STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI HEART INSTITUTE, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-2760
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case at Tallahassee, Florida, on October 1, 2, 3 and 4, 1990, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.
Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Kenneth G. Ortel, Esquire
W. David Watkins, Esquire ORTEL, HOFFMAN, FERNANDEZ
& COLE, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
For Respondent: Lesley Mendelson, Esquire
Department of Health and Rehabilitative Services
2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
STATEMENT OF THE ISSUES
The issue in this case is whether the Petitioner's application for a certificate of need to establish a 20-bed skilled nursing home facility by conversion of 20 acute care hospital beds should be granted or denied.
PRELIMINARY STATEMENT
On or about November 22, 1989, Miami Heart Institute, Inc., submitted an application for a certificate of need (CON 6119) to establish a 20-bed skilled nursing unit through the conversion of a like number of existing licensed acute care beds at Miami Heart Institute, Inc., in Dade County, Florida. On March 9, 1990, the Department of Health and Rehabilitative Services issued a proposed denial of the application. Notice was published in the Florida Administrative Weekly, Vol. 16, No. 12, March 23, 1990. Miami Heart Institute, Inc., timely challenged the proposed denial of its application.
At the formal hearing on October 1-4, 1990, Miami Heart Institute, Inc., presented the testimony of Herbert Edward Straughn, Lori Boldt Grau, Charlene Joy Alt Welker, Mary Beth Regan, Catherine Kmetz Shelby, Burton Levin, M.D., Karin Christina Williamson, Dana R. Hanson, Parry B. Larsen, and Michael Douglas Jernigan. Petitioners exhibits 1-3, 5-18 and 20 were received in evidence. The Department of Health and Rehabilitative Services presented the testimony of Elizabeth Dudek. Department of Health and Rehabilitative Services Exhibits 1-4 were received in evidence.
At the conclusion of the hearing a transcript was ordered, which was filed with the Hearing Officer on October 29, 1990. Thereafter, both parties filed post-hearing submissions containing proposed findings of fact and conclusions of law. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
Miami Heart Institute, Inc. (Miami Heart), is a licensed 258-bed acute care hospital located in Miami Beach, Dade County, Florida, specializing in the treatment of cardiovascular disease. Miami Heart has operated since 1944. It is a tertiary care hospital that provides extremely advanced care and treatment. As a tertiary care hospital, it frequently receives very high risk patients from the community and from other hospitals that do not feel capable of handling severe conditions. Most of its patient population consists of the affluent elderly. Compared to other hospitals in its community and statewide, Miami Heart's patient age is exceptionally high. Miami Heart is JCAHO hospital accredited.
Miami Heart's application in this case proposes a 20-bed hospital based skilled nursing facility unit to be created by conversion of 20 existing acute care beds. The space allocated for the unit is currently unoccupied, except for overflow during the winter season. The rooms are all private rooms. The application does not define a particular patient class to be served in the proposed unit. The patients who would be served are the same patients now being served, primarily the affluent elderly, including the old elderly.
There is no numeric need pursuant to the community nursing home rule for Miami Heart's proposal. Instead, the application is filed under the "not normal" or "special circumstances" provisions of the applicable rules. On the application form the Petitioner indicated that it sought to qualify under Rule 10-5.011(1)(b)1-4, Florida Administrative Code, and not under Rule 10- 5.011(1)(k)2.k., Florida Administrative Code.
Miami Heart already has, in its physical plant, the beds these patients would occupy and the nursing station that would operate the proposed unit. The wing already exists in the hospital. The rooms are fully equipped. The nursing station only needs minor modifications to begin operation. Very little in the way of new capital expenditures need be made for this proposed unit to begin operation.
In 1988 or 1989, Miami Heart had a tremendously high rate of decubitus ulceration among its patients; 25 percent of all patients in the hospital. Miami Heart has placed special emphasis on developing a team consisting of physicians and nurses to concentrate on preventing and curing decubitus ulcers (skin pressure sores) which are common in elderly patients who are relatively inactive or confined to hospital or nursing home beds. With the wound care
program initiated by Nurse Beth Regan and Dr. Parry Larson that rate has been brought down to one percent, while the national average for hospitals is still 5 to 6 percent. Miami Heart staff is bringing its wound care knowledge and is providing decubitus care training to the staff of area nursing homes in an attempt to bring those dramatic improvements to those facilities.
At the present time Miami Heart conducts extensive research into many areas of patient care and general medicine. These research projects include the treatment and prevention of pressure sores for which Miami Heart has pioneered much research into appropriate treatment methodologies. The research that is underway by the hospital at this time would work very well with the proposed unit should this certificate of need be issued.
According to research performed by Mr. Jernigan, the average patient age in Florida hospitals over the age of 75 is approximately 22 percent. At Miami Heart, that same age category consists of fifty percent of the patients. Further, 68 percent of Miami Heart's patient days are for patients who are over the age of 75.
