STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NME HOSPITALS, INC. d/b/a )
HOLLYWOOD MEDICAL CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3626
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in this case was held on October 25, 1984, in Fort Lauderdale, Florida. Appearing for the parties were:
For Petitioner MICHAEL J. GLAZER, Esquire NME HOSPITAL, INC. Ausley, McMullen, McGehee, d/b/a HOLLYWOOD MEDICAL Carothers & Proctor CENTER: Post Office Box 391
Tallahassee, Florida 32302
For Respondent, LOUISE JEROSLOW, Legal Intern the Department of Culpepper, Turner & Mannheimer Health and 318 North Calhoun Street Rehabilitative Services: Tallahassee, Florida 32302-3300
Petitioner presented the testimony of Kenneth Cohen, Stephen Roth, Jeffrey Ehrlich, and James L. Bare, and four exhibits. Respondent presented the testimony of Silvio Sperber and Thomas F. Porter. The hearing officer has considered the memoranda filed by the parties and the evidence presented, and makes the following findings and conclusions:
FINDINGS OF FACT
Procedural issues. In June 1983, Petitioner filed an application for a certificate of need to operate a cardiac catheterization laboratory at Hollywood Medical Center. Respondent, the Department of Health and Rehabilitative Service (HRS) denied the application, and Petitioner filed this petition for administrative review. Notice of hearing was given by order dated August 6, 1984. Two days before the hearing, SOUTH BROWARD HOSPITAL DISTRICT moved to intervene. The petition was denied because it was filed less than five days before the hearing, and was therefore untimely. Rule 28-5.207, F.A.C. Also shortly before the hearing, HRS filed a motion in limine, seeking to exclude evidence of cardiac catheterization utilization other than a base year of 1981. The motion was denied because the relevant rule, rule 10-5.11(15) allows proof of "not normal" circumstances. Prior to the hearing, the parties filed a joint prehearing stipulation, agreeing to certain issues of law and fact. Pursuant to that stipulation, the following criteria are either not applicable in this case
or have been satisfied by the Petitioner: section 381.494(6)(c)(3), (4), (5), (6), (7), (8), (10), (11), and (13), Fla. Stat., section 381.494(6)(d), Fla.
Stat., and rule 10-5.11(15)(a) through (f), (g), (h)(1) and (2), (i)(1) through
(3) and (5), (j), (m), (n), and (o)(2). It was further stipulated that the Petitioner will not be performing coronary angioplasty in its proposed cardiac catheterization laboratory. HRS further stipulated that if the Petitioner satisfies all other applicable criteria, the project will be financially feasible. Remaining at issue in this case are subparagraphs (6)(c)(1), (2), and
(12) of section 381.494, Fla. Stat., and subparagraphs (h)(3), (i)(4), (k)(1), and (o)(1) and (3) of rule 10-5.11(15). F.A.C.
The central issue in this case is whether pursuant to the relevant statutory and rule criteria there is a need for a cardiac catheterization laboratory at Hollywood Medical Center.
The Hollywood Medical Center is located in the southern portion of Broward County. It is a 334 licensed bed medical/surgical hospital, and its medical staff covers all major medical specialties. The hospital has 24 hour emergency service, 14 intensive care beds, a full service operating room, and does cardiovascular surgery, but does not do open heart or bypass surgery.
Hollywood Medical Center, based on zip codes from its own patient records, serves patients primarily from the Dade County line a few miles south to the New River Canal on the north and from the ocean on the east to the Collier County line on the west. In this service area, physicians tend to be located in the eastern section, and do not typically have staff privileges at hospitals in northern Broward County, nor do they tend to refer patients to hospitals in the northern section of Broward County.
Patients at Hollywood Medical Center who need cardiac catheterization procedures are now referred to Memorial Hospital, which is approximately 2 miles away. In the south Broward County area, there is no other alternative. There was no evidence of any cardiac catheterization facility in northern Dade County accessible to patients from southern Broward County with the exception of a newly granted certificate of need to Humana Biscayne. There was no evidence as to when Humana Biscayne will be open and providing services. In northern Broward County, there are five operating cardiac catheterization laboratories. The one closest to Hollywood Medical Center, Broward General Medical Center, is approximately 6 miles to the north.
