STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSTEOPATHIC MEDICAL HOSPITALS,INC. - ) UNIVERSAL HEALTH SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-727

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing in Tallahassee, Florida, on June 14, 1983, and West Palm Beach, Florida, on July 5, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Frank J. Santry, Esquire

Field, Granger, Santry & Mitchell, P.A. Post Office Box 1879

Tallahassee, Florida 32302

For Petitioner: Thomas T. Alspach, Esquire

130 North Washington Street Easton, Maryland 21601

For Respondent: James M. Barclay, Esquire

Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Building 2, Suite 256

Tallahassee, Florida 32301 FINDINGS OF FACT

1. The proceedings concern Petitioner's application for a certificate of need to construct a 120-bed acute care osteopathic hospital in the Wellington- Royal Palm Beach section of Palm Beach County, Florida. The application was denied by Respondent, giving rise to the petition.

   
   

2. The parties' proposed recommended orders and post- hearing memoranda were filed on July 26, 1983. Proposed findings of fact have been considered and, where appropriate, adopted in substance. Those findings not adopted are considered to be either subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

   B. ISSUES

   
   

3. The parties cntcred a pre-hearing stipulation which The following certificate of need criteria of Section 381.494(6)(c) do not apply to this application:

1. The probable economics and improvement in services that may be derived from the operation of joint, cooperative, or shared health care resources.

   
   

2. The need in the applicant's health service area for special equipment and services which are not reasonably and economically accessible in adjoining areas.

   
   

3. The special needs and circumstances of health maintenance organizations.

   
   

4. 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 health service area in which the entities are located or in adjacent health service areas. Such entities may include medical or other health profes- sions, schools, multi-disciplinary clinics, specialty services such as open-heart surgery, radiation therapy, and renal transplantation. (While this criterion does not specifically apply, the need for research and educational facilities in the community was applicable to these proceedings.)

1. The following certificate of need criteria of Section 381.494(6)(c) do apply to these proceedings but it is un- disputed that ONHI-UHSI's application meets or exceeds the require- ments- of these criteria:

   
   

   1. The need for research and educational facilities, including, but not limited to, institutional training programs and community training programs for health care practitioners and for doctors of osteopathy and medicine at the student, internship, and residency training levels.

      
      

   2. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health pro fessional training programs in the service area; the extent to which the services will be accessible to schools for health professionals in the service area for training purposes if such services are available in a limited number of facilities; the availability of alternative uses of such resources for the provision of other health services; and the extent to which the proposed services will be accessible to all residents of the service area.

      
      

   3. The immediate and long-term financial feasibility of the proposal.

      
      

   4. The probable impact of the proposed project on the cost of providing health services proposed by the applicant, upon consideration of factors including, but not limited to, the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost effectiveness.

      
      

   5. The costs and methods of proposed construction, including the costs and methods of energy provisions and the availability of alternative, less costly, or more effective methods of construction.

2. The following certificate of need criteria of Section 381.494(6)(c) apply to this proceeding. Burden is with Petitioner to establish that its application should be granted, giving consideration to these criteria in light of and in conjunction with the other relevant criteria:

   
   

   1. The need for health care facilities and services being proposed in relation to the applicable district plan, annual implementation plan, and state health plan adopted pursuant to Title XV of the Public Health Service Act, except in emergency circumstances which pose a threat to the public health.

      
      

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

      
      

   3. The availibility and adequacy of other health care facilities and services in the applicant's health service area, such as outpatient care and ambulatory or home care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant.

