STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNSON & JOHNSON HOME HEALTH ) CARE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2198

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

) GULF COAST HOME HEALTH SERVICES, ) INC., FLORIDA ASSOCIATION OF ) HOME HEALTH AGENCIES, INC. and ) FLORIDA HOME HEALTH SERVICES- ) MANASOTA, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearing, on December 12, 1983, in Tampa, and on December 13, 15 and 16, in Tallahassee, Florida. The issue for determination in this proceeding is whether Johnson & Johnson Home Health Care, Inc. is entitled to a Certificate of Need to establish a new home health agency to serve the Counties of Pinellas, Pasco, Hillsborough and Manatee.

APPEARANCES

For Petitioner: John Radey and Elizabeth

W. McArthur, Esquires Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32302

For Respondent: James M. Barclay, Esquire

1317 Winewood Boulevard

Building 2, Suite 256

Tallahassee, Florida 32301

For Intervenors, Leonard A. Carson, Esquire Gulf Coast and Carson & Linn, P.A.

FAHHA: Cambridge Center

253 East Virginia Street Tallahassee, Florida 32301

and

Robert Weiss, Esquire

The Perkins House, Suite 101

118 North Gadsden Street Tallahassee, Florida 32301

For Intervenor Richard I. Manus, Esquire Florida Home Manus & Marcus, P.A. Health Services- 205 Southeast First Street Manasota, Inc.: Miami, Florida 33131

INTRODUCTION

Petitioner Johnson & Johnson Home Health Care, Inc. (J & J) applied to the respondent Department of Health and Rehabilitative Services (HRS) for a Certificate of Need to establish a new home health care agency in Tampa to serve the residents of Hillsborough, Pinellas, Pasco and Manatee Counties. HRS gave notice of its intent to deny the application and J & J petitioned for an administrative hearing regarding that determination. The petitions to intervene filed by the Florida Association of Home Health Agencies (FAHHA), Gulf Coast Home Health Services, Inc. (Gulf Coast) and Florida Home Health Services- Manasota, Inc. (Manasota) were granted.

In support of its position of entitlement to a Certificate of Need, J & J presented the testimony of F. Regis Kenna, its Vice-President for Professional Affairs; Arlene Rak, its Executive Director of Nursing; Marvin E. Meyer, Vice- President of Human Resources for General Telephone Company; Charles E. Cernuda, M.D., a Tampa physician and Chief of Staff at St. Joseph's Hospital; G. William Gray, with the public relations firm of Hill & Knowlton; Thomas F. Porter, a Health Planner for HRS; Gene Tischer, Executive Director of Florida Home Health Services-Manasota, Inc.; Dr. Judith M. Travis, Executive Director of the Visiting Nurses Association of Hillsborough County, Inc. (VNA); Thomas H. Minkoff, Administrator of Gulf Coast; and Floyd Warren Tingley, Jr., M.D., a Dallas, Texas physician. By way of deposition, the Petitioner presented the testimony of Jimmy Cooper, Executive Director of FAHHA. By way of affidavit, the petitioner presented the testimony of William Terrell Branch, N.D., a Tampa physician and Chief of Staff at Memorial Hospital. Petitioner's Exhibits 2-6, 8, 9, 12-15, 17, 18, 20, 22, 23 and 25 were received into evidence. Objections

to Petitioner's Exhibits 1, 7 and 15 were sustained.

The Intervenors FAHHA and Gulf Coast presented the testimony of Thomas McKell, M.D., Medical Director of Tampa General Hospital; Edward L. Perrine, the Executive Director of the Health Councils for Districts 5 and 6; Dr. Judith Travis and Susan H. Johnson, R.N., Executive Director and Supervisor of Specialty Services, respectively, of the VNA; Thomas H. Minkoff and Ann Coburn, R.N., Administrator and Director of Medical Services, respectively, of Gulf Coast; Ruth Meola, R.N., Director of Medical Services of Independent Home Health; Barbara J. Wisniewski, R.N., Clinical Nurse Specialist in Oncology at Tampa General Hospital and University of South Florida, College of Medicine; Joseph L. Harris, a Medical Social Worker at Tampa General Hospital; and Virginia W. Merrill, R.N., Administrator of Global Home Health Services, Inc.

Intervenor FAHHA and Gulf Coast Exhibits 1, 3A, 3B, 4, and 5 were received into evidence. Objection to Exhibit 6 gas sustained.

