STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. ANTHONY'S HOSPITAL, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 94-1010

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent, )

and )

) BAYFRONT MEDICAL CENTER, INC., ) and LARGO MEDICAL CENTER, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

This case was heard from July 20 through July 22, 1994, and from July 25 through July 28, 1994 in Tallahassee, Florida, by David M. Maloney, Hearing Officer for the Division of Administrative Hearings.

St. Anthony's Hospital, Inc., and Largo Medical Center, Inc., filed proposed recommended orders on October 12, 1994. Two days later, October 14, 1994, St. Anthony's filed an amended proposed recommended order and Bayfront Medical Center, Inc., and the Agency for Health Care Administration filed a joint proposed recommended order. Rulings on the findings of fact in the amended proposed recommended order and proposed recommended orders of the Respondent and Intervenors are contained in the appendix to this order.

APPEARANCES

For Petitioner: Robert D. Newell, Jr.

NEWELL & STAHL

817 North Gadsden Street Tallahassee, Florida 32303

For Respondent: S. Dean Bunton

Agency for Health Care Administration

325 John Knox Road The Atrium, Suite 301

Tallahassee, Florida 32303-4131

For Intervenor: Stephen A. Ecenia Bayfront Thomas W. Konrad

Rutledge, Ecenia, Underwood Purnell & Hoffman, P.A.

215 South Monroe Street, Suite 420 Tallahassee, Florida 32301-1841

For Intervenor: James C. Hauser

Largo Parker, Skelding, Labasky, Corry, Eastman & Hauser, P.A.

Post Office Box 669 Tallahassee, Florida 32302

John D. C. Newton, II Suzanne Mann

Messer, Vickers, Caparello, Madsen & Goldman, P.A.

Post Office Box 1876 Tallahassee, Florida 32302-1876

STATEMENT OF THE ISSUE

Whether this case presents "not normal circumstances" that lead to award to St. Anthony's Hospital, Inc., of a certificate of need for an Open Heart Surgery program?

PRELIMINARY STATEMENT

On February 25, 1994, the Division of Administrative Hearings received a Notice signed by the Agency Clerk for the Agency for Health Care Administration, ("AHCA," or the "Agency.") The notice advised that a request for a formal administrative hearing had been received from St. Anthony's Hospital, Inc. The notice further requested that a hearing officer be assigned to conduct all necessary proceedings culminating in a Recommended Order.

Attached to the notice was St. Anthony's Petition for Formal Hearing. The petition contests the preliminary denial by the Agency of St. Anthony's application, CON application No. 7418, for a certificate of need to provide open heart surgery at St. Anthony's Hospital in AHCA District 5.

Subsequent to the docketing of the case as No. 94-1010, the case was consolidated with another case. The case, No. 94-1011, initiated by NME Hospitals, Inc. d/b/a Palms of Pasadena Hospital was later voluntarily dismissed and a closing order was entered on June 13, 1994. This case, Case No. 94-1010, then proceeded to hearing by itself on July 20, 1994. In the meantime, Petitions to Intervene, filed by Bayfront Medical Center, Inc., and Largo Medical Center, Inc., were granted subject to proof of standing at hearing.

At hearing, St. Anthony's presented the testimony of 11 witnesses and offered into evidence 19 exhibits, No.s 1-14, 16, 19-21 and 23, all of which were admitted into evidence with the exceptions of portions of St. Anthony's Exhibit No. 23. Official recognition was taken of St. Anthony's Exhibit No. 22. St. Anthony's Exhibits 15, 17 and 18 either were not offered or were withdrawn. Largo presented the testimony of 3 witnesses and offered 7 exhibits, Nos. 1-7, all of which were admitted into evidence. Bayfront offered the testimony of 2 witnesses and 11 exhibits, Nos. 1-3 and 5-12. Bayfront Ex. No. 4 was not

offered. Of the remaining 11 exhibits all were admitted into evidence with exception of Bayfront Ex. No. 1, which was declared inadmissible.

FINDINGS OF FACT

1. The parties and existing programs in District 5.

   
   

   1. St. Anthony's Hospital, Inc., the applicant for CON No. 7418 (the subject of this proceeding), is a not-for-profit corporation. Its facility, St. Anthony's Hospital, at which the adult open heart surgery program would be operated if CON No. 7418 were granted, is a 427-bed licensed general community hospital providing adult acute medical services in surgery, psychiatry and obstetrics. Located south of Ulmerton Road in Pinellas County, (generally considered "South Pinellas County,") St. Anthony's also provides home health care, family medicine clinics, outreach education, health screening and occupational health.

