STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HOLMES REGIONAL MEDICAL CENTER, ) INC., d/b/a HOLMES REGIONAL )
MEDICAL CENTER and d/b/a PALM ) BAY COMMUNITY HOSPITAL, )
)
Petitioners, )
)
vs. ) Case No. 97-4289
)
AGENCY FOR HEALTH CARE ) ADMINISTRATION and WUESTHOFF ) MEMORIAL HOSPITAL, INC., d/b/a ) WUESTHOFF MEMORIAL HOSPITAL, )
)
Respondents. )
)
RECOMMENDED ORDER
This case was heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, from April 12, 1999 through April 23, 1999; May 3, 1999 through May 10, 1999; and July 15, 1999, in Tallahassee, Florida.
APPEARANCES
For Holmes Regional Medical Center, Inc., d/b/a Holmes Regional Medical Center and d/b/a Palm Community Hospital:
R. Terry Rigsby, Esquire Blank, Rigsby & Meenan, P.A.
204 South Monroe Street Tallahassee, Florida 32301
Stephen K. Boone, Esquire
Boone, Boone, Boone & Hines, P.A. Post Office Box 1596
Venice, Florida 34284-1596
For Wuesthoff Memorial Hospital, Inc., d/b/a Wuesthoff Memorial Hospital:
David C. Ashburn, Esquire Smith & Ashburn, P.A.
1330 Thomasville Road
Tallahassee, Florida 32303 For Agency for Health Care Administration:
Richard A. Patterson, Esquire
Agency for Health Care Administration Fort Knox Building Three, Suite 3431 2727 Mahan Drive
Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUE
Whether the application of Wuesthoff Memorial Hospital, Inc. (CON 8740) for a 50-bed general acute care hospital in South Brevard County should be granted?
PRELIMINARY STATEMENT
On September 10, 1999, the Agency for Health Care Administration ("AHCA" or the "Agency") notified the Division of Administrative Hearings that it had received a petition for a formal administrative hearing from Holmes Regional Medical Center Inc., d/b/a Holmes Regional Medical Center, and d/b/a Palm Bay Community Hospital ("HRMC" or "Holmes Regional"). The Agency notice requested that an Administrative Law Judge be designated to conduct all proceedings required by law.
The petition of HRMC contested AHCA's preliminary approval of CON 8740, an application by Wuesthoff Memorial Hospital, Inc. ("Wuesthoff") to establish a 50-bed general acute care hospital in Brevard County, District 7, Subdistrict 1. The case was
assigned Case No. 97-4289 by the Division and the undersigned was designated as the Administrative Law Judge to conduct the proceedings.
Originally set for hearing to commence March 9, 1998, the hearing was continued several times and placed in abeyance pursuant to a joint motion of the parties. The case proceeded to final hearing on April 12, 1999. Final hearing concluded two months later, on July 15.
At final hearing, Wuesthoff called the following witnesses: Robert O. Carman; Rebecca M. Colker; Brian Collins; Heidar Heshmati, M.D.; Michael Morrissey, Ph.D.; Gary T. Kinsella; David Stapelton, Ph.D.; Rhonda Pieper-Schmidt; Jesse Green, Ph.D.; Jose Estevez; Athen Kartsonis; Matthew Davies; Larry Jones; Becky Cherney; Christopher Finton, M.D.; Bonnie Will; Connie Chiles- Cook; Steven Warrick; Charles Kelly; Jerry Jacobs; Patricia Ward; Linda Ryan; John D. Hermansdorfer, M.D.; Paul Keller, M.D.; Richard Whittington; Mark Richardson; Debbie D’Agostino; Michael Brouthers; Greg Johnston; Dorothy Pinnick; Joel Menges; Dominic Lauretta; John Van Gorp; Bernard Van Someren; David Eisenstadt, Ph.D.; Rick Knapp; Robert D. Schroth; and David I. Kempler.
Wuesthoff Exhibits 1-63 were received into evidence.
The Agency called Elizabeth Dudek as its witness. AHCA Exhibits 1 and 2 were received into evidence.
HRMC called the following witnesses: Mike Means; Jerry Senne; David Sapp; Herb Haigh; Warren Stowell; Jim Higgens; Elton
Scott, Ph.D.; Rebecca Wagaman, M.D.; Nate Kaufman; Bill Goode; Lisa Inbornone; Judith Horowitz; Martin Isenman, M.D.; William Lynk, Ph.D.; Larry Garrison; Rod Baker; Mike Maguire; Bruce Hopkins; Todd Holder; and Sharon Gordon-Girvin. HRMC Exhibits 1- 42; 45-77; and 80-82 were received into evidence. Exhibits 43; 44; 78; and 79 were offered but not received into evidence.
Official recognition was taken of the Recommended Order entered by Administrative Law Judge Johnston in DOAH Case No. 97- 0389 and a Final Order entered by AHCA in DOAH Case No. 97-0389 entered on August of 1999 (the "first Final Order") and a subsequent Final Order entered by AHCA in Case No. 97-0389 in January of 2000, (the "second Final Order").
The last volume of the transcript of the final hearing was filed August 6, 1999. Proposed recommended orders of the parties were filed 10 days after the filing of the completed Transcript, on August 16, 1999, in a timely fashion. The HRMC proposed order and the joint proposed order of Wuesthoff and the Agency contained portions under seal. (These portions of the proposed orders contained references to the record deemed confidential by an earlier order of the Division of Administrative Hearings and ordered to be placed under seal.) Eight days later, the First District Court of Appeal issued an order stating in pertinent part:
Upon consideration of petitioner's [HRMC's] emergency petition seeking mandamus or other emergency relief, the court stays all further activity before the administrative law judge
on respondent Wuesthoff's second certificate of need application [the application under consideration in DOAH Case No. 97-4289], including entry of any recommended order, pending further order.
Order of the Court, First District Court of Appeal Case No. 1999- 3141, rendered August 23, 1999.
The stay remained in effect until March 7, 2000. Following the entry of the court's order lifting the stay, HRMC filed a renewal of its Motion in Limine seeking, in part, collateral estoppel in this proceeding of matters decided by the Agency's second Final Order in DOAH Case No. 97-0389. A hearing on the motion was conducted in March of 2000. The renewed motion was denied.
HRMC took an interlocutory appeal to the First District Court of Appeal from the denial of the renewed motion. A motion by HRMC to stay issuance of a recommended order pending the interlocutory appeal was filed but not ruled on before the appellate court denied a similar motion before it on March 30, 2000.
This recommended order follows.
FINDINGS OF FACT
The Parties
Wuesthoff
The applicant for CON 8740 is Wuesthoff Memorial Hospital, Inc., a Florida not-for-profit corporation. Wuesthoff operates a general acute care hospital (the "Hospital" or the
"Rockledge campus") in Rockledge, Florida. According to the division of the county into three areas (north, central, and south) ascribed to by Wuesthoff, Rockledge is in Central Brevard County.
Wuesthoff's parent corporation is a not-for-profit corporation, Wuesthoff Health Systems, Inc. (the "Wuesthoff System"). The Wuesthoff System operates health care providers across the health care spectrum. Among the entities controlled by the Wuesthoff System is Wuesthoff Health Services, Inc., which operates a home health agency, a hospice, a durable medical equipment service and a 114-bed skilled nursing facility. The Wuesthoff Foundation, responsible for fundraising activities for all components of the Wuesthoff System and Care Span, a medical services organization which owns and operates physician practices, are also under the umbrella of the Wuesthoff System.
The health care system operated by the Wuesthoff System serves residents in and around Brevard County and, to a limited extent, beyond. Examples of its service throughout Brevard County are the hospice, the durable medical equipment-company, and a reference laboratory. The hospice, for example, is licensed and serves all of Brevard County. The reference laboratory, located in Viera, provides services throughout Broward County and to other counties in Florida. The Wuesthoff System also owns a mobile health unit that travels throughout the county to provide health care services.
The Wuesthoff System owns two outpatient clinics or "broad based diagnostic clinics" (Tr. 98) in Brevard County. One is on Merritt Island; the other is located in Sun Tree. Home health services are provided from a base of three different offices in the county. Similar to some of the other services offered by Wuesthoff, its home health services are provided throughout the county.
Although it draws patients from throughout the county, most of Wuesthoff's hospital admissions come from Central Brevard County where the Hospital is located. If one defines "Central Brevard County" to include Port St. John and Sun Tree Viera, the sites of the northernmost and southernmost physician practices owned or operated by Care Span, then all of the practices in the Wuesthoff System are within Central Brevard County. Ownership of these practices does not restrict the physicians in them from referring patients for treatment outside the Wuesthoff System. But consolidation of the various services offered by the practices (diagnostic and radiology services, for example) enables Wuesthoff to strengthen its presence in Central Brevard County. The result is "additional volume" (Tr. 164) for the Hospital.
The Hospital contains 268 acute care beds, 30 psychiatric beds, and five hospice beds, for a total of 303 beds. (It also contains 10 Level II Neonatal Intensive Care Unit beds.) If the project subject to CON review in this proceeding is
ultimately approved, 100 of these beds will be de-licensed, leaving a 203-bed facility.
HRMC
Holmes Regional Medical Center ("HRMC") is a 528-bed regional, not-for-profit hospital, headquartered in Melbourne, Florida, operating on two acute care campuses under a single hospital license. One campus is the site of a 428-bed tertiary care facility in Melbourne; the other is a 60-bed general acute care community hospital in Palm Bay. Both facilities are in the southern portion of Brevard County.
In addition to the 428 general medical and pediatric beds operated at the Melbourne facility, HRMC operates there a 10-bed Level II neonatal intensive care unit.
HRMC is accredited by the Joint Commission for Accreditation on Health Care Organizations ("JCAHO"). It operates the only hospice program in the county accredited with commendation by the JCAHO; the only comprehensive community cancer program that has been accredited by the American College of Surgeons; the only American Sleep Disorders Association accredited sleep lab; the only American College of Radiology accredited respiratory therapist department; the only certified pulmonary function lab; and, the only life flight helicopter in Brevard County for hospital transports. As a regional medical center, HRMC provides open heart surgery, tertiary, orthopedic and neurosurgical referrals through a seven-county area, and
provides trauma support for the central and south central Atlantic Coast in the State of Florida. It is the only designated trauma center in Brevard County.
HRMC was founded 60 years ago by the community and has been a not-for-profit, community-based hospital ever since. The mission of HRMC is to improve, regardless of ability to pay, the health status of every member of the community through collaborative and cooperative agreements with other organizations and agencies it its service area. To represent the community's interests, HRMC's Board is composed of community leaders, educators, and employers.
HRMC plays an active role in the community. The program denominated HOPE (Health Outreach Production and Education) is a collaborative effort by the Brevard County Public Health Unit, the American Cancer Society, the School Board, the County Commission and HRMC to solve community health problems. There are currently nine HOPE sites, and three HOPE centers. Among the purposes of the HOPE sites and centers is meeting the unique needs of children with developmental disabilities.
