27, 1984, in Clearwater, Florida, and on July 30 and August 6, 1984, in Tallahassee, Florida. The issue for determination in this proceeding is whether there are substance abuse beds at Horizon Hospital which may be included in the Department of Health and Rehabilitative Services' inventory and which should be included on Horizon's license. This case was consolidated for hearing purposes with three other cases, described below.
For Petitioner Horizon: William B. Wiley
McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A.
For Respondent HRS: Amy M. Jones
For Morton F. Plant Alan C. Sundberg and Hospital: Cynthia S. Tunnicliff
Carlton, Fields, Ward, Emmanuel, and Cutler, P.A.
For Medfield Center: C. Gary Williams and
Michael J. Glazer
The petitioner in this proceeding, Psychiatric Hospitals of Florida, Inc. d/b/a Horizon Hospital (Horizon) challenges the action of the Department of Health and Rehabilitative Services (HRS) of including within its inventory of "licensed short-term psychiatric and substance abuse beds in specialty hospitals by District" twenty-two (22) substance abuse beds for Horizon Hospital, thereby reducing the number of psychiatric beds from 200 to 178. Since a determination of the issue in this proceeding could be determinative of the issue of need for additional psychiatric beds in District 5, this case was consolidated for hearing purposes with three other cases: Morton F. Plant Hospital Association, Inc. v. Department of Health and Rehabilitative Services, DOAH Case Number 83- 1275; Psychiatric Hospitals of Florida, Inc., d/b/a Horizon Hospital v.
Department of Health and Rehabilitative Services, DOAH Case Number 84-0296; and PIA Medfield, Inc. d/b/a Medfield Center v. Department of Health and Rehabilitative Services, DOAH Case 84-0699. The issue in these three cases is whether Morton F. Plant Hospital is entitled to a Certificate of Need for additional psychiatric beds in District 5. Those cases are the subject of a separate Recommended Order entered on this day. The oral and documentary evidence adduced at the consolidated hearing are described in the attached Recommended Order entered for these remaining three cases.
Subsequent to the hearing, 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 included 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 legal argument as opposed to factual findings.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Since 1976, Horizon Hospital or its predecessor has been licensed by HRS as a special psychiatric hospital with 200 beds. Its most current license, License No. 1316, authorizes Horizon to operate a special psychiatric hospital with 200 beds, and bears an expiration date of June 30, 1985. Horizon has never applied for a Certificate of Need for substance abuse beds.
The 1983 session of the Legislature amended the hospital licensure law and the Certificate of Need law. Section 395.003(4), Florida Statutes, was amended, in pertinent part, to require that the number of beds for the rehabilitation or psychiatric service category for which HRS has adopted by rule a specialty bed need methodology must be specified on the face of the hospital license. Section 381.494(8)(g), Florida Statutes, was also amended to require that Certificates of Need include a statement of the number of beds approved for the rehabilitation or psychiatric service category for which HRS has adopted by rule a specialty bed need methodology.
In April of 1983, HRS adopted Rules 10-5.11(25), (26) and (7), Florida Administrative Code, setting forth methodologies for determining the need for proposed new hospital beds for short-term psychiatric services, long-term psychiatric services and short- and long-term substance abuse services. The methodologies set forth in the rules for short-term psychiatric (Rule 10- 5.11(25)) and substance abuse (Rule 10-5.11(27) beds require, first, the application of a bed to population ratio to arrive at the total number of beds
needed in a District, and then a subtraction of the number of existing and approved beds in that District to arrive at the number of additional beds needed at any particular time. Thus, in order to apply the methodologies and determine the actual number of beds needed in a District at any given time, the number of existing and approved beds in that District must be determined. HRS's Office of Comprehensive Health Planning therefore established an inventory of existing and approved short-term psychiatric and substance abuse beds for each of the HRS Districts.
At the time of establishing its inventory, HRS hospital licenses did not distinguish between psychiatric and substance abuse beds in specialty hospitals. In order to determine the number of existing psychiatric and substance abuse beds in each District, HRS reviewed the Hospital Cost Containment Board (HCCB) reports filed on behalf of existing facilities, and also consulted a publication of the Florida Alcohol and Drug Abuse Association entitled "Alcohol and Drug Abuse Treatment-Prevention Programs in Florida, 1983 Directory." When a hospital was included in the Directory or when it reported on the HCCB form that the facility had a separately organized and staffed substance abuse program, HRS personnel called that facility to ascertain the number of beds devoted to such a program. No inquiry was made regarding the method of treating the substance abuse patient or the manner in which the substance abuse unit was staffed. The telephone conversation was then followed up with a confirmation letter. Utilizing these sources of information, as well as the definitions contained in Rules 10-5.11(25) and (27), Florida Administrative Code, HRS completed and published the results of its inventory process. The published inventory includes Horizon Hospital and categorizes its beds as 178 short term psychiatric and 22 substance abuse.