   
   

3. The parties agree that no additional issues other than those embodied in Section 381.494(6)(c) are raised in Section 381.494(6)(d)

C. PROPOSED SERVICES

1. OMHI-UHSI's proposal calls for the construction of an acute care osteopathic hospital on the corner of Forest Hills Boulevard and State Road 7 (U.S. 441) in Palm Beach County, Florida. (McMahon, I, 176) The hospital's primary service area consists of zip codes 33411 and 33470. (Taylor I, 21)

   
   

2. The hospital proposes a complement of 100 medical/sur- gical beds, eight ICU/CCU beds, twelve pediatric beds, appropriate ancillary services, and a 24-hour emergency room. (Leibman, I, 24-25 and P. Ex. 2)

   
   

3. The hospital will be constructed, financed, and managed by Universal Health Services, Inc.--Osteopathic Medical Hospitals, Inc., under contract with Universal, will be responsible for medical staff organization and the development of an osteopathic clinical education program. (Leibman, I, 25-26,

   1. Ex. 2)

      
      

4. Wellington Hospital Medical Center will be an osteopathic hospital but allopathic physicians (MDs) will be permitted and encouraged to obtain staff privileges. (Taylor, II, 45)

1. OSTEOPATHIC FACILITIES

   
   

   1. Standard and History of Discrimination

      
      

      1. Osteopathic physicians are fully licensed to practice medicine and surgery under Florida law. The law additionally recognizes essential distinctions between osteopathic and allopathic medicine. Osteopathic physicians are licensed pursuant to Chapter 459, Florida Statutes, while allopathic physicians are licensed under Section 458, Florida Statutes.

         
         

      2. Osteopathic medicine means:

         
         

         The diagnosis, treatment, operation

         or prescription for any human disease,

         pain, injury, deformity or other physical or mental condition, which practice is based in part upon educa tion standards and requirements which emphasize the importance of musculo skeletal structure and manipulative therapy in the maintenance and restora tion of health.

         
         

         Section 455.003(3), Florida Statutes (1981).

         
         

      3. Allopathic medicine is defined as:

         
         

         A system of medical practice that aims to combat disease by use of remedies producing effects differ ent from those produced by the special disease treated.

         
         

         Gulf Coast Hospital, Inc. v. Department of Health and Rehabilitative Services, 424 So.2d 86, 89 (Fla. 1st DCA 1982).

         
         

      4. Wellington Hospital Medical Center proposes to build a 120-bed acute care osteopathic teaching hospital in the western section of Palm Beach County, Florida. The hospital is intended to serve the needs of osteopathic and allopathic physicians and their patients, but will be openly identified and administered as an osteopathic institution. Osteopathic physicians, under the guidance of Osteopathic Medical Hospitals, Inc., will be responsible for organization of professional staff, and for the development and administration of an intern and residency training program.

         
         

      5. Because of the distinctiveness of osteopathic medicine, and because of the unique contributions which osteopathic physicians make available to those needing medical treatment, Florida law requires that proposed osteopathic hospitals receive special consideration in the certificate of need review process.

         
         

         When an application is made for a certificate of need to construct

         or to expand an osteopathic facility, the need for such facility shall be determined on the basis of the need and availability in she community for osteopathic services and facilities.

         
         

         Section 381.494(2), Florida Statutes (1981).

         
         

      6. While the proposed hospital will afford staff privileges to non- osteopaths, the facility will still be classified as osteopathic. The staff of a facility need not be 100 percent osteopathic. The nature of the facility is controlled by the purpose for which the facility is maintained and operated. Here, Wellington Hospital Medical Center will be maintained in accordance with the principles of osteopathy and will support the teaching and study of osteopathic medicine. It will provide a place for association and practice for doctors of osteopathy including osteopathic specialists.

      7. There are approximately 50 osteopathic physicians practicing in Palm Beach County. (P. Ex. 3a and 4) As a result of the clinical and philosophical differences in their education and training, osteopathic physicians offer a distinct alternative to allopathic medicine as practiced by MDs. Osteopathic physicians are trained not only to treat the symptomology of disease through drug therapy, but to view disease and dysfunction in a patient's system as a whole. Thus, osteopathic physicians stress a "holistic" approach `to the healing arts with emphasis on nutrition and preventive medicine. (Kirsh, I, 33- 34; Melnick, II, 11) The philosophical difference is recognized by Florida law.

