STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NME HOSPITALS, INC. d/b/a ) WEST BOCA MEDICAL CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7037
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
) NME HOSPITALS, INC. d/b/a ) WEST BOCA MEDICAL CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 91-1533
) ST. MARY'S HOSPITAL and ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondents. )
)
RECOMMENDED ORDER
These consolidated cases were heard by Eleanor M. Hunter, the Hearing Officer designated by the Division of Administrative Hearings, on September 3, 1991, at the Marriott Town Centre, in Boca Raton, Florida, and on September 4, 5, 25 and 26, 1991, at the DeSoto Building, 1230 Apalachee Parkway, in Tallahassee, Florida.
APPEARANCES
For Petitioner NME C. Gary Williams, Esquire Hospitals, Inc. d/b/a Ausley, McMullen, McGehee, West Boca Medical Center: Carothers and Proctor
Post Office Box 391
227 South Calhoun Street Tallahassee, Florida 32302
For Respondent State Edward G. Labrador, Esquire of Florida, Department Assistant General Counsel of Health and Department of Health and Rehabilitative Services: Rehabilitative Services
2727 Mahan Drive, Suite 103
Tallahassee, Florida 32308
STATEMENT OF THE ISSUES
Whether the Department of Health and Rehabilitative Services timely published a zero numeric need projection for Level III neonatal intensive care unit services in District IX, applicable to the September, 1990, batching cycle and, if so, properly calculated numeric need pursuant to Rule 10-5.042, Florida Administrative Code.
Whether NME Hospitals, Inc., d/b/a West Boca Medical Center meets the applicable statutory and rule criteria to be granted a certificate of need for five Level III neonatal intensive care unit beds.
PRELIMINARY STATEMENT
On November 3, 1989, the Department of Health and Rehabilitative Services ("HRS") published proposed Rule 10-5.011(1)(v), Florida Administrative Code, for the regulation of neonatal intensive care units ("NICU"). The rule was challenged and by Order dated June 12, 1990, the rule was held to be valid.
Rule 10-5.011(1)(v) was filed with the Secretary of State on August 6, 1990, and subsequently was renumbered as Rule 10-5.042, Florida Administrative Code.
On August 27, 1990, NME Hospitals, Inc., d/b/a West Boca Medical Center ("West Boca") filed a letter of intent to convert five medical/surgical beds to a 5-bed Level III NICU.
On September 21, 1990, HRS published its preliminary fixed need pool projections showing zero Level III NICU bed need for HRS District IX. See, Florida Administrative Weekly, Vol. 16, No. 38 (September 21, 1990).
On September 27, 1990, West Boca filed a certificate of need ("CON") application to establish a 5-bed Level III NICU. The application was assigned number 6449 and was comparatively reviewed with an application filed by St.
Mary's Hospital, Inc.
On January 11, 1991, HRS issued a State Agency Action Report preliminarily approving, in part, the application of St. Mary's Hospital, Inc., and denying the application of West Boca. In Case No. 91-1533, West Boca timely challenged the preliminary decision of HRS. West Boca also challenged the need projections for Level III NICU beds in Case No. 90-7037. These cases were consolidated for final hearing.
On April 18, 1991, the previously assigned hearing officer entered an order remanding the cases involving St. Mary's to HRS for entry of a final order approving St. Mary's CON for 2 Level III NICU beds. West Boca stipulated to the relinquishing of jurisdiction to HRS and St. Mary's abandoned all challenges to the issuance of a CON to West Boca.
Prior to final hearing, the parties filed a prehearing stipulation that the following statutory and rule criteria were satisfied and not applicable in this case:
Florida Statutes Sections
381.705(1)(c), 381.705(1)(e), 381.705(1)(f),
381.705(1)(g), 381.705(1)(h), 381.705(1)(i),
381.705(1)(k), 381.705(1)(l), 381.705(1)(m),
381.705(2)(c) and 381.705(2)(e).
Florida Administrative Code Rule 10-5.042 Sections 10-5.042(3)(j), 10-5.042(6), 10-5.042(9),
10-5.042(10)(a), (b), (c), and (d), 10-5.042(12), and
10-5.042(13).
The following statutory and rule criteria were at issue at final hearing: Florida Statutes Sections
381.705(1)(a), 381.705(1)(b), 381.705(1)(d),
381.705(1)(j), 381.705(1)(n), 381.705(2)(a),
381.705(2)(b) and 381.705(2)(d).
Florida Administrative Code Rule 10-5.042 Sections 10-5.042(3)(a), 10-5.042(3)(b), 10-5.042(3)(c), 10-
5.042(3)(d), 10-5.042(3)(e), 10-5.042(3)(f), 10-
5.042(3)(g), 10-5.042(3)(h), 10-5.042(3)(i) and 10-
5.042(3)(k) and 10-5.042(4), 10-5.042(5), 10-5.042(7),
10-5.042(8) and 10-5.042(11).
At the final hearing, West Boca presented the testimony of Joseph Schulman, M.D., expert in neonatology; Melvin Karp, M.D., pediatric surgeon; Barry Weinbaum, West Boca Hospital Administrator; Judith Cohen, R.N., expert in obstetrical nursing; Michael I. Hertz, M.D., expert in obstetrics and gynecology; Scott L. Hopes, expert in health care planning, hospital administration, and health care finance; and Robert J. Greene, expert in health care planning. West Boca also presented the deposition testimony of Michael Freundlich, M.D.; Diana Kaluba, R.N.; Steven Iskowitz, M.D.; Jose Birriel, M.D.; Lawrence M. Adams, M.D.; Helen O'Laughlin; and Elfie Stamm. West Boca's exhibits 1 - 8, 9-a - 9-l, 9-c, pages 1, 2, 4, 5, 6, 8, 9, 11, 12, and 10 - 24 were received in evidence.
HRS presented the testimony of Elfie Stamm and Elizabeth Dudek, and submitted exhibits 1, 2, 4, 6 and 7, which were received in evidence.
On January 22, 1992, HRS also filed a Notice of Supplemental Authority, citing University Community Hospital v. Department of Health and Rehabilitative Services, et. al., DOAH Case No. 91-5720 (RO filed 1/16/92). The transcript of the proceedings was filed with the Division of Administrative Hearings on October 17, 1991, and proposed recommended orders were filed on December 6, 1991.
FINDINGS OF FACT
NME Hospitals, Inc., d/b/a West Boca Medical Center ("West Boca") is a 185-bed acute care community hospital, located in Boca Raton, Florida, in HRS District IX. In 1989, West Boca received a certificate of need ("CON") to provide obstetrical service. In September 1989, West Boca also commenced operation of a seven-bed neonatal intensive care unit ("NICU"), pursuant to CON Number 5724 issued in January, 1989.
West Boca is neither a regional perinatal intensive care center ("RPICC") nor a step-down neonatal special care unit.