Cape Canaveral Hospital, Health First and HFHP
Cape Canaveral Hospital, Inc. ("CCH") is the licenseholder for a 150-bed hospital approximately five miles east of Wuesthoff in Cocoa Beach, Florida. Like Wuesthoff, Cocoa Beach is located in Central Brevard County.
In August of 1995, HRMC entered into an agreement with CCH to create Health First, Inc. The presidents/chief operating officers of HRMC and CCH are employees of Health First.
Similar to the Wuesthoff System, Health First controls the operations of its hospital facilities (HRMC and CCH) and owns and operates physician practices, health clinics, a home health agency, a hospice, and a skilled nursing facility.
Health First is the sole shareholder of a Florida not- for-profit corporation known as Health First Health Plans, Inc. ("HFHP"). HFHP is the largest managed care organization in Brevard County operating both a traditional health maintenance organization ("HMO") and a Medicare HMO.
Other Nearby Hospitals
Parrish Medical Center, operated by a statutorily created tax district, is located in Titusville. If the county is considered to contain three distinct areas (north, central, and south) as proposed by Wuesthoff, Parrish is the only hospital in North Brevard County.
Sebastian River Medical Center is located in Indian River County, south of Brevard County. Located in a relatively rural area, it is a small hospital. It provides no tertiary services. It draws some patients from South Brevard County. These patients would otherwise in all probability seek hospital services from a Brevard County hospital.
Second Attempt by Wuesthoff
Wuesthoff's CON application seeks to establish a new
50-bed general acute care hospital in South Brevard County. This is not the first time Wuesthoff has attempted to obtain such a CON. It applied earlier in CON 8597 for a 50-bed hospital in South Brevard County.
In the first attempt, the Agency preliminarily denied the application. Wuesthoff petitioned for a formal administrative hearing. Following receipt of a Recommended Order entered in DOAH Case No. 97-0389 that CON 8597 be denied, Wuesthoff withdrew its application and dismissed its petition for a formal administrative hearing. The Agency entered a "final order" closing its file and dismissing Wuesthoff's petition in light of the application's withdrawal. (Legal proceedings which followed issuance of the order are briefly described in the Preliminary Statement of this Recommended Order.)
No New Beds in the Subdistrict Proposed by the Application
By the application subject to this proceeding, Wuesthoff does not propose the addition of new beds to Brevard County (the acute care subdistrict at issue, designated by the Agency as Subdistrict 7-1.) In fact, because of Wuesthoff's commitment to delicense 100 beds as a condition of the approval of its application, the granting of the application will result in a net loss of 50 hospital beds in the subdistrict. "[F]ixed need pool[s] only appl[y] to the addition of new beds to a
subdistrict." (Tr. 3468). That the fixed need pool resulted in a published need of zero for general acute care hospital beds for the batching cycle in which Wuesthoff's application was filed, therefore, has "no bearing" (Id.) on the issues in this proceeding.
For the same reason (that granting Wuesthoff's application will not result in the addition of new general acute care beds in the district) the applicant is not required to prove the existence of "not normal circumstances" to overcome any presumption created by the calculation of the fixed need pool as zero.
The Proposed Project
The site of the proposed hospital, 43 acres purchased by Wuesthoff for approximately $2.5 million, is on Wickham Road in the city of Melbourne. Twenty of the 43 acres will be devoted to a medical complex of which the 50-bed hospital will be a part.
The complex will be "one building that has three very definite components." (Tr. 83). The three components are "an ambulatory and diagnostic center" (Id.), a medical office building, and the 50-bed hospital. The diagnostic center is CON- exempt and the medical office building has been issued a certificate-of-need. Although committed to construct the diagnostic facility and the medical office building at least since March of 1997, at the time of hearing, no construction permits for the property had been obtained nor had any activity
on the two components been commenced. Nonetheless, Wuesthoff remains committed toward construction of the diagnostic center and the office building regardless of the outcome in this proceeding.
Although the proposed hospital will not provide tertiary services, it will provide all services typically provided in a community hospital. These include obstetrics, pediatrics, and emergency services in a 24-hour emergency department. The services to be offered will not be unique in the subdistrict; all are presently available in the community. In other words, the services to be offered will duplicate services presently offered by existing providers.
The estimated cost of the 50-bed hospital proposed in CON 8740 is $38,512,961, a cost that, in the case of a not-for- profit hospital, will ultimately be born by the public "one way or another." (Tr. 2402.) Wuesthoff's application included projections of revenues and expenses attributable to the proposal for the proposed construction period and the first two years of operation. It also included, as required, audited financial statements for two years and a listing of all Wuesthoff's capital projects planned, pending or underway at the time of the filing of the application.
A Purpose of CON Law
One of the purposes of CON review of an application for a new hospital is "to limit unnecessary, costly duplication of
services that are available at other hospitals . . . at least where those services are being provided at reasonable costs." (Tr. 2401-02).
Preliminary Agency Action
Initially, AHCA Staff intended to recommend denial of Wuesthoff's application. After a meeting with the Director of AHCA, the decision was made to approve the application. The most important factor weighing in favor or approval was one related to competition and costs of hospital services to the ultimate consumer of the services, "[n]amely that . . . large HMO providers have no access to [HRMC] . . . or have been unable to get contractual relationships with [HRMC]." HRMC No. 75, p. 20. The meeting with the Director clarified the Agency's priorities. On July 11, 1997, AHCA issued its State Agency Action Report ("SAAR") containing its determination that the application should be approved.
This proceeding was initiated on August 15, 1997, when HRMC filed its Petition for Formal Administrative Hearing on August 15, 1997, in order to challenge the Agency's decision.
Need in Relation to the District Health Plan: Section 408.035(1)(a), F.S.
The portion of the District 7 Local Health Plan governing the transfer of existing beds includes five parts. Preference is given to applicants that provide documentation of compliance with the five parts.
The first part addresses need in the service area proposed to receive the beds. In addressing specific populations, access is one of the considerations.
There was no published need for beds to be provided if the application is granted. "[A]t the time the application was filed the Agency's formula showed in excess of 342 beds. [At the time of hearing], the current formula shows an excess of 333 acute care beds for Brevard County." (Tr. 3385). There are no barriers (such as geographic barriers) typically associated with access to acute care services in the subdistrict. Every resident of Brevard County has access to a general acute care hospital within a drive time of 30 minutes usually and 40 minutes at the most. In South Brevard County, Holmes Regional at its two campuses provides high quality inpatient care and excellent medical services. Wuesthoff's hospital in Central Brevard County and Sebastian Medical Center in the adjacent county to the south also serve some of the residents of South Brevard County.
Wuesthoff does not receive preference under the first part of the district plan applicable to this proceeding.
The second part of the local health plan applicable to this proceeding governs impact to the parent facility including projected occupancy declines, curtailing of service effect on operating cost, use of vacated space at the main campus and charge changes. "[T]here would be minimal utilization decline at the Rockledge facility tied to some redirection of patients from
Rockledge to south Brevard." (Tr. 1222). The space that will be vacated will be reused. Wuesthoff receives preference under this part of the district plan.
The third part calls for documentation of improvement of access by at least 25 minutes to at least 10% of the population or a minimum of at least 35,000 people. While Wuesthoff's proposal will provide a competitive alternative to substantially more than 10% of the population of South Brevard County, a number in excess of 35,000 people, access to acute care hospital services is presently satisfactory in South Brevard County. Wuesthoff does not receive any preference under this part of the plan.
The fourth part relates to the commitment of the applicant to the provision of charity care and care to the medically indigent. Wuesthoff meets this preference based on its commitment that 15% of the discharges from the proposed facility will be Medicaid and charity care.
The fifth part addresses the applicant's participation in indigent care programs in the county. Wuesthoff participates in a significant number of community benefit and outreach programs that meet the concerns of this part:
There is the We Care Program, . . . a distributed medical access point . . . [and].
. . the United Order of True Sisters, . . .a service group which Wuesthoff supports.
Wuesthoff works with a CMS program to provide baby and young children support services.
Wuesthoff was involved with the development of the Children's Advocacy Center . . . a
community-based program. It's a participant in the Health Start Coalition. And Wuesthoff has also sponsored its own mobile health program with a specific focus and purpose to provide care to [the indigent].
(Tr. 1225). Wuesthoff clearly meets this preference.
On balance, despite the lack of an access problem for residents of the subdistrict, Wuesthoff meets the need criteria identified in the applicable portion of the district plan.
The Availability, Quality of Care, Efficiency, Appropriateness, Accessibility, Extent of Utilization, and Adequacy of Like and Existing Health Care Services in the Service District: Section 408.035(1)(b),F.S.
There is an excess of capacity in acute care beds in Brevard County. Despite an increase in population from 1993 to 1997 of about 2% per year overall and about 3.5% per year in the populace over 65 years of age, the use rate of hospital services declined. In 1993, the use rate was 600 acute care patient days per thousand population. In 1997, the rate was 484 acute care patients per thousand. The occupancy rates for Brevard County hospitals, despite the population increase, is also trending downward. In 1990, overall occupancy of hospital beds in Brevard County was 63%. In 1997, it was approximately 53%. This is due to a number of factors. Managed care penetration has increased; managed care exerts influence to hold down admissions and inpatient days; and there has also been a shift from inpatient surgical procedures to outpatient surgical procedures.
The SunTree/Viera area, mid-way between Wuesthoff and Holmes Regional, is the most rapidly growing area of its size in
Brevard County. As opposed to areas south of the SunTree/Viera area, where the overwhelming majority of patients use Holmes Regional for hospital services, the SunTree/Viera area is subject to active competition between Wuesthoff and HRMC for patients.
Holmes Regional has been shown to be a consistent low charge provider operating within the expected range of outcomes. Furthermore, HRMC has performed as one of the top five hospitals in Florida in reducing overall Cesarean-Section births and increasing vaginal births after Cesarean ("VBAC"). This is important because "unnecessary Cesarean Section presents a real risk for both the mom and the baby . . . [and] the cost to the State for Cesarean Sections performed when vaginal birth would be a desirable alternative added about $3,000 per delivery to the State funded [deliveries]." (HRMC No. 77, p. 1091). Holmes Regional has had the lowest Cesarean Section rate in the county and the highest VBAC rate in the County.
The construction of the proposed facility would not significantly increase access to hospital services for Brevard County patients.
Holmes Regional delivers the majority of Medicaid babies in the county and is also a contract provider for Children's Medical Services.
Ten years ago or so, in recognition of a substantial portion of the population in Brevard County without health insurance, Holmes Regional collaborated with the school board,
the public health unit, civic organizations and others to create two school-based community health clinics. "[T]argeted at young families and children" (HRMC No. 77, p. 1063), the clinics provide pro bono health care services. The collaboration was the genesis of the HOPE program.
The HOPE program's agenda was expanded to include a mobile clinic to reach those in need of pro bono services who were without transportation to the school-based clinics. The agenda was again enlarged to provide integrated services for children with developmental and cognitive disabilities and delays. Holmes Regional provides direct funding of approximately
$1.5 million per year through operational costs of the HOPE program.