         
         

      8. The distinctiveness of osteopathic medicine and practice arises from its emphasis on osteopathic manipulative therapy. Manipulative therapy is taught in osteopathic medical schools and is practiced clinically at osteopathic hospitals as an element of the osteopathic focus on preventive medicine and on treating the body's symptoms as an integrated whole. (Kirsh, I, 33; Melnick, II, 11)

         
         

      9. Osteopathic education and osteopathic hospitals traditionally differ in their emphasis on the training of general practitioners. Unlike allopathic medicine, in which the majority of physicians practice in a relatively narrow specialty, the osteopathic profession seeks primarily to develop family physicians. Although there are osteopathic physicians practicing in every recognized medical specialty, the majority of DOs - approximately 87 percent - are engaged in primary care. (Melnick, II, 8)

         
         

      10. In 1973, approximately 16 osteopathic physicians were located In Palm Beach County, Florida. Between 1975 and 1979, the number increased to 55.

          Since 1979, the number of osteopathic physicians in the geographic area has declined, and approximately 50 osteopathic physicians currently practice in Palm Beach County. (P. Ex. 4; Kirsh, I, 41; Humphreys, I, 80, 86)

          
          

      11. The growth of the osteopathic profession in Palm Beach County between 1975 and 1979 was attributable to the opening in 1975 of an identifiable osteopathic hospital, Community Hospital of the Palm Beaches. That hospital was constructed by American Medicorp Corporation. Before 1975, osteopathic physicians were not permitted to obtain staff privileges at any of the other acute care allopathic hospitals in Palm Beach County. The opening of an identifiable institution attracted DOs from other geographic areas who relocated to Palm Beach County in order to begin their practices. (Humphreys, I, 80-87; Kirsh, I, 39-41; LaTorra, II, 50-51; Schulman, II, 73; Sulman, II, 80; Kiner, II, 84)

          
          

      12. Community Hospital operated as the only osteopathic institution in Palm Beach County from 1975 through early 1979. The hospital was openly identified to the community as an osteopathic institution. Osteopathic physicians served on the board of directors and were responsible for staff organization. Doctors of osteopathy chaired the clinical departments in the hospital and staffed the emergency room. Ancillary services such as anesthesiology, radiology, and pathology were headed by osteopaths. (Humphreys, I, 81-83; Kirsch, I, 40-41)

          
          

      13. The professional staff of Community Hospital, in cooperation with its then owners, developed and prepared to implement an osteopathic intern training program which had received accreditation from the American Osteopathic Association. The hospital planned a residency training program as soon as the intern program was operational. The owners of the hospital recruited osteopathic physicians throughout the United States to enhance the identity of

          Community Hospital as an osteopathic institution and to increase the number of practicing doctors of osteopathy in the Palm Beach County area. (Humphreys, I, 81-82; Kirsh, I, 40-41)

          
          

      14. In 1979, Community Hospital of the Palm Beaches was acquired by Humana Corporation and ceased to be an osteopathic hospital. Corporate representatives of the new owner informed osteopathic physicians at the hospital that the corporation con- sidered osteopathic hospitals specialty institutions which were not compatible with their corporate system. The corporation Intended to operate Community Hospital as another allopathic acute care hospital. In implementing its corporate policy, Humana removed all plaques and signs and discontinued all advertising and public relations identifying Community Hospital as an osteopathic institution. The osteopathic intern training program scheduled to begin operation in 1980 was terminated. Osteopathic physicians staffing the emergency and ancillary departments were informed that their contracts would be terminated and osteopathic physicians would be replaced by doctors of medicine. The corporation imposed a new set of medical staff bylaws on the professional staff which eliminated the requirement that clinical department chairmen have osteopathic training. The corporation discontinued all efforts to recruit osteopathic physicians and began an allopathic recruitment program. Community Hospital today is staffed by approximately 150 doctors of medicine while the number of practicing dos is lower than it was in 1979. (P. Ex. 4; Kirsh, I, 53- 55; La Torra, II, 51, 53-55)

          
          