Despite the advanced age of its patients, Miami Heart's mortality rate is particularly low. That attests to a very high standard of care provided at the hospital. All things considered, with regard to quality of care, Miami Heart is one of the finest hospitals in the state.
At Miami Heart, the average length of stay of patients up to age 60 is eight or nine days. The average length of stay of its patients over age 70 is fourteen or fifteen days.
It is routine for patients at Miami Heart to be treated by a team of different specialists because of the nature of complicating conditions that afflict them. Multi-system disease is the rule among patients at Miami Heart.
If Miami Heart were given approval to begin operation of its proposed skilled nursing unit, it could continue to provide coordinated treatment and continue its team approach for the patients who would be good candidates for admission to this unit. These patients are, for the most part, suffering from a multiplicity of illnesses that require a team of specialists for complete treatment. Further, as opposed to transferring such patients to a nursing facility, there are many benefits to having a skilled nursing facility within a hospital itself. The physicians who tend to the patients will remain present for the continuity of care. A medical emergency can be handled in a very expeditious manner. Further, all lab work can be done on premises and the patient does not suffer through the difficulties associated with any transfer.
Miami Heart also experiences a busy season during the winter months where seasonal residents greatly increase the local population. It is also more difficult to transfer patients to nursing homes during this winter season because nursing home occupancy is up significantly during those periods also.
Miami Heart does not anticipate that its average occupancy rate of approximately 51 percent will increase if the proposed unit is approved. The acute census will probably decrease and the skilled unit census will probably increase commensurate with the decrease in the acute beds.
In the proposed facility, Miami Heart intends to serve primarily patients from its own hospital. It proposes no Medicaid and very little indigent care. For that reason, the proposed service will not be accessible to all residents of the service district.
At Miami Heart there are often times when there are patients in acute- care beds that do not need to be in such beds. A number of factors contribute to this. One factor is the expectation of care of the patient, the patient's family, and the treating physician. Because they know what to expect at Miami Heart, and because they know how to get there, patients and their families are often reluctant to have a patient moved to a nursing home. Patients at Miami Heart also often want private rooms, which are sometimes in short supply in area nursing homes. For a variety of other reasons, patients at Miami Heart often want to stay there and their treating physicians often want to keep them there, even though the patients do not need to be in acute-care beds.
There are a variety of patients normally at Miami Heart who could, at any given time, be candidates for admission into the proposed skilled nursing facility. In a general sense all such patients would fall into a categorical description of not sick enough to require an acute care hospital bed.
Among this type of patient are found several particular types. They include patients needing mechanical ventilation or chronic respirator patients. Another category of hospital patients who would be good candidates for the proposed unit would be patients receiving anti-coagulant medication through intravenous administration.
Additional types of patients eligible for the proposed unit are those receiving I.V. therapy after having suffered congenital heart failure, cancer patients receiving intravenous chemotherapy, and certain patients suffering from diabetes. Diabetes is a common condition for elderly patients. The incidence of diabetes among Miami Heart Institute's patient population runs about 25-30 percent of all patients. An additional type of eligible patient is one who has received an implantable cardioverter defibrillator (ICD). At any given time there are also a number of wound patients at Miami Heart who would be good candidates for the proposed unit.
Miami Heart has a high case mix index, which is an index of the severity of the illnesses treated at the hospital. The high case mix index is due in large part to the age of the patients and to the multiplicity of disease presented by the patients. Miami Heart's DRG-based reimbursement is adjusted to take into consideration this high case mix index. In other words, Miami Heart's reimbursement for a particular DRG category is higher than that of a hospital with a lower case mix index for the very same DRG category.
There are approximately 7700 licensed nursing home beds in Dade County, which have an overall average occupancy rate of slightly more than 90 percent. Doctors Hospital has a 30 bed skilled nursing unit which is operating at approximately 61 percent occupancy.
There are facilities in Dade County which provide ventilator services, IV therapy, decubitus care, hyperalimentation, and skilled rehabilitation.
At Miami Heart discharge planning begins on admission, with a focus on "high risk" patients. Advance planning is undertaken to assure such things as home arrangements, meals-on-wheels, walkers, wheelchairs, and nursing home placements.
Miami Heart routinely discharges patients to nursing homes in the area. The types of patients who have been successfully transferred to nursing homes or other less intensive care facilities include those who have had strokes and fractures, those requiring wound care treatment, and those requiring I.V. therapy, ventilator therapy, and physical therapy. Miami Heart's discharge planner has not been successful in transferring cancer patients receiving I.V. chemotherapy to area nursing homes and sometimes patients receiving I.V. Heparin drips have not been accepted by area nursing homes. Similarly, Miami Heart has not been able to place patients who receive I.V. Dopamine in any of the area nursing homes. Placement of patients in area nursing homes is generally more difficult during the winter season. Miami Heart has transferred several of its ventilator therapy patients to Vencor Hospital, which is a respiratory facility in Broward County. 1/
A current goal of the Office of Licensure and Certification is the promotion of restorative care in nursing homes and the training of nursing home staff in that area. Additional staff has been added in each of the HRS districts to promote restorative care within the long-term care system.