West Boca is located approximately 30 miles from, or within a 45-minute travel time from, two District IX hospitals, which are licensed to provide Level III NICU services, Good Samaritan Hospital and St. Mary's Hospital.
The Department of Health and Rehabilitative Services ("HRS") is the state agency charged, pursuant to Sections 381.701 - 381.715, Florida Statutes, with implementing and regulating the CON program for medical facilities and services in Florida.
HRS regulates NICU services as tertiary services pursuant to Sections 381.702(20) and 381.705(1)(m), Florida Statutes. In implementing its regulatory authority, HRS has promulgated Florida Administrative Code Rule 10-5.042. The rule prescribes minimum requirements for personnel, equipment, and support services as well as defining the methodologies to be used in determining the need for NICU Level II and Level III beds.
On or about August 27, 1990, West Boca filed a letter of intent to apply for 5 Level III NICU beds. On or about September 21, 1990, a document was printed by HRS, showing zero numeric need for Level III NICU beds needed for District IX. On or about September 27, 1990, West Boca timely filed the application for the 5 Level III NICU beds in CON application number 6449. Responses to HRS omissions questions were dated November 12, 1990. West Boca's proposal was to convert 5 medical/surgical beds to a 5-bed Level III NICU at a projected cost of $542,290.
On or about January 11, 1991, HRS issued its State Agency Action Report ("SAAR") denying West Boca's CON Application No. 6449 for five Level III NICU beds.
Current NICU Services at West Boca
West Boca has a 15-bed obstetrics unit and a 7-bed tertiary NICU, approved at a time when the NICU rule made no distinction between Level II and Level III care.
West Boca's neonatal services are directed by a group of board certified neonatal-perinatal doctors who are on West Boca's active staff with unlimited privileges. The neonatologists at West Boca provide 24-hour in-house coverage, which exceeds the requirement for Level III services in Rule 10- 5.042(8)(a)2, Florida Administrative Code.
In order to comply fully with Level III requirements in Rule 10- 5.042(8)(a)2, West Boca demonstrated that it has the ability to recruit a maternal-fetal specialist to its staff with unlimited privileges.
West Boca also has pediatric sub-specialists, capable of providing Level III services as described in Rule 10-5.042(2)(e)3, Florida Administrative Code. The areas of specialties include pediatric cardiology, pediatric gastroenterology, pediatric pulmonology, pediatric surgery, pediatric nephrology, pediatric neurology, pediatric hematology, pediatric oncology, pediatric physical medicine and rehabilitation, and pediatric neurosurgery. West Boca has been able to attract the pediatric sub-specialists, in part,
because it operates a 5-bed pediatric intensive care unit, and because it is the designated pediatric trauma center for southern Palm Beach County.
West Boca also has the special equipment that a Level III NICU is required to have in order to provide the services required in Rule 10- 5.042(8)(a)2(c), (d), (e) and (f). West Boca will have to purchase some additional equipment of the same type, if designated a Level III NICU. The equipment currently available includes a blood gas machine, a NICU x-ray machine, obstetric ultrasound, an EKG machine, portable suction equipment, one ventilator for every three NICU beds, and a clinical laboratory capable of performing micro-studies.
The head nurse of the NICU unit has experience and training in NICU nursing. At least one-half of the nursing personnel assigned to each shift in the NICU are registered nurses. NICU nurses at West Boca are trained to administer cardio-respiratory monitoring, to assist in ventilation, to administer IV fluids, to provide pre-operative and post-operative care of newborns requiring surgery, to manage neonates being transported, and to provide emergency treatment for such problems as seizures, respiratory distress, and apnea, as required for both Level II and Level III care by Rule 10-5.042(8)(b) and (c), Florida Administrative Code.
West Boca has at least one certified respiratory care practitioner or therapist with expertise in the care of neonates on its staff available at all times. West Boca has at least one respiratory therapy technician available for every four infants who receive assisted ventilation, as required for both Level II and Level III service, by Rule 10-5.042(8)(d), Florida Administrative Code.
West Boca has blood gas determinations available and accessible on a 24-hour basis, as required for both Level II and Level III services, by Rule 10- 5.042(8)(e), Florida Administrative Code.
West Boca provides anesthesia services as required of both Level II and Level III units, pursuant to Rule 10-5.042(8)(f), Florida Administrative Code.
West Boca has the staff to (1) provide nutritional and dietary assessment and counseling, (2) family counseling and referral of patients to programs such as Children's Medical Services or other social services or counseling programs, (3) developmental follow-up on discharged patients, and (4) discharge planning for neonates, as required of Level II or Level III providers, by Rule 10-5.042(8)(g), (h), (i) and (j), Florida Administrative Code; See, also, Rule 10-5.042(4)(b), Florida Administrative Code.
West Boca's Proposal
West Boca has an existing 7-bed NICU, recognized in the HRS final inventory as a Level II unit, to which it proposes to add 5-Level III beds. Consistent with Rule 10-5.042(4)(a), Florida Administrative Code, West Boca's application meets the objective of providing a continuity of NICU services.
West Boca's proposal does not meet the minimum unit size requirements for the establishment of new Level III services in units of 15 beds at facilities, which already have at least 15 Level II beds. See, Rule 10- 5.042(5), Florida Administrative Code.
381.705(1)(a), Florida Statutes, and Rule 10-5.042(3)(h) - Compliance with Local and State Health Plans
Although the 1990 District IX local health plan does not specifically contain preferences regarding NICU beds, the local health plan has the following general priority preference, which is applicable:
Priority shall be given to area facilities proposing specialized services which can show a commitment to, or a historical record of, services to the Medicaid/indigent, handicapped, and underserved population groups.
See, also, Rule 10-5.042(k), Florida Administrative Code, and Subsection 381.705(1)(n), Florida Statutes
West Boca proposes to serve 6.1 percent Medicaid and .7 percent charity NICU patients. The Health Care Cost Containment Board ("HCCCB") Hospital Financial Data Report for 1989 shows that West Boca ranked twelfth among the fifteen hospitals in Palm Beach County in the total provision of Medicaid days. The HCCCB report also shows that West Boca reported no charity care during that year.
West Boca, according to HRS, is in partial compliance with the preference based on its proposal to serve 6.8 percent Medicaid and other underserved population groups.
The 1989 state health plan has two specific preferences regarding NICU beds, as follows:
Preference shall be given to an applicant who proposes to convert existing medical and surgical beds to neonatal intensive care unit beds.
Preference shall be given to an applicant who proposes to provide neonatal intensive care services to Children's Medical Services (CMS)
patients, Medicaid patients, and non-CMS patients who are defined as charity care patients.
See, also, Rule 10-5.042(3)(i) and 10-5.042(3)(k), Florida Administrative Code
West Boca's proposal to convert 5 existing medical/surgical beds to 5- Level III NICU beds complies with the first preference.
