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AGENCY FINAL ORDER

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STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

NORTH MIAMI MEDICAL CENTER, LTD., d/b/a PARKWAY REGIONAL MEDICAL CENTER,

Petitioner, CASE NO. 93-4877 CON NO. 7287

vs. RENDITION NO. AHCA-94-781-FOF-CON

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered September 15,1994, by Hearing Officer Eleanor M. Hunter is incorporated by reference.

RULING ON EXCEPTIONS FILED BY THE AGENCY

Counsel excepts to the Hearing Officer's restatement of Rule 59C- 1.039(3)(c) in paragraphs 3 and 19. Subsection (3)(c) of the rule provides as follows:

A general hospital providing comprehensive medical rehabilitation inpatient services should normally have a minimum of 20 comprehensive medical rehabilitation inpatient beds . . . hospitals with licensed or approved comprehensive medical rehabilitation inpatient beds as of the effective date of this rule are exempt from

meeting the requirements for a minimum number of beds. (emphasis added).

The restatements are inconsistent with the plain language of the rule. The exception is granted.

Counsel excepts to the conclusion in paragraphs 41, 42, 44, and 46 that the mere existence of a CMR unit of less than 20 beds constitutes a "not normal" circumstance. There is no statutory, rule, or basis in prior orders for this conclusion. Had AHCA intended to create a "not normal" circumstance authorizing

the approval of beds to bring "grandfathered" programs up to a minimum of 20 beds, it would have done so. To the contrary AHCA by rule waived the minimum size for "grandfathered" programs.

Whether to approve a proposal based on "not normal" circumstances is a conclusion of law and thus a matter of agency discretion. Humana vs. Department of Health and Rehabilitative Services, 492 So2d 388, 392 (Fla. 4th DCA 1986); Federal Property Management vs. Department of Health and Rehabilitative Services, 382 So2d 475, 477 (Fla. 1st DCA 1985). Parkway has not shown that existing facilities are unavailable or inaccessible. To the contrary it was established that there are many empty beds in the district, that utilization at other facilities is low and getting lower, and that there are approved beds which will be operational. As to quality of care at Parkway's existing bed unit, the parties stipulated that the applicant is currently providing quality care and will continue to do so. There was no evidence that quality of care will suffer if the requested beds are not awarded. The need for CMR beds is determined on a district-wide basis because it is a tertiary care service. I conclude that "not normal" need has not been established. The exception is granted.

RULING ON EXCEPTIONS FILED BY PARKWAY

Parkway maintains that it is a "disproportionate share" hospital for purposes of Rule 59C-1.039(5)(e) even though Parkway has not been designated as such a hospital. Parkway concedes that it would be entitled to only two additional beds if it met the requirements of the rule. It is not necessary to resolve this issue because Parkway seeks the approval of twelve CMR beds, not two beds pursuant to Rule 59C-1.039(5)(e).

Parkway excepts to the findings regarding the Bon Secours facility in paragraph 37. The challenged findings are supported by competent, substantial evidence; therefore, the exception is denied.

Parkway maintains that its twelve bed proposal should be approved on the basis of "not normal" circumstances. I do not agree with Parkway.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the rulings on the exceptions.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on the exceptions.

Based upon the foregoing, it is

ADJUDGED, that the application of North Miami Medical Center, Limited, d/b/a Parkway Regional Medical Center for CON 7287 is DENIED.

DONE and ORDERED this 5th day of December, 1994, in Tallahassee, Florida.

Douglas M. Cook, Director Agency for Health Care Administration

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

R. Terry Rigsby, Esquire BLANK, RIGSBY & MEENAN

204 South Monroe Street Tallahassee, Florida 32301

Lesley Mendelson, Esquire Senior Attorney, Agency for Health Care Administration

325 John Knox Road

Atrium Building, Suite 301 Tallahassee, Florida 32303-4131

Eleanor M. Hunter Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 Elizabeth Dudek (AHCA/CON) Alberta Granger (AHCA/CON)

Elfie Stamm (AHCA/CON)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail this 7th day of December, 1994.

R. S. Power, Agency Clerk State of Florida, Agency for

Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301 Tallahassee, Florida 32303

(904)922-3808

Docket for Case No: 93-004877CON