The Intervenor Manasota presented the testimony of Grace Hartley, Quality Assurance Supervisor of Blake Home Health, and Gene Tischer, Executive Director of Manasota. Intervenor Manasota's Exhibits 1 through 4 were received into evidence.

The Respondent HRS presented no exhibits at the hearing and relied upon the testimony of its Health Planner, Thomas F. Porter, presented by the Petitioner. The Petitioner's Certificate of Need application, supplements thereto, comment letters and HRS letter of denial were received into evidence as Joint Exhibits 1 through 4.

Subsequent to the hearing, counsel for each of the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner J & J seeks a Certificate of Need to establish a new home health agency in the Tampa Bay area to serve the residents of Hillsborough, Pinellas, Pasco, and Manatee Counties for an estimated project cost of $85,000. All necessary funding for the project is to be supplied by petitioner's parent, Johnson and Johnson. It is the expressed intent of J & J to provide only specialized patient services in the home to those patients who are acutely ill and in need of intensive or intermediate level clinical services in lieu of hospitalization. J & J intends to serve early hospital discharge patients who require more than single follow-up or maintenance care after discharge. It does not seek to provide maintenance-level care to patients, and would refer such patients to another home health agency. J & J does not intend to become a part of hospital rotation lists utilized to refer the less acutely ill homebound patient to a home health agency.

   
   

2. J & J proposes to hire full-time clinical specialty certified registered nurses to provide services to ten general categories of patients. The specific diagnoses or treatment modalities which J & J expects to provide include cerebrovascular accident (CVA or stroke) with and without paralysis, oncology and chemotherapy, hyperalimentation, enteral therapy, respiratory therapy, intravenous antibiotics, other nutritional services and neuro-ortho. These proposed services are intended to be a replacement for more expensive in- hospital health care. J & J intends to accept only those patients within the

   above classifications who are sick enough to require home health care in lieu of hospitalization, and not those who can be treated strictly on an outpatient basis. The key factor for acceptance of a patient by J & J is not the diagnosis of the patient, but is the patient's acuity level. J & J has an ongoing research program to develop additional clinical specialty home health services based upon physician input, technical developments end patient needs. One of its reasons for establishing a home health agency in the Tampa Bay area is because J & J's national corporate headquarters are to be located in Tampa and this proximity would facilitate its research and development efforts.

3. J & J has staffed its existing home health agencies in Texas and California, and proposes to staff its Tampa agency, with full-time nurses with acute care experience. Orientation continuing education programs for nurses are planned. The nurses are to be either certified as clinical specialists or develop their clinical expertise through J & J's own internal privileging program. The proposed new agency, as do the existing Texas and California agencies, will have its own pharmacist, therapists, dieticians, social workers and certified home health aides. It will also operate its own pharmacy and will provide and deliver durable medical equipment and supplies. Nurses will be on duty and/or on call 24 hours a day, seven days a week.

   
   

4. As noted above,' J & J seeks to serve those patients who require special expertise in their care. Planning for discharge will begin during the patient's hospitalization and there will be a patient screening process before a patient is accepted. An assessment of the patient's home and family life will be made to determine that conditions are suitable for treatment and recovery at home. A registered nurse is to be assigned as the "primary nurse" to coordinate the patient's plan of care with the clinical specialist, therapists and physician. The patient's physician is to be given a weekly report of the patient's progress. An elaborate charting and recordkeeping system is anticipated and is provided at J & J's existing home health agencies. A prospective, con current and retrospective quality assurance program is to be instituted which involves a quarterly internal review and a utilization review by physicians.

   
   

5. Based upon statistics which illustrate that 26,800 patients for every one million population group are discharged annually in the ten classifications which J & J seeks to serve, J & J predicts it can treat 1,430 patients per year in the four- county area. These figures are based on nationwide statistics and are not site-specific to the four-county area.

   
   

6. J & J presently owns and operates three existing agencies in Texas and California. Certificates of need for home health agencies are not required in those states. The Dallas/Ft. Worth center opened on April 4, 1983, and had, as of the time of the hearing in this matter, a daily patient census of 70. The Houston center opened on April 11, 1983, and had a daily patient census of 60. The daily patient census at the Los Angeles center, which opened on July 6, 1983, was 60. These existing agencies also accept only specialty care patients who can receive services in lieu of hospitalization. The Texas centers have rejected as many as 47 percent of their referrals because the patients either did not meet the medical criteria for the J & J system, because of their home situation or, in some instances, because of financial reasons.

