Judges: K. N. AYERS
Agency: Agency for Health Care Administration
Latest Update: Apr. 17, 1980
Summary: Petitioner's application for Alachua home health care agency should be denied. There was no present need of poplulation or cost effectiveness shown.
80-0123.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALACHUA COUNTY HOME HEALTH )
SERVICES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 80-123
) OFFICE OF COMMUNITY MEDICAL ) FACILITIES, FLORIDA DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )
)
Respondent, )
and )
) UPJOHN HEALTHCARE SERVICES, INC., )
)
Intervenor. )
)
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 12 March 1980 at Gainesville, Florida.
APPEARANCES
For Petitioner: Gene J. Tischer, Esquire
Manasota Home Health Agency 4208 Charing Cross Road Sarasota, Florida 33503
For Respondent: Eric J. Haugdahl, Esquire
Assistant General Counsel Department of Health and
Rehabilitative Services 1317 Winewood Boulevard
Tallahassee, Florida 32301
For Intervenor: William C. Andrews, Esquire
1133 Northwest 23rd Avenue Gainesville, Florida 32601
By Mailgram dated 10 January 1980 Alachua County Home Health Services, Inc., Petitioner, by and through its President, Gene J. Tischer, requested a fair hearing to contest the Department of Health and Rehabilitative Services' (HRS, or Respondent) denial of Petitioner's application for a certificate of need to establish a home health agency in Alachua County, Florida.
By Petition for Leave to Intervene filed 4 March 1980, Upjohn Healthcare Services, Inc. requested leave to intervene in these proceedings as a substantially affected person. This petition was granted by Order entered 7 March 1980.
At the hearing Petitioner called 9 witnesses, Respondent called one witness, and 10 exhibits were offered into evidence. Objection to Exhibits 1 and 2, on which ruling was reserved at the hearing, is now sustained on grounds of hearsay, not under oath, not subject to cross-examination, and not of probative value. Objection to Exhibits 7, 8, and 9 was sustained on grounds of relevance. All other exhibits were admitted, with some for a limited purpose only. No witness testified regarding Petitioner's ability to provide the financing or personnel required or to how Petitioner proposed to operate the facility. After considering all competent evidence presented, the following is submitted.
FINDINGS OF FACT
Petitioner proposes to operate a nonprofit home health agency in Alachua County to provide both skilled care and custodial care. Although the evidence was weak on this point, it appears that Petitioner is offering to provide home health services to Medicare, Medicaid, private, and indigent patients in Alachua County by obtaining grants from federal and local sources to pay for the indigent and costs not covered by Medicaid. No evidence was presented that these funds would be made available to Petitioner if this certificate of need is granted.
There is a need for home health services in Alachua County for those patients' services not covered by Medicare and who cannot afford to pay for these services.
Intervenor Upjohn Healthcare Services, Inc. (Upjohn) has a certificate of need to provide home health services in Alachua County and four surrounding counties. Upjohn is presently serving some 50 patients in Alachua County, 88 in the other four counties served and has a total capacity to provide home health services to 300 patients.
No witness testified Upjohn was unable to provide home health services to any patient for whom funds to pay for the services were available. Upjohn recently received a provider number to provide services to Medicaid patients and has agreed to provide services to Medicaid patients. Upjohn would not commit itself to serving all Medicaid patients in view of the net loss to the provider each time such care is provided.
Payments for skilled home health services are provided for Medicare patients which are adequate to cover the costs to the provider. However, the limit of payments for similar care for Medicaid patients is about one-half that allowed for Medicare and is not adequate to defray the costs to the provider.
Many Medicare patients have need for home health services for which Medicare will not reimburse the provider. No evidence was presented by Petitioner that this need will be fulfilled if this application is granted.
The Older Americans Council is a public funded agency in Gainesville that provides care for older residents. This organization receives funds from HRS and from local charities such as United Way. With these funds, services, including Meals-on-Wheels, are provided. The Older Americans Council has
contracted with Upjohn to provide some services to its beneficiaries for which Medicare funds are not available. These are primarily unskilled home health services.
Petitioner indicated (but no testimony was presented in this regard) that it would use CETA funds to pay trainees to perform some of the needed home health services not presently available in Alachua County. The only evidence presented respecting CETA employees was that Santa Fe Community College is the only organization in Alachua County authorized to provide the training proposed by Petitioner with federally provided CETA funds.
Alachua County Health Department provides skilled home health services to indigents in Alachua County. These services are available to homebound patients when ordered by the attending physician. Such orders are good for only two months unless renewed, and the attending nurse submits a report to the doctor every two months. No indigent fitting into the policy requirements for home health care established by Alachua County has been denied skilled home health care. Skilled home health care to qualifying patients is provided by the county nurse responsible for the area in which the patient lives. This service is provided in conjunction with other services in the area for which this nurse is responsible.