West Boca's proposal complies, in part, with the preference to serve Medicaid and charity patients at the levels previously described, but does not include any provision of services to CMS patients.
381.705(1)(b) - The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing health care services in the service district
Existing NICU Level III services are geographically accessible to Palm Beach County residents, including West Boca patients, at Good Samaritan Hospital and St. Mary's Hospital which are within a 45 minute drive of West Boca, well within the 2-hour travel time standard of Rule 10-5.042(7), Florida Administrative Code. Approximately one-fourth of total Level III NICU discharges at Good Samaritan and St. Mary's were in West Boca's service area.
There is, however, evidence of problems in the quality of care or appropriateness of Level III NICU care provided at the Good Samaritan Hospital and St. Mary's Hospital. Those programs are adequate and meet the statutory or rule requirements.
Nevertheless, St. Mary's NICU utilization exceeded 100 percent capacity for eight months in calendar year 1989. St. Mary's is a RPICC, and received two additional Level III beds in this same batching cycle.
St. Mary's, due to its extent of utilization, is not an available alternative for Level III NICU patients proposed to be served by West Boca.
Good Samaritan's NICU beds, by contrast, are under-utilized, despite the fact that Good Samaritan is located approximately 2.5 miles from St. Mary's.
HRS asserts that Good Samaritan is an available alternative to West Boca, although it was not treated as an alternative to St. Mary's, because the later is a RPICC. The evidence presented established, however, that one-half of St. Mary's patients are not RPICC patients, and could be served at Good Samaritan, if that hospital were a viable alternative.
The evidence also shows that Good Samaritan, although designated and qualified as a Level III NICU, does not have some of the services or coverage available at West Boca.
Due to its extremely low utilization, despite its location in close proximity to the over-utilized NICU at St. Mary's, and its relative distance from West Boca, Good Samaritan is not an available alternative to West Boca. Good Samaritan's two neonatologists provide coverage for another facility in the county, and are available on an "on-call" basis. The average length of stay at Good Samaritan's Level III NICU as reported to the local health council, is 6.4 days, indicating that the services provided are not as intense as the usual Level III services. Despite its under-utilization at the time, HRS did not consider Good Samaritan a viable alternative to the issuance of West Boca's CON for 7 tertiary NICU beds in 1989.
381.705(1)(d), Florida Statutes - The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant, such as outpatient care and ambulatory or home care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant.
HRS correctly determined that the statutory alternatives of Subsection 381.705(1)(d) are not applicable to neonatal intensive care services. There are no outpatient alternatives to the services provided at a NICU.
381.705(1)(j) - The special needs and circumstances of health maintenance organizations ("HMO").
HRS interprets Subsection 381.705(1)(j), Florida Statutes, to be applicable only if an application is submitted for an HMO or by an HMO. This interpretation is rejected as inconsistent with the plain language of the statute.
In an attempt to demonstrate compliance with this subsection, West Boca presented evidence which establishes (1) that 30 percent of its patients belong to managed care plans, (2) that it contracts with approximately 20 HMO or preferred provider groups, and (3) that it has an exclusive contract to provide hospital services to the Blue Cross/Blue Shield HMO, called Health Options, and with a Blue Cross/Blue Shield PPO.
While Level III NICU services at West Boca will provide an additional service for all patients in South Palm Beach County, including HMO/PPOs, who now contract with hospitals in either Broward County or in West Palm Beach for Level III NICU services, there is no showing that special needs of HMO's will be met as a result of the approval of West Boca's application.
381.705(2)(a) - That less costly, more efficient, or more appropriate alternatives to such inpatient services are not available and the development of such alternatives has been studied and found not practicable.
The least costly, most efficient and appropriate alternative to West Boca's application for NICU Level III, if available, would be the transfer of patients to the existing NICU at Good Samaritan, within the service district, or to Plantation General Hospital or Memorial Hospital in adjacent Broward County.
Good Samaritan is not, and has not been treated by HRS, as an available alternative to the St. Mary's application, nor due to programmatic limitations is it an available alternative to the West Boca application.
Access to the Broward County hospitals was studied and analyzed by West Boca. West Boca demonstrated the absence of public transportation linking southern Palm Beach County to the Broward County hospitals.
West Boca also demonstrated that the transfer of neonates poses some difficulties, beyond merely preparing the neonate for transfer. Transfer of a neonate requires a specially equipped ambulance, a physician to accept the patient, bed availability at the receiving facility, and neonatal respiratory and nursing services during transfer. There is one properly configured transport vehicle available for transferring neonates in south Palm Beach County and Broward County.
Based on the deposition of Dr. Steven Iskowitz, the vehicle is often not available to make timely transfers of NICU patients.
The testimony of Dr. Iskowitz is supported by HRS testimony that HRS was not aware of any improvements in transportation since the approval of West Boca's 7-bed NICU, at which time HRS found that Broward County facilities were not an accessible alternative due to transportation problems.
HRS correctly cites p. 50 of West Boca's application as an admission against interest, which is inconsistent with the statement of Dr. Iskowitz, because it states that the special ambulance is available "24 hours a day with a
30 minute turn-around time." The assertions are inconsistent.
The testimony of Dr. Iskowitz with regard to his practical experiences with transfers is accepted, and the contradictory statement in West Boca's application, citing rule criteria, is not accepted as an accurate indicator of transfer problems between West Boca and Broward County hospitals.
381.705(2)(b) - That existing inpatient facilities providing inpatient services similarly to those proposed are being used in an appropriate and efficient manner
HRS correctly interprets Subsection 381.705(2)(b) as requiring an analysis of the location of existing providers, the utilization of the proposed services in the District, whether the provision of services at existing programs are inappropriate or inefficient, and how the applicant's proposal will alleviate these problems.
HRS contends that the approval of two additional Level III beds at St. Mary's will assist in alleviating any inefficiency caused by the high utilization rate.
HRS failed to overcome West Boca's evidence that St. Mary's two additional beds will not entirely alleviate the excess utilization of St. Mary's nor exacerbate the underutilization at Good Samaritan. HRS also failed to explicate adequately its position that Good Samaritan is an alternative to West Boca, but not to St. Mary's.
381.705(2)(d) - Patients will experience serious problems obtaining inpatient care of the type proposed, in the absence of the proposed new service.
HRS correctly considers access problems in three categories: (1) geographic, (2) financial and (3) programmatic. Geographic access has been established. See, Finding of Fact 3. Financial access is examined in terms of whether services to patients are inaccessible because of a patient's financial status. Programmatic access is examined in light of whether there are patients who require a certain type of service that is currently not provided in the service area.
West Boca failed to show or document the need for Level III NICU services for patients who were unable to access this service for financial or geographic reasons.
West Boca did establish that for programmatic reasons, patients are not served at Good Samaritan and, because of its over-utilization, services are not available at St. Mary's.