   
   

7. In California, the charge for a visit by a registered nurse is $75.00, while the charge for a therapist visit is $65.00. The charges in both Texas centers are, and the proposed Florida center will be, $65.00 for a registered nurse's visit and $55.00 for a therapist's visit. All these charges are higher than the current cap or limit for Medicare reimbursement. The Petitioner's projected cost for an R.N. visit is $52.40. This cost is higher than the current Medicare cost cap for skilled nursing services.

   
   

8. After the Florida four-county agency becomes fully operational, J & J projects that only 23 percent of the patients it serves will be Medicare patients. It is anticipated that the remaining patients will be primarily private pay, privately insured or self-insured patients who will be attracted to the J & J program because of its cost-savings potential. The existing

   operations in Texas and California serve 60 to 70 percent Medicare patients. These percentages are expected to decline due to J & J's efforts to educate and convince private reimbursers to use J & J's services in lieu of hospitalization. A large public relations firm has been retained by J & J to communicate with insurers end the medical community regarding the benefits of clinical, specialized home health care, especially as a replacement for hospital care.

   
   

9. The patient mix of most of the existing licensed home health agencies in the four-county area is in excess of 95 percent Medicare. A license and certificate of need are only required under Florida law for home health agencies which serve Medicare patients. At least some of the existing agencies have accordingly severed their operations into those which serve and those which do not serve the Medicare patient. J & J does not believe it would be feasible to open its four-county agency as an unlicensed and uncertificated agency to serve only private pay patients because it believes that licensure will be helpful in convincing private insurers to use its agency. Also, a patient may begin his treatment as a non-Medicare patient, but bay later qualify for such benefits, and J & J desires to provide a continuity of treatment. Although J & J's proposed charges and costs are higher then the Medicare reimbursement system currently allows, J & J will attempt to obtain a waiver of the Medicare cap by demonstrating the highly specialized nature of the services it provides and by illustrating that J & J's home health care is in lieu of more expensive hospital care.

   
   

10. Although J & J does not plan to serve all patients regardless of their ability to pay, it has and will continue to provide care to indigent and medically indigent patients. Approximately 20 such patients have been served in the existing agencies in Texas and California.

    
    

11. There are approximately thirteen licensed home health agencies in Hillsborough, Pinellas, Pasco end Manatee Counties. Eleven of these agencies are members of FAHHA, a voluntary association whose membership is comprised of home health agencies licensed by the State of Florida. Though some of the existing agencies have expanded their operations by the opening of new submits in other areas, there have been no Certificates of Need issued to any new home health agency in the four-county area since 1978.

    
    

12. The intervenor Gulf Coast provides home health services in Pinellas, Pasco and Hillsborough Counties, as well as Hernando County, through six different offices. In addition to providing maintenance and homemaker services to its patients, Gulf Coast provides most, if not all, the same specialty services proposed by J & J. Their patients include CVA patients with and without paralysis, oncology patients of which two are receiving I.V. chemotherapy at home and several hyperalimentation patients. Gulf Coast provides enteral and respiratory therapy, as well as I.V. antibiotic services. Its staff, which includes approximately 90 professionals, 140 ancillary staff and 50 contract personnel, includes socialists in the areas of pulmonary nursing, enterostomal therapy, oncology and psychiatric nursing. Gulf Coast has recently started an I.V. certification program for its nurses. Approximately one-third of the nurses have bad a year or more of prior experience in critical care units. A registered nurse is on-call 24 hours a day. Quality control assurances include monthly utilization review, both in-house and by a physician. Gulf Coast makes arrangements with local vendors and suppliers for all durable medical equipment and pharmaceutical supplies needed by its patients. It has experienced an annual growth in its average daily census of between 15 and 20 percent, and its administrators feel that it has the capacity to expand its services, even with its present staff, in the event of greater demand for the

    more specialty-type services proposed by J & J. Gulf Coast's current Medicare cost cap for registered nursing services is approximately $48 to $50 per visit. Its actual costs for such services, for which it is reimbursed, are approximately $37 or $38 per visit.