      15. As a result of the actions described above, osteopathic physicians on the staff at Community Hospital instituted litigation which was settled prior to trial in 1982. The settlement compelled Humana to permit institution of an intern training program for a three-year period, after which the commitment will lapse. In view of Humana's previous indication that education programs are not compatible with their corporate policy, it is likely that the intern program now operational at Community Hospital will terminate when the three year period has ended. (Kirsh, I, 53; La Torra II, 52)

          
          

      16. It should be noted that the Intern training program which Wellington Hospital Medical Center proposes would be operational by 1986, when the Community Hospital commitment lapses. The Wellington program would preserve the continuity of osteopathic internship training in Palm Beach County into the future. Additionally, Wellington Hospital Medical Center proposes to establish an osteopathic residency program. Community Hospital of the Palm Beaches has made no similar proposal.

          
          

      17. Despite the fact that osteopathic physicians are fully licensed by the State of Florida to practice medicine and surgery, there exists substantial discrimination against osteopathic physicians in Palm Beach County. Community Hospital is the only allopathic institution in the Palm Beach County area which is open to osteopathic physicians. Dr. Albert La Torra's testimony established that he has been denied staff privileges at Good Samaritan Hospital because his specialty training was obtained from an osteopathic institution. (La Torra, II,

          55) Similarly, Dr. Charles Schulman's testimony established he has been denied staff privileges at St. Mary's Hospital (Schulman, II, 76) , Dr. Harold Kirsh has been denied staff privileges at several area hospitals (Kirsh, I, 55, 56) and Dr. David Kiner has been denied staff privileges at John F. Kennedy Hospital, Doctors Hospital, Good Samaritan Hospital, St. Mary's Hospital, and Palm Beach Gardens Hospital. (Kiner, II, 85-90, Ex. 36)

          
          

      18. A table, based on staff rosters from area hospitals (Petitioner's Exhibit 2) indicates that none of the existing acute care hospitals except

          Community Hospital currently has an osteopathic physician on its staff. This evidence establishes that Palm Beach County lacks an osteopathic hospital, and, further, has only one existing acute care institution which even permits osteopathic physicians on its staff.

          
          

      19. The exclusion of osteopathic physicians from hospitals in Palm Beach County has prevented them from extending the geographic area they serve. It has also prevented osteopathic physicians from competing with allopaths in the delivery of health care services to patients in Palm Beach County routinely have admitting privileges at three or more acute care hospitals to serve a wider patient base. (Kirsh, I, 68; P. Ex. 2) Dr. Schulman, who testified on this point, has lost patient referrals from osteopathic general practitioners in the Wellington area because he does not have staff privileges at a hospital other than Community. (Schulman, II, 74-75) Dr. La Terra was required to transfer a patient to another physician in a different geographic area when he was unable to admit the patient to Community Hospital during a seasonal period of bed shortages. (La Terra, II, 57-58) These facts indicate that physicians should have multiple staff appointments' in order to deliver effective health care.

          The establishment of an indentifiable osteopathic hospital in the Wellington area would permit osteopathic physicians in Palm Beach County to spread their patient service area to include previously unserved or underserved locations. The testimony of Dr. Anne Robine indicates that osteopathic physicians would open practices in the Wellington area if this application is granted. (Robine, II, 29-30).

          
          

   2. Osteopathic Bed Need

   
   

   1. The foregoing evidence establishes that no osteopathic facility as such exists in the Palm Beach County portion of Local Health Council IX. Although DHRS has not established a methodology or formula for determining uniquely osteopathic need, the reasonable and ordinarily used bed need methodologies accepted by health care planners may be used to determine osteopathic need. (Taylor, I, 98) This method would include analysis of historical data on the generation of patient days by osteopathic physicians.

      The 1978 - 1979 patient days records from Community Hospital of the Palm Beaches would serve as a reasonable historical basis for determining the generation of patient days by doctors of osteopathy in the affected community since that was the last year that Community Hospital operated as an osteopathic facility.