Miami Heart could save on staffing costs by transferring patients to the skilled nursing facility, should it be approved. That is because the staffing requirements for acute care beds are greater than those for the skilled nursing facility.
Miami Heart will not have to recruit a specialized nursing staff to run the proposed unit. Adequate skilled staff is already on hand at Miami Heart that now performs all the functions, in an acute care setting, that would need to be performed for the services proposed in the skilled nursing facility, at a less intensive level of care.
Costs for hospital based skilled nursing units are generally higher than costs of community based skilled nursing units.
The actual cost of the space being converted to provide the proposed service at Miami Heart is three and one-half times higher than other skilled nursing facility development within the state of Florida, and two and one-half times greater than normal hospital costs. However, this is to a large extent an artificial number because most of the cost for the space has already been spent. Very little "new" money will be necessary to implement this project.
One of the primary benefits of the proposed unit to Miami Heart would be to reduce the length of stay in the acute setting. This would be cost effective for the hospital.
For its acute patients, Miami Heart Institute, Inc., is reimbursed by Medicare based upon a prospective payment system. This system provides for a flat sum payment for a category of diagnosis. The amount of reimbursement is the same whether the patient stays one day or 100 days, unless the stay becomes an outlier, in which case the hospital receives additional reimbursement. Sometimes the hospital has a windfall, in that the patient goes home earlier than average, and sometimes the patient stays longer than average. The reimbursement system neither requires nor permits the hospital to discharge a patient simply because its "DRG" has run out. In the proposed unit, Miami Heart would receive the DRG for the acute portion of the stay, plus a cost based per diem reimbursement for the skilled nursing portion of the stay.
Financial feasibility can consist of several things. The project can make a profit, it can generate goodwill, or it can result in the hospital losing less money than without the project.
If this project is implemented it will have an overall positive financial effect on Miami Heart. The project will assist Miami Heart in generating revenue and it will reduce the costs that it experiences for some of its patients that have extended lengths of stay. That would be a positive financial benefit to the hospital and would render the project financially feasible.
Miami Heart has sufficient resources for project accomplishment.
Miami Heart's architectural plans are satisfactory with the exception of a few details which can be corrected.
The 1989 State Health Plan contains twelve application preferences. As noted more specifically in the paragraphs which follow, Miami Heart's application is consistent with the letter of most of the preferences in the State Health Plan and appears to be consistent with the spirit of most of the rest.
The first preference reads "Preference shall be given to applicants proposing to locate nursing homes in areas with sub-districts with occupancy rates exceeding 90 percent." The occupancy of existing nursing homes in Dade County is slightly more than 90 percent. Thus, Miami Heart's application would meet this preference.
The second preference reads, "Preference shall be given to applicants who propose to serve Medicaid residents in proportion to the average subdistrict-wide percentage of the nursing homes in the same subdistrict. Exceptions shall be considered for applicants who propose to exclusively serve persons with similar ethnic and cultural backgrounds or propose the development of multi-level care systems." Miami Heart does not propose to serve any Medicaid patients nor does it propose to serve persons with similar ethnic or cultural backgrounds. However, the proposed unit would constitute the development of multi-level care systems. Accordingly, it would be consistent with this preference.
The third preference reads, "Preference shall be given to applicants proposing to provide specialized services to special care residents, including AIDS residents, Alzheimer's residents, and the mentally-ill." Although the application does not propose to provide specialized services to any of the listed special care groups, it does propose to offer specialized services to a group of the very old; specifically, the very old patients who are treated at Miami Heart. Therefore, the proposal is consistent with the third preference.
The fourth preference provides that, "Preference shall be given to applicants proposing to provide a continuum of services to community residents, including, but not limited to, respite care and adult day care." Miami Heart is not proposing to provide either respite care or adult day care. The proposed project would, however, provide a continuum of services to the patients at Miami Heart. Accordingly, it appears to be consistent with this preference.
The fifth preference provides that, "Preference shall be given to applicants proposing to construct facilities which provide maximum resident comfort and quality of care. These special features may include, but are not limited to, larger rooms, individual room temperature controls, visitors' rooms, recreation rooms, outside landscaped recreation areas, physical therapy rooms and equipment, and staff lounges." The application forwards this preference in several ways. First, the patient rooms would be large, well-equipped, and well placed. Second, and most importantly, the proposed unit would advance quality of care by allowing patients who no longer require acute care to remain at Miami Heart where they can receive quality of care that is among the very best in the State of Florida.
The sixth preference reads: "Preference shall be given to applicants proposing to provide innovative therapeutic programs which have been proven effective in enhancing the residents' physical and mental functional level and which emphasize restorative care." The wound care program presently offered at Miami Heart meets this description.