      
      

   2. Also located in South Pinellas County are Bayfront Medical Center, All Children's Hospital, and Northside Hospital. Northside is not a party to this proceeding although it recently received approval for a CON to provide open heart surgery services. Northside is located 6-1/2 to 7 miles from St. Anthony's and provides services in the same service area.

      
      

   3. Bayfront Medical Center, Inc., is one of two intervenors in this proceeding. Its facility, Bayfront Medical Center is a 518-bed, acute care, not-for-profit hospital located within the limits of the city of St. Petersburg and 1.7 miles from St. Anthony's. It offers cardiac, cancer and emergency services as well as a Level II trauma center. Bayfront also maintains a large

      women's and children's program, a rehabilitation center and a neurology program. Its cardiology program includes adult and pediatric cardiac catheterization, angioplasty and open heart surgery. But the open heart surgery program is shared with All Children's Hospital. Pre-operative and post-operative patient care is Bayfront's responsibility. The actual surgery takes place on the premises of All Children's.

      
      

   4. All Children's Hospital is a research hospital affiliated with the University of South Florida College of Medicine. Most importantly, and certainly most pertinent to this case, it is a dedicated Class II pediatric specialty hospital, one of two pediatric specialty hospitals in Florida, and one of only 47 in the nation. It provides, therefore, primary, secondary and tertiary care for children, in addition to the open heart surgery services it provides adults. Its cardiac surgery program was grandfathered under CON law to begin children's cardiac surgery in 1975. At the time of the grandfathering, All Children's was asked by state officials to consider adult cardiac surgery services as well. The hospital trustees and medical staff agreed and began a combined pediatric/adult open heart surgery program in 1976. As explained, above, the adult program is shared with Bayfront. All Children's Hospital is not a party to this proceeding.

      
      

   5. Largo Medical Center, Inc.'s facility, Largo Medical Center is a 256- bed, acute-care hospital specializing in cardiology and open heart surgery. Largo, the other intervenor in the proceeding, is located in AHCA's District 5 but outside South Pinellas County, as are two other open heart surgery programs: a program at Morton F. Plant Hospital in Clearwater and a program at HCA Bayonet Point/Hudson Medical Center located in Hudson in Pasco County. Morton F. Plant Hospital and HCA Bayonet Point/Hudson Medical Center are not participants in this proceeding.

   6. The Agency for Health Care Administration is the single state agency authorized by Section 408.034(1), Florida Statutes, to issue or deny certificates of need, "written statements ... evidencing community need for a new ... health service [such as an adult inpatient cardiac catheterization program.]" Section 408.032(2), Florida Statutes.

      
      

2. Standing of the Intervenors.

   
   

   1. Over half of Largo's open heart surgery patients originate from St. Anthony's defined service area and 35 percent from South Pinellas County. If St. Anthony's achieves its projected volume, Largo likely will lose 35 percent of its open heart surgery patients in the third year of operation. A loss of that number of patients will contribute to a substantial loss of revenue to Largo.

      
      

   2. As concerns Bayfront's standing to intervene in this proceeding, St. Anthony's purpose in seeking a CON for an open heart surgery program is to obtain authorization for a program to take the place of the All Children's/Bayfront adult open heart surgery program. As counsel for St. Anthony's made clear in oral representation during hearing, whether made clear from the face of St. Anthony's application or not, the application is a "replacement application for Bayfront/All Children's [open heart surgery program]." (Tr. 208.)

      
      

3. Filing of the CON application

1. Under cover of a certification of its authorized agent dated September 17, 1993, St. Anthony's Hospital, Inc., filed an application for Certificate of Need 7418 with the Agency for Health Care Administration. The application seeks expansion of existing cardiology services at St. Anthony's health care facility in Pinellas County to include an on-site program for adult open heart surgery.

   
   

   d . Background

   
   

2. This is not the first time St. Anthony's has initiated proceedings to obtain a CON for open heart surgery. It has filed applications before because of its concern that South Pinellas County is not being served appropriately by the adult open heart services program shared by Bayfront Medical Center and All Children's Hospital. In the application in this case, St. Anthony's describes its previous attempts in this way:

   
   

   ... St. Anthony's has on eight occasions, since 1987, applied for a Certificate of Need to provide open heart surgery services. Each application has either been denied, or was withdrawn by St. Anthony's based on represent- ations St. Anthony's received that

   All Children's/Bayfront shared program was adequate and appropriate to meet the needs of south Pinellas adult open heart patients. St. Anthony's has historically deferred to All Children's so as not to unnecessarily duplicate services.

