

Richard A Patterson, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 2727 Mahan Drive - Suite 103 Fort Knox Executive Center Tallahassee, Florida 32308

Sam Power, Clerk 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

Docket for Case No: 90-000022

Orders for Case No: 90-000022