The seventh preference provides: "Preference shall be given to applicants proposing charges which do not exceed the highest Medicaid per diem rate in the subdistrict. Exceptions shall be considered for facilities proposing to serve upper income residents." Although Miami Heart does not expect to serve any significant number of Medicaid patients, the proposal meets the exception stated in the preference because most of the patients at Miami Heart Institute are upper income patients.
The eighth preference reads: "Preference shall be given to applicants with a history of providing superior resident care programs in existing facilities in Florida or other states. HRS' evaluation of existing facilities shall consider, but not be limited to, current ratings of licensure facilities located in Florida." Miami Heart does not have an existing nursing care program and has no licensure rating for such a program. Nevertheless, it is reasonable to assume from Miami Heart Institute's commitment to high quality of care in its hospital operation that it will adhere to those same high quality standards in the proposed project. Thus it meets the spirit, if not the letter, of this preference.
The ninth preference reads: "Preference shall be given to applicants proposing staffing levels which exceed the minimum staffing standards contained in licensure administrative rules. Applicants proposing higher ratios of RNs and LPNs to residents than other applicants shall be given preference." Miami Heart's application forwards this preference.
The tenth preference reads: "Preference shall be given to applicants who will use professionals from a variety of disciplines to meet the residents' needs for social services, specialized therapies, nutrition, recreation activities, and spiritual guidance. These professionals shall include physical therapists, mental health nurses, and social workers." Miami Heart Institute's long history as a provider of the highest quality of care is indicative of the likelihood that the proposed project would forward this preference.
The eleventh preference reads: "Preference shall be given to applicants who document how they will ensure resident's rights of privacy, if they use resident councils, and if they plan to implement a well-designed quality-assurance and discharge-planning program." Miami Heart has documented its existing programs regarding resident's rights, quality-assurance, and
discharge-planning, and it is reasonable to assume that the same or substantially similar programs would be implemented in the proposed project. Such implementation would forward this preference.
The final preference in the State Health Plan provides that "Preference shall be given to applicants proposing lower administrative costs and higher resident care costs compared to the average nursing home in the district." The applicant did not provide information upon which this preference could be assessed.
The 1989 District XI Health Plan contains CON allocation factors for nursing home services. The allocation factors include 16 paragraphs of "Recommendations," some of which are absolute requirements and some of which are preferences.
The first and second paragraphs of the recommendations have to do with programs which can serve the mentally ill and mentally retarded. The preferences expressed in these two paragraphs are not advanced by the subject proposal.
The third paragraph provides that, "all else being equal, preference should be given to applicants who propose to fill a demonstrated unmet need in the community by offering a special service, e.g., for ventilator patients, AIDS patients, young disabled patients." Miami Heart does propose to offer ventilator services. However, there is no quantified demonstrated need for that service. Because the record in this case does not establish a demonstrated unmet need, this preference is not advanced by the proposal.
The preference in the fourth paragraph relates to nursing home projects in geographic areas of greatest need based on population age 75+ and on the occupancy rate in the proposed service area. This preference is furthered by the subject proposal.
The preference in the fifth and sixth paragraphs (both of which are identical) are for applicants proposing to provide care to patients not covered by Medicare who are medically indigent. These preferences are not advanced by the subject proposal.
The preference in the ninth paragraph is for facilities proposing to offer a comprehensive scope of services. This preference is advanced by the subject proposal.
The tenth paragraph of the Recommendations addresses compliance with all federal safety requirements and all state nursing home regulations. The subject proposal is in compliance with this requirement.
The preference in the eleventh paragraph is for applicants "which have superior ratings according to Florida's Department of HRS." Miami Heart has such a rating. Accordingly, the subject proposal advances this preference.
Paragraph twelve of the recommendations requires an approved patient bill of rights. The subject proposal is in compliance with this requirement.
The fourteenth paragraph expresses a preference for applicants providing adequate visitor parking and outside recreational opportunities for patients. Although there is not much evidence bearing directly on this matter, in light of the high quality of every other aspect of the Miami Heart facility, it is more likely than not that the subject proposal is consistent with this preference.
The fifteenth paragraph expresses a preference for applicants that document plans for formalized patient transfer mechanisms. This preference is advanced by the subject proposal.
The preferences identified in paragraphs 7, 8, 13, 16, 17, and 18 of the recommendations portion of the local plan are not applicable to the subject proposal. In sum: of the twelve paragraphs of preferences and requirements that are applicable to the subject proposal, seven are satisfied or forwarded by the proposal and five are not.
Appendix 1 (1B2) of the Petitioner's application alludes to "internal studies" of "Difficult to Place" patients from January through October 1989. Table 3 shows that there were 57 such patients, which is annualized to 68 such patients. There is no information in the application or in the record of this case regarding how the internal studies were conducted or what criteria were used to classify some of the patients as "difficult to place." Of the 57 patients listed as "difficult to place," 5 are categorized as "nursing home declined to accept" and 13 are categorized as "no nursing home beds available." Neither the application nor the evidence offered at hearing includes documentation of patients' need for nursing home care in the form of the attending physicians' plans of care or orders. Neither the application nor the evidence offered at hearing includes any assessments performed by staff of the Department of Health and Rehabilitative Services indicating need for nursing home care. Neither the application nor the evidence offered at hearing includes any equivalent assessments performed by attending physicians indicating need for nursing home care.
