STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF: ) APPLICATION OF IRVING and LOUISE ) LAMPERT, GARY LAMPERT, Project )

Director, Fort Lauderdale, ) CASE NO. 77-2284 Florida 33302, )

)

Petitioner. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on May 9, 1978, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Sanford L. Auchmick, Esquire

Hollywood Federal Building 5950 Washington Street

Hollywood, Florida 33023

For Respondent: Eric Haugdahl, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

This case involves an appeal and request for a fair hearing from the denial of a certificate of need to construct a 60-bed skilled nursing home in Delray Beach, Florida, by Irvin and Louise Lampert, Petitioners. Two witnesses were called by Petitioners, one witness was called by Respondent, HRS, and 3 exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioners' application for a certificate of need to construct a 60- bed skilled nursing home was recommended for approval by the Health Planning Council, the health systems agency (HSA) for the five counties of Martin, Palm Beach, Volusia, Okeechobee and St. Lucie, but was denied by the Department of Health and Rehabilitative Services (HRS), Office of Community Medical Facilities. The latter agency has the ultimate responsibility for granting certificates of need.

   
   

2. In recommending the granting of a certificate of need, HSA considered available beds in existing facilities in lieu of licensed beds, found 89.6 percent occupancy of available beds equal to or greater than 90 percent occupancy of licensed beds prescribed by the State Plan for Hospitals and Related Medical Facilities (Exhibit 2), used its own population forecasts rather than State population forecasts, and failed to consider certificates of need

   approval recently granted to five nursing homes in Palm Beach County, some of which were already under construction.

   
   

3. HSA, at the time of this application had Palm Beach County divided into four regions (which has now been expanded to five) and the proposed facility is located in region three. At the time of the application there were three existing nursing homes in region three and two additional facilities had been granted certificates of need in this region.

   
   

4. HSA normally uses licensed beds to determine the percentage of occupancy, but for reasons not explained at this hearing, HSA used available beds to determine the percentage of occupancy. Using available beds HSA found the three nursing homes in region three of Palm Beach County to have an 89.6 percent rate of occupancy. Had licensed beds been used, the percentage of occupancy would have been 83.

   
   

5. The Office of Community Medical Facilities, in determining the need for additional medical facilities, has divided the State into 60 health care service areas and Palm Beach County is one of those areas. No evidence was submitted to indicate that the service areas so established are not reasonable.

   
   

6. At the time of Petitioners' application, there were 1981 licensed nursing home beds in Palm Beach County; and applications had been approved, or recommended for approval and subsequently approved, for an additional 460 beds in Palm Beach County.

   
   

7. The projected need in the State Plan for 1977 (Exhibit 2) for nursing home beds for Palm Beach County by 1982 is 2038. Accordingly, at the time of this hearing, nursing homes in Palm Beach County had received approval for 2441 beds which is 403 more nursing home beds than the forecast need for the year 1982.

   
   

8. In determining the need for medical and health provider facilities, the usage rate of existing facilities is first determined from actual usage of the facilities. The Projected Average Daily Census is then determined by multiplying the use rate by the forecast population and dividing by 365 days per year. From this figure the bed need is determined by dividing the Projected Average Daily Census by .85 and adding 10. In this manner, HRS determined in the 1977 State Plan for Construction of Hospitals and Related Medical Facilities that Palm Beach County would have a need for 2038 nursing home beds in 1982.

   
   

9. At the time Petitioners' application was recommended for approval by HSA, additional certificates of need had been granted for an additional 160 nursing home beds in region three of Palm Beach County. These facilities are designated as Life Care Centers because they are attached to condominiums from which their primary source of patients is expected to come. However, these facilities are essentially nursing homes and provide the same services as nursing homes.

   
   

10. Had these authorized additional beds been included in computing the percentage of occupancy of nursing homes in region three the rate would have been approximately 60 percent, assuming no population change when these facilities become operational.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the issues here involved.

    
    

12. Section 381.494, Florida Statutes, contains the requirements for the issuance of a certificate of need for health related projects and provides in pertinent part that in making recommendations for certificates, the health systems agency shall consider:

    
    

    1. The need for health-care facilities and services being proposed in relation to the applicable health systems plan, annual implementation plan, and state medical facilities plan adopted pursuant to Titles XV and XVI of the Public Health Service Act.

       
       

    2. The availability, accessibility, extent of utilization and adequacy of like and existing health-care services in the applicant's health service area.

       
       

13. In making its recommendation for new construction, the HSA is required by Section 381.494 to submit facts showing that patients will experience serious problems in obtaining inpatient care of the type proposed in the absence of the proposed new service. Facts submitted at the hearing failed to establish that patients in Palm Beach County could encounter difficulties in obtaining inpatient care if the application is not approved.

    
    

14. Subsection (6) of Section 381.493, Florida Statutes, enumerates various duties of HRS in regard to the issuance of certificates of need and provides in pertinent part:

    
    

    (a) The Department shall be designated as the single state agency to issue or deny certificates of need in accordance with present and future federal and state statutes.

    (c) Upon review of the application for certificates of need, the recommendation of the health systems agencies, and the relationship between the applications, the state health plan, and the state medical facilities plan, the department shall issue or deny certificates of need for proposed capital expenditures in their entirety or for identifiable portions of the total project.

    If denial of the certificate of need by the Department is counter to the recommendation of the local health systems agency, the department shall outline its reasons for denial, item by item, to the health systems agency in writing.

    
    

15. The Florida State Plan (Exhibit 2) provides that a certificate of need should be issued for additional nursing homes where it can be documented that similar nursing homes in the service area have been used at an optimum rate of

    90 percent for the previous 12 months period and there exists a current,

    unduplicated waiting list for services proposed. Absent such documentation, the applicant has failed to demonstrate a need for the proposed health care.

    
    

16. From the foregoing it is concluded that the Petitioner, under the criteria contained in the statutes above quoted and the plan promulgated in accordance therewith, has failed to show that a need exists for the 60-bed nursing facility proposed for construction at Delray Beach, Florida. To the contrary the evidence was clear, if not overwhelming, that a surplus of nursing home beds exists in Palm Beach County and in section three thereof, and this surplus will be increased when the approved facilities become operational. It is, therefore,

RECOMMENDED that, the appeal of Irving and Louise Lampert from the denial of a certificate of need to construct a 60-bed skilled nursing home in Delray Beach, Florida, be dismissed.

DONE and ENTERED this 14th day of May, 1978, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1978.

COPIES FURNISHED:

Sanford L. Muchnick, Esquire Hollywood Federal Building 5950 Washington Street

Hollywood, Florida 33023

Eric Haugdahl, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 77-002284

Orders for Case No: 77-002284