Holmes Regional not only provides funding to HOPE but it subsidizes salaries of nurses, midwives, and obstetricians directly employed by the Public Health Unit, whose duties include the provision of medical care to the indigent.
Dr. Manuel Garcia, Medical Director of the Public Health Unit in Brevard County for over 20 years until his retirement in 1998 offered the following in his testimony in the hearing before Administrative Law Judge Johnston (admitted into evidence in this proceeding as HRMC No. 65) about Holmes Regional's support of the Public Health Unit: "Holmes has always been willing to go the extra mile to help the Health Department with other programs and activities." HRMC No. 65, p. 1211. With
regard to the question of which hospital "in Brevard County sets the pace in providing indigent care" (Id.) Dr. Garcia answered:
ll the hospitals do a pretty good job . .
. [t]here is no doubt that Holmes has been more aggressive in terms of getting into the community to kind of use all the resources available and putting together different organizations and agencies in order to provide more services to the poor in the community. They have been going the extra mile . . .
(HRMC Ex. No. 65, pgs. 1211, 1212.)
Holmes Regional's efforts in support of the Public Health Unit have continued following Dr. Garcia's tenure. At the same time, "it is true" (Tr. 274) that Wuesthoff, Cape Canaveral, and Parrish Medical Center all "go the extra mile in providing services to the patients that come through the health department." (Id.)
Holmes Regional works with the Brevard County Public Health Unit, whose duties include provision of medical care to the poor and indigent patients in the county to develop a better system for giving prenatal care to Medicaid and indigent mothers.
In 1998, HRMC provided $10 million of free charity for indigent patients not admitted through HOPE. General community donations and contributions totaled $542,000 and in-kind contributions totaled $714,000. The HOPE program, funded entirely by Holmes Regional, paid $1.1 million in clinical services for staff, pharmacy, services, and supplies to operate its clinics. In addition to these direct dollars, HRMC
contributed 2.1 million in uncompensated services to the HOPE program in 1998.
The HOPE program has been honored for ground-breaking work in community health improvement and for improving life in Florida through the American Hospital Association's Nova Award and the Heartland Award from the Governor of Florida.
Holmes Regional supports a variety of agencies to provide care to AIDS patients. One such clinic is the Comprehensive Health Clinic. In existence since 1991, it currently treats 400 AIDS patients. Its services are mostly paid for through federal programs. Without the assistance of HRMC, the clinic would not be able to provide the quality of services it offers these AIDS patients.
Holmes Regional is involved with several children's health programs, including a Healthy Families Program providing in-kind screening assessment. Health Kids Plan subscribers are provided access to managed care insurance products by Health First Health Plans, the managed care company affiliated with Holmes Regional through its parent, Health First, Inc. The company loses "hundreds of thousands of dollars" (Tr. 2108) on the Health Kids segment of its business.
There was no evidence presented that persons in need of quality, general acute care services are not able to obtain those services at existing providers in Brevard County. There is no
lack of availability or access to general acute care services on either geographic or financial grounds.
The ability of the applicant to provide quality of care and the Applicant's Record of Providing Quality of Care: Section 408.035(1)(c), F.S.
Wuesthoff is capable of providing quality inpatient health care services and has done so in the past.
The Availability and Adequacy of Other Health Care Facilities in the District which may serve as Alternatives to the Health Care Facilities and Health Services to be Provided by the Applicant: Section 408.035(1)(d), F.S.
There are available alternatives to the inpatient services proposed by Wuesthoff. The existing providers of acute care services have excess capacity to absorb any increase in the utilization of acute care services in the county.
Utilization of the services Wuesthoff proposes, moreover, have been in decline in relation to the earlier part of the decade of the nineties.
From 1993 to 1997, inpatient surgery procedures conducted in Brevard County declined approximately 18.8%, a trend consistent with the statewide trend. In 1998, "the number of inpatient procedures pretty much level[ed] off." (Tr. 3410). In contrast, the number of outpatient procedures in the county rose in 1997 from the number conducted in 1993. For each year in the same time period, the number of outpatient surgical procedures conducted in the county far exceeded the number of inpatient ones. In 1997, for example, there were more than twice as many outpatient procedures as inpatient. The move toward outpatient
procedures is the result of health care providers seeking alternatives to hospitalization. Among the alternatives in the case of surgical procedures are the provision of those procedures on an outpatient basis performed in physician offices and ambulatory surgical centers.
There has been a decline in Brevard County in utilization of other services Wuesthoff proposes for its 50-bed hospital. During the period of 1993-1997, while the population of Brevard County was growing at a rate in excess of 2% per year, obstetric admissions as a percentage of admissions to Brevard hospitals declined. Pediatric admissions did likewise. Not surprisingly, therefore, there is excess capacity for pediatric and obstetrical beds in Brevard County. With 66 reported available beds in Brevard County, the average daily census is about 34 beds. The average daily census for the 86 pediatric beds in the county is about 32 to 35. At the time of hearing, available data for 1998 showed a continued decline in pediatric bed demand and "[b]ased on the annualized data . . . a very slight increase" (Tr. 3402) in obstetric bed demand. The excess capacity demonstrated for the period from 1993 through 1997 remains.
Although alternatives are available, they are not adequate for one reason. That reason is a competitive problem which exists in South Brevard County, discussed in Findings of Fact Nos. 91-107, below.
Probable Economies and Improvements in Service that May be Derived from Operation of Joint, Cooperative, or Shared Health Care Resources: Section 408.035(1)(e), F.S.
Wuesthoff does not propose its new hospital operate a joint, cooperative, or shared program with any entity except its Rockledge facility.
It proposes the sharing of resources with its main facility in Rockledge. "The services that are being proposed for the South Brevard hospital [the proposed hospital] are a subset of what's there now." (Tr. 1257). The proposed services, therefore, are a duplication of existing services.
There are some economies of scale and benefits enjoyed by a second campus of a hospital by virtue of the first hospital's existence, but generally, it is less efficient for a hospital to operate two campuses.
The Need in the Service District for Special Equipment and Services which are not Reasonably and Economically Accessible in Adjoining Areas: Section 408.035(1)(f), F.S.
Wuesthoff does not intend to provide equipment that is not available within the county or in adjacent districts.
The Need for Research and Educational Facilities, Health Care Practitioners, and Doctors of Osteopathy and Medicine at the Student, Internship and Residency Training Levels: Section 408.035(1)(g), F.S.
This need is met in Brevard County. The Brevard County hospitals are active in community training programs in conjunction with Brevard County Community Hospital and the University of Florida.
Holmes Regional has institutional training programs with the University of Florida, All Children's Hospital, the local vo-tech, and the University of Central Florida, in addition to other community programs.
Immediate and Long-term Financial Feasibility of the Proposal: Section 408.035(1)(i), F.S.
a. Immediate Financial Feasibility.
Immediate financial feasibility is determined by whether the applicant has adequate financial resources to fund the capital costs of the project and the financial ability to fund short-term operation losses.
The project costs projected in Schedule 1 of Wuesthoff's application, taking into account inflation and other factors arising from delays associated with this proceeding, are reasonable and appropriate.
Wuesthoff proposes to finance the project with $10.5 million in existing funds and $28 million in debt financing.
At the time of hearing, Wuesthoff had $51 million in cash assets on its balance sheet available to cover the $10.5 million proposed to come from existing funds.
The $28 million in debt financing was proposed in the application to be provided by "proceeds from a fixed rate bond issue." (Wuesthoff No. 1, Vol. I of II, Schedule 3 Assumptions.) "The interest rate for the debt is expected to be approximately 6.5%." (Id.)
As part of its case for immediate financial feasibility, Wuesthoff presented a letter from The Robinson- Humphrey Company, Inc., dated April 6, 1999. In support of the opinion that Wuesthoff would qualify for tax exempt financing, the company wrote:
Based on our long relationship and thorough understanding of Wuesthoff and its strategic direction, we believe that the rating agencies, bond insurers and capital markets will react positively to the Hospital's project. In addition, based on the Hospital's ability to secure a competitive insurance bid on its Series 1996 Bonds, the Hospital will be able to secure a new competitive bond insurance policy as well as credit ratings in the "A" category from the rating agencies in conjunction with the financing to help fund a portion of the proposed facility.
Based on today's market conditions, the average interest rates available on a 30-year tax-exempt bond issue would be in the range of 5.25% to 5.50% based on an "A" rating category issue and "AAA/Aaa" rated issue with bond insurance, respectively. Although it is difficult to anticipate the interest rate environment throughout 1999, we would expect rates to be in the 5.50% to 5.75% range , using recent interest history as a benchmark.
(Wuesthoff No. 3, pgs. 1 and 2). After testimony with regard to the letter by Wuesthoff's witness Rebecca M. Colker, qualified as an expert in health care finance, the following colloquy between Ms. Colker and Wuesthoff's counsel took place at hearing:
Now, based on your assessment of the marketplace and your investigation of the marketplace, do you have an opinion as to whether Wuesthoff has the ability to finance the project that it proposed in [its] application . . .?
A. Yes, sir, I feel [Wuesthoff] has the ability to finance the project.
(Tr. 179).
During the hearing, but after Ms. Colker's testimony, allegations surfaced publicly that Wuesthoff had violated the law with respect to its tax-exempt status as a "501(c)(3) organization" under the Internal Revenue Code by engaging in political activity and obtaining private benefit. Proof of the violations exposes Wuesthoff to revocation of its tax-exempt status.
At the time of hearing, the IRS had not determined the truth of the allegations. If the IRS determines that the violations occurred, there are penalty options available to the Service short of revocation of Wuesthoff's tax exempt status. These options are referred to as intermediate sanctions. In addition, the IRS may enter a closing agreement with the offender in which an intermediate sanction is accepted in lieu of revocation. Wuesthoff, moreover, can take certain steps in mitigation of any ultimate penalty imposed by the IRS.
Wuesthoff presented evidence that "upon a resolution of the allegations of wrongdoing which falls short of revocation of Wuesthoff's tax exempt status, there will be no cloud upon Wuesthoff's ability to obtain the tax exempt debt financing it has proposed." Joint Proposed Recommended Order of Wuesthoff Memorial, Inc., and the Agency for Health Care Administration,
p. 39. Such a resolution, if it is the one chosen by the IRS, can reasonably be expected to occur within a single year.
In the meantime, whatever the outcome of the IRS' dealing with the allegations, their very existence jeopardizes Wuesthoff's ability to obtain tax exempt debt financing. Given what he had heard and read about the allegations, Mr. Todd Holder, an investment banker who provides "basically the same services that Robinson-Humphrey would provide to a hospital client" (Tr. 3337) testified:
At this time, my firm would not underwrite these bonds [proposed by Wuesthoff] and I wouldn't imagine at this time any firm would underwrite these bonds . . .
(Tr. 3339).
If Wuesthoff's tax exempt status were revoked, its bonds would be in jeopardy of being called to cover loss to existing bond holders. Such action would affect its bond rating. A BBB rating would involve approximately a 3% rise in interest rates. If its rating were to fall below investment grade, the interest rate could rise 5% or more.