For a six-month period during 1989, Miami Heart compiled statistics on the number of patients at Miami Heart who could be appropriately transferred to a skilled nursing facility and who met Medicare eligibility criteria for transfer to a skilled nursing facility. The statistics show that there are an average of 5.6 new patients each week of the type described above. A conservative estimate of their average length of stay would be 17 days. Based on those patient numbers and length of stay, it is reasonably anticipated that the proposed facility could achieve an average daily census of 13.5 within three or four weeks of operation and could continue to maintain such a census level indefinitely. An average daily census of 13.5 would be an occupancy rate of
67.8 percent. 2/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Sections 120.57(1) and 381.709(5), Fla. Stat.
In a case of this nature, the applicant bears the ultimate burden of persuasion that it is entitled to a certificate of need. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985). In determining whether a certificate should be granted, a balanced consideration of all statutory and rule criteria must be undertaken. Department of Health and Rehabilitative Services v. Johnson &
Johnson, 447 So.2d 361 (Fla. 1st DCA 1984); Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). The outcome of the need algorithm contained in the rule does not control the decision whether to grant a certificate of need. All criteria under the statute and rules must be examined. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341, 1349 (Fla. 1st DCA 1986).
As a general proposition, the proposal in this case measures up well when considered in light of the statutory criteria at Section 381.705(1)(a) through (n), Florida Statutes, with the exception of the criteria that specifically relate to a demonstrated need for the proposed services. The proposed unit would offer very high quality care and would make use of existing building space that is presently largely unused. The proposed unit would enhance some of Miami Heart's research programs.
The evidence establishes that Miami Heart could be expected to operate the proposed facility at an occupancy rate approaching 70 percent, relying solely on transfers of its own patients. And even though the financial details are not very well established in the record, operation of the proposed facility at the likely occupancy rate would increase Miami Heart's revenue, and at the same time reduce some of its operating costs, both of which would be beneficial to Miami Heart's financial situation.
With regard to the statutory criteria set forth at Section 381.705(2)(a)-(e), Florida Statutes, the proposed facility appears to be generally consistent with the interests advanced by paragraphs (c) and (e), but generally is at odds with the interests advanced by paragraphs (a), (b), and (d), due to the lack of a demonstrated need for the proposed facility.
The record in this case fails to demonstrate a need for the facility, because the evidence fails to show that the existing facilities are unavailable or inaccessible or that the quality of care is suffering from over utilization. See Humana v. Dept. of Health and Rehabilitative Services, 492 So.2d 388, 392 (Fla. 4th DCA 1986). As argued by the Department in its proposed conclusions of law: "The necessary link between patients, patient services proposed, and inability to access, was never made. Miami Heart may be able to fill its proposed beds, their physicians may prefer to keep their patients at Miami Heart, and the patients may prefer to remain there, but the award of a CON for the proposed service will be at the expense of the health care delivery system. 3/
In addition to the statutory criteria, Rule 5.011(1)(b)1-4, Florida Administrative Code, contains the following criteria against which all applications must be considered:
(b)1. The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all residents of the
district, and in particular low income persons, racial and ethnic minorities, women, handi- capped persons, other undeserved groups and
the elderly, are likely to have access to those services.
The extent to which that need will be met adequately under a proposed reduction, elimi- nation or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care.
The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particu-
larly those needs identified in the applicable local health plan and State health plan as deserving of priority.
In determining the extent to which a proposed service will be accessible, the fol- lowing will be considered:
The extent to which medically underserved individuals currently use the applicant's services, as a proportion of the medically underserved population in the applicant's proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved;
The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community service, or access by minorities and handicapped persons
to programs receiving Federal financial assis- tance, including the existence of any civil rights access complaints against the applicant;
The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and
The extent to which the applicant offers a range of means by which a person will have access to its services.
The proposed facility does not measure up favorably against the criteria in Rule 5.011(1)(b)1-4, Florida Administrative Code. Although the proposed facility would serve the elderly, and the elderly are among the patient groups of concern in the subject rule provisions, the proposed facility would, for the most part, serve only a small sub-set of the elderly; i.e., elderly patients of Miami Heart. The proposal also fails to forward the concerns of Rule 5.011(1)(b)1-4 because there is no quantification of the extent, if any, to which the proposed services are presently inaccessible at existing facilities. The last two paragraphs of the subject rule are not favorably addressed by the instant proposal, because Miami Heart has historically served very few Medicaid or indigent patients and proposes a limited range of means for access to the proposed services.