HRS Exhibit 3, which was excluded from evidence, is entitled "Florida Neonatal Intensive Care Unit Level II and III Bed Need Projections by District - January 1993 Planning." The document is dated September 21, 1990. The first paragraph of the document contains two apparently contradictory statements (1) "All persons should be advised that these need projections are not published pursuant to the certificate of need fixed pool rule." and (2) "These projections will be used by the Department in reviewing applications for
neonatal intensive care unit beds in the September 1990 batching cycle." The September 21, 1990 document was apparently a preliminary pool data collection and analysis, at best.
HRS' expert witness, Elfie Stamm, testified that HRS published a fixed pool in the Florida Administrative Weekly, two weeks prior to the deadline for filing letters of intent for the September batching cycle. She also testified that the document marked as HRS Exhibit 3 was not that publication, although it included some background information and the projections that were published. HRS never offered into evidence any document published prior to the application deadline for the September 1990 batching cycle which was published in the Florida Administrative Weekly as a fixed need pool for Level III NICU beds in HRS District IX.
The assertion of West Boca that HRS failed to publish a fixed need pool, as required by Rule 10-5.042(3)(b), Florida Administrative Code, applicable to the batching cycle in which West Boca's application was filed, is accepted, because no such publication was ever produced at hearing.
In an effort to demonstrate need, in the absence of an HRS publication of need, West Boca applied the formula in Rule 10-5.042(3)(e), Florida Administrative Code, as follows:
NN3=(PD3 x PB/AB)/(365 x .80) - LB3 - AB3
West Boca collected data from the local health council, Children's Medical Services, and the Health Care Cost Containment Board ("HCCCB") with regard to utilization of Level III services in District IX.
At the time the data was compiled, HRS had not adopted the rule distinguishing between Levels II and III NICU services, units were not physically separated, nor did HCCCB data distinguish between levels of care.
Utilization data reported by St. Mary's Hospital to CMS showed an average length of stay of 28 days for Level III patients in 1989. St. Mary's utilization reports to the local health council showed 9 days as the average length of stay in Level III in 1989. The number of days reported to CMS is accepted as accurate because of its consistency with the experience at other RPICCs in Florida, which average 20 to 25 days average lengths of stay. The longer length of stay for Level III is also consistent with HRS' "grandfathering" requirement that all NICU patients, whether reported as II or III, had an average length of stay of at least 10 days. Rule 10- 5.042(14)(f)2.b(I), Florida Administrative Code.
For total patient days in St. Mary's Level III unit, which actually exceeded 100 percent, HRS agreed with West Boca that utilization figures should not be capped at 100 percent. The excess over capacity should be included in order to determine actual utilization and ultimately, to project need.
Actual utilization figures also require the inclusion of patient days from providers of Level III services who were authorized to provide such services, prior to the rule distinguishing between Level II and III care. Included among those providers are those who receive authorization to continue to provide Level III care under the "grandfathering" provisions of the rule. Actual utilization also requires the inclusion of Level III services provided at Level I and II NICUs, which are authorized, although not licensed, to render the services in the absence of available Level III beds for transfer.
The most definitive rule criteria for distinguishing between Level II and Level III care is for neonates at or below 1,000 grams in weight and those requiring complex pediatric surgery. Both of these categories of patients must be treated in Level III NICUs. West Boca's Exhibit 9-b is an accurate listing of codes for procedures requiring complex pediatric surgery and was also considered an appropriate listing by West Boca's expert in pediatric surgery. By analyzing HCCCB data for this list of procedures, West Boca was able to estimate reasonably accurately the utilization rates for these procedures in District IX Level III NICUs. West Boca's expert testified that this approach captures approximately 70 percent of Level III NICU patients.
Using only the clearly distinguishable Level III procedures, West Boca's assertion that a numeric need is demonstrated for five additional Level III NICU beds in HRS District IX is accepted. West Boca's assertion that there is a need for 15 additional Level III NICU beds in District IX is rejected. The numbers used in the HRS formula to support the numeric need for 15 beds were generated by analyzing and sorting all HCCCB diagnostic codes for neonates into probable levels of care. The method is rejected as too speculative, given the lack of clear distinctions between the levels of care, and the frequency of the movement of neonates between the two levels. In addition, the number 15 is not supported by the more conservative analysis yielding 5 as the numeric need, capturing 70 percent. If that is accepted as true, then the numeric need is more accurately in the range of 8 - 9 beds.
Not Normal Circumstances Under Rule 10-5.042, Florida Administrative Code
By rule, HRS does not normally approve new Level III NICUs absent a minimum number of 1500 live births at the applicant hospital and a district average occupancy of 80 percent, for the relevant time period. Rule 10-5.042(6) and (3)(f), Florida Administrative Code.
In this case, the relevant time period is calendar year 1989.
HRS did not place at issue Rule 10-5.042(6), on minimum live birth volumes. West Boca, nevertheless, demonstrated that there were 509 live births from September 1989, when its obstetrics unit began, through December 1989. There were 1,773 live births in its first full year of operation, and 1,858 live births in calendar year 1990. West Boca meets the normal minimum live birth volume requirement of the NICU rule.
The West Boca proposal does not meet the requirement that the district occupancy rate equal or exceed 80 percent.
District IX occupancy rates are 102 percent for St. Mary's and 36.5 percent for Good Samaritan, averaging 74.4 percent for those two facilities.
Other Not Normal Circumstances
West Boca demonstrated that HRS District IX had the highest fertility rate in Florida from 1986 - 1988, but the lowest percentage of Level III beds as compared to births in the state.
West Boca also demonstrated that approximately 46.7 percent of the births at West Boca were by obstetric patients over 30 years old, as compared to
31.2 percent at other hospitals in District IX and 28.3 percent statewide.
West Boca demonstrated that the older age of obstetrics patients correlates to a higher incidence of the need for Level III NICU services.
West Boca demonstrated that it has the ability to operate a 5-bed Level III NICU efficiently.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989); Section 381.709(5), Florida Statutes (1989); and Rule 10-5.012, Florida Administrative Code.
West Boca bears the burden of proving it meets the statutory and rule criteria for the issuance of, and is entitled to, a certificate of need. Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985). An application for a Certificate of Need for neonatal intensive care unit beds is governed by a balanced consideration of the criteria contained in Sections 381.705(1) and (2), Florida Statutes, and Rule 10-5.042, Florida Administrative Code. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986). The weight to be accorded each criteria 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).
HRS' assertion that West Boca may not introduce exhibits and testimony about patient characteristics, NICU discharges, and other tables for a period of time past the application completion date was accepted. On that basis, all West Boca evidence on the numbers to be used in the HRS rule formula not conforming to the time periods specified in the rule, was excluded.