    
    

13. The Intervenor Manasota is one of six licensed home health agencies in Manatee County. All its patients are Medicare patients, and some 70 percent of its referrals are hospital referrals from the two existing hospitals in Manatee County-- Manatee Memorial Hospital and Blake Hospital. In addition to maintenance level and homemaker services, Manasota has provided more specialized services to patients including nasogastric, gastrostomy, stomal, enterostomal and I.V. antibiotic therapy. It has the staff and capacity to provide chemotherapy and hyperalimentation, but has not bed any physician request for those services for their patients. Manasota has experienced a significant decline in the number of new patients it has admitted end in its average daily census. This appears to be related to the reduction in the number of discharges from Manatee Memorial Hospital and the fact that Blake Hospital owns its own home health agency. The decrease in patient census et Manasota has resulted in an increase in its cost per visit from $32.50 to $41.00 per visit. The Medicare cost cap for Manasota is approximately $44.30. Manasota has the capacity to expand to serve an increased number of Medicare patients.

    
    

14. Blake Home Health is affiliated with Blake Hospital in Manatee County, and receives 75 percent of its referrals therefrom. It is the policy of Blake Hospital to refer all discharged hospital patients who require home health care to Blake Home Health unless the attending physician has specifically designated a different agency. Blake is available to serve its patients 24 hours a day end has access to the hospital pharmacy. It presently renders services in the areas of enteral, stomal end parenteral therapy and handles cerebrovescular cases. While nurses are available to Blake Home Health to perform I.V. antibiotic therapy and chemotherapy, Blake has never been requested to perform such services.

    
    

15. Independent Home Health is an existing licensed home health agency located in Clearwater, and was recently purchased by Morton Plant Hospital. Independent presently provides and has performed all the specialized, home health services proposed by J & J. It operates 24 hours a day, with a nurse on call after 5:00 p.m. Its quality assurance program involves a monthly nursing audit and quarterly utilization review by a physician. Its charge for nursing services is $40 per visit. Independent has the ability to expand to provide further services.

    
    

16. Global Home Health Services, Inc. has five offices in the four-county area, with a total average daily census of approximately 400. Global performs almost all of the specialized services proposed by J & J and has never had a request for services in those categories that it was unable to fulfill. The number of patients receiving home chemotherapy and hyperalimentation is very few, due to lack of demand for such services. It is open seven days a week, 24 hours a day. Global charges $47.00 per nursing visit, and makes all arrangements for the ordering and delivery of supplies, durable medical equipment and pharmaceuticals. Global has the ability, even with its present staff to serve 20 or 305 more patients and to expand the range of services it presently provides.

    
    

17. The Visiting Nurses Association of Hillsborough County (VNA) is a public non-profit home health agency that serves any patient regardless of age, race or ability to pay. It provides all the services which J & J proposes to

    offer, although only about 3 percent of its total patients receive these specialized services. The VNA has its own continuing education programs and also conducts training programs for other home health agencies, specifically in the areas of I.V. chemotherapy and I.V. antibiotics. VNA offers 24-hour services, and has the ability and capacity to expand to meet any increased need or demand for home health services. Its cost per nursing visit is about $29, and it charges $35 per visit. Its average patient census 1as increased from 212 in 1980 to 720 in 1983.

    
    

18. The existing agencies rely heavily on referrals from hospital rotation lists. None of the existing agencies about which evidence was adduced at the hearing have their own pharmacy or durable medical equipment or supply services.

    Many agencies, if not most, use some independent contractor, therapists on an as-needed basis. While each of the existing agencies experienced a growth in their average daily census in the Veers between 1980 and 1983, some agencies experienced a slight decrease in the number of patients and visits during the six months immediately prior to the hearing. Increased home health utilization in the future is suggested due to the new Medicare reimbursement system for hospitals. This system is based upon diagnostic-related groups (DRG's) and the amount of reimbursement is based upon the average length of stay for a given

    diagnosis, regardless of the patient's actual length of stay. The former system reimbursed hospitals for their actual costs of treating a patient. The DRG system will provide hospitals with the financial incentive to discharge patients at the earliest possible point. It can be expected that demand for home health care services for more acutely ill early discharge patients will increase.

    
    

19. Officials responsible for discharging patients from Tampa General Hospital and St. Joseph's Hospital in Tampa were of the opinion that the existing home health agencies in Hillsborough County were doing a fine job in providing follow-up care of both chronically ill patients end those patients who are acutely ill with a good prognosis. While these persons were in favor of the adequate provision of more advanced and intensive home health care, they believe that their current needs are being met by the existing agencies.

