vs. ) CASE NO. 77-407
Respondent. )
Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer, with the Division of Administrative Hearings, at 12:00 Noon, on May 19, 1977, at the offices of the Florida Department of Health and Rehabilitative Services, 1323 Winewood Boulevard, Tallahassee, Florida.
Sheldon M. Simons, Esquire, appeared as counsel for Petitioner, Osteopathic General Hospital, and Eric J. Haugdahl, Esquire, appeared as counsel for Respondent, HRS, Office of Community Medical Facilities.
By its petition, Osteopathic General Hospital seeks reversal of the Department of Health and Rehabilitative Services' determination that Petitioner's proposed Capital Expenditure for the procurement and installation of a total body CAT Scanner was not favorably to be recommended to the Department of Health, Education and Welfare. The proceedings were held under authority of 42 U.S.C.A. Section 1320a-1 and 42 C.F.R., Part 100.
At the commencement of the hearing, Respondent, HRS, stipulated that it would adopt the order of the Hearing Examiner as its final order. The parties stipulated that the close of hearing would occur upon receipt of the transcript of testimony by the Division of Administrative Hearings.
Petitioner, Osteopathic General Hospital, is a nonprofit osteopathic hospital in Dade County, Florida. It was established in 1953, and is currently licensed for 264 beds. It is one of two osteopathic hospitals located in the Dade-Monroe County area which is the service area of the Dade-Monroe Health System Agency. It is a full service community and teaching hospital providing care in all areas of osteopathic medicine including, but not limited to, radiology. It maintains an emergency room which is open twenty-four (24) hours a day, seven (7) days per week.
At the November 30, 1976, meeting of the HSA Review Committee I, Petitioner's proposal for the acquisition of a total body CAT Scanner was recommended for approval by a vote of 6 to 1 with one abstention. At its December 21st meeting, the HSA Board of Directors voted to recommend denial on the basis that South Florida already had sufficient scanners to meet current
demand. On January 19, 1977, Petitioner was notified by Respondent, HRS, that the Capital Expenditure proposal was not favorably recommended to the Department of Health, Education and Welfare. The ground for the unfavorable recommendation was that further installation of CAT scanning equipment would compound low utilization of existing facilities.
At the time of the hearing in this case, Nine (9) scanners were in operation in Dade County. Of these nine (9) scanners, five (5) were full body scanners and the remaining four (4) head scanners. Eight of these scanners are hospital owned and one physician owned.
An additional CAT Scanner is being installed at American Hospital but no evidence was introduced to establish its projected use. Two additional hospitals in Dade County have outstanding approvals under Section 1122 of the Social Security Act (42 U.S.C.A. 1320a-1) for the installation of CAT Scanning equipment. They are Parkway General and Veterans Administration Hospitals. Outstanding 1122 approval is valid for a period of one year and may be extended for a six months period.
At the time of the hearing, three (3) scanners in Dade County were utilized at a rate less than 2,040 scans per year. They are Baptist Hospital, Miami International Hospital and North Shore Hospital. Baptist Hospital is located on the other end of town from Petitioner's facility and is not reasonably accessable to patients at Petitioner's facility. The scanner at Miami International Hospital is a first generation head scanner and not a full body scanner. Even so, the utilization of the scanner at Miami international Hospital is less than 100 scans from the OPA 85 percent criteria.
The facility at North Shore Hospital was recently placed at that location. The volume of studies performed at CAT Scanner installations typically grows by more than 25 percent between the first and second years of scanner operation. Therefore, during its first year of operation, it should increase its present utilization rate of 1,220 scans per year to 1,525 scans per year. At that point it would be under utilized to the extent of 515 scans per year which far from accommodates the projected needs of Osteopathic General Hospital, the Petitioner.
Figures for 1976, showing the actual use by the nine (9) machines range from a low yearly total of 1,220 to over 3,000. The average annual use per scanner is approximately 2,358 scans. The total number of scans in the area for the calendar year 1976, was approximately 18,864.
As of the date of the hearing, Respondent had not developed a position as to guidelines for criteria against which CAT Scanner applications would be reviewed. However, a proposal for such guidelines issued from the office of Community Medical Facilities of the Respondent, Department of Health and Rehabilitative Services on February 21, 1977. The guidelines suggest that community need would be established by a demonstration that other existent CAT Scanners in the same HSA area are being utilized at a minimum of 70 percent level or 1,456 scans per year.
A standard which the Respondent accepts is that each CAT Scanner in a particular health system agency area must operate at 85 percent of its capacity. Capacity is determined to be 2,400 patients per year which when multiplied by 85 percent equals a standard of 2,040 scans per year.
The HSA uses as a part of its planning criteria the estimate that from
3 to 10 percent of the given population can expect to be scanned in a year. The Dade-Monroe population projected for 1980 is 1,650,000 which would generate an annual patient count between 49,000 and 165,000. Assuming a utilization rate of 2,500 scans per year, between 19 and 64 scanners would be required in the community to accommodate the demand.
Petitioner's projected use of the CAT scanner is 2,094 procedures annually. This figure does not include additional procedures incurred by virtue of the participation of Westchester General Hospital, the other osteopathic facility in the Dade-Monroe area.
Petitioner projects that the cost per scan to be charged by its facility will be $250.00, which includes both the hospital and physician fee. Frequently, the use of the CAT Scanner will obviate the requirement of one or more alternative procedures which may entail more cost to the patient and higher morbidity.