Motion to Dismiss Case No. 90-7037
At final hearing HRS sought to introduce HRS Exhibit 3, the preliminary need publication dated September 21, 1990. The exhibit was excluded because HRS' witness stated that it was not the applicable fixed need pool published, approximately two weeks before the letter of intent deadline, for this batching cycle. West Boca objected that HRS Exhibit 3 was, therefore "not relevant or material to the evaluation of the certificate of need application that's under review in this case." HRS asserts that West Boca's objection to the admissibility of HRS Exhibit 3, which was the sole basis of West Boca's challenge in Case No. 90-7037 necessitates the dismissal of that case. HRS' motion to dismiss Case No. 90-7037 is granted.
Criteria Applied to Case No. 91-1533
HRS filed a Notice of Supplemental Authority, citing the recommended order of January 16, 1992, in University Community Hospital v. Department of Health and Rehabilitative Services and Humana of Florida, Inc., d/b/a Humana Women's Hospital Tampa, and Hillsborough County Hospital Authority, d/b/a Tampa
General Hospital, DOAH Case No. 91-5720. As distinguished from this proceeding, the hearing officer's preliminary statement and findings of fact include, among others, the following:
. . . University Community Hospital (UCH) seeks authority to install a Level II NICU. See, Preliminary Statement, p. 2.
. . . in Florida Administrative Weekly, Vol. 16, No. 34, dated August 24, 1990 (Exhibit 18), an estimated inventory of existing beds was used in the bed need formula calculation.
See, Finding of Fact 3.
This showed for District VI zero need for additional NICU Level II beds. See, Finding of Fact 3.
. . . the hospitals [which] had failed to report to the local health councils their occupancy rate for the period required by the bed need formula, and DHRS contacted these hospitals for the data needed. See, Finding of Fact 4.
Petitioner submitted no evidence to demonstrate a not normal situation existed to waive the 80 percent average District VI occupancy rate required . . . See, Finding of Fact 8.
Petitioner has failed to meet the birth require- ment of a minimum of 1000 live births . . . See, Finding of Fact 10.
HRS' Notice of Supplemental Authority demonstrates that in Case No. 91-5720, the data collected by HRS from that local health council and directly from the hospitals was found more reliable than a retrospective analysis of HCCCB data. Due to distinguishing facts above, among others, particularly the fact that a published inventory was submitted into evidence by HRS in Case No. 91-5720, and not in this case, the finding in that case is inapplicable to West Boca's Case No. 91-1533.
West Boca, in support of its application, demonstrated: that it has the staff, equipment, and support services to operate a 5-bed Level III NICU efficiently; that a numeric need exists for at least 5 Level III NICU beds in District IX; that existing providers in the district have programmatic access problems as evidenced by their extreme over- and under-utilization; that HRS has previously found that transportation inadequacies limited access to existing providers in the adjacent district; and, that its proposal complies with preferences for serving Medicaid and for converting medical/surgical beds to NICU beds.
West Boca's proposal does not meet the minimum size requirement for NICUs, will not enhance geographical or financial access, will not meet special needs for HMO's and does not qualify for preferences as a RPICC, or for serving CMS patients. The District IX utilization rate is also below the minimum required for the establishment of new NICU beds in the district. Even though
the utilization rate is skewed significantly by Good Samaritan's under- utilization, it is still 74.4 percent as compared to the 80 percent occupancy standards.
As not normal circumstances, West Boca's records show a higher percentage of over age 30 obstetric patients with a corresponding higher percentage of the need for Level III NICU services. West Boca also showed that HRS District IX has the lowest percentage of Level III NICU beds as compared to births in the state. Neither of these not normal circumstances was addressed by HRS, except to say that each district should be treated differently based on its different factors. Finally, West Boca showed that HRS has not treated Good Samaritan as an alternative to the approval of new Level III beds in District
IX. Given the extremely low utilization and apparently empty beds at Good Samaritan, the explanation that St. Mary's is entitled to preference as a RPICC fails to explain HRS' failure to consider Good Samaritan as alternative for approximately half of the St. Mary's NICU patients who are non-RPICC patients.
On balance, West Boca has demonstrated that HRS should issue CON number 6449 for West Boca to convert 5 medical/surgical beds to 5 Level III NICU beds, as petitioned in Case No. 91-1533.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered
approving Certificate of Need 6449 for NME Hospitals, Inc., d/b/a West Boca Medical Center to convert 5 medical/surgical beds to 5 Level III neonatal intensive care unit beds; and
dismissing the petition filed in Case No. 90-7037.
RECOMMENDED this 25th_ day of February, 1992, at Tallahassee, Florida.
ELEANOR M. HUNTER
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 25th day of February, 1992.
APPENDIX TO RECOMMENDED ORDER, CASE NOs. 90-7037 and 91-1533
Rulings on findings proposed by West Boca:
Accepted in Finding of Fact 1.
Accepted in Finding of Fact 4.
Accepted in Finding of Fact 6.
Accepted in Finding of Fact 7.
and 6. Subordinate to Finding of Fact 1.
7 and 8. Subordinate to Findings of Fact 1 and 8.
9. Subordinate to Finding of Fact 1.
10 and 11. Accepted in Finding of Fact 8.
12. Subordinate to Finding of Fact 65.
13 - 15. Accepted in Finding of Fact 65.
Accepted in Findings of Fact 1 and 65.
Accepted in Finding of Fact 9.
Subordinate to Finding of Fact 9.
Accepted in Finding of Fact 9.
20 and 21. Subordinate to Finding of Fact 9.
22. Accepted in Finding of Fact 11.
23 and 24. Subordinate to Finding of Fact 11.
25. Subordinate to Finding of Fact 12.
26 - 28. Subordinate to Finding of Fact 11.
29 - 31. Accepted in Finding of Fact 11.
32. Accepted in Finding of Fact 17.
33 - 36. Accepted in Finding of Fact 13.
37 and 38. Accepted in Finding of Fact 14.
39. Accepted in Finding of Fact 15.
40 and 41. Accepted in Finding of Fact 12.
Accepted in Finding of Fact 16.
Accepted in Finding of Fact 12.
44 - 46. Accepted in Finding of Fact 17.
Accepted in Finding of Fact 10.
Subordinate to Finding of Fact 11.
Subordinate to Finding of Fact 13.
50 and 51. Accepted in Finding of Fact 12.
Subordinate to Finding of Fact 41.
Subordinate to Findings of Fact 36 and 37.
54 - 56. Accepted in Finding of Fact 36.
Accepted in Finding of Fact 37.
Accepted in Finding of Fact 11.
Subordinate to Finding of Fact 11.
Subordinate to Findings of Fact 29 and 32.
Accepted.
Accepted in Finding of Fact 24.
63 and 64. Accepted.
Accepted in Finding of Fact 6.
Accepted in Finding of Fact 21.
67 and 68. Accepted in Finding of Fact 55.
Rejected as not relevant.
Subordinate to Finding of Fact 55.