In its application the Petitioner indicated that it sought to qualify under the "special circumstances" category of Rule 10-5.011(1)(b)1-4, Florida Administrative Code, and not under the "special circumstances" category of Rule 10-5.011(1)(k)2.k., Florida Administrative Code. It appears from HRS Form "1455A, Oct 88" that the Department views the two rule provisions cited immediately above as alternative routes for applicants to seek approval for nursing home beds when the published fixed need pool is zero. Careful review of the cited rule provisions indicates that they are to be applied otherwise. The language immediately preceding Rule 10-5.011(1)(b)1-4, reads as follows: "(1) In addition to criteria set forth in Section 381.705, Florida Statutes, the following criteria are used in the review of an application." Therefore, it appears that the criteria contained in Rule 10-5.011(1)(b)1-4 are criteria which must be considered in the evaluation of all CON applications, whether for nursing home beds or otherwise, and whether the application seeks to fill an existing fixed pool need or seeks approval on a "not normal" or "special circumstances basis." This interpretation of Rule 10-5.011(1)(b)1-4 is reinforced by the language of Rule 10-5.011(1)(b)5, which states:
5. In any case where it is determined that an approved project does not satisfy the criteria specified in Sub-paragraphs (b)1. through 4., the Department may, if it approves the appli- cation, impose the condition that the applicant
must take affirmative steps to meet those criteria.
Where, as here, the application is for nursing home beds, the application must also be reviewed under the criteria of Rule 10-5.011(1)(k), Florida Administrative Code. And where, as here, an application for nursing home beds seeks approval based on "not normal" or "special circumstances," the application must comply with the requirements of Rule 10-5.011(1)(k)2.k. In other words, when the net bed allocation is zero, an applicant must comply with the requirements of Rule 10-5.011(1)(k)2.k.; compliance with the requirements of Rule 10-5.011(1)(b)1-4, is not an alternative to compliance with Rule 10- 5.011(1)(k)2.k.
Attention is now directed to Rule 10-5.011(1)(k)2.k., Florida Administrative Code, which reads as follows:
k. In the event that the net bed allocation is zero, the applicant may demonstrate that circumstances exist to justify the approval of additional beds under the other relevant criteria specifically contained in Section 10-5.011. Specifically, the applicant may show that persons using existing and like
services are in need of nursing home care but will be unable to access nursing home services currently licensed or approved within the subdistrict. Under this provision, the applicant must demonstrate that those persons with a documented need for nursing home services have been denied access to currently licensed but unoccupied beds or that the number of persons with a documented need exceeds the number of licensed unoccupied and
currently approved nursing home beds. Existing and like services shall include the following
as defined in statute or rule, adult congregate living facilities, adult foster homes, homes for special services, home health services, adult day health care, adult day care, community care for the elderly, and home care for the elderly. Patients' need for nursing home care must be documented by the attending
physicians' plans of care or orders, assessments performed by staff of the Department of Health and Rehabilitative Services, or equivalent assessments performed by attending physicians indicating need for nursing home care.
(Emphasis added)
The effect of the last sentence of the above-quoted rule language is described as follows in the dissenting opinion in Health Care and Retirement Corporation of America v. Dept. of Health and Rehabilitative Services, 516 So.2d 292 (Fla. 1st DCA 1987), at pages 297-298:
The rule recognizes, as the recommended order finds, that there are three ways under the special exception to the rule for an applicant seeking a CON for community nursing home beds to demonstrate need, even though the rule formula reflects a zero-bed need: (1) docu- mentation by the attending physicians' plans or care or orders, (2) assessments performed by staff of HRS, or (3) equivalent assessments performed by attending physicians indicating need for nursing home care. It is obvious that only the last method is applicable to
the facts at bar.
* * *
Regardless of whatever statistical relevancy the survey may have had to a demonstration of need, it simply was not relevant to the crucial issue of whether the survey could be considered an equivalent assessment to that
conducted by the staff of HRS. The recommended order correctly states that the equivalent assessments method contemplates "some sort of survey equivalent to the types done by HRS." The hearing officer then leaps to the con- clusion, without any evidence in the record, that the survey or assessment conducted by
Dr. Loeser was the equivalent of assessments conducted by HRS. That conclusion was belied, however, by the absence of any proof reflecting the types of surveys commonly conducted by
HRS for the purpose of establishing need for nursing home care.
Here, as in the Health Care and Retirement case, supra, there is no proof reflecting the types of surveys commonly conducted by the Department for the purpose of establishing need for nursing home care. Thus, there is no record basis upon which to determine whether the Petitioner's need assessment methodology is "equivalent," as required by the Rule. It is well-settled law
that exceptions and provisos in statutes and rules are to be narrowly construed. It is also well-settled by amendments to Section 120.68, Florida Statutes, that agencies are no longer free to deviate from their rules, even if the deviation is explained. Such being the case, the failure of the Petitioner to prove need in the manner specifically provided in the last sentence of Rule 10- 5.011(1)(k)2.k., Florida Administrative Code precludes issuance of the subject certificate of need. See Lynn v. DHRS, 10 FALR 1019 (Final Order, February 10, 1988), in which the Department held that an applicant for nursing home beds based on special circumstances must comply with Rule 10-5.011(1)(k)2.k., Florida Administrative Code. See also, HCA West Florida Regional Medical Center v.