      
      

   2. The osteopathic patient days at Community Hospital of the Palm Beaches between September, 1978, and August, 1979, divided by the total patient days in District IX in 1979, results in a showing that 4.5 percent of the total patient days in the District were generated by admissions of osteopathic physicians. Taking that same percentage of the licensed and approved beds in District IX according to the Health Systems Agency in 1983, indicates a present need for 190 osteopathic beds in District IX. Thus, without any growth in population, osteopathic physicians currently in Palm Beach County could maintain, at a reasonable occupancy level, an osteopathic hospital larger than the 120 beds sought by this application. (Taylor, I, 100-101) This methodology is conservative in that it does not include osteopathic patients transferred to MDs because of the limited availability of staff privileges to osteopathic doctors in the area. (Taylor, I, 101; P. Ex. 9)

      
      

   3. Additiona1ly, upon approval of a certificate of need to construct an osteopathic hospital in Palm Beach County, it is reasonable to expect that osteopathic physicians will once again be attracted to the Palm Beach County area. The adjusted linear regression estimates by Dr. Taylor establish that by

      1988, 86 osteopathic physicians would be expected to have practices in Palm Beach County. As is common in economic and demographic analysis, the cessation of growth between 1979 and 1983 may even be corrected in the long run. Under those circumstances, Dr. Taylor projects that there may be 125 osteopathic physicians in Palm Beach County by 1988. (Taylor, I, 141)

      
      

   4. A second osteopathic bed need methodology was submitted by Dr. Taylor on behalf of the applicant. A total of 34,987 patient days were generated by doctors of osteopathy at Community Hospital of the Palm Beaches from September, 1978,through August, 1979. (P. Ex. 5) Since 53 osteopathic physicians were on the Community Hospital staff during this period, each osteopathic physician generated an average of 660 patient days. Multiplying that number of patient days per physician by the 1988 projection of 125 doctors of osteopathy, 82,500 patient days would be generated in District IX by doctors of osteopathy. That would constitute a daily census of 226 patients. Using an 80 percent occupancy rate, there would be a need for 283 osteopathic beds in Palm Beach County in 1988. (Taylor, I, 107-108; P. Ex. 12)

      
      

   5. The more conservative 1988 projection of 86 DOs would result in the generation of 56,760 osteopathic patient days. This would result in a 1988 average daily census of 156 beds. At this rate, 195 osteopathic beds maintaining a consistent 80 percent occupancy rate would be necessary to meet osteopathic need. (P. Ex. 12; P. Ex. 31)

      
      

2. TEACHING HOSPITAL

   
   

   1. One of the factors in determining the merits of a certificate of need application is the assessment of need for educational facilities, including institutional training programs for health care practitioners and doctors at the student, internship and residence training levels. See Section 381.494(6)(c)(6), Florida Statutes (1982)

      
      

   2. The need for such training regarding doctors of osteopathy would be met by applicant's proposal. The Wellington Hospital Medical Center is proposed to be a teaching hospital. It would be staffed by specialists and medical academicians to provide a rotating clinical residency and training program for doctors of osteopathy. (Leibman, I, 27; Kirsh, I, 37; Melnick, II, Il, 12) Interns and residents would thus provide more complete staffing than is encountered in most non-teaching hospitals. (Kirsh, I, 37; Melnick, II, 12)

      
      

   3. Petitioner demonstrated that doctors tend to locate their private practices in the area where they take their residency training. (Kirsh, I, 38; Melnick, II, 14) Doctors of osteopathy overwhelmingly tend to be family practitioners or primary care physicians. (Melnick, II, 8; Kirsh, I, 33) There has historically been a shortage of family practice doctors in Palm Beach County (Kirsh, I, 39), which would be ameliorated by the location of Wellington Hospital Medical Center as a teaching hospital in the locale.

   
   

3. BED NEED

   
   

   1. Existing Licensed and Approved Beds

      
      

      35. The Department of Health and Rehabilitative Services indicates that there are presently 4,205 licensed and approved beds in Local Health Council IX. (Taylor, II, 42) Local Health Council IX covers Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie Counties. DHRS has not adopted by rule any provisions of a local health plan applicable to District IX.