Rule 10-5.11(15)(1), F.A.C., establishes a method of projecting the number of cardiac catheterization procedures expected for the year in which the proposed new service would begin. This number is the product of the projected population for the service area and the number of procedures performed in 1981 in the service area for one hundred thousand population. HRS interprets this rule to require analysis based upon HRS district data. The HRS district in this case is district ten, which is Broward County. Once the projected number of procedures is determined, that number is divided by 600 to determine the number of catheterization laboratories needed. This number is derived from rule 10- 5.11(15)(o)3., which forbids approval of a new laboratory if the average volume for all laboratories in the service area drops below 600. HRS now argues that the number 600 is only a floor to protect existing providers, and is not to be used to compute need. In the normal computation of need under the rule, this is not true. Thomas Porter, supervisor of the certificate of need section at HRS
calculated his Projections of need using 600 procedures per unit in the district as the means to determine the need for a new laboratory. Mr. Porter testified: "Well, in terms of what I would agree with is in terms of numerically determining the need for the number of labs, we divide by 600 procedures. . . .
HRS based its denial of the certificate of need in this case by using a use rate for Broward County in 1981 of 329.5 procedures per one hundred thousand population. This use rate in turn was based upon a 1981 population of 1,046,646 and 3,449 procedures in the county for that year. Since the projected population for Broward County in 1986, two years from the date of the hearing, is 1,179,205, HRS concluded that by 1986 the county will need 6.475 laboratories, which rounds to 6. There are 5 licensed and operating laboratories now in Broward County, and 2 additional laboratories have been approved by HRS in the final order in PLANTATION GENERAL HOSPITAL v. HRS, et al., DOAH case number 84-1838, 6 FALR 6796 (1984). Using the method proposed by HRS to calculate need, there is no need for an additional laboratory as sought by Petitioner in this case.
Petitioner's exhibit 4, table 5, computes the same formula set forth above, but uses a 1981 rate of 340 catheterization procedures per one hundred thousand. This rate is incorrect. On table 2 of this exhibit the actual procedures for each Broward County facility is recorded for 1981, and the total number of procedures has been incorrectly added. The correct total is 3,449, not 3,546, and the resultant rate (which is based upon a slightly lower estimate of 1981 population, 1,042,941) is 330.7 procedures per one hundred thousand. Correcting table 5 using the 330.7 rate, the need for cardiac catheterization laboratories is:
YEAR DISTRICT
1985 6.3
1986 6.5
Thus, if the rule for determining need in a normal situation is followed, the record in this case shows no need for the catheterization facility proposed by the petitioner. Subpart 15(f) of the rule, however, allows approval of an application if the circumstances are other than normal, in which case approval can occur even though need is not shown by subpart 15(l) and 15(o), above, pertaining to calculation of need using the 1981 use rate, future population projections, and division by 600.
Mr. Porter testified for HRS that the 1981 use rate has been a fairly accurate predictor of actual use rates in subsequent years, but that it has not yet been accurate in Broward County. In 1981 the use rate, as corrected above, was 329.5, accepting as true the HRS population estimate for Broward County in 1981. In 1982 the use rate was 393.6. This figure differs from Petitioner's exhibit 4, table 3, because the columns are incorrectly added on table 2. The correct total of procedures for 1982 is 4211. The correct total for 1983 is 5008. In 1983 the use rate was 457.9 using the 5008 figure. Thus, in two years, Broward County has increased its use of cardiac catheterization by 39 percent over the 1981 base rate.
HRS argued that the 1981 planning rate should continue to be used because current data may be anomalous, and not reflective of the long range trend. This might be true if the base rate were reflective of a stable prior trend, but it is not. It is only the data from one year, and as such, is less persuasive as a predictor of the future. The trend for at least Broward County in the six years from 1977 is reflected in Petitioner's exhibit 4, table 3. In
1977, the use rate in Broward County was 174 procedures per one hundred thousand. The actual rate has increased steadily each year for six years to the rate indicated above for 1983, 457.9 per one hundred thousand. This is an increase from the 1977 rate of about 263 percent. At least in Broward County, this data indicates that the 1981 rate is probably not static, but is only a point on a trend that shows significant increases annually.