    
    

    CONCLUSIONS OF LAW

    
    

20. As existing home health agencies presently serving the same service areas sought to be served by the J & J application, and as an association dedicated to serving and promoting home health care and containing a substantial number of members in the proposed service areas, it is concluded that the intervenors Gulf Coast, Manasota and FAHHA have standing to intervene in this proceeding.

    
    

21. A Certificate of Need from HRS is required for the establishment of a new home health agency. Section 381.494(1)(f), Florida Statutes. For certification and licensure purposes, a "home health agency" is any public agency or private organization which provides home health services and which is certified or seeks certification as a Medicare home health service provider. Sections 381.493(3)(j) and 400.462(2), Florida Statutes (1983). Thus, only those new home health agencies which seek to serve Medicare patients are required to obtain a Certificate of Need and licensure from HRS.

    
    

22. It is incumbent upon an applicant for a Certificate of Need to demonstrate that its proposed facility or service meets the criteria for approval set forth in Section 381.494(6)(c), Florida Statutes, and the corresponding Rules of HRS set forth in Chapter 10-5, Florida Administrative Code. The essential purposes and objectives of the Certificate of Need law and

    the review process are to serve the health care needs of a community, while avoiding unnecessary duplications of services, thus resulting in cost containment for health services. The process is also intended to encourage the strengthening of competitive forces in the health services industry. Section 381.493(2), Florida Statutes.

    
    

23. While recognizing the necessity for obtaining a Certificate of Need for its proposed new home health agency, J & J has contended that the scope of review for Certificate of Need determinations regarding home health agencies is more narrow and confined than that required for other health care facilities, such as new hospitals or nursing homes. First, it is urged that the "community need" determination for home health agencies should not be the community as a whole, but only the Medicare patients within the community since it is only when a proposed home health agency seeks to serve those patients that a Certificate of Need is required. Somewhat contrary to this contention, J & J has also urged that the bulk of the "community," i.e., non-Medicare patients, are not being currently and adequately served since the patient mix of the existing licensed home health agencies in the four-county area is in excess of 95 percent Medicare. HRS has not taken a formal position as to whether the need to be evaluated in home health agency Certificate of Need determinations is that of the "community as a whole" or only the Medicare patients within a community. However, it is concluded that such issue need not be specifically determined in this proceeding for the reasons that follow.

    
    

24. J & J further contends that the criteria concerning duplication of services or extent of utilization of existing agencies are not appropriate to Certificate of Need determinations for home health agencies. For this proposition, J & J relies upon the facts that existing agencies may expand without Certificate of Need review, that new agencies not seeking certification as a Medicare provider are left unregulated and that home health agencies are not capital-intensive with fixed capital expenditures, thus requiring some optimal utilization level to operate in a cost-efficient manner. While these contentions are somewhat persuasive, the fact remains that the Legislature has mandated that home health agencies, at least insofar as they serve Medicare patients, be included within the Certificate of Need review process. While some of the statutory criteria are obviously not applicable to home health agencies, there is also no clear exclusion of the applicability of the statutory criteria for home health agencies. Whether or not home health agencies should or should not be subject to the Certificate of Need review process, and the statutory criteria contained therein, is not an issue which may be determined in this proceeding. Prior to reviewing J & J's application for compliance with the applicable criteria, one further issue remains for discussion. HRS's Rule 10- 5.11(14)(a) and (b), Florida Administrative Code, containing the methodology to be utilized in determining the need for a new home health agency, was successfully challenged by J & J in a separate proceeding. That rule was declared invalid by a Final Order dated September 30, 1983 (DOAH Case Number 83- 2170R). That Final Order was appealed and the decision of the District Court of Appeal had not been entered as of the dates of the final hearing in this proceeding. As of those hearing dates, HRS bad not yet developed another rule and did not explicate a policy defining a need methodology for the establishment of new home health agencies.

    
    

25. On March 8, 1084, the District Court of Appeal, First District, affirmed the Final Order declaring that Rule 10-5.11(14)(a) and (b) constituted an invalid exercise of delegated legislative authority. Department of Health and Rehabilitative Services, etc. v. Johnson & Johnson Home Health Care, Inc., (Case No. AV-441) So. 2d (Fla. 1st DCA, Op. filed March 8, 1984).

    Accordingly, the J & J application is to be measured only against the applicable general criteria contained in Section 381.494(6)(c), Florida Statutes, and related Rule 10-5.11(1) through (12), Florida Administrative Code.