The HCCB reports filed by Horizon for the years 1981, 1982 and 1983 indicate in the section entitled "Services Inventory" that Horizon's substance abuse unit bears a "Code" of "1." Code "1" is defined on the form as a "separately organized, staffed and equipped unit of hospital (discrete)." Code "2" on the HCCB form means "services maintained in hospital but not in separate unit (nondiscrete)." In its 1980 HCCB report, Horizon listed its "drug abuse care" and its "alcoholism care" as a Code "1."
The 1983 Directory for "Alcohol and Drug Abuse Treatment -- Prevention Programs in Florida," published by the Florida Alcohol and Drug Abuse Association, lists Horizon Hospital as having an "alcohol and chemical abuse program," a "medical non-hospital detoxification program treatment center," "intensive/intermediate residential treatment;" and "drug abuse treatment" for all ages. The source of the information provided in this Directory was not established.
Horizon Hospital has published and has distributed a pamphlet entitled "Alcohol and Chemical Abuse -- The Family Disease." This pamphlet describes the nature of alcoholism, how to recognize the symptoms, the family involvement and how Horizon can treat the total problem of alcoholism. The pamphlet describes the treatment team at Horizon to include a medical director, a psychiatrist, a nurse, nursing staff, allied therapist and a social worker.
Horizon also has published and distributes a booklet advertising itself as "a private psychiatric hospital" with 200 beds, and as containing six programs -- one of which is the "addictive disease program." The program, noted as the "Horizon Hospital's Alcohol and Chemical Abuse Program of Treatment" is described as being unique in that
"unlike most alcoholic rehabilitation centers, it is capable of treating the alcoholic who not only is in need of alcoholism counseling, but also has severe
emotional conflicts that require psycho-therapy."
Horizon Hospital does provide specialized programs for, what it describes as, subpopulations in psychiatry. These programs include an adult general psychiatric program, a crisis and intensive care program, an adolescent treatment program, an older adult treatment or geriatric program, a pain management program and an addictive disease program. Horizon emphasizes the psychiatric aspect in each program. Patients at Horizon are admitted only by psychiatrists and the bylaws of Horizon require that a psychiatrist visit a patient at least once every three days.
The physical layout of Horizon's three-story facility is that two of the units, Unit 31 and Unit 32, are located on the third floor of the building. Unit 31 is known as the adolescent substance abuse unit and Unit 32 is known as the adult substance abuse unit. Each of the units at Horizon has its own staff. The Program Medical Director of Unit 32 is Dr. Vijaya Rivindran, a psychiatrist. Dr. Rivindran holds this position on a part-time basis, and is responsible for the administration of and program philosophy for patient care. As of the time of the hearing, Unit 32 had 26 beds, with a capacity for 30 beds, and Unit 31 had a capacity for 12 beds. The Program Coordinator and the Assistant Program Coordinator for Unit 32 are both psychologists. They control the day-to-day clinical activities of Unit 32 and are directly responsible for the staff supervision. The staff of Unit 32 includes mental health counselors, psychiatric nurses, a social worker and mental health technicians. Most, if not all, of the staff members of Unit 32 have special training in the area of substance abuse. The criterion for admission to Unit 32 is that the patient need psychiatric hospitalization and have some involvement with substance abuse. The average length of stay for a Unit 32 patient is 20 or 21 days.
A sample of records from patients discharged from Unit 32 over a three-year period revealed that only 4.8 percent of the patients had a single diagnosis of substance abuse, and some 17 percent of the patients sampled had a primary diagnosis of substance abuse, with another secondary or tertiary diagnosis. The remainder of the patient records sampled illustrates that substance abuse was a secondary or tertiary diagnosis for the patients assigned to Unit 32.
In arriving at its inventory of existing and/or approved substance abuse beds, HRS did not base its determinations upon the treatment modality provided patients. Instead, HRS counted beds as substance abuse beds only if they were located in a separately organized and staffed unit of at least ten beds, had specially trained staff and the patients had an average length of stay not exceeding 28 days.
CONCLUSIONS OF LAW
In its contention that HRS improperly inventoried Horizon's beds as including 22 substance abuse beds, Horizon argues that neither HRS Rules 10- 5.11(25) and 10-5.11(27), Florida Administrative Code, nor Sections 395.003(4) and 381.494, Florida Statutes, may be applied retroactively; that HRS should
have considered the treatment modality, as opposed to the structural organization, in determining whether the challenged beds were "psychiatric" or "substance abuse" beds and that HRS acted arbitrarily and capriciously in reclassifying its psychiatric beds.