71 and 72. Subordinate to Finding of Fact 58.
Subordinate to Finding of Fact 59.
Subordinate to Findings of Fact 56 and 60.
75 and 76. Subordinate to Finding of Fact 56.
Rejected as not relevant.
Subordinate to Finding of Fact 56.
Rejected.
Accepted in Findings of Fact 54 and 55.
Accepted in Finding of Fact 56.
Accepted in Finding of Fact 57.
83 - 88. Subordinate to Finding of Fact 58.
Subordinate to Finding of Fact 57.
Accepted in Finding of Fact 60.
Rejected as not relevant.
92 and 93. Subordinate to Finding of Fact 56.
94 and 95. Subordinate to Finding of Fact 62.
Subordinate to Finding of Fact 56.
Subordinate to Findings of Fact 58, 60 and 61.
Rejected in Finding of Fact 62.
Rejected, first sentence, in Finding of Fact 62. Accepted, remainder, in Finding of Fact 68.
Accepted in Finding of Fact 62.
Subordinate to Finding of Fact 1.
Accepted in Finding of Fact 68.
Subordinate to Finding of Fact 68.
104 - 107. First sentence, rejected as not relevant. Remainder, subordinate to Finding of Fact 68.
Rejected as not relevant.
Accepted in Findings of Fact 3 and 26.
Accepted in Finding of Fact 28.
Accepted in Finding of Fact 47.
112 - 113. Accepted in Finding of Fact 48.
Subordinate to Finding of Fact 51.
Accepted in Findings of Fact 30, 32 and 48
116 and 117. Subordinate to Finding of Fact 32.
Rejected.
Subordinate to Finding of Fact 70.
Accepted in Finding of Fact 71.
Subordinate to Findings of Fact 9 - 17.
Accepted in Findings of Fact 69 and 70.
Accepted in Finding of Fact 69.
124 - 126. Subordinate to Finding of Fact 70.
Subordinate to Finding of Fact 62.
Rejected as not within the rule.
Rejected as not relevant.
Subordinate to Findings of Fact 55 and 57.
131 - 133. Subordinate to Finding of Fact 55.
Rejected as a Conclusion of Law.
Subordinate to Finding of Fact 55.
Subordinate to Finding of Fact 68.
Rejected in Finding of Fact 60.
Conclusion that hospitals were not authorized is rejected in Finding of Fact 60.
Rejected as not within the rule.
Accepted, first sentence, in Finding of Fact 55. Rejected, second sentence, as not relevant.
141 and 142. Subordinate to Finding of Fact 57.
Subordinate to Findings of Fact 56 and 57.
Accepted if "licensed" substituted for "authorized" in Finding of Fact 60.
Rejected in Finding of Fact 60.
146 and 147. Accepted in Finding of Fact 41.
148. Accepted in Finding of Fact 42.
149 - 152. Subordinate to Finding of Fact 41.
153. Accepted in Finding of Fact 41.
154 - 158. Subordinate to Finding of Fact 41.
Subordinate to Findings of Fact 8 - 17.
Subordinate to Finding of Fact 18.
161 | - 164. Subordinate to Findings of Fact 8 - 17. |
165 | - 167. Rejected. |
168 | - 171. Accepted. |
172. | Accepted in Finding of Fact 40. |
173. Accepted.
174 - 176. Rejected.
177. Rejected, in part, in Findings of Fact 22 and 25.
Rulings on findings proposed by HRS:
1 and 2. Accepted in Finding of Fact 6.
Accepted in Findings of Fact 6 and 7.
Accepted in Finding of Fact 7 and Preliminary Statement.
5 and 6. Accepted in Preliminary Statement.
7. Accepted in Finding of Fact 5.
8 and 9. Subordinate to Finding of Fact 55.
Accepted in Finding of Fact 61.
Subordinate to Finding of Fact 55.
Rejected as not relevant.
Rejected, first sentence, as not relevant. Accepted, second sentence, in Finding of Fact 55.
Subordinate to Finding of Fact 55.
Accepted in Finding of Fact 59.
Rejected in Finding of Fact 62.
17 and 18. Accepted in Findings of Fact 57 and 62.
Subordinate to Findings of Fact 57 and 62.
Accepted in Finding of Fact 60.
Accepted, except last sentence, in Finding of Fact 26.
Accepted in Finding of Fact 20.
Accepted in Findings of Fact 21 and 22.
Accepted in Finding of Fact 23.
Accepted in Findings of Fact 23 - 25.
Subordinate to Findings of Fact 26 - 33.
Rejected, in part, in Findings of Fact 29 and 33.
Accepted, in part, in Finding of Fact 26.
Subordinate to Findings of Fact 28 and 29.
Accepted in Finding of Fact 34.
Rejected in Findings of Fact 35 - 37.
First sentence, rejected in Finding of Fact 22. Remainder, accepted in Finding of Fact 21.
Rejected, in relevant part, in Finding of Fact 39.
Rejected in Finding of Fact 39.
Rejected in Finding of Fact 46.
Rejected in Findings of Fact 47 and 48.
37 and 38. Rejected in Finding of Fact 48.
Subordinate to Finding of Fact 49.
Accepted in Finding of Fact 49.
Accepted, in part, in Finding of Fact 50. Rejected, in part, in Finding of Fact 51.
Accepted in the Conclusions of Law.
Rejected as historically inaccurate and See, also, Rule 10-5.042(14)(f)2.
Accepted in Finding of Fact 44.
Subordinate to Finding of Fact 41.
Accepted in Finding of Fact 19.
COPIES FURNISHED:
Edward Labrador, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Tallahassee, Florida 32308
C. Gary Williams, Esquire Stephen C. Emmanuel, Esquire Ausley, McMullen, McGehee,
Carothers & Proctor Post Office Box 391
Tallahassee, Florida 32302
Sam Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Slye, General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
NME HOSPITALS, INC. d/b/a WEST BOCA MEDICAL CENTER,
Petitioner, CASE NO.: 90-7037 RENDITION NO.: HRS-92-68-FOF-CON
vs.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
NME HOSPITALS, INC. d/b/a WEST BOCA MEDICAL CENTER,
Petitioner, CASE NO.: 91-1533
vs.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and ST. MARY'S HOSPITAL, INC.,
Respondents.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of the Recommended Order is attached hereto.
RULING ON EXCEPTIONS FILED BY THE DEPARTMENT
Counsel for the department requested that the time for filing exceptions be extended until March 31, 1992. Counsel for West Boca maintains that the time for filing exceptions cannot be extended. With the exception of jurisdictional pleadings, the time for filing any pleading may be extended for good cause or by Stipulation. The request for an extension until March 31, 1922, is granted.
Counsel requests that the Hearing Officer's ore tenus findings that witnesses Dudek and Stamm are experts in health care planning be memorialized in the Final Order. The request is granted.