   2. Population

      
      

      1. The most recent population information available from the University of Florida Bureau of Economic and Business Research was entered into evidence as Petitioner's Exhibit 18. It projects 1988 medium range population in the applicable counties as follows: Indian River, 84,300; Martin, 92,700; Okeechobee, 27,100; Palm Beach, 791,000; St. Lucie, 129,000. The counties in Local Health Council IX have a projected 1988 total population of 1,124,100.

         
         

      2. Petitioner demonstrated that the substantial population increases evidenced by the Bureau of Economic and Business Research projections apply to the Wellington-Royal Palm area, which comprises the primary service area of the proposed Wellington Hospital Medical Center. The 1988 population projection figure provided by Dr. Taylor indicates that the two zip codes constituting the primary service area of this facility will have a 1988 population of at least 36,958. This population projection for the primary service area was based on less current Bureau of Economic and Business Research adjustments which were more conservative than those contained in Petitioner's Exhibit 18. Thus, the population of the primary service area in 1988 is likely to be higher than Dr. Taylor's projection. (Taylor, I, 109, 110)

         
         

      3. There was substantial testimony from community leaders regarding the historic increases in population in the area to be served. The Village of Royal Palm Beach has grown from 475 people in 1975 to between 6,000 and 7,000 people in 1983. (Kaplan, P. Ex. 34; Lamstein, P. Ex. 35) The Wellington community was founded by a few families in 1975 and has a 1983 population of approximately 10,000. (Graff, P. Ex. 32) Area growth has included additions to the medical community, schools, fire stations, churches and temples, and retail establishments. (Kaplan P. Ex. 34; Graff, P. Ex. 32) Much of the primary service area population is older than the state average, resulting in an increased need for acute medical care.

         
         

      4. Additional developments in the area may result in further increases in population. (Lamstein, P. Ex. 35) An increase of an additional 12,000 is expected in the Village of Royal Palm Beach in the next five years. (Kaplan, P. Ex. 34) An additional 5,000 to 8,000 residents are projected for the Wellington area (Graff, P. Ex 32) and a substantial increase in units is expected in Counter Point Estates. (Kaplan, P. Ex. 34)

         
         

      5. Significant growth in the last five years in these so-called "western communities" was demonstrated and may reasonably be expected to continue.

         
         

   3. Applicable Bed Need Methodology

   
   

   1. In considering the need for a health care facility, Section 381.494(6)(c)(1), Florida Statutes, indicates that the need for the facilities and services proposed should be determined in relation to the applicable district plan, annual implementation plan, and the state health plan adopted pursuant to Title XV of the Public Health Service Act. However, there is no applicable district plan and no annual implementation plan against which this application can be judged.

      
      

      1. State Health Plan

   2. The 1981 State Health Plan adopted pursuant to Title XV of the Public Health Service Act is the only state health plan on record. While the plan is somewhat dated, it remains relevant to the issue of bed need.

      
      

   3. Volume 2 of the State Health Plan regarding health status and health systems assessment was received into evidence as Petitioner's Exhibit 8. At the time this document was promulgated, the counties covered by the present Local Health Council IX were covered by the then Health Systems Agency VII. Page 69 of the state health plan establishes that the bed-to-population ratio for the Health Systems Agency VII should be 4.11 beds-per-thousand of population. (Taylor, I, 5; P. Ex. 8, Page 69)

      
      

   4. Applying the 4.11 bed-per-thousand ratio of the 1981 state health plan to the population figures of the Bureau of Economic and Business Research, establishes a 1988 acute care bed need in Local Health Council IX of 4,621 beds. (Taylor, I, 42; P. Ex. 23)

      
      

   5. Subtracting the present number of licensed and approved beds (4,205) from the projected 1988 bed need pursuant to the 1981 state health plan evidences a need for an additional 416 acute care hospital beds in Local Health Council IX by 1988.

      
      

      1. Rule 10-5.11(23) - Uniform Bed Need Methodology

      
      

   6. A new uniform bed need methodology rule became effective on June 10, 1983, four days before this hearing commenced. That methodology is intended to provide a uniform and systematic basis for determining the need for acute care hospital beds. The application of this bed methodology to the June, 1983, population projections by the Bureau of Economic and Business Research (P. Ex.