Based on a $28 million issue, the amount Wuesthoff proposes for financing the new facility, each percentage point rise in interest rate equates to an annual debt service cost of
$250,000. Furthermore, a loss of its tax exempt status would make it more difficult to obtain bond insurance.
It is by no means certain that the IRS will revoke Wuesthoff's tax exempt status as explained above. When a
charitable organization continues to fulfill its charitable obligations, "the IRS has, in practice, not revoked [its] tax- exempt status but tried to exact some other type of penalty." (Tr. 3600). Furthermore, when an offending organization has removed from authority the individuals responsible for the violations, the IRS considers such action to mitigate the penalty it imposes.
At bottom, predicting the action of the IRS is speculative. If the IRS does revoke Wuesthoff's tax exempt status, Wuesthoff has enough cash assets on hand to build the proposed facility without resort to financing. If it comes to that, however, Wuesthoff's decision to carry the costs of construction and getting the facility off the ground in the first few years of operation without debt financing has implications for the project's long-term financial feasibility.
b. Long-term financial feasibility.
Historically, AHCA has defined long-term financial feasibility as at least breaking even, if not making a profit, by the end of the second year of operation.
Among other matters Wuesthoff must prove in order to satisfy the test employed by AHCA historically, it must demonstrate that "projected revenues can be attained in light of the projected utilization of the proposed service and average length of stay." OR-1, p. 18.
The processes used by Wuesthoff's expert to conclude that the project is financially feasible were conservative. But the processes contained flaws.
Wuesthoff, for example, projects that it will have a volume of 8,327 patient days at its South Brevard campus in year one of operation and 11,224 patient days in year two. For the same time periods, it projects volumes of 50,000 patient days at its Rockledge facility for both year one and year two of operation, the same volume it projects at its Rockledge facility for the 12-month period during which the new facility will be built. The projections are not reasonable. Building the new hospital will not increase the demand for hospital services in Brevard County. Rather, patients will be reallocated. The proposed facility will receive patients who otherwise would be hospitalized at Holmes Regional or the Wuesthoff Rockledge campus. It is not reasonable, therefore, for Wuesthoff to project that its patient days at the Rockledge facility will remain the same in years one and two of operation of the new facility as during the year's period of construction.
The Agency concurred with Holmes Regional's expert that Wuesthoff's utilization projections were overstated but did not see the overstatement as a problem because "while the applicant may not fully attain what is projected within the application . .
. [it] will attain a level which will be successful, especially
for a provider that is financially stable at this point in time and has the resources to carry out this project." (Tr. 3474).
There are other flaws. Wuesthoff assumed that for the Rockledge facility pro forma all payors' reimbursement increased 4% a year for years one and two of operation resulting in a net revenue increase in excess of 9% for the two-year period. Managed care companies are typically not allowing a 4% per year increase to providers. Medicare reimbursement (the largest
single payor source) was not likely to increase 4% per year prior to the Balanced Budget Act of 1997 (see finding of fact no. 86, below).
Medicare is the largest payor source currently at Wuesthoff, accounting for in excess of 50% of operating revenues. It is also the largest payor source projected for the proposed project. In the wake of the Balanced Budget Act of 1997, Medicare margins have declined and are expected to continue to decline. Wuesthoff's Medicare revenue in year one of operation were overstated by 4.3% and in year two by 5.7%.
Wuesthoff's expert did not assess the impact of the Balanced Budget Act on the Wuesthoff projections at the time they were made since they were made before the effective date of the Act. But he had not assessed the impact of the Act on the pro forma prepared for the new facility as of March 1999, after effects of the Act's impact were observable. Presumably, no such impact analysis was undertaken because Wuesthoff is a hospital
that takes action to contain costs, a method for reducing the negative impact of the Act on a hospital's revenue.
Other assumptions that underlie projections by Wuesthoff in the application are also not reasonable. Wuesthoff assumed that Medicare HMO would generate higher charges than traditional Medicare, but have a length of stay almost half the time such that the net reimbursement per case would be identical. On a per day basis, Weusthoff assumed that the Medicare and Medicaid HMO patient will generate a greater per diem reimbursement than a traditional Medicare and Medicaid patient, respectively. This is not a reasonable assumption.
The assumption that commercial insurance remains a significant payor at the South Brevard campus is critical to the financial viability of the project. If the pro forma had shown a more reasonable managed care percentage and less commercial insurance in the payor mix, net revenue would decrease by approximately $280,000 in year two.
The projected costs of operation at the South Brevard campus are unrealistically low because the projected salary expenses have been understated. The nursing staff will comprise almost one-third of the total hospital FTEs for years one and two at the South Brevard campus. There currently exists a nursing shortage such that hospitals in Brevard County are having to pay a several thousand dollar signing bonus when hiring nursing staff. Projected nursing salaries for the first and second year
of operation were only minimally higher above what Wuesthoff was paying its nursing staff three years earlier.
The Needs and Circumstances of those Entities which Provide a Substantial Portion of their Services or Resources or Both, to Individuals not Residing in the District: Section 409.035(1)(k), F.S.
Wuesthoff's application does not address providing a substantial portion of its services or resources to individuals not residing in the District.
The Probable Impact of the Proposed Project on the Costs of Providing Health Services Proposed by the Applicants, Including the Effect on Competition: Section 408.035(1)(l), F.S.
Brevard County's Unusual Shape
Brevard County is relatively narrow from East to West and extremely long from North to South, stretching 72 miles from its northern border to its southern one. Because of its unusual geographic shape, the county is easily divisible into three areas, north, central and south.
North Brevard County's population was approximately 68,000 in 1998. Central Brevard County's population was approximately 168,000 and South Brevard County's was approximately 234,700.
Since 1970, the share of total county growth has consistently been lowest in North Brevard County, peaking at 13% in 1990, with a projected share of total county growth in 2003 at 10.4%. Next in order, Central Brevard County's share of growth since 1970 has been on the rise but has remained substantially lower than South Brevard County's. Its share of growth in 2003
is expected to be about 38.8%. The County's "growth has been predominantly in [S]outh Brevard." (Tr. 375). In 1971, its share of total county growth was 71.1%. Although "the share of growth in [S]outh Brevard has declined over time . . . it is still about 50%." (Id.) In 2003, South Brevard County's share of total growth is projected to be 51.2%.
Consistent with its higher share in total county growth, more than half of Brevard County housing starts have within recent years occurred in South Brevard County and more than half of Brevard County employers and employees are located in South Brevard County. South Brevard, for some time, has been the most populated of the county's three areas. It will continue to be the most heavily populated area for a considerable time in the future.
North Brevard has one hospital: Parrish Medical Center. Central Brevard has two hospitals: Wuesthoff and Cape Canaveral Hospital. The two are operated by different hospital systems; Wuesthoff by the Wuesthoff Health System and Cape Canaveral by Health First. South Brevard has two hospital facilities: Holmes Regional Medical Center and Palm Bay Community Hospital. Unlike the situation in Central Brevard the two South Brevard facilities operate under a single hospital license and are part of one system: Health First.
Markets, Monopolies, and the Exercise of Monopoly Power
A great deal of evidence was introduced by both Wuesthoff and Holmes about whether or not South Brevard County, by itself, constitutes a market for purposes of economic analysis and, if so, whether Health First through its operation of the two South Brevard hospitals has a monopoly on hospital services within the market. Further evidence was introduced about whether Health First, in fact, exercises monopoly power.
Wuesthoff posits that South Brevard County, in and of itself, is an economic market for purposes of economic analysis. While there was evidence that indicated that South Brevard County is a market for purposes of economic analysis, none of the experts who testified could ever recall a proceeding in which they had been involved in which an area smaller than a county had ever been found to constitute a market. Wuesthoff's approach, moreover, is problematic in a Certificate of Need proceeding (as distinguished from other types of proceedings that typically employ economic analysis, such as anti-trust proceedings.) Brevard County is one part of AHCA District VII, a district established by the Legislature for health planning purposes. The district is divided into subdistricts. Subdistrict 1 is composed of Brevard County, nothing more and nothing less. But the subdistricts are not further divided for health planning purposes. There is no question (nor any argument from Wuesthoff otherwise) that Health First does not have a monopoly on hospital services over the entire subdistrict, let alone the district.
Assuming for the sake of argument that South Brevard County is a market for purposes of this proceeding and that Health First has a monopoly over hospital services in that market, Health First has not exercised its monopoly power as would typically be expected on the basis of net price.
First of all, while one might expect that an entity with monopoly power would exercise it, that expectation cannot be assumed in the case of not-for-profit hospitals, such as Holmes Regional. The not-for-profit hospital "can't act like a profit- maximizing organization because of the way it is structured." (Tr. 2958).
More importantly, "the economic hallmark of the exercise of monopoly power is a price above the competitive level, one that permits the earning of an above-competitive profit rate." (Tr. 2946). Holmes Regional's average net prices are 90.8% of what would be expected. In contrast, Wuesthoff's are 115.1% of what would be expected. Neither of these is "extraordinarily far from what you would expect." (Tr. 2971). In the final analysis, pricing data with regard to both list prices and net prices, no matter the payor source, does not
indicate "the systematic exercise of monopoly power by Holmes . .
." (Tr. 2973), in "[S]outh Brevard County." (Tr. 2975).
It is clear, however, that residents of South Brevard do not have convenient access to Brevard County hospitals other than the two Health First hospitals in South Brevard, Holmes
Regional and Palm Bay Medical Center. The other Brevard County hospitals are either too far away in distance or require too much travel time to reach by automobile for most of the residents of South Brevard. Consistent with this convenience factor, 82% of the South Brevard County residents discharged from hospitals in the first six months of 1998 were discharged from Holmes Regional and Palm Bay Community. Of the remaining South Brevard County residents discharged from hospitals, the highest percentage (6%) of patients were discharged from Sebastian River Medical Center. Sebastian River, while close to some South Brevard County residents, does not provide a high enough level of services in many cases to be a reasonable substitute for Holmes Regional.
Even if it is convenient to use hospital services that are close by, a patient will chose a more inconvenient hospital if the nearby hospital does not provide services of reasonable quality at reasonable prices. The two Health First hospitals provide services of reasonable quality at reasonable prices.
Nonetheless, the establishment of Wuesthoff's proposed hospital would substantially increase the accessibility of South Brevard County residents to a non-Health First facility. The presence of Wuesthoff's proposed hospital in South Brevard County would offer residents of South Brevard more of a meaningful choice. In essence, granting Wuesthoff's application would produce a more competitive environment for the hospital services
to be offered by Wuesthoff in South Brevard County, whether South Brevard County constitutes a market or not.
Wuesthoff presents a greater question for resolution in this proceeding than whether granting the application would simply provide more competition. Even though Holmes Regional's net pricing in general does not indicate that it is exercising monopoly power in South Brevard County, is there, nonetheless, a need for a more competitive environment for hospital services in South Brevard County?
The answer to that question is "yes" when one considers competition from the perspective of managed care payors.
Need for Competition for Hospital Services in South Brevard County.