The department excepts to the portion of finding of fact 11 which finds that West Boca "is the designated pediatric trauma center for southern Palm Beach County." This exception is granted as no competent, substantial evidence supports the finding. Instead, it is clear that there are two (2) hospitals designated by Palm Beach County to serve as designated trauma centers, St. Mary's Hospital in the northern part and Delray Community Hospital in the southern part of the county. (Weinbaum, T. 223). Delray Community Hospital and West Boca, which are owned by the same company, National Medical Enterprises ("NME"), have entered into a formal agreement whereby West Boca would serve the pediatric trauma patients transported from Delray Community Hospital. (Weinbaum, T. 203, 223).
The department excepts to the last sentence of finding of fact 33 which states:
Despite its under-utilization at the time, HRS did not consider Good Samaritan a viable alternative to the issuance of West Boca's CON for
7 tertiary NICU [Level II) beds in 1989.
The sentence in question is stricken as it is not supported by competent, substantial evidence.
Counsel excepts to the Hearing Officer's rejection in finding of fact 35 of the department's interpretation of Subsection 381.705(1) (j) which establishes as a criterion the special needs of health maintenance organizations. The exception is granted. See Pan Am vs. Public Service Commission, 427 So2d 716, 719 (Fla. 1983). The department's interpretation is that the criterion is applicable to applications submitted by or for an HMO.
Counsel excepts to findings of fact 36 and 37 wherein the Hearing Officer discussed West Boca's unsuccessful effort to show compliance with the HMO criterion discussed above. Given the agency's interpretation of Section 381.705(1)(j), Florida Statutes, this criterion was - not applicable to this application. Additionally, the evidence constituted an improper amendment of the CON application.
The department excepts to findings of fact 42, 43, and 45 on the grounds that these findings are based upon information which improperly amended West Boca's application. Findings 42, 43, and 45 concern the availability of an emergency transport vehicle.
To the extent that evidence explains or elaborates on assertions made in an application and the evidence does not change the nature or scope of the proposal, such evidence does not constitute an impermissible amendment. Holmes Regional Healthcare, Inc. vs. Department of Health and Rehabilitative
Services, 10 FALR 7040 (HRS 1988). Evidence of changed circumstances beyond the control of the applicant does not constitute an impermissible amendment.
Hialeah Hospita1 vs. Department of Health and Rehabilitative Services, 9 FALR 2363 (HRS 1987). Not permitted are additional services, beds, construction, or other concepts not initially reviewed by the department.
Returning to the present case, the issue of emergency transportation was addressed in the application. The evidence produced at hearing, though conflicting, does not constitute an improper amendment.
The department excepts to finding of fact 56 to the extent it implies that data from Children's Medical Services and the Health Care Cost Containment Board ("HCCCB") may be used in the need methodology to determine numeric need.
Use of such data is contrary to Rule 10- 5.042(13) and Section 381.703(1)(b)4. and 11., Florida Statutes (1991). The exception is granted.
The department excepts to finding of fact 58 to the extent it implies that the grandfathering provision in Rule 10-5.042(14)(f)2.b.(I) is applicable to this proceeding. The exception is granted.
The department excepts to findings of fact 60, 61, and the first and last sentence of 62. Contrary to the Hearing Officer's interpretation, the NICU Rule does not require the inclusion of patients days from Level I and II NICU providers who were not authorized to provide Level III services. Nor does the rule allow the substitution of estimates of patient days determined by an alternative HCCCB methodology as proposed by West Boca. In finding of fact 57, the Hearing Officer determined that the HCCCB data did not distinguish between levels of care (Level II as opposed to Level III). (See, Recommended Order at page 18; Stamm, T. 785). In fact, data submitted by hospitals to the HCCCB would not reflect whether a neonatal patient was cared for in a Level II or Level III bed. (Hopes, T. 461; Stamm, T. 776-777, 780). The use of HCCCB data estimates to determine the need for Level III NICU services is counter to the department NICU Rule. See, Fla. Admin. Code R. 10- 5.042(3)(e). West Boca's HCCCB patient day estimates, including estimated patient days
from unauthorized providers, are inconsistent and contrary to what is required by the rule.
Use of alleged patient days by unauthorized providers in the NICU Level III need methodology is unreasonable. The use of such data would sanction an illegal practice contrary to Section 381.711, Florida Statutes (1991). (See, Stamm, T. 873). Also use of such data would create a chaotic and unverifiable data collection process and would lead to the overstatement of need for Level III NICU services. (Stamm, T. 782, 892-893).
Under Rule 10-5.042(3)(e), patient days are determined from the total patient days in authorized Level III beds as reported to the department or the local health council by authorized providers of Level III NICU services.
Accordingly, the two (2) authorized providers (Good Samaritan and St. Mary's) of Level III NICU services for District 9 reported a collective total of 3,297 Level III patient days for calendar year 1989. (West Boca Exh. 17,
p. 21, 27; Exh. 28, p. C-2; Dudek, T. 922). Using the appropriate data, there is no numeric need for additional NICU Level III beds. (Dudek, T. 922- 924). The Hearing Officer's conclusion to the contrary in finding of fact 62 is not based upon the required elements of the rule and, therefore, is rejected. Also, for the reasons noted above findings of fact 60 and 61 are rejected as inconsistent with the Rule 10-5.042(3)(e).
The department excepts to finding of fact 67 to the extent it finds the occupancy rate for District 9 is 74.4%. There is no competent, substantial evidence to show that 74.4% is the occupancy rate. The evidence at hearing shows that the combined average occupancy rate for District 9 Level III NICU providers is 64.5%. (See, West Boca Exh. 17, p. 27-28; Dudek T. 924).
Therefore, 74.4% is stricken and replaced with 64.5%
FINDINGS OF FACT
The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except as modified or rejected in ruling on the exceptions.
CONCLUSIONS OF LAW
The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where
inconsistent with the ruling on the exceptions. It is well established that the decision on a CON application must be based on a balanced weighing of all applicable criteria and that the weight given to each criterion will vary based on the facts and circumstances of each case. I conclude that the programmatic access problems in District 9 and the transportation inadequacies justify approval of West Boca's application.
Based upon the foregoing, it is
ADJUDGED, that the application for CON 6449 by NME Hospitals, Inc. to convert five (5) medical/surgical beds at West Boca Medical Center to five (5) Level III NICU beds is GRANTED. Case Number 90-7037 is dismissed.
DONE and ORDERED this 8th day of April, 1992, in Tallahassee, Florida.
Robert B. Williams Secretary
Department of Health and Rehabilitative Services
by Deputy Secretary for Human Services
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Copies furnished to:
Eleanor M. Hunter Hearing Officer
DOAH, The DeSoto Building 1230 Apalachee Parkway
Tallahassee, FL 32399-1550
C. Gary Williams, Esquire AUSLEY, McMULLEN, McGEHEE CAROTHERS & PROCTOR
227 South Calhoun Street Post Office Box 391 Tallahassee, FL 32302
Edward Labrador, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103 Fort Knox Executive Center Tallahassee, FL 32308
Wayne McDaniel (PDRFM) Wendy Thomas (PDRF)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 13th day of April, 1992.