      18) results in a projected adjusted 1988 district bed need of 4,545 beds. (Taylor, II, 43) Contrasting that number to the 4,205 licensed and approved beds presently in the district, indicates a need for an additional 340 acute care beds in the district by 1988. (P. Ex. 30) & 47.

      
      

   7. Inasmuch as the state methodology is based on a mathematical formula which would result in a reasonable district--wide occupancy rate, the impact of an additional 120 beds in the district, as contemplated by this application, will not adversely affect the ability of existing acute care facilities to attain and maintain appropriate occupancy rates.

      
      

   8. The granting of a certificate of need to the applicant as proposed will not have a negative impact on the extent of utilization of like and existing health care services in Local Health Council District IX. The only evidence presented by DHRS to the contrary was the conclusory testimony of Thomas Porter that a granting of a certificate of need to the applicant might adversely impact on the occupancy rates at Community Hospital of the Palm Beaches. This was based primarily on the likelihood that the osteopathic physicians who admit patients at Community Hospital would shift many of their patients to an osteopathic facility. On cross-examination, however, it was demonstrated that if trends regarding osteopathic admissions at Community Hospital of the Palm Beaches which have been established over the last five years continue, the percentage of total patient days at Community Hospital which would be generated by doctors of osteopathy in 1988 would be negligible. (Porter, II, 119) Mr. Porter also conceded that it was not unreasonable to expect Community Hospital of the Palm Beaches to benefit from the substantial projected population increases in Local Health Council District IX along with other acute care facilities. (Porter, II, 123)

   9. In view of the above evidence, the impact of granting the certificate of need on the extent of utilization of other acute care facilities in the district would most likely be negligible. In fact, based on the population projections for 1988 and the contemplated patient load increase, it is clear that additional hospital beds will be needed in the district to provide adequate acute care.

      
      

4. ACCESSIBILITY

   
   

   1. Applicant's Wellington Hospital Medical Center is to be located at the northwest quadrant of the intersection of Forest Hills Boulevard and State Road

   1. (McMahon, I, 176)

      
      

      1. The Wellington community is west of the hospital and Royal Palm Beach is north. (McMahon, I, 176) The nearest hospital to Wellington is about 10 miles away. (McMahon, I, 177) The average distance between existing or approved hospitals in Palm Beach County is 4.3 miles. (McMahon, I, 178) The hospital most often used by Wellington area residents, Good Samaritan, is about 17 miles from that community. (McMahon, I, 178)

         
         

      2. Mr. McMahon, an expert transportation engineer, had travel-time studies performed under his supervision and control using standard methods and generally recognized and accepted engineering principles. (McMahon, I, 183) Those tests revealed that if Wellington Hospital Medical Center is constructed, virtually 100 percent of the patients that the hospital would serve in 1988 would be able to reach it within 30 minutes average driving time in midday traffic. Without Wellington Hospital, 30 percent of the persons living in that area would be unable to reach a hospital within 30 minutes driving time.

         
         

      3. At peak driving times, almost 100 percent of the people served by the Wellington Hospital Medical Center will be able to reach it within 30 minutes in 1988. Without the hospital, only 40 percent could reach the nearest available alternative hospital within 30 minutes. (McMahon, I, 189)

         
         

5. AVAILABILITY AND ADEQUACY OF LESS COSTLY ALTERNATIVES

1. No outpatient care, ambulatory, or home care services are currently available which could serve as an alternative for the health care facility proposed by the applicant. The only potential alternative facility which was the subject of record testimony was a medical clinic. (La Torra, II, 60) The testimony indicates that this is a group office medical practice clinic where minor outpatient surgery is performed. Only procedures which could be accomplished with local anesthetic are undertaken here. (La Torra, II, 63)

   Most of the patients come for treatment of general complaints and for monitoring chronic heart or diabetes problems or setting minor fractures. (La Torra, II,