In general, competition enhances the quality of health care services even when services being provided are of high quality. Competition also provides an incentive for hospitals, including non-profit hospitals to serve patients more efficiently.
Competition lowers the costs consumers pay for hospital services. When managed care payors are able to reduce their payments to hospitals, they are able to lower the premiums paid by the "end purchaser." (Tr. 609). If the end purchaser is an employer, the "employer then makes [its] business decision internally as to how much of that cost is passed along to the individual employee." (Id.) This effect of competition is the
basis for a number of managed care contractors and employers' vigorous support of Wuesthoff's application, the success of which will create competition in South Brevard County. Wuesthoff's proposed hospital will spur competition which will benefit consumers by lowering Holmes Regional's prices.
Managed care helps contain costs and injects price sensitivity into the market. At the same time, higher levels of hospital concentration are associated with lower levels of discounting to managed care companies.
Managed care penetration has been increasing in Brevard County. In South Brevard County, managed care penetration has increased but mainly due to increase in enrollment in HFHP, Health First's managed care plan. Managed care penetration in South Brevard County achieved by HFHP "in itself is not the issue." (HRMC No. 75, p. 32.) With only one active HMO in South Brevard County, there is no incentive to achieve better rates for the ultimate consumers especially if the main HMO is part of the same organization as the hospital as in this case. "[I]f you have several large commercial plans . . . they will be able to get better rates from Holmes Regional than if you only have one." (Id., p. 32-33). Commercial HMO inability to contract with HRMC was considered by the agency as the most important factor in approving Wuesthoff's application. Health maintenance organizations, other than HFHP, do not have
meaningful competitive ability to compete with HFHP in South Brevard County.
In recognition of their inability to use Central Brevard County hospitals or Sebastian River Medical Center as substitutes, and to avoid losses caused by the lack of hospital competition in South Brevard County, Aetna and United, two large managed care payors in Brevard County, have embarked on an exit strategy with regard to South Brevard County.
It is difficult for managed care payors to steer south Brevard residents to central Brevard hospitals. Patients are generally unwilling to change physicians when it becomes necessary to enter a hospital. Discharge data demonstrates the lack of overlap in physician privileges between South and Central Brevard.
The Central Florida Health Care Coalition, an organization comprised of businesses and formed to address health care issues which includes the largest of Brevard County employers, supports Wuesthoff's application because of the competition it will create and a number of consumers expressed support for the Wuesthoff application based on the need for competition in South Brevard County. In contrast, not a single employer, large or small, testified in support of opposition to the application.
Wuesthoff's new hospital would provide an alternative for managed care payors to negotiate hospital prices in South
Brevard County. More favorable hospital prices in managed care contracts, in turn, would lead to managed care premiums that would be lower for managed care customers. Lower health care premiums enable larger numbers of consumers to purchase health care coverage, thereby reducing the number of persons who have no source of payments for health care services.
The ability of managed care plans to negotiate hospital prices is dependent upon ability to engage in selective contracting, the ability of a managed care plan to refuse to include a hospital in its network of providers. Selective contracting induces hospitals to offer discounted prices to assure participation in a managed care plan's network of hospitals in order to avoid losing the managed care plan's business to other competitive hospitals.
Selective contracting can only be an effective strategy if managed care contractors have meaningful choices among hospital providers. In Brevard County, only in the central area do managed care plans have more than one hospital system from which to choose meaningfully and only in Central Brevard County has there been any real competition among hospitals for managed care contracts. Holmes Regional does not face the threat of a loss of business if it refuses to contract with any one managed care plan because South Brevard residents for the most part will not seek hospital services outside South Brevard County. Without the threat of a loss of business, Holmes
Regional has little, if any, incentive to offer reduced prices to managed care plans.
The lack of incentive for Holmes Regional to reduce prices to managed care plans was demonstrated by several analyses, including one showing that from 1995 through 1998, net prices paid by all managed care contractors to Holmes Regional were on average 32% higher per year than those paid to Wuesthoff, which has competition from another hospital in Central Brevard County
Apart from pricing analyses, the lack of competition in the managed care arena for Holmes Regional was demonstrated by its ability to resist entry into any per diem managed care contracts despite efforts by some managed care contractors to negotiate such agreements with Holmes Regional. Per diem contracts are a favored from of contracting by managed care payors because they tend to enable managed care payors to predict the level of hospital payment to which they will be exposed.
Such contracts are commonly found where there is competition among hospitals. In contrast, as is to be expected of a hospital in a competitive environment, most of Wuesthoff's contract with managed care payors are per diem contracts.
The Applicant's Past and Proposed Provision of Health Care Services to Medicaid Patients and the Medically Indigent: Section 408.035(1)(n), F.S.
Wuesthoff has "a history of providing care to the medically indigent population." (Tr. 1244). Its commitment to
continue to provide such care at the proposed facility has been discussed.
Whether Less Costly, More Efficient, or More Appropriate Alternatives to the Proposed Inpatient Services are Available: Section 408.035(2)(a), F.S.
The greater weight of the evidence establishes that denial of the application is less costly and more efficient. The new facility will cost $38 million to build. At the same time, existing providers are operating efficiently and have unused capacity.
In fact, there is insufficient utilization of the inpatient acute care services in existence in Brevard County.
The subdistrict occupancy rate is "about 54% . . .[with] at least [hundreds of] beds that are unoccupied at any point in time with the county." (Tr. 3385).
Whether the alternative of denying the application is more appropriate in light of the cost of the project and efficiency considerations turns on the weight to be given Wuesthoff's case for the need for competition in the managed care arena in South Brevard County.
Whether the Existing Facilities Providing Similar Inpatient Services are being Used in an Appropriate and Efficient Manner: Section 408.035(2)(b), F.S.
Existing facilities are being used in an efficient manner. Whether the status quo is appropriate, again, turns on the weight to be given Wuesthoff's case for the need for competition.
That Patients Will Experience Serious Problems in Obtaining Inpatient Care of the Type Proposed in the Absence of the Proposed New Service: Section 408.035(2)(d), F.S.
There was no evidence that patients will experience serious problems in obtaining inpatient care of the type proposed by Wuesthoff for its South Brevard County if the application is not granted.
Rule Criteria
Rule 59C-1.030, Florida Administrative Code, sets forth "health care access criteria . . . [i]n addition to criteria set forth in Section 408.035, Florida Statutes . . .".
Among the criteria are [t]he contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particularly those needs identified in the . . . State Health Plan as deserving of priority."
The first State Health Plan preference favors an applicant that provides a disproportionate share of Medicaid and charity care patient days in relation to other hospitals within the subdistrict. Wuesthoff has provided its fair share of Medicaid and charity care patient days in the past and proposes to continue to do so at the new facility if approved. But Wuesthoff is not a disproportionate share provider.
As to the second preference which considers the current and projected indigent inpatient case load, the proposed facility size, and the case and service mix, Wuesthoff's application partially complies with preference in that it
proposes to provide indigent care. But, Medicaid and indigent members of the population were not shown to have been denied access to hospital services in Brevard County. Approval of the facility, moreover, will not improve access or increase the number of beds since approval will result in a net loss of 50 beds in the county.
The fourth preference favors an applicant with a record of accepting indigent patients for emergency care. Wuesthoff meets the preference.
The fifth preference favors applicants for a type of hospital project if the facility is verified as a trauma center. Holmes Regional will remain the only verified trauma center in the subdistrict, even if the application is approved.
The sixth preference favors applicants who document that they provide a full range of emergency services. The new facility will provide emergency services but not a full range unless the emergency services provided by Wuesthoff at its Rockledge campus are considered. Because the 50-bed hospital will not provide tertiary services nor high-level trauma services, "[t]he complicated or trauma cases will . . . go to Holmes Regional Medical Center" (Tr. 3384), the hospital campus closest to the new facility.
The seventh preference favors applicants not fined by AHCA for any violation of emergency service statutes. Wuesthoff meets this preference.
The eighth preference favors applicants who demonstrate that the subdistrict occupancy rate is at least 75%, or in the case of exiting facilities, where the occupancy rate for the most recent 12 months is at least 85%. Wuesthoff did not show that it meets this preference.
The ninth preference of the State Health Plan favors an applicant with a history of providing a disproportionate share of the subdistrict's acute care and Medicaid patient days and is a Medicaid disproportionate share provider. Wuesthoff does not meet this preference.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.569, and 408.039(5), Florida Statutes.
Wuesthoff bears the burden of demonstrating that its application for a 50-bed general acute care hospital in Brevard County, AHCA District 7, should be granted. Boca Raton Artificial Kidney Center, Inc., vs. Department of Health and Rehabilitative Services, 475 So. 2d 260 (Fla. 1st DCA 1985); Humana, Inc., vs. Department of Health and Rehabilitative Services, 469 So. 2d 889 (Fla. 1st DCA 1985).
The fixed need pool calculation is of no moment in this proceeding because Wuesthoff does not seek to add beds to the subdistrict. In fact, Wuesthoff's proposal to transfer beds
to the new facility from its Rockledge campus coupled with a delicensure of beds at its existing campus will result in a reduction in the number of hospital beds within the subdistrict. That beds will be reduced by granting the CON lowers the bar Wuesthoff is required to hurdle in order to have its application granted.
A CON application is evaluated according to the statutory criteria set forth in Section 408.035, Florida Statues, and the rules properly promulgated thereunder. A balanced consideration of the applicable statutory and rule criteria must be made. Balsam vs. Department of Health and Rehabilitative Services, 486 So. 2d 1341 (Fla. 1st DCA 1986); Humana, supra. "[T]he appropriate weight to be given to each individual criterion contained in the statute regarding CON applications is not fixed, but rather must vary on a case-by-case basis, depending on the facts in each case." Collier vs. Department of Health and Rehabilitative Services, 462 So. 2d 83 (Fla. 1st DCA 1985).
Approval of Wuesthoff's application is supported by the following. Its application is consistent with the applicable local health plan. Wuesthoff has a record of providing quality of care and is currently capable of doing so. There is no adequate alternative to the proposed hospital because of the competitive problem which exists in South Brevard County. Wuesthoff's proposed costs and methods of construction are
reasonable. Wuesthoff has a history of providing services to Medicaid patients and medically indigent patients. Most significantly, approval of Wuesthoff's application will cure the competitive problem in the managed care arena in South Brevard County.
Denial of Weusthoff's application is supported by the following. There are no access problems, either geographic or financial, to hospital services for residents of the subdistrict. The existing providers in Brevard County are under-utilized and have significant excess capacity. The financial feasibility of the project is questionable, if not in the short term because of Wuesthoff's substantial cash assets with which, as a last resort, it can finance the project, then in the long term. Long-term financial feasibility is especially questionable if Wuesthoff is required to use cash assets for financing the project because it is unable to obtain tax-free debt financing. On balance, Wuesthoff's application does not gain preference under the application of the preferences in the State Health Plan. The proposed facility will cost $38 million to construct, a cost ultimately born by the public.