R. S. Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700
(904)488-2381
| Issue Date | Proceedings |
|---|---|
| May 07, 1992 | Final Order filed. |
| Apr. 13, 1992 | Final Order filed. |
| Feb. 25, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 9/3/91, 9/4-5/91, 9/25-26/91. |
| Jan. 22, 1992 | (Respondent) Notice of Supplemental Authority filed. |
| Dec. 06, 1991 | HRS' Proposed Recommended Order filed. |
| Dec. 06, 1991 | Memorandum in Support of Petitioner's Proposed Recommended Order; Proposed Recommended Order of West Boca Medical Center filed. |
| Dec. 03, 1991 | Order Granting Motion for Extension of Time to File Proposed Recommended Orders sent out. |
| Nov. 22, 1991 | Letter to EMH from Edward G. Labrador (re: filing PRO) filed. |
| Oct. 30, 1991 | CC Letter to Edward G. Labrador from C. Gary Williams (re: extension of time) filed. |
| Oct. 17, 1991 | Transcript (Vosl 1-7) filed. |
| Sep. 06, 1991 | Notice of Hearing sent out. (hearing set for Sept. 25 & 26, 1991; 9:30am; Talla). |
| Sep. 03, 1991 | CASE STATUS: Hearing Partially Held, continued to Sept. 4, 1991; 10:00am. |
| Aug. 28, 1991 | Amended Notice of Hearing (Amending Only The Time For The Commencement of The First Day of The Hearing) sent out. (hearing set for 11:00am). |
| Aug. 23, 1991 | Order Denying Motion for Leave to Conduct and Late File Transcript ofExpert Deposition, Granting Motion for Addition of One Day to Final Hearing, and Denying Motions for Summary Recommended Order and Summary Dismissal sent out. |
| Aug. 23, 1991 | (Petitioner) Notice of Intent to Reply on Summary Information w/Exhibit-A; CC Deposition of Lawrence Mark Adams, M.D. ; CC Deposition of Jose A. Birriel, M.D. w/Cover ltr filed. (From C. Gary Williams) |
| Aug. 23, 1991 | Joint Prehearing Stipulation filed. |
| Aug. 21, 1991 | (Petitioner) Amended Order Rescheduling Formal Hearing filed. |
| Aug. 21, 1991 | HRS' Motion For Leave to Conduct and Late File Transcript of Expert Deposition filed. (From Edward G. Labrador) |
| Aug. 20, 1991 | Motion For Addition of One Day to Final Hearing & attachments filed. (From C. Gary Williams) |
| Aug. 16, 1991 | HRS' Motion For Summary Recommended Order filed. (From Edward G. Labrador) |
| Aug. 16, 1991 | (Petitioner) Amended Notice of Taking Deposition filed. (From C. GAryWilliams) |
| Aug. 15, 1991 | Order Rescheduling Formal Hearing sent out. (Hearing Sept. 3, 1991; 10:00am; Boca Raton). |
| Aug. 07, 1991 | Notice of Taking Deposition filed. (From C. Gary Williams) |
| Aug. 07, 1991 | Notice of Taking Deposition filed. (From C. Gary Williams) |
| Aug. 06, 1991 | Notice of Taking Deposition filed. (From C. Gary William) |
| Aug. 02, 1991 | Letter to EMH from C. Gary Williams (re: hearing date, time & place) w/(proposed) Order (unsigned) filed. |
| Jul. 31, 1991 | (Respondent) Notice of Taking Deposition Duces Tecum filed. (FromEdward G. Labrador) |
| Jul. 25, 1991 | NOtice of Hearing filed. (From C. Gary Williams) |
| Jul. 25, 1991 | Notice of Taking Deposition; Notice of Taking Depositions Duces Tecumfiled. (From C. Gary Williams) |
| Jul. 18, 1991 | (NME d/b/a) Motion to Schedule a Portion of The Final Hearing In BocaRaton, Florida filed. (From C. Gary Williams) |
| Jul. 05, 1991 | HRS' Response to NME Hospital, Inc. d/b/a West Boca Medical Center's Second Request for Admissions; Notice of Service of Answers to NME'S First Interrogatories; Objections to NME'S First Interrogatories to HRS filed. (From Edward G. Labrador) |
| Jul. 05, 1991 | HRS Objections to NME Hospitals, Inc.'s d/b/a West Boca Medical Center's First Request for Production of Dcouments to Department of Health and Rehabilitative Services; HRS' Response to NME Hospital, Inc. d/b/aWest Boca Medical Cen ter's First Request fo |
| Jun. 04, 1991 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for Sept 4-6, 1991; 9:30am; Talla) |
| May 30, 1991 | (Joint) Stipulated Motion for Continuance filed. |
| May 10, 1991 | NME Hospitals, Inc., d/b/a West Boca Medical Center's Second Request For Admissions to Department of Health and Rehabilitative Service filed. |
| May 09, 1991 | NME Hopital Inc., d/b/a West Boca Medical Center's First Request For Production of Documents to Depaartment of Health and Rehabilitative Services; Notice of Service of Interrogatories filed. (From C. Gary Williams) |
| May 06, 1991 | Amended Notice of Taking Deposition Duces Tecum filed. (from Steve Emmanuel |
| May 03, 1991 | Notice of Taking Deposition Duces Tecum filed. (from C. Gary Williams) |
| Apr. 10, 1991 | Letter to JSM from W. David Watkins (re: Order dated 3/28/91) filed. |
| Mar. 28, 1991 | Order of Consolidation sent out. Consolidated Cases 90-7037 91-1532 91-1533 91-1766 |
| Mar. 04, 1991 | Notice of Hearing sent out. (hearing set for 06/20/91;9:00AM;Tallahassee) |
| Feb. 15, 1991 | NME'S Response to Order filed. (From C. Gary Williams) |
| Nov. 20, 1990 | Order Granting Abeyance and Requiring Report (until Feb. 15, 1991) sent out. |
| Nov. 16, 1990 | (Petitioner) Response to Order and Motion to Hold in Abeyance filed. (from Michael J. Glazer) |
| Nov. 13, 1990 | Initial Order issued. |
| Nov. 06, 1990 | Notice; Petition for Formal Administrative Hearing Challenging Bed Need Projections for Levels II and III Neonatal Intensive Care Unit (NICU) services for the January 1993 Planning Horizon filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 1992 | Agency Final Order | |
| Feb. 25, 1992 | Recommended Order | Neonatal intensive care unit -level III approved with low utilization at one, and over utilization at another competitor, and no numeric need. |