There is a waiting time of at least one to two days for ambulatory or inpatient referral from another hospital to one in which scanners are currently located, Inpatient delay, however, is either nonexistent or significantly less in those same institutions.
Petitioner does not refer its patients to those facilities having a utilization rate of below 2,040 per year.
The installation of a CAT Scanner in Petitioner's facility would result in a substantial saving in cost in many cases by reducing the length of hospital stay, the number of diagnostic procedures employed and elimination of transportation costs to other facilities.
The Department of Health, Education and Welfare has established as a guideline for the development of health systems plans that a consumer demand for osteopathic services should be considered by the HSA in light of availability of osteopathic facilities to osteopathic physicians and patients. The Bureau of Health Planning and Resources Development of HEW is sensitive to the possibility of osteopathic concern being either slighted or ignored in many health care settings. The Secretary of HEW, because of his concern about discrimination against populations who wish to be served by osteopathic services and facilities in their communities, strongly encourages State agencies and HSA's to incorporate consideration of the needs of the population being served by such services and to their health plans.
There is a definite segment of the population in the Dade-Monroe County area which uses exclusively osteopathic physicians for their medical needs. However, there is no CAT Scanner within the Dade-Monroe area which is either owned or operated by an osteopathic facility. All CAT Scanners within the area are operated by allopathic physicians or facilities.
CONCLUSIONS OF LAW
The parties have agreed that the Federal criteria at issue in this case are the following portions of 42 C.F.R. Section 100.107:
Whether the proposed project is needed or projected as necessary to meet the needs in the community in terms of health services
required: provided, that projects for highly specialized services which will draw from patient population outside the community will receive appropriate consideration;
* * *
(d) Whether the project will foster cost containment or improved quality of care through improved efficiency and productivity including promotion of cost effective factors such as ambulatory care, preventive health care services, home health care, and design and construction economies or through in- creased competition between different health services delivery systems.
It is anticipated that a state program for capital expenditures be created in accordance with criteria which will meet the needs of the state for health care facilities, equipment and services. 42 C.F.R. Section 51.4 provides that these criteria will be established by the Secretary of HEW after consultation with the state. An agreement is to be entered into between the state and the Secretary of HEW which incorporates the established criteria for evaluating proposals for capital expenditures. In any event, all criteria established must include the provisions of paragraphs (a) and (d), 42 C.F.R. 100.107, cited above.
No such agreement or criteria has been cited or presented to the Hearing Officer in this case and it appears that none exists. Therefore, for the purposes of this hearing, the provisions of Chapter 381, Florida Statutes, and Chapter 10 I of the Florida Administrative Code have no binding application. The issue in this case then is whether the above-cited criteria have been met by Petitioner.
Petitioner urges that the first criterion under consideration here must be interpreted in terms of the needs of the osteopathic community as well as the geographic community. This is consistent with the repeatedly stated position of HEW that health planning should be sensitive to the needs of osteopathic patients. Petitioner's view of the criterion also accommodates the spirit of 42 C.F.R., Part 100, which is to incorporate the needs of the State in criteria adopted pursuant to the provisions of the regulations. Although it is concluded herein that Section 381.494(2), Florida Statutes, is not binding upon the determination to be made in these proceedings the provisions of the cited section show that the State of Florida is sensitive as well to its osteopathic requirements:
When an application is made for a certificate of need to construct or to expand an osteo- pathic facility, the need for such facilities shall be determined on the basis of the need and availability in the community for osteo- pathic services and facilities.
Accordingly, local osteopathic needs are a factor to be considered in the present or projected needs in the community of a proposed project.
The evidence admits of no other interpretation but that the osteopathic community of the Dade-Monroe County area needs the CAT Scanner proposed to be installed by Petitioner. At present, osteopathic patients must
attend an allopathic facility for CAT scanning, notwithstanding their preference for osteopathic facilities.
Turning to the demonstrated needs of the geographic community, the application of available criteria demonstrates that existing CAT scanning facilities are now, on the average, operating at the standard accepted by HRS. Although two isolated scanners may at present be underutilized, other scanners appear overutilized. The average annual use per scanner of 2,358 scans exceeds DPA accepted criteria by 318 scans per year. If the scanner under installation at American Hospital is included in computation of the average it is readily seen that minimal utilization of that facility would still result in an average approximating the DPA accepted criteria. In addition, the initial proposed guideline of 1,456 scans per year is or will soon be exceeded by all facilities.
Since Petitioner does not refer its patients to those facilities having a utilization rate below 2,040 scans per year, it cannot be said that the proposal will compound low utilization.
Considering all available utilization criteria, it is concluded that Petitioner's proposed project is needed to meet the needs in both the osteopathic and geographic community in terms of health services required.
The proposed project will foster cost containment through the elimination of multiple costly procedures, waiting time and transportation costs. The proposed project will improve the quality of care by improving the efficiency of Osteopathic General Hospital as well as its productivity and can reasonably be expected to foster increased competition between different health services delivery systems.
Based upon these findings of fact and conclusions of law, it is recommended that Respondent's unfavorable recommendation to the Department of Health, Education and Welfare be reversed.
DONE and ENTERED this 19 day of August, 1977, in Tallahassee, Florida.
MICHAEL R.N. McDONNELL
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Eric Haugdahl, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Sheldon M. Simons, Esquire Professional Building