Other than financial feasibility and with the exception of the two factors of competition in managed care in South Brevard County (in the application's favor) and the cost of the project (against the application), the factors in favor or against the proposal receive little weight. This is because of
the nature of this proceeding: a transfer of existing beds that if granted will achieve a net reduction of fifty beds in the subdistrict's inventory of hospital beds.
The nature of the proposal explains AHCA's willingness to not strictly apply traditional tests for long term financial feasibility. For example, the Agency was not concerned that Wuesthoff had overstated its utilization projections. If the beds are not transferred into the new facility, they will remain in the old facility, underutilized, together with another fifty underutilized beds.
As to immediate financial feasibility, the Agency opined that Wuesthoff's financial strength would carry it through. Indeed, it is plausible that no matter the outcome of an IRS inquiry Wuesthoff will be able to finance the construction of the project and any short-term losses because of its financial position. If, however, it becomes necessary for Wuesthoff to finance the project without outside financing, its financial position will be acutely diminished. In the end, the potential for diminished financial strength, however uncertain, coupled with the flaws in its long-term financial feasibility analysis demands denial of the application.
No matter how compelling the need for competition in the managed care arena in South Brevard County, financial feasibility is determinative in this proceeding. At bottom, the proof is inadequate to support a conclusion with confidence that
the project is financially feasible. Wuesthoff has failed to carry its burden of showing the project should be approved.
The application should be denied.
Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order denying Wuesthoff Memorial Hospital, Inc.'s application for CON 8740.
DONE AND ENTERED this 12th day of July, 2000, in Tallahassee, Leon County, Florida.
DAVID M. MALONEY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2000.
COPIES FURNISHED:
Richard A. Patterson, Esquire
Agency for Health Care Administration Fort Knox Building Three, Suite 3431 2727 Mahan Drive
Tallahassee, Florida 32308-5403
Terry Rigsby, Esquire Blank, Rigsby & Meenan, P.A.
204 South Monroe Street Tallahassee, Florida 32301
Stephen K. Boone, Esquire
Boone, Boone, Boone & Hines, P.A. Post Office Box 1596
Venice, Florida 34284-1596
David C. Ashburn, Esquire Smith & Ashburn, P.A.
1330 Thomasville Road
Tallahassee, Florida 32303
Sam Power, Agency Clerk
Agency for Health Care Administration Fort Knox Building Three, Suite 3431 2727 Mahan Drive
Tallahassee, Florida 32308-5403
Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building Three, Suite 3431 2727 Mahan Drive
Tallahassee, Florida 32308-5403
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Nov. 27, 2000 | Final Order filed. |
| Jul. 12, 2000 | Recommended Order sent out. CASE CLOSED. Hearing held April 12 through April 23, 2000, May 3 through 10, 2000, and July 15, 2000. |
| Jun. 09, 2000 | Notice of Change of Address filed. |
| Apr. 19, 2000 | Mandate from the First DCA filed. |
| Apr. 17, 2000 | Opinion and Mandate from the First DCA (Amended Petition for Writ of Certiorari, Per Curiam, DENIED) filed. |
| Mar. 30, 2000 | Opinion filed March 29, 2000, Amended petition for writ of certiorari is Denied filed. |
| Mar. 30, 2000 | BY 0RDER OF THE COURT (Petitioner`s motion to accept amended petition is granted, Petitioner`s amended emergency motion for stay is denied) filed. |
| Mar. 30, 2000 | (D. Ashburn) Supplemental Response to Motion for Stay Pending Review (filed via facsimile). |
| Mar. 29, 2000 | (D. Ashburn) Response to Motion for Stay Pending Review (filed via facsimile). |
| Mar. 28, 2000 | (M. Nagel) Motion to Accept Amended Petition (First District Court of Appeal) filed. |
| Mar. 27, 2000 | Letter to DMM from D. Sshburn Re: Wuesthoff opposes HRMC`s Motion (filed via facsimile). |
| Mar. 27, 2000 | Letter to DMM from D. Ashburn Re: Response to Mr. Rigsby`s 3/22/00 letter filed. |
| Mar. 27, 2000 | Letter to DMM from R. Rigsby Re: Wuesthoff`s submission on the issue of collateral estoppel filed. |
| Mar. 27, 2000 | (M. Nagel) Emergency Motion for Stay and Petition for Writ of Mandamus or in the alternative Certiorari or in the alternative Review of a Non-Final Agency Action pursuant to section 120.68(1), Florida Statutes (First District Court of Appeal) filed. |
| Mar. 24, 2000 | (R. Rigsby) Motion for Stay Pending Review filed. |
| Mar. 24, 2000 | Status Hearing (Transcript) filed. |
| Mar. 23, 2000 | Letter to DMM from R. Rigsby Re: Disagreeing that it would be inappropriate for Holmes to be able to file a response to Wuesthoff`s submission on the issue of collateral estoppel (filed via facsimile). |
| Mar. 22, 2000 | Order sent out. (evidentiary record is opened in this case for limited purpose of taking official recognition of the final order, renewed motion in limine is denied) |
| Mar. 22, 2000 | Letter to DMM from D. Ashburn Re: Limiting parties to a single submission on the issues (filed via facsimile). |
| Mar. 22, 2000 | Letter to Judge Maloney from R. Terry Rigsby (re: David Ashburn`s Letter) (filed via facsimile). |
| Mar. 21, 2000 | Letter to Judge Maloney from David Ashburn (filed via facsimile). |
| Mar. 20, 2000 | Petitioner`s Renewed Motion in Limine (filed via facsimile). |
| Mar. 17, 2000 | Respondents` Memorandum of Law Regarding the Impact of the District Court`s March 7, 2000, Order on the Instant Proceeding filed. |
| Mar. 16, 2000 | Notice of Status Hearing sent out. (March 21, 2000, 10:30 a.m.; Tallahassee) |
| Mar. 14, 2000 | Notice of Filing Motion to Lift Stay and Response (Wuesthoff Memorial Hospital) , Respondents` Motion for Relief from Stay filed. |
| Mar. 09, 2000 | (R. Rigsby) Notice of Telephonic Hearing filed. |
| Mar. 08, 2000 | Notice of Filing Order of the District Court filed. |
| Mar. 08, 2000 | BY ORDER OF THE COURT (Respondent`s motion for relief from stay filed 01/14/00 and Petitioner`s response filed 01/25/00 this court grantes the motion for relief from stay and denies the relief sought by Petitioner in its response filed. |
| Oct. 07, 1999 | (R. Rigsby) Notice of Filing; Notice of entry on 10/5/99 of an Order by the DCA, First District filed. |
| Oct. 07, 1999 | Motion to Consolidate (filed with the First DCA) filed. |
| Oct. 07, 1999 | BY ORDER OF THE COURT (petitioner`s request to treat the emergency petition as a notice of appeal is denied) filed. |
| Sep. 28, 1999 | Petitioner`s Response to Respondents` Motion for Leave to Respond to Petitioner`s Reply filed. |
| Sep. 08, 1999 | Petitioner`s Reply to Respondents` Response to the Emergency Petition; Appendix to Petitioner`s Reply to Respondents` Response to the Emergency Petition filed. |
| Aug. 24, 1999 | BY ORDER OF THE COURT (respondent`s have untill 5:00 p.m. on 09/30/99 to file a response to the petition showing why the relief requested should be granted filed. |
| Aug. 23, 1999 | (J. Hoffman Emergency Petition for Writ of Mandamus or in the alternative Motion to Recall the Mandate and Enforce This Court`s Earlier Decision or in the alternative a Petition to Review an Non-Final Agency filed. |
| Aug. 20, 1999 | (J. Hoffman) Notice of Appearance of Counsel filed. |
| Aug. 18, 1999 | (D. Ashburn) Diskette (Proposed Recommended Order by Wuesthoff and AHCA submitted on 8/16/99) filed. |
| Aug. 17, 1999 | Diskette containing the confidential version of Holmes Regional Medical center`s Proposed Recommended Order filed. |
| Aug. 16, 1999 | (R. Rigsby) Notice of Filing; Copy of the opinion in Federal Trade Commission v. Tenet Health Care Corporation filed. |
| Aug. 16, 1999 | Joint Proposed Recommended Order of Wuesthoff Memorial Hospital, Inc. and the Agency for Health Care Administration filed. |
| Aug. 16, 1999 | Holmes Regional Medical Center`s Proposed Recommended Order (For Judge Signature) w/sealed attachment filed. |
| Aug. 13, 1999 | Order sent out. (motions denied) |
| Aug. 11, 1999 | (R. Rigsby) Notice of Hearing (filed via facsimile). |
| Aug. 06, 1999 | Notice of Filing; (Volume 31 and 32) DOAH Court Reporter Final Hearing Transcript filed. |
| Aug. 05, 1999 | Letter to DMM from R. Rigsby Re: Motion to Toll Time for Filing Proposed Recommended Orders and Renewed Moiton in Limine filed. |
| Aug. 05, 1999 | Wuesthoff Memorial Hospital, Inc.`s and Agency for Health Care Administration`s Response to Holmes Regional Medical Center, Inc.`s Motion to Toll Time for Filing Proposed Recommended Orders and Renewed Motion in Limine filed. |
| Jul. 30, 1999 | Holmes Regional Medical Center, Inc.`s Motion to Toll Time for Filing Proposed Recommended Orders and Renewed Motion in Limine filed. |
| Jul. 20, 1999 | (R. Rigsby) Notice of Filing and Request for Case Management Conference filed. |
| Jul. 20, 1999 | Reporter`s Errata Sheet Index; Corrected Sheets filed. |
| Jul. 15, 1999 | CASE STATUS: Hearing Held. |
| Jun. 16, 1999 | Notice of Filing; (Volumes 25-30) DOAH Court Reporter Final Hearing Transcript filed. |
| Jun. 11, 1999 | Notice of Filing; (Volumes 12-24) DOAH Court Reporter Final Hearing Transcript filed. |
| Jun. 03, 1999 | Notice of Filing; (Volumes 1-11) DOAH Court Reporter Final Hearing Transcript filed. |
| Jun. 03, 1999 | Supplemental Notice of Hearing sent out. (hearing set for July 15 and 16, 1999; 9:30am; Talla) |
| Jun. 02, 1999 | Letter to DMM from D. Ashburn Re: Possible dates to continue hearing (filed via facsimile). |
| May 18, 1999 | Order Granting Continuance sent out. (hearing cancelled, case shall be reset upon notification from the parties) |
| May 14, 1999 | Letter Judge Maloney from David Ashburn (re; accident) (filed via facsimile). |
| May 06, 1999 | (2) Notice of Filing; Excerpt of Proceedings Testimony of Larry Jones ; Excerpt of Proceedings Testimony of Nathan Kaufman filed. |