Until 1978 Alachua County Health Department held a provider number for Medicaid patients. When it learned payments would be made only to a licensed home health agency, it gave up this number. Five Medicaid patients in Alachua County have been identified, and now that Upjohn has received a provider number, Upjohn is providing care to one Medicaid patient and discussions between Upjohn and the County are under way with regard to some of these Medicaid patients. Upjohn has never turned down a Medicare patient referred to them by the County Health Department.
When Petitioner'S application was presented to the Health Systems Agency for review, the staff by a one-vote margin opted for granting the certificate, the Executive Committee, to whom the staff report was submitted for final action, voted to disapprove the application, and this recommendation was followed by Respondent in denying the application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Rule 10-5.11(14), Florida Administrative Code, provides:
A certificate of need for a proposed new home health agency or subunit shall not be issued until the daily census of each of the existing home health agencies or subunits providing services within the health service area of the proposed new home health agency or subunit has reached an average of 300 patients for the immediate preceding calendar quarter unless the need for the proposed new home health agency or subunit can be demonstrated by application of the mitigating and extenuating circumstances in rule
10-5.11(14)(b) herein.
Mitigating and extenuating circumstances which must be met for the department to issue a certificate of need for a proposed new home health agency or subunit even though the previously described need determination procedure does not clearly indicate need are:
Documentation that the population of the proposed service area is being denied access to home health care services in that existing home health agencies or subunits within the proposed service area are unable to provide services to all persons in need of home health care, or
Documentation that approval of such proposed new home health agency or subunit would foster cost containment for all providers in the health service area.
The evidence is uncontradicted that the average of 300 patients for whom services are provided by the existing home health agency in the area is far from being reached. Accordingly, for Petitioner to succeed it must fit into one of the exceptions quoted above.
It is first noted that absolutely no documentation was provided by Petitioner to prove anything. Not one patient was named who was denied services in the proposed service area. No documentation was provided of the number of patients eligible for Medicare or Medicaid in the service area. No documentation was provided that home health care was unavailable at any time to anyone in Alachua County.
To the contrary, the evidence was uncontradicted and reaffirmed by several of Petitioner's witnesses that Upjohn has the ability to provide all of the home health care services needed in Alachua County. Petitioner's contention that there are many indigents who need home health services which are not provided by Upjohn, even if true, does not reach the requirement of Exception 1 above. Exception 1 defines "denied access" by the words there used to mean existing home health agencies are "unable" to provide service to all who need home health service. The evidence submitted is that Upjohn, the existing home health agency in the area, is "able" to provide all of the home health services needed but has declined to serve those for whom compensation for services is unavailable.
Petitioner's case appears to rest upon the fact that Upjohn has declined to provide services for which it could expect to receive no compensation. Petitioner produced no evidence to show that it was willing and able to provide such services without reimbursement. Nor did any officer or agent of Petitioner testify home health services would be provided to indigents without compensation.
Petitioner appears to predicate its ability to acquire funds to cover the payment for services to the indigent by reason of its status as a nonprofit corporation. While this status would make contributions from donors tax-exempt, no evidence was submitted that such contributions would be forthcoming or that the federal grants hinted about would be made available to Petitioner. There was evidence that United Way contributions, for which Petitioner also claimed eligibility, would not likely be available because United Way collections in
Alachua County were below goals. Therefore, instead of having money available for additional programs, it will be necessary for United Way to reduce existing programs.
Nor was documentation presented to support the exception that the addition of another home health agency would foster cost containment for all providers in the service area. With the existing home health agency in Alachua County performing well below capacity, the administrative costs per patient are higher than they would be if these costs were spread among a larger number of patients. If Petitioner is granted a certificate of need, presumably the patients presently served by Upjohn will be siphoned off, thereby increasing Upjohn's administrative costs per patient. Until such time as the optimum of
300 patients are being served in Alachua County it will be difficult for an applicant to acquire a certificate of need unless it can be shown that the fees charged by the existing provider are exorbitant or out of line with fees for similar services elsewhere in Florida. Here not a scintilla of evidence was presented in this regard.
From the foregoing it is concluded that need for another home health agency in Alachua County does not exist at the present time and the application of Alachua County Home Health Services, Inc. for a certificate of need should be disapproved. It is therefore
RECOMMENDED that the application of Alachua County Home Health Services, Inc. for a certificate of need to operate as a home health agency in Alachua County be denied.
Entered this 31st day of March, 1980.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Gene J. Tischer, Esquire Manasota Home Health Agency 4208 Charing Cross Road Sarasota, Florida 33503
Eric J. Haugdahl, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 1317 Winewood Boulevard
Tallahassee, Florida 32301
William C. Andrews, Esquire 1133 N. W. 23rd Avenue Gainesville, Florida 32601
Docket for Case No: 80-000123
Orders for Case No: 80-000123
| Issue Date |
Document |
Summary |
|
Apr. 15, 1980 |
Agency Final Order
|
|
|
Mar. 31, 1980 |
Recommended Order
|
Petitioner's application for Alachua home health care agency should be denied. There was no present need of poplulation or cost effectiveness shown.
|