   St. Anthony's Ex. 1, p 27.

   
   

3. In CON application 7396, filed July 14, 1993, All Children's Hospital requested AHCA to allow the hospital "to discontinue services to the adult cardiac surgery population effective June 30, 1994 ...". St. Anthony's Ex. No. 20, attachment at p.7. The reason for the request was that All Children's had experienced and projected to continue to experience growth in its pediatric surgery caseload. Since "All Children's mission and legal responsibility lies with Florida's children ... the [hospital's] obvious difficulty ... [was] how to continue dealing with a growing pediatric patient load with decreasing availability of facilities." Id.

   
   

4. At the same time, although not increasing as rapidly as children's surgery, the growth of the caseload for adult open heart surgery, as of the summer of 1993, was continuing in St. Petersburg. As a licensed pediatric hospital, All Children's opined in CON Application 7396,

   
   

   [W]e are unable to expand the adult program in even a moderate fashion and are unable to provide the true continuum of adult cardiac care that adult cardiologists and surgeons believe to be needed in the community. Only an adult licensed hospital can provide those services and allow for future growth.

   
   

   Id., at 8.

   
   

   With regard to the growing pediatric patient load threatened by decreasing availability of facilities, the application projected, "a true crisis within one year in the surgery, SICU area if adjustments are not made to alleviate the situation." Id.

   
   

5. The crisis, however, did not materialize. As of June 20, 1994, nearly one year after the filing of the withdrawal application, the President and Chief Executive Officer of All Children's Hospital was of the opinion that there was not a crisis in the care of pediatric patients. Nor was there a crisis in the care of adult open heart surgery patients. In fact, adult open heart surgery patients were receiving very high quality care within one year of the projection of crisis made in the application.

   
   

6. The application to terminate the open heart surgery program was withdrawn prior to June 20, 1994. All Children's withdrew the application in response to wishes expressed in the community that the program be continued.

   
   

7. Nonetheless, St. Anthony's viewed the representations made by All Children's in CON application 7396 to "impeach any continued suggestion by All Children's or Bayfront that the existing shared services agreement is a normal or appropriate setting for adult open heart services." St. Anthony's Ex. No. 1, pg. 27. It filed, therefore, the application that initiated this proceeding.

   
   

   1. Transfer Stress and Limitations

      of the All Chidren's/Bayfront OHS program.

      
      

8. After pre-operative care at Bayfront, adult open heart surgery patients are transferred through an enclosed corridor connecting Bayfront to All

   Children's. The same corridor is used to transfer the patients back to Bayfront for appropriate post- operative care following the surgery and intensive care at All Children's.

   
   

9. Patients typically suffer stress when being transferred from one institution to another. They certainly suffer "transfer stress" when being transferred from St. Anthony's to Bayfront for open heart surgery in the All Children's/Bayfront program, just as they would suffer stress in transfers from Bayfront to St. Anthony's were St. Anthony's application to be granted and were the St. Anthony program to take the place of the All Children's/Bayfront program.

   
   

10. Typical transfer time, however, between Bayfront and All Children's is only about five minutes. Most patients do not realize they are going from one institution to another. Although the arrangement is less than ideal, it is doubtful that open heart surgery patients suffer stress due to the transfers from Bayfront to All Children's and back again.

    
    

11. There are, however, some drawbacks with regard to angioplasty patients in the All Children's adult program. Ambulation of angioplasty patients cannot be appropriately observed postoperatively at All Children's because there are not telemetry facilities available at All Children's for observation. There are such facilities at Bayfront and the patients may be observed there post- operatively once out of the intensive care unit at All Children's.

    
    

12. Carlos M. Estevez, M.D., is a cardiologist with St. Petersburg Medical Clinic with active privileges at St. Anthony's, Bayfront, All Children's and Edward White Hospital. Beds have been unavailable postoperatively for adult therapeutic anigoplasty patients of his on occasion at All Children's. The patients have been required to be transferred to Bayfront or back to St. Anthony's, with French sheaths in their groin, a less- than-ideal situation.

    
    

13. Dr. Estevez' therapeutic anigoplasty patients requiring open heart backup at All Children's are typically discharged from All Children's after spending the night in the intensive care unit. For the average angioplasty patient, intensive care services are an overutilization of services.