   1. This is not an acceptable alternative to inpatient acute hospital care. (La Torra, II, 68)

      
      

      1. CONCLUSIONS OF LAW

         
         

2. As applicable to this proceeding, Section 381.494(c), Florida Statutes (1982), provides as follows:

   
   

   (c) The department shall review applications for certificate-of-need determinations for

   health care facilities andservices, hospices, and health maintenance organizations in context with the following criteria:

   1. The need for the health care facility and services and hospices being proposed in relation to the applicable district plan, annual implementation plan, and state health plan adopted pursuant to Title XV of the Public Health Service Act, except in emergency circumstances which pose a threat to the public health.

   2. The availability. . .appropriate ness, accessibility, extent of utilization, and adequacy of like and existing health

      care services and hospices in the applicant's health service area.

   3. The availability and adequacy of other health care facilities and services and hospices in the applicant's health service area, such as outpatient care and ambulatory or home care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant.

   
   

3. Since there is no current district health plan or annual implementation plan, this application must be evaluated under the 1981 state health plan and pursuant to the uniform bed need methodology promulgated in Rule 10-5.11(23), Florida Administative Cede (effective June 10, 1983). Under this health plan, 416 new acute care hospital beds will be needed in the district by 1988. Under the uniform methodology, an additional 340 beds will be needed in the district by 1988. Using either standard, the applicant has shown that construction of its proposed 120-bed acute care hospital in Palm Beach County is justified.

   
   

4. Additionally, even if the need for an additional acute care facility were not supported by the above methodology evaluation, grant of the application would be justified. By a variety of reasonable health planning method's, the applicant has demonstrated the ability of the osteopathic physician and patient community in Palm Beach County to support a 120-bed osteopathic facility. Applicable provisions of the Medical Facilities Planning Act have been construed to establish that the existence of allopathic facilities in a community should not be considered in determining the need for an osteopathic acute care hospital., Gulf Coast Community Hospital, Inc. v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. 1st DCA 1982).

   
   

5. Continuing discrimination by existing acute care hospitals in Palm Beach County against osteopathic physicians has been demonstrated. With few exceptions, osteopaths in Palm Beach County have been unable to secure staff privileges at hospitals other than Community Hospital of Palm Beaches. However, this hospital cannot be considered a true osteopathic facility. In order for a facility to be considered osteopathic, the management and control of that facility must operate so as to further all of the activities and philosophies of osteopathic medicine, rather than merely to tolerate them. The hospital must be in the hands of osteopaths or those sympathetic to that school of medicine.

   Gulf Coast Hospital, Inc. v. Department of Health and Rehabilitative Services, supra at 92. No facility in Local Health Council District IX meets that

   standard. Because the need for this osteopathic facility is to be considered in light of the existence of other osteopathic facilities, the only other question to be determined is the appropriate size for such a facility. As indicated above, Petitioner has used several reasonable methods of professional health care planners to support its proposed 120-bed facility.

   
   

6. Petitioner demonstrated entitlement to the grant of its certificate of need, under both acute care bed need analysis and osteopathic facility analysis. As to accessibility, Petitioner has demonstrated that by 1988, 60 percent of the population to be served by this hospital would not be within thirty minutes travel time of an acute-care facility. District IX is an urban center pursuant to Rule 10-5.11(24). Thus, applying an accessibility standard, grant of the application for a certificate of need is warranted.

1. RECOMMENDATION Based on the foregoing, it is

RECOMMENDED that Respondent enter a Final Order granting the application. DONE and ENTERED this 30th day of August, 1983, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1983.

COPIES FURNISHED:

Frank J. Santry, Esquire Field, Granger, Santry & Mitchell, P.A.

Post Office Box 1879 Tallahassee, Florida 32302

Thomas T. Alspach, Esquire

130 North Washington Street Eaton, Maryland 21601

James M. Barclay, Esquire 1317 Winewood Boulevard

Building 2, Room 256

Tallahassee, Florida 32301

Mr. David Pingree Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000727CON

Orders for Case No: 83-000727CON