DHRS, 11 FALR 3143 (Final Order, May 23, 1989), in which the Department concluded that an applicant seeking to add beds to an existing hospital based skilled nursing facility based on special circumstances must comply with Rule 10-5.011(1)(k)2.k.
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. Miami Heart's failure to demonstrate need, and its failure to conform to the requirements of Rule 10- 5.011(1)(k)2.k., Florida Administrative Code, are, however, dispositive of its application, and such failures are not outweighed by any other, or combination of any other, criteria.
Based on all of the foregoing, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order in this case denying the Petitioner's Application for a 20-bed skilled nursing unit.
RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991.
MICHAEL M. PARRISH
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 18th day of March 1991.
ENDNOTES
1/ There was also some testimony regarding Miami Heart patients who received poor care in some area nursing homes. I have not made any findings in that regard because the testimony was too general in nature to be of value in this case. The testimony on this subject also tended to be anecdotal and unquantified.
2/ The relevant mathematical computations are as follows: 5.6 new patients per week x 52 weeks in one year = 291.2 new patients per year. 291.2 new patients per year x 17 days average length of stay = 4,950.4 patient days per year.
4950.4 patient days per year divided by 365 days = 13.563 average daily census.
13.563 beds divided by 20 proposed beds = 67.8 percent occupancy rate.
3/ Miami Heart did include in its application and in its evidence at hearing some information of difficulties in accessing existing nursing home services and quality of care problems in existing nursing homes. That information was not, however, sufficient to quantify a need for any specific number of new nursing home beds. Further, that information was not of the type required by Rule 10- 5.011(1)(k)2.k., Florida Administrative Code.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2760
The following are the specific rulings on all proposed findings of fact submitted by all parties.
Findings proposed by Petitioner: Paragraphs 1 through 5: Accepted in substance.
Paragraph 6: Rejected as an overstatement of what the evidence shows.
Paragraph 7: Rejected as subordinate and unnecessary details. Paragraph 8: Rejected as unnecessary vague generalities.
Paragraphs 9, 10, 11, and 12: Accepted in substance
Paragraph 13: Accepted that Miami Heart transfers patients to area nursing homes. The remainder is rejected as contrary to the greater weight of the evidence, or as generalizations inappropriately drawn from a few episodes. Paragraph 14: Accepted in substance.
Paragraph 15: First sentence accepted. Second sentence rejected as inaccurate description.
Paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31:
Accepted in substance, with the exception of the specific numbers of patients who would be candidates for the proposed unit. The figures projected by Ms. Williamson are more persuasive.
Paragraph 32: Accepted in substance with exception of last 12 words of first sentence. Those words are contrary to the evidence.
Paragraphs 33, 34, and 35: Accepted in substance.
Paragraph 36: Rejected as not fully supported by persuasive competent substantial evidence. Miami Heart had difficulty placing some patients in nursing homes but the evidence is insufficient for any meaningful quantification of the problem.
Paragraph 37: First two sentences accepted. Last sentence rejected as not supported by persuasive evidence.
Paragraph 38: Rejected as not fully supported by persuasive competent evidence and as to some extent contrary to the greater weight of the evidence.
Paragraph 39: Rejected as speculative, as argument, and as not supported by persuasive competent substantial evidence.
Paragraphs 40 and 41: Accepted.
Paragraphs 42 and 43: Rejected as repetitious and unnecessary details. Paragraphs 44, 45, 46 and 47: Accepted in substance.
Paragraph 48: Rejected as repetitious and unnecessary details. Paragraphs 49, 50, and 51: Accepted.
Paragraph 52: Accepted, with exception of the last 10 words. The last 10 words are not supported by competent substantial evidence.
Paragraph 53: Rejected as primarily consisting of legal argument rather than proposed findings of fact.
Paragraphs 54 and 55: Accepted in substance.
Paragraph 56: Rejected as constituting conclusions of law or legal argument rather than proposed findings of fact.
Paragraph 57: Accepted in substance.
Paragraph 58: Rejected as subordinate and unnecessary details. Paragraph 59: Rejected as too vague a statement to be of any value.
Paragraph 60: Rejected as contrary to the greater weight of the evidence. Paragraph 61: Rejected as subordinate and unnecessary details.
Paragraphs 62, 63, 64, 65, 66, 67, 68, 69, 70, and 71: Rejected as subordinate and unnecessary details and as constituting primarily a summary of testimony rather than proposed findings of fact.
Paragraph 72: Accepted in substance.
Paragraphs 73, 74, 75, 76, and 77: Rejected as subordinate and unnecessary details.
Findings proposed by Respondent:
Paragraph 1: Covered in Preliminary Statement.