    
    

14. Dr. Estevez believes "crisis" would be a fair term to describe the current situation for his angioplasty patients in the All Children's/Bayfront program.

    
    

    1. Not Normal Circumstances

       
       

15. Part of CON review is to look for factors the application shows to be "beyond the norm," or "any unusual circumstances." AHCA's interrogatory answer responded with regard to defining "not normal circumstances," in this way:

    
    

    There is no definition for "not normal circum- stances." In the absense (sic) of a projected numeric need pursuant to a fixed pool publication, an applicant may demonstrate valid need, justi- fiable evidence of situations or occurrences in

    a service area which are not accounted for such as access problems, which may support approval.

    
    

    St. Anthony's Ex. 7, p. 9.

    1. Circumstances of the All Children's/Bayfront Program.

       
       

16. As a dedicated Class II pediatric specialty hospital, All Children's, alone, cannot provide the continuum of care needed by adult open heart surgery patients. Its provision of services, as stated above, is limited to surgery and postoperative intensive care. Other services in the continuum of care required by adult open heart surgery patients include admission to an emergency room, and pre-operative coronary care as well as post-operative care (other than intensive care) all the way through cardiac rehabilitation. The components of the continuum other than the actual surgery and post-op intensive care are provided by Bayfront and other hospitals. Despite All Children's inability to provide "continuum of care," by itself, to adult open heart surgery patients, the care provided the open heart surgery patient in the All Children's/Bayfront program is of high quality.

    
    

17. All Children's physical site is limited for future growth both as to the adult open heart program and its pediatric programs. The physical outer limits of the hospital building are right on the property line, "all the way around. It has no room to expand." St. Anthony's Ex. No. 20.

    
    

18. But for physical limitations, All Children's pediatric services would expand because the need for expansion in the pediatric program exists. The inability of the pediatric programs to expand compromises All Children's mission: pediatric care in a hospital dedicated to pediatrics. The adult open heart surgery program, if withdrawn, would free All Children's somewhat for further pediatric program growth both as to resources and space. But All Children's is no longer trying to withdraw from the program.

    
    

19. All Children's board of trustees believes that only an adult licensed hospital can provide the continuum of care needed for adult open heart surgery patients and allow for future growth. Moreover, it is not possible to put together a competitive adult open heart pricing structure for the continuum of care that one hospital could provide when adult open heart surgery patients are being transferred from All Children's to and from other hospitals in order to provide the full continuum of care.

    
    

    1. AHCA's Response to the Application.

    
    

20. AHCA's response to the application was denial based on a determination of no need to support the application. After review, AHCA determined that the application did not demonstrate that St. Anthony's could support sufficient volume even were the All Children's/Bayfront program to become non-operational. There was, however, an even more fundamental objection to granting the application on the part of the agency. As Elizabeth Dudek, Chief of the Certificate of Need and Budget Review sections of the agency, explained with regard to St. Anthony's premise that the application seeks to have its program "replace" the All Children's/Bayfront adult open heart surgery program,

    
    

    I don't understand that premise. I don't understand it because, one, the All Children's/ Bayfront program is still operational. There

    is no indication that the All Children's/Bayfront program has somehow indicated that it would relinquish its program volume to St. Anthony's.

    1. dditionally, ... by law they wouldn't be able

       to [accomplish a transfer] through the CON program, you can't transfer [or replace] a program ...

       
       

       Tr. 1534, ll. 2-12.

       
       

       1. Need.

    
    

21. For those in need of open heart surgery services in South Pinellas County, there is another facility in South Pinellas County at which the services can be obtained: Northside. As for all of AHCA District 5, there are other facilities at which open heart surgery services are available. There is no evidence, despite the inability of the All Children's/Bayfront adult program to expand, that the needs of those requiring high quality open heart surgery services in South Pinellas County or AHCA District 5 are going unmet.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Sections 120.57(1) and 408.039(5), F.S.

    
    

23. As existing providers of adult open heart surgery services in District 5, which will serve patients who, if St. Anthony's application is granted, could receive those services at

    
    

    either their facilities or at St. Anthony's, both Bayfront Medical Center, Inc., and Largo Medical Center, Inc., have standing to participate in this proceeding.

    
    

24. Pursuant to Section 408.036(1), Florida Statutes, and 59C-1.004(2), Florida Administrative Code, an application to provide adult open heart services is subject to review by the Agency for Health Care Administration and requires the filing of an Application for Certificate of Need.