| Apr. 30, 1999 | Notice of Filing; Testimony of Michael David Means filed. |
| Apr. 29, 1999 | (D. Ashburn) Motion to Permit Appearance by William G. Kopit on Behalf of Wuesthoff Memorial Hospital, Inc. w/exhibit filed. |
| Apr. 29, 1999 | Notice of Filing; Testimony of Jerry Senne and David Sapp ; Excerpt of Proceedings Testimony of David Sapp filed. |
| Apr. 27, 1999 | Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed. |
| Apr. 23, 1999 | Notice of Filing; (2 Volumes) Excerpt of testimony of David Eisentadt filed. |
| Apr. 23, 1999 | Notice of Filing; Transcript excerpt of Testimony of Joel J. Menges, Doninic Lauretta and John Van Gorp filed. |
| Apr. 21, 1999 | Excerpt of Proceedings Testimony of Jose Estevez ; Notice of Filing filed. |
| Apr. 16, 1999 | Notice of Filing; (Excerpts of the testimony of Rebecca M. Colker and Michael Morissey) DOAH Court Reporter Final Hearing Transcript filed. |
| Apr. 12, 1999 | CASE STATUS: Hearing Partially Held, continued to 5/20/99; 9:00am) |
| Apr. 12, 1999 | Wuesthoff Memorial Hospital`s Response to Holmes Regional Medical Center`s Motion in Limine and Renewed Motion to Strike Exhibit B to Holmes Regional Medical Center`s Petition for Formal Administrative Proceedings filed. |
| Apr. 09, 1999 | D. Ashburn, R. Patterson, S. Boone, R. Rigsby) Prehearing Stipulation filed. |
| Apr. 05, 1999 | Holmes Regional Medical Center, Inc.`s Motion in Limine filed. |
| Apr. 05, 1999 | Holmes Regional Medical Center, Inc.`s Motion in Limine filed. |
| Mar. 31, 1999 | (S. Boone) Amended Notice of Taking Deposition Duces Tecum filed. |
| Mar. 30, 1999 | (R. Rigsby) Amended Notice of Taking Deposition Duces Tecum filed. |
| Mar. 26, 1999 | (R. Rigsby) (2) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 24, 1999 | Opinion from the First DCA on Petition for Review of Nonfinal Administrative Action (Petition Denied) filed. |
| Mar. 24, 1999 | (R. Rigsby) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 19, 1999 | (D. Ashburn) (unsigned) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Mar. 16, 1999 | (D. Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Mar. 16, 1999 | Wuesthoff Memorial Hospital, Inc.`s Supplemental Witness List (filed via facsimile). |
| Mar. 16, 1999 | (D. Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Mar. 15, 1999 | (S. Boone) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 11, 1999 | Wuesthoff Memorial Hospital, Inc.`s Supplemental Witness List; Notice of Taking Deposition Duces Tecum filed. |
| Mar. 09, 1999 | (R. Rigsby) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 01, 1999 | Holmes Regional Medical Center, Inc.`s and Palm Bay Community Hospital`s Supplemental Witness and Exhibit List rec`d |
| Feb. 26, 1999 | Wuesthoff Memorial Hospital, Inc.`s Witness & Exhibit Lists (filed via facsimile). |
| Jan. 04, 1999 | Amended Notice of Hearing sent out. (hearing set for April 12 - 23 & May 3-7, 1999; 9:00am; Tallahassee) |
| Oct. 21, 1998 | Petitioners` Reply to Respondent`s Second Response to Order to Show Cause filed. |
| Oct. 12, 1998 | BY ORDER OF THE COURT (10 days from the date hereof within to serve a reply to respondent`s second response to order to show cause) filed. |
| Oct. 08, 1998 | Order Denying Motion to Reschedule the Formal Hearing sent out. |
| Oct. 07, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Motion to Reschedule the Formal Hearing filed. |
| Sep. 30, 1998 | Mandate from the First DCA filed. |
| Sep. 28, 1998 | (Wuesthoff) Motion to Reschedule the Formal Hearing Upon a Change in the Administrative Law Judge`s Calendar filed. |
| Sep. 28, 1998 | Petitioners` Response to Order to Show Cause filed. |
| Sep. 16, 1998 | Appellants` Reply to Wuesthoff`s Response to Order to Show Cause filed. |
| Sep. 14, 1998 | Opinion from the First DCA on Petition for Review of Non-Final Agency Action (Denied) filed. |
| Aug. 27, 1998 | DCA Case No 1-98-3184 filed. |
| Aug. 26, 1998 | (Copy) Petition for Review of Non-Final Administrative Action, Appendix to Peition and the Motion for Immediate Stay Pending Review (file in the First DCA) filed. |
| Aug. 26, 1998 | BY ORDER OF THE COURT(First DCA) (Petitioners emergency motion for stay is granted) filed. |
| Aug. 14, 1998 | Order sent out. (hearing cancelled & reset for April 19 - May 7, 1999; 9:00am; Tallahassee; motion for stay pending review is denied) |
| Aug. 13, 1998 | Wuesthoff Memorial Hospital, Inc.`s Response to Holmes Regional Medical Center, Inc.`s Motion for Stay Pending Review or, in the Alternative, Motion for Continuance (filed via facsimile). |
| Aug. 11, 1998 | (R. Rigsby) Motion for Stay Pending Review or, in the Alternative, Motion for Continuance filed. |
| Aug. 07, 1998 | BY ORDER OF THE COURT (Motion for Stay Granted) (filed via facsimile). |
| Aug. 07, 1998 | (R. Rigsby) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 06, 1998 | Order Denying Motion in Limine sent out. |
| Aug. 03, 1998 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 03, 1998 | (R. Rigsby) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 31, 1998 | (David Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jul. 31, 1998 | Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed. |
| Jul. 31, 1998 | (R. Patterson) Notice of Appearance and Substitution of Counsel filed. |
| Jul. 31, 1998 | (David Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jul. 29, 1998 | Holmes Regional Medical Center, Inc.`s Notice of Serving Answers to Interrogatories filed. |
| Jul. 29, 1998 | (D. Ashburn) Notice of Taking Deposition (filed via facsimile). |
| Jul. 28, 1998 | (R. Rigsby) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 28, 1998 | (D. Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jul. 28, 1998 | (R. Rigsby) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 27, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Seventh Request for Production filed. |
| Jul. 27, 1998 | Wuesthoff Memorial Hospital, Inc.`s Notice of Service of Answers to Second, Third and Fourth Set of Interrogatories filed. |
| Jul. 27, 1998 | Wuesthoff Memorial Hospital, Inc.`s Responses to Holmes Regional Medical Center, Inc.`s Sixth Request for Production of Documents filed. |
| Jul. 22, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Sixth Request for Production filed. |
| Jul. 20, 1998 | (D. Ashburn) Notice of Taking Deposition Duces Tecum; Wuesthoff Memorial Hospital, Inc.`s Responses to Holmes Regional Medical Center, Inc.`s Fifth Request for Production of Documents filed. |
| Jul. 17, 1998 | (Holmes Regional) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 17, 1998 | (D. Ashburn) Notice of Service of Subpoena; Subpoena filed. |
| Jul. 14, 1998 | Order and Notice of Hearing sent out. (motion hearing continued to 8/6/98; 1:00pm; Tallahassee) |
| Jul. 14, 1998 | (D. Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jul. 10, 1998 | Memorandum to All Counsel of Record from D. Ashburn Re: Motion Hearing filed. |
| Jul. 09, 1998 | Holmes Regional Medical Center`s and Palm Bay Community Hospital`s Amended Preliminary Witness and Exhibit List filed. |
| Jul. 08, 1998 | Holmes Regional Medical Center`s and Palm Bay Community Hospital`s Supplemental Witness List; Notice of Taking Deposition Duces Tecum filed. |
| Jul. 08, 1998 | (D. Ashburn) Amended Notice of Taking Deposition Duces Tecum filed. |
| Jul. 08, 1998 | Wuesthoff Memorial Hospital, Inc.`s Notice of Service of Answers to First Set of Interrogatories; Wuesthoff Memorial Hospital, Inc.`s Responses to Holmes Regional Medical Center, Inc.`s Fourth Request for Production of Documents filed. |
| Jul. 08, 1998 | Wuesthoff Memorial Hospital, Inc.`s Witness & Exhibit Lists (filed via facsimile). |
| Jul. 06, 1998 | BY ORDER OF THE COURT (Substitution of counsel of record is granted) filed. |
| Jul. 06, 1998 | Wuesthoff Memorial Hospital, Inc.`s Responses to Holmes Regional Medical Center, Inc.`s First Request for Admissions (unsigned); (Wuesthoff) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 01, 1998 | (Holmes) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jun. 30, 1998 | (Respondent) Notice of Hearing filed. |
| Jun. 29, 1998 | Holmes Regional Medical Center, Inc.`s Notice of Service of Fourth Interrogatories to Wuesthoff Memorial Hospital, Inc. filed. |
| Jun. 29, 1998 | Holmes Regional Medical Center, Inc.`s Notice of Service of Third Interrogatories to Wuesthoff Memorial Hospital, Inc. filed. |
| Jun. 29, 1998 | Letter to DMM from David Ashburn (RE: scheduling depositions) (filed via facsimile). |
| Jun. 25, 1998 | Wuesthoff Memorial Hospital, Inc.`s Notice of Service of Second Set of Interrogatories to Holmes Regional Medical Center, Inc. filed. |
| Jun. 25, 1998 | (D. Ashburn) (2) Notice of Taking Deposition Duces Tecum filed. |
| Jun. 25, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s First Request for Admissions filed. |
| Jun. 25, 1998 | Wuesthoff Memorial Hospital, Inc.`s Seventh Request for Production to Holmes Regional Medical Center, Inc. (filed via facsimile). |
| Jun. 23, 1998 | Holmes Regional Medical Center, Inc.`s Notice of Service of Second Interrogatories to Wuesthoff Memorial Hospital, Inc. filed. |
| Jun. 22, 1998 | Holmes Regional Medical Center, Inc.`s Fifth Request for Production of Documents to Wuesthoff Memorial Hospital, Inc.; Holmes Regional Medical Center, Inc.`s Notice of Serving Answers to Interrogatories filed. |
| Jun. 22, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Fifth Request for Production filed. |
| Jun. 22, 1998 | Holmes Regional Medical Center, Inc.`s Fifth Request for Production of Documents to Wuesthoff Memorial Hospital, Inc.; Holmes Regional Medical Center, Inc.`s Notice of Serving Answers to Interrogatories filed. |
| Jun. 22, 1998 | Wuesthoff Memorial Hospital, Inc.`s Sixth Request for Production to Holmes Regional Medical Center, Inc. (filed via facsimile). |
| Jun. 16, 1998 | Order sent out. (Wuesthoff Motion for Withdrawal & Substitution of Counsel is Granted) |
| Jun. 11, 1998 | (D. Ashburn, W. Hyde) Motion for Withdrawal and Substitution of Counsel filed. |