Paragraphs 2, 3, and 4: Accepted in substance with some unnecessary details omitted.
Paragraph 5: First sentence accepted. The remainder is rejected as constituting statement of position, rather than proposed finding of fact. Paragraph 6: Rejected as constituting subordinate and unnecessary historical details.
Paragraph 7: Accepted in substance.
Paragraph 8: Rejected as subordinate and unnecessary details. Paragraph 9: Accepted in substance.
Paragraphs 10, 11, 12, 13, and 14: Rejected as constituting argument or conclusions of law, rather than proposed findings of fact. (This rejection does not address the merits of these arguments and conclusions; only the fact that they do not belong in the findings of fact.)
Paragraph 15: Rejected as subordinate and unnecessary comments about the quality of the testimony.
Paragraphs 16, 17, 18, 19, and 20: Accepted in substance.
Paragraphs 21 and 22: Rejected as subordinate and unnecessary details. Paragraph 23: Accepted in substance.
Paragraph 24: First two sentences accepted. Last sentence rejected as irrelevant.
Paragraph 25: Accepted in substance with exception of last clause. Last clause rejected as contrary to the greater weight of the evidence.
Paragraph 26: Accepted in substance with additional findings for clarity. Paragraph 27: First two sentences accepted. Third sentence rejected as irrelevant. Fourth sentence rejected as constituting argument and as contrary to the greater weight of the evidence.
Paragraphs 28 and 29: Accepted in substance.
Paragraph 30: First two sentences accepted. Last sentence rejected as overlooking other relevant facts.
Paragraph 31: First two sentences accepted, with additional findings for clarity. Last sentence rejected as an erroneous conclusion.
Paragraph 32: Accepted.
Paragraph 33: First two sentences accepted, with additional findings for clarity. Last sentence rejected as contrary to the greater weight of the evidence.
Paragraphs 34 and 35: Accepted in substance.
Paragraph 36: First sentence accepted. Second sentence rejected as contrary to the greater weight of the evidence.
Paragraphs 37 and 38: Accepted in substance.
Paragraph 39: Rejected as contrary to the greater weight of the evidence. Paragraphs 40 and 41: Rejected as constituting an erroneous conclusion.
Paragraph 42: Accepted in substance.
Paragraphs 43, 44, 45, 46, 47, 48, 49, 50, and 51: Accepted in substance. Paragraph 52: Rejected as subordinate and unnecessary details.
Paragraphs 53 and 54: Accepted in substance.
Paragraph 55: Rejected as subordinate and unnecessary details.
Paragraphs 56, 57, 58, and 59: Rejected as constituting primarily argument rather than proposed findings of fact.
Paragraph 60: Accepted in substance.
Paragraph 61: First sentence is accepted in substance. The remainder is rejected as consisting primarily of argument and of being an over-simplification that misses the point.
Paragraph 62: Rejected as subordinate and unnecessary and as not fully supported by the evidence.
Paragraph 63: Accepted in substance.
Paragraph 64: Rejected as speculative and, therefore, irrelevant.
Paragraph 65: First sentence rejected as contrary to the greater weight of the evidence. The remainder is accepted in substance.
Paragraphs 66 and 67: Rejected as subordinate and unnecessary details. Paragraphs 68 and 69: Accepted in substance.
Paragraph 70: Rejected as subordinate and unnecessary details. Paragraph 71: Accepted.
Paragraph 72: Rejected as constituting argument rather than proposed finding of fact.
Paragraph 73: Rejected as contrary to the greater weight of the evidence. Paragraph 74 and 75: Accepted.
Paragraph 76: Rejected as contrary to the greater weight of the evidence. Paragraphs 77, 78, and 79: Rejected as subordinate and unnecessary details and as in part contrary to the greater weight of the evidence.
Paragraphs 80 and 81: Rejected as repetitious. Paragraph 82: Accepted in substance.
Paragraph 83: Accepted in substance, but with additional clarifying facts. Paragraph 84: First two sentences accepted. The remainder is rejected as based on an erroneous premise.
Paragraph 85: Rejected as subordinate and unnecessary details and as argument. Paragraph 86: Rejected as constituting argument.
Paragraph 87: Rejected as repetitious and as argument. Paragraph 88: Accepted.
Paragraph 88: (Second paragraph with this number): Rejected as repetitious. Paragraphs 89 and 90: Rejected as repetitious and as constituting argument.
COPIES FURNISHED:
Kenneth G. Ortel, Esquire
W. David Watkins, Esquire
ORTEL, HOFFMAN, FERNANDEZ & COLE, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
Lesley Mendelson, Esquire Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Linda K. Harris, Esquire Acting General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
8-2381
Tallahassee, Florida 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Mar. 18, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 30, 1991 | Agency Final Order | |
| Mar. 18, 1991 | Recommended Order | Certificate Of Need applicant for nursing home beds relying on Rule 10-5.011(k) must prove need in the manner set forth in last sentence of rule. |