    
    

26. The parties have stipulated, and the undersigned agrees, that the criteria for review set forth in Section 381.494(6)(c)(6), (7), (10), (11) and (13), Florida Statutes, have no application to a Certificate of Need for a new home health agency. The evidence discloses, and there is no proof or contention to the contrary, that the applicant J & J has the ability to provide quality care to its patients and available funds for the proposed project. The prime criteria in dispute are those concerning the need for an additional home health agency in the four-county area in terms of the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing services in the area, and the impact of the project on the costs of providing health services.

    
    

27. J & J attempted to demonstrate and did indeed demonstrate that it intends to be unique in the offering of services in the four-county area. However, the evidence presented by all the parties illustrates that J & J's uniqueness is the fact that it will specialize in the care of the more acutely ill patient. It has not been demonstrated that the provision itself of such specialty services is unique. Instead, the intervenors have amply shown that the existing home health agencies provide services in the ten "specialty" areas proposed by J & J and that they have the ability and present capacity to expand the provision of such services in the future. As noted earlier, the burden in this proceeding is upon the applicant to demonstrate that its proposed services are "needed" in the area. The applicant J & J has failed to sustain that burden in this proceeding. No data or other evidence regarding the specific needs or demands of the four-county area were provided by the applicant J & J. There was absolutely no showing that the services proposed by J & J are not currently available, accessible or adequately being provided by the existing agencies. Instead, the evidence clearly demonstrates that at least some of the existing home health agencies are currently providing such services and have the capacity to expand in those areas should the need arise. The fact that only a small percentage of the services provided by the existing agencies involve the specialized services proposed by J & J is indicative, if anything, of a lack of need and demand for such services in the four-county area. There was no showing by J & J that any of the existing agencies were incapable or unwilling to provide the clinical, specialty services proposed or that they did so in an inefficient or inadequate manner. Again, the evidence establishes that they are able and are willing to provide such services. There was no evidence presented that any patient, physician or hospital was denied the provision of "specialty" services from the existing agencies or that the capacity to provide such services was lacking. Any additional need for such "specialty" services was simply not demonstrated by J & J in this proceeding.

    
    

28. Likewise, there hams been no demonstration that J & J's proposal would result in the provision of the delivery of more cost-effective health care services. While all forms of home health care are presumably less expensive than hospital care, the evidence in this proceeding demonstrates that the existing agencies are capable of providing the same "specialty" home health services at a cost considerably less than that proposed by J & J. Consequently, the impact of the applicant's proposed project upon the cost of providing "specialty" home health services to the Medicare patient would be negative.

    
    

29. In summary, while the J & J proposal appears to be a laudable attempt and effort to address the problem of rising hospital costs and charges, the

proposal cannot be viewed in a vacuum. As mandated by the Certificate of Need law, a new home health agency must be reviewed with respect to the need in the service area, whether it be the need of the community as a whole or only the need of the Medicare patients in the community. In reaching a determination as to what that need is, a review of like and existing services is mandated. Here, it has not been demonstrated that such existing services are unavailable, inefficient, inappropriate, inaccessible, underutilized or inadequate either to the Medicare patient or the community as a whole. Nor has it been established that the applicant is able to furnish such services in the home in a more cost- effective manner than is currently being provided. Instead, the evidence is to the contrary. Having failed to demonstrate need or cost-efficiency, the applicant has failed to sustain its burden of proof in this proceeding.

RECOMMENDED ORDER

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Johnson & Johnson Home Health Care, Inc. for a Certificate of Need to establish a home health agency to serve the residents of Hillsborough, Pinellas, Pasco and Manatee Counties be DENIED.

Respectfully submitted and entered this 2nd of May, 1984.

DIANE D. TREAMOR

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 2nd day of May, 1984.

COPIES FURNISHED:

David Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

John Radey & Elizabeth McArthur, Esquires Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32302

James M. Barclay, Esquire 1317 Winewood Boulevard

Building 2, Suite 256

Tallahassee, Florida 32301

Leonard Carson, Esquire Carson & Linn, P.A. Cambridge Center

253 East Virginia Street Tallahassee, Florida 32301

Robert Weiss, Esquire

The Perkins House, Suite 101

118 North Gadsden Street Tallahassee, Florida 32301

Richard I. Menus, Esquire Manus & Marcus, P.A.

200 Southeast First Street Miami, Florida 33131

Docket for Case No: 83-002198

Orders for Case No: 83-002198