| Jun. 10, 1998 | Holmes Regional Medical Center, Inc.`s First Request for Admissions to Wuesthoff Memorial Hospital, Inc. filed. |
| Jun. 03, 1998 | Holmes Regional Medical Center, Inc.`s Fourth Request for Production of Documents to Wuesthoff Memorial Hospital, Inc. filed. |
| Jun. 03, 1998 | Holmes Regional Medical Center, Inc.`s Notice of Service of First Interrogatories to Wuesthoff Memorial Hospital, Inc. filed. |
| May 22, 1998 | Wuesthoff Memorial Hospital, Inc.`s First Request for Admissions to Holmes Regional Medical Center, Inc. filed. |
| May 19, 1998 | BY ORDER OF THE COURT (petitioners` motion to amended reply brief of non-final action is granted) filed. |
| May 19, 1998 | Wuesthoff Memorial Hospital, Inc.`s Fifth Request for Production to Holmes Regional Medical Center, Inc. (filed via facsimile). |
| May 19, 1998 | Wuesthoff Memorial Hospital, Inc.`s Notice of Service of First Interrogatories to Holmes Regional Medical Center, Inc. (filed via facsimile). |
| May 04, 1998 | Petitioners` Motion to File Amended Reply to Wuesthoff Memorial Hospital, Inc.`s Response to the Amended Petition for Review of Non-Final Administrative Action; Cover Letter filed. |
| Apr. 29, 1998 | Wuesthoff Memorial Hospital, Inc.`s Supplemental Response to Holmes Regional Medical Center, Inc.`s Motion in Limine filed. |
| Apr. 29, 1998 | Holmes Regional Medical Center, Inc.`s Reply to Wuesthoff Memorial Hospital, Inc.`s Response to Holmes Regional Medical Center, Inc.`s Motion in Limine filed. |
| Apr. 23, 1998 | Petitioners` Reply to Wuesthoff Memorial Hospital, Inc.`s Response to the Amended Petition for Review of Non-Final Administrative Action filed. |
| Apr. 13, 1998 | Wuesthoff Memorial Hospital, Inc.`s Response to Holmes Regional Medical Center, Inc.`s Motion in Limine filed. |
| Apr. 07, 1998 | Order of Abeyance and Rescheduling of the Final Hearing sent out. (case in abeyance until 5/13/98; hearing set for Aug. 17 - Sept. 4, 1998; 9:00am; Tallahassee) |
| Apr. 01, 1998 | Holmes Regional Medical Center, Inc.`s Motion in Limine filed. |
| Apr. 01, 1998 | (2) Joint Motion to Abate and Continue Proceedings filed. |
| Mar. 26, 1998 | Letter to DOAH from DCA filed. DCA Case No. 1-98-1114, (Petition of non-final order) |
| Mar. 26, 1998 | (Holmes) Emergency Motion for Immediate Stay Pending Review filed. |
| Mar. 26, 1998 | (Holmes) Motion to Accept Amended Petition for Review of Non-Final Administrative Action; (Holmes) Amended Petition for Review of Non-Final Administrative Action filed. |
| Mar. 26, 1998 | (Holmes) Petition for Review of Non-Final Administrative Action; Appendix to Petition for Review of Non-Final Administrative Action filed. |
| Mar. 24, 1998 | Order Denying Motion for Stay Pending Review sent out. |
| Mar. 11, 1998 | Transcript of Motion Proceedings filed. |
| Mar. 11, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital`s Motion for Dismissal or in the Alternative Motion in Limine (filed via facsimile). |
| Mar. 10, 1998 | (Petitioner) Motion for Stay Pending Review filed. |
| Mar. 10, 1998 | Letter to DMM from R. Rigsby Re: Requesting evidentiary hearing set for Thursday be postponed filed. |
| Mar. 05, 1998 | Order and Notice of Evidentiary Hearing sent out. (evidentiary hearing set for 3/12/98; 2:00pm; Tallahassee) |
| Mar. 04, 1998 | (Wuesthoff Memorial Hospital, Inc.) Motion for Dismissal or in the Alternative Motion in Limine w/letter filed. |
| Mar. 04, 1998 | (Petitioner) Motion for Stay Pending Review filed. |
| Feb. 27, 1998 | Order sent out. (emergency motion for abeyance is denied; 3/9/98 hearing cancelled & reset for April 13 - May 1, 1998; 10:00am; Tallahassee) |
| Feb. 27, 1998 | Holmes Regional Medical Center`s and Palm Bay Community Hospital`s Amended Witness List; Holmes Regional Medical Center, Inc.`s Second Motion to Compel Production of Documents From Wuesthoff Memorial Hospital, Inc. filed. |
| Feb. 25, 1998 | (From R. Rigsby) Notice of Emergency Hearing; Holmes Regional Medical Center, Inc. d/b/a Holmes Regional Medical Center, and d/b/a Palm Bay Community Hospital`s Emergency Motion for Abeyance of Proceedings filed. |
| Feb. 25, 1998 | (David Ashburn) Notice of Filing Affidavit; Affidavit of Rick Knapp (filed via facsimile). |
| Feb. 24, 1998 | (Holmes Regional Medical Center) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 24, 1998 | Holmes Regional Medical Center, Inc. d/b/a Holmes Regional Medical Center, and d/b/a Palm Bay Community Hospital and Health First, Inc`s Joint Motion to Quash Subpoena Duces Tecum and Motion for Protective Order filed. |
| Feb. 24, 1998 | (Wuesthoff) Notice of Telephone Hearing (filed via facsimile). |
| Feb. 23, 1998 | Notice of Filing Deposition Excerpts of Dorothy Billard; Deposition of Dorthy Billard (Excerpts) (Judge has original and copy) filed. |
| Feb. 23, 1998 | (David Ashburn) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 18, 1998 | (From R. Rigsby) Notice of Filing Affidavit; Affidavit of Holmes Regional Medical Center, Inc.`s Motion for Protective Order filed. |
| Feb. 17, 1998 | (From R. Rigsby) Notice of Taking Depositions Duces Tecum filed. |
| Feb. 13, 1998 | (From R. Rigsby) Notice of Taking Depositions Duces Tecum filed. |
| Feb. 13, 1998 | Wuesthoff Memorial Hospital, Inc.`s Response in Opposition to Holmes Regional Medical Center, Inc.`s Motion for Protective Order in Response to Wuesthoff`s Motion to Compel (filed via facsimile). |
| Feb. 13, 1998 | Holmes Regional Medical Center, Inc.`s Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order (filed via facsimile). |
| Feb. 13, 1998 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Second Motion to Compel (filed via facsimile). |
| Feb. 13, 1998 | Holmes Regional Medical Center, Inc.`s Motion to Compel (filed via facsimile). |
| Feb. 10, 1998 | (From R. Rigsby) Notice of Taking Depositions Duces Tecum; Notice of Taking Deposition Duces Tecum filed. |
| Feb. 10, 1998 | (Petitioner) 2/Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 10, 1998 | Holmes Regional Medical Center`s and Palm Bay Community Hospital`s Preliminary Witness and Exhibit List filed. |
| Feb. 10, 1998 | Wuesthoff Memorial Hospital, Inc.`s Supplementary Witness List (filed via facsimile). |
| Feb. 10, 1998 | Holmes Regional Medical Center, Inc.`s Motion for Protective Order in Response to Wuesthoff Memorial Hospital, Inc.`s Motion to Compel (filed via facsimile). |
| Feb. 10, 1998 | Wuesthoff Memorial Hospital, Inc.`s Supplementary Witness List (filed via facsimile). |
| Feb. 05, 1998 | (From R. O`Hara) Notice of Taking Deposition Duces Tecum; (3) Subpoena Duces Tecum (from D. Ashburn) filed. |
| Feb. 04, 1998 | Wuesthoff Memorial Hospital, Inc.`s Second Motion to Compel filed. |
| Feb. 04, 1998 | Wuesthoff Memorial Hospital, Inc.`s Supplementary Witness List (filed via facsimile). |
| Feb. 04, 1998 | Wuesthoff Memorial Hospital, Inc.`s Motion to Compel (filed via facsimile). |
| Feb. 04, 1998 | Wuesthoff Memorial Hospital, Inc.`s Preliminary Witness & Exhibit Lists (filed via facsimile). |
| Feb. 04, 1998 | (2) Notice of taking Deposition Duces Tecum, 1, John Clees, 2, Sharon Gordon (filed via facsimile). |
| Nov. 26, 1997 | Wuesthoff Memorial Hospital, Inc.`s Response to Holmes Regional Medical Center, Inc.`s Third Request for Production of Documents filed. |
| Nov. 26, 1997 | Wuesthoff Memorial Hospital, Inc.`s Response to Holmes Regional Medical Center, Inc.`s Second Request for Production of Documents filed. |
| Nov. 13, 1997 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Fourth Request for Production filed. |
| Nov. 13, 1997 | Wuesthoff Memorial Hospital, Inc.`s Response to Holmes Regional Medical Center, Inc.`s First Request for Production of Documents (filed via facsimile). |
| Oct. 30, 1997 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Second Request for Production of Documents filed. |
| Oct. 30, 1997 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s Third Request for Production of Documents filed. |
| Oct. 30, 1997 | Holmes Regional Medical Center, Inc.`s Response to Wuesthoff Memorial Hospital, Inc.`s First Request for Production of Documents filed. |
| Oct. 24, 1997 | Holmes Regional Medical Center, Omc.`s Second Request for Production of Documents to Wuesthoff Memorial Hospital, Inc. filed. |
| Oct. 24, 1997 | Holmes Regional Medical Center, Inc.`s Third Request for Production of Documents to Wuesthoff Memorial Hospital, Inc. filed. |
| Oct. 24, 1997 | Wuesthoff Memorial Hospital, Inc.`s Fourth Request for Production to Holmes Regional Medical Center, Inc. (filed via facsimile). |
| Oct. 09, 1997 | Notice of Hearing sent out. (hearing set for 3/9/98; 10:00am; Tallahassee) |
| Oct. 06, 1997 | (From R. Rigsby) Response to Prehearing Order filed. |
| Oct. 01, 1997 | Holmes Regional Medical Center, Inc.`s First Request for Production of Documents to Wuesthoff Memorial Hospital, Inc. filed. |
| Sep. 30, 1997 | Wuesthoff Memorial Hospital, Inc.`s Third Request for Production to Holmes Regional Medical Center, Inc. filed. |
| Sep. 30, 1997 | Wuesthoff Memorial Hospital, Inc.`s Second Request for Production to Holmes Regional Medical Center, Inc. (filed via facsimile). |
| Sep. 26, 1997 | Wuesthoff Memorial Hospital, Inc.`s First Request for Production to Holmes Regional Medical Center, Inc. filed. |
| Sep. 25, 1997 | Prehearing Order sent out. |
| Sep. 17, 1997 | Notification Card sent out. |
| Sep. 10, 1997 | Wuesthoff Memorial Hospital, Inc.`s Exceptions To The Recommended Order filed. |
| Sep. 10, 1997 | Notice; Petition for Formal Administrative Hearing (exhibits); Wuesthoff Memorial Hospital`s Response To Petition For Formal Administrative Hearing And Motion To Strike Exhibit "A" To Petition; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 21, 2000 | Agency Final Order | |
| Jul. 12, 2000 | Recommended Order | CON for 50-bed acute care hospital in South Brevard Co. should be denied, despite need for competition, because of failure in proof of financial feasibility. |