    
    

25. The statutory and rule criteria applicable to this de novo review of CON 7418 are found in sections 408.035, 408.037, 408.039, Florida Statutes, and Rule 59C-1.033, Florida Administrative Code.

    
    

26. St. Anthony's Hospital, Inc., has the burden of demonstrating that it is entitled to the certificate of need. Florida Department of Transportation v.

    J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981), Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985). A balanced consideration of applicable statutory and rule criteria must be made. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). Such consideration requires that varying weight be accorded each criterion depending on the facts of each case. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985).

    
    

27. Among the criteria that must be considered in evaluating an application for a CON is the need for the proposed services. AHCA has established an open heart surgery methodology that, normally, must be satisfied before any new OHS programs will be approved. To this end, AHCA has adopted a numeric need methodology. See Rule 59C-1.033(7)(b), F.A.C. AHCA further provides, however, that "[a] new adult open heart surgery program shall not normally be approved ... if ... [t]here is an approved open heart surgery

    program in the district." Rule 59C- 1.033(7)(a)1., F.A.C. The evidence in this case demonstrates that Northside has an approved open heart surgery program in the district. Accordingly, there is no numeric need.

    
    

28. Of course, St. Anthony's does not contend otherwise. St. Anthony's seeks to establish entitlement to a certificate of need through the existence of "not normal" circumstances.

    
    

29. The circumstances surrounding the All Children's/Bayfront shared adult open heart surgery program, as established through the confirmation by All Children's President and Chief Executive Officer of the statements contained in All Children's CON Application No. 7396, are certainly unusual. The adult open heart surgery program is not able to expand despite an increase in demand. But there are other facilities both in South Pinellas County and elsewhere in District 5 which are available to serve adult patients who may be unable to obtain open heart surgery services from the All Children's/Bayfront program.

    
    

30. Of more import to health care, in general, is the effect the shared program has on the pediatric programs at All Children's. It seems clear from the evidence that All Children's mission, "pediatric care in a hospital dedicated to pediatrics" is suffering due to the presence of the adult open heart surgery facilities in the hospital. What to do about the impact to the pediatric programs and the mission of All Children's Hospital, however, at least on the state of record in this proceeding, is a matter for its Board of Trustees. Moreover, in addition to the question of whether the adult program's impact on the pediatric programs at All Children's is relevant to whether St. Anthony's should be granted an adult open heart surgery CON, there is another pressing question. What would happen to the All Children's/Bayfront shared program, if St. Anthony's application were granted? There is no evidence that it would simply wither away. Furthermore, as Ms. Dudek explained so succinctly, there is no procedure to replace or transfer an existing program with another. Nor is there evidence of any proceeding underway, or basis in law, for that matter, to revoke or limit to pediatrics All Children's open heart surgery program.

    
    

31. Questions surrounding the "replacement" nature of St. Anthony's application, aside, St. Anthony's, at bottom, has failed to establish the need for an open heart surgery program at its facility. As stated in Humosco, Inc. et al. v. Department of Health and Rehabilitative Service, 14 FALR 244, (DOAH December 12, 1991),

    
    

    It is impossible to list all of the circum- stances where a new program could be approved even in the absence of "numeric need." Examples of not normal circumstances include a showing of inaccessibility, excessive utilization of a particular facility, or an intentional or an intentional action by an existing provider to keep its utilization below [a minimum number]

    of annual procedures. Other factors may include exceptional circumstances as they relate to the review criteria listed in Section 381.705, Florida Statutes, evidence of an unusual payor mix, established referral patterns among existing providers or evidence to suggest that an existing program could not reach ... minimum procedure volume because of poor quality.

    Id. at 262.

    
    

    Dr. Estevez' testified that, on occasion, his angioplasty patients requiring open heart backup must spend the night in All Children's ICU, an overutilization of services. This overutilization is not enough, by itself, to establish need for another open heart surgery program in South Pinellas County particularly when a new program has just been established at Northside. See Rule 59C- 1.002(66), F.A.C. establishing open heart surgery as a tertiary health service and the definition of "tertiary health service," in Section 408.032(19):

    
    

    1. health service which, due to its high level of intensity, complexity, specialized or limited applicability, and cost, should be limited to an concentrated in, a limited number of hospitals to ensure the quality, availability, and cost- effectiveness of such service ... (e.s.)

       
       

32. Despite the establishment by St. Anthony's of the existence of unusual circumstances surrounding the All Children's/Bayfront shared program, there is no evidence that these circumstances creates the need for an open heart surgery program at St. Anthony's.