Before discussing the propriety or reasonableness of the HRS inventory of psychiatric and substance abuse beds as it relates to Horizon Hospital, it is imperative to remember that this proceeding is not one which challenges the validity of either the short-term psychiatric or the substance abuse bed need rules. For the purposes of this proceeding, those rules are deemed valid. With that in mind, and in order to give the rules any meaning whatsoever, it is obvious that it is incumbent upon HRS to reach some determination as to the number of psychiatric and substance abuse beds actually in existence or approved. This is necessary in order to properly apply the bed need methodologies required in the two rules when applicants apply for a Certificate of Need for new or additional psychiatric or substance abuse services. The methodologies first require that there be a certain number of beds for every 1,000 persons in an area, and then a subtraction from the number derived of those beds which currently exist in order to arrive at the total number of beds needed in an area. Without knowing the number of existing or approved beds, the formulas set forth in the rules are incapable of calculation or application.
A determination by HRS of the actual number of existing or approved short-term psychiatric and/or substance abuse beds does not constitute a retroactive application of a new rule or statute. It is simply a count of the number of beds in existence so that the new rules can be applied on a prospective basis. Beds were neither given nor taken away, but were merely recategorized according to their existing use in recognition of new categories established by rule. In order to have a meaningful method of projecting future needs, there must be an accurate count of existing resources.
At the time of its attempt to establish an inventory of existing or approved short-term psychiatric and substance abuse beds, there was no one source that HRS could refer to for accurate information. The separately defined or designated categories or specialties in services did not previously exist in either the licensing or the Certificate of Need processes. As starting point, HRS reviewed the Hospital Cost Containment Board reports which require hospitals to report the number of patient days attributable to the treatment of substance abuse and to state whether such services are provided in a discrete, separately organized, staffed and equipped unit. A 1983 directory of alcohol and drug abuse treatment programs was also consulted. From the information derived from these two sources, HRS placed telephone calls to the individual facilities in an effort to discover the actual number of beds devoted to substance abuse care. Such telephone conversations were followed by a confirmation letter and the facilities were afforded the opportunity to provide further input into the inventory process.
Rule 10-5.11(25), Florida Administrative Code, defines "short-term hospital inpatient psychiatric services" as
"a category of services which provides a
24-hour a day therapeutic milieu for persons suffering from mental health problems which are so severe and acute that they need intensive full-time care."
Substance abuse services are defined in Rule 10-5.11(27), Florida Administrative Code, as
"services which provide a 24-hour a day therapeutic environment for persons suffering from the effects of substance abuse."
Other portions of Rule 10-5.11(27) require that new substance abuse bed proposals should have a minimum unit size of ten designated beds, that substance abuse services should be provided in a clearly identifiable unit within a hospital and that such units must have staff trained in substance abuse treatment.
Applying Rule 10-5.11(27) to the facts established in the record of this proceeding, it is clear that Horizon Hospital has at least 22 beds devoted to the rendition of substance abuse services. The issue here is not whether HRS used appropriate methodologies or procedures in accomplishing its inventory process. Nor is the issue one of whether the care of substance abuse patients is more properly deemed a "psychiatric," as opposed to a "substance abuse" service. This latter issue has been determined by HRS with the promulgation of its rule setting forth a specialty category of substance abuse services. As noted earlier, that rule is deemed valid in this proceeding. The issue in this case is whether Horizon Hospital does have existing beds devoted to the provision of substance abuse services and, if so, how many such beds does it have?
The evidence demonstrates that Horizon does have a separate, identifiable unit of its hospital for the care and treatment of patients suffering from the effects of substance abuse. Horizon itself does not dispute this fact. The size of Horizon's unit well exceeds ten beds and is staffed by professionals trained in substance abuse treatment. The fact that the treatment of the substance abuse patient may involve the utilization of principles and modalities common in the field of psychiatry is not binding upon HRS in its bed classification scheme. Indeed, it would be most difficult to require HRS to account for beds based upon a physician's diagnosis or method of treatment for every individual patient. To designate beds for inventory or regulatory purposes based upon the services provided and the organizational structure of the facility is neither unreasonable nor unauthorized.
In determining the number of beds which should be deemed "psychiatric" and the number of beds which should be deemed "substance abuse" for the purposes of establishing an inventory capable of application in the Certificate of Need process, HRS did not impose any new obligations upon Horizon or disturb any vested rights. Horizon was not required to cease the provision of any service or to serve patients it does not now serve. HRS simply counted resources using the provisions of its new rules as a guideline. It appearing from the evidence in this proceeding that Horizon does have a specialized and identifiable unit devoted to rendering treatment to patients suffering from the effects of substance abuse, HRS properly included 22 beds at Horizon within its inventory of existing substance abuse beds in District 5. The statutory requirements regarding the contents of a hospital license are a matter of Legislative mandate and not the result of action taken by HRS.
Finally, Horizon made an attempt at the hearing to demonstrate that the counting of Horizon's beds was inconsistent with the counting of beds at other institutions. Insufficient evidence was adduced, however, to adequately demonstrate that the provision of services at Horizon was factually identical or