    
    

33. St. Anthony's has established that it would be better for Florida's pediatric patients if All Children's would relinquish its adult open heart surgery program. There is no basis of record, however, that the presence of the shared program is injurious to adult open heart surgery patients. They have adequate facilities in South Pinellas County and in District 5 from which to choose and to receive high quality open heart surgery services. Absent further change in circumstances, there is no need for an adult open heart program at St. Anthony's, however well-qualified St. Anthony's is to conduct one.

Accordingly, it is RECOMMENDED:

That Certificate of Need Application No. 7418 be DENIED.

DONE and ORDERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

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 24th day of July, 1995.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: St. Anthony's Proposed Findings of Fact in its Amended PRO:

Proposed Findings of Fact Nos. 1 - 8, 85 - 90, 93, 95, 96 98-105, 107 -

109, 113 - 115, 133, and 138, insofar as material, are accepted.

Proposed Findings of Fact Nos. 9 - 84, 111, 112, 116 - 132, 134, 135, 136 are rejected as irrelevant.

Proposed Findings of Fact No. 91 and 92 are rejected because the transfer between Bayfront and All Children's and back again, is as if the patient is in one hospital. With regard to a third facility, transfers are no different than any transfer from an admitting hospital to the hospital where the surgery is conducted. See St. Anthony's Ex. No. 23, Estevez Deposition, pg. 56.

Proposed Finding of Fact No. 94 is rejected as uncorroborated hearsay.

Proposed Finding of Fact No. 97 is accepted as Dr. Estevez' opinion but it does not establish that the All Children's/Bayfront open heart surgery program is in a crisis.

Proposed Finding of Fact No. 106 is rejected. See rulings on Findings 91 and 92, above.

Proposed Finding of Fact No. 136 is rejected. The quality of care is determined to be good in the All Children's/Bayfront program.

Proposed Finding of Fact No. 110 is accepted with the recognition that All Children's by itself cannot provide the "continuum of care" necessary for adult open heart surgery programs. The necessary continuum is provided in conjunction with Bayfront.

Proposed Finding of Fact No. 139 first sentence is rejected as without any foundation in the evidence. The second sentence is accepted.

Proposed Findings of Fact Nos. 106 and 107 are rejected.

Bayfront and AHCA's Proposed Findings of Fact in their Joint Pro:

Proposed Findings of Fact Nos. 1 - 17, 24 - 30, 34, 61 - 65, 67 - 77, 88,

125, 126, 127, 135 - 139, and 141 - 147, insofar as material are adopted.

Proposed Findings of Fact Nos. 18 - 23, 32, 33, 35 - 60, 66, 78 - 86, 89 -

124, and 128 - 134, are rejected as irrelevant.

Proposed Finding of Fact 31 is rejected. St. Anthony's proposed to become the third provider of OHS primarily serving the residents of South Pinellas County.

The first sentence of Proposed Finding of Fact No. 87 is rejected. It is not necessary to the recommended disposition of the case to reach the issue of whether the All Children's/Bayfront program is a more reasonable alternative to what St. Anthony proposes. The second sentence of the finding is accepted.

With respect to Proposed Finding of Fact No. 140, expansion is not an alternative. Implementation of proposed modifications may be an alternative to the current program at All Children's/Bayfront.

Largo's Proposed Findings of Fact in its PRO:

Proposed Findings of Fact Nos. 1 - 14, 25 - 27, 32, - 77, 132, 133, 164, 165, 166 insofar as material are accepted.

Proposed Finding of Fact Nos. 15 - 24, 28 - 31, 78 - 131, 134 - 163 are rejected as irrelevant.

Proposed Finding of Fact No. 167 is disregarded.

COPIES FURNISHED:

Robert D. Newell, Jr. NEWELL & STAHL

817 North Gadsden Street Tallahassee, FL: 32303

S. Dean Bunton

Agency for Health Care Administration

325 John Knox Road The Atrium, Suite 301

Tallahassee, FL 32303-4131

Stephen A. Ecenia Thomas W. Konrad

Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A.

215 South Monroe St. Tallahassee, FL 32301-1841

James C. Hauser

Parker, Skelding, Labasky, Corry, Eastman & Hauser, P.A.

Post Office Box 669 Tallahassee, FL 32302

John D.C. Newton, II Suzanne Mann

Messer, Vickers, Caparello, Madsen & Goldman, P.A.

Post Office Box 1876 Tallahassee, FL 32302-1876

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 ten 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.

Docket for Case No: 94-001010CON

Orders for Case No: 94-001010CON