There was partial evidence that the trend indicated above may be slowing down. Dr. Silvio Sperber, who is a cardiologist in charge of the cardiac catheterization laboratory at Memorial Hospital, testified that Memorial Hospital had had 673 cardiac catheterization procedures from January 1984 through September 1984. He testified that his laboratory was running about 15 percent fewer procedures than the year before. This was not accurate. From Petitioner's exhibit 4, table 2, Memorial Hospital experienced 942 procedures in 1983. By the end of September 1984, it should have experienced about 75 percent of that number at a zero rate of increase, or 706 procedures. Its actual experience in nine months, 673, is only 4.7 percent less than the 1983 expected number of 706.3. The Memorial Hospital experience in 1984 is some evidence that the rate of increase in Broward County may be less or even stabilize in the future at the 1983 utilization rate, but this is evidence from only one hospital. The other four operating laboratories may have experienced a similar decline, or an increase, but there is no evidence on the point. And in any event, Use small decline at Memorial does not persuasively indicate a return to the significantly lower 1981 Broward County rate.
There was additional evidence to support the conclusion that the 1983 rate of use would not decline again to the 1981 rate. Atherosclerotic heart disease is the number one cause of death in the United States today. Cardiac catheterization is the best tool currently available for evaluation of the condition of the heart. From 1978 to 1982, Broward County has experienced a higher death rate for major cardiovascular disease than Florida as a whole. The death rate was 16.6 percent higher in Broward County in 1982 than in Florida generally. Additionally, cardiac catheterization seems to he coming more and more useful in the treatment of heart disease. Three years ago, when HRS established the 1981 base rate, catheterization was not considered a state-of- the-art procedure for treatment of an acute heart attack. Today, catheterization during the first few hours of a heart attack for the point injection of a clot dissolving substance, streptokinase, is proving to be a remarkably effective means of reducing the long-range damage of clot caused heart attacks. Further, use of catheterization during the attack itself has enabled physicians to see for the first time that most heart attacks are caused by clots. As good uses for catheterization increase, it is only reasonable to expect that the utilization rate will increase.
While the foregoing is some evidence that application of subpart 15(l) and (o) of the rule in this case in Broward County produces a "not normal" result, justifying consideration of additional evidence of need, it still does not necessarily follow that the application herein should be granted. First, using the 1983 use rate of 457.9 procedures per one hundred thousand population, and the 1986 predicted population of 1,179,205 in Broward County, the number of expected procedures by 1986 is 5400. There will be 7 approved laboratories by 1986, and thus each would be able to perform approximately 771 procedures, if there is an even distribution within the county. This would be considerably less than approximate maximum capacity of a catheterization laboratory, which is
somewhat less than 1300. Dr. Sperber testified that his laboratory could perform 5 procedures per day, 5 days a week, or 1300 per year. This, however, fails to account for emergency work and angioplasty, both of which take more than two hours. Angioplasty at Memorial now runs about 15 percent of all procedures.
It is urged by petitioner that once the number of procedures is predicted for 1986, then the need for laboratories should be derived by dividing that number by 600, which is in subpart 15(o) of the rule. While this is the procedure for determining need in the normal case, as found above, it does not follow that the standard of 600 continues to apply to determine need in the abnormal case. The "not normal" exception of subpart 15(f) of the rule operates to except analysis of need not only from the 1981 use rate (subpart 15(l)), but also the 600 procedures standard (subpart 15(o)). Since the 600 standard is only about 50 percent of maximum capacity, it constitutes a rather low threshold number for commencement of a new laboratory. In effect, although the 1981 use rate apparently predicts only 72 percent of the need as compared to the 1983 rate, the 600 standard overpredicts need by at least the same amount. As indicated above, even if the 1983 use rate is used, the seven approved laboratories would be easily able to handle this need since the average spread among these laboratories would be about 771 procedures per laboratory.
Though petitioner sought to show that there would be unmet need in the area actually served by Hollywood Medical Center, the evidence falls short of demonstrating a "not normal" situation of actual unmet need in that area justifying approval of its application. This evidence will be considered in the following findings.
HRS does not consider district lines to be absolute if the facts justify consideration of services available in an adjacent district. In Broward County the local health council has debated the issue of dividing the district service area into subdistricts, but has not chosen to do so. Mr. Porter testified that he could think of as many reasons to divide the county as reasons not to divide the county. Broward County is divided north and south by the legislature into two hospital districts, however. As found above, physicians in the southern portion of Broward County tend to refer patients to hospitals in the same area, and do not use hospitals in northern Broward County. These physicians tend to use hospitals closer to their offices, and consequently do not usually have staff privileges at hospitals in the northern portion of the county. These patterns of use, however, have not been shown to be an immutable condition, but simply reflect current practices.
Patients at Hollywood Medical Center who currently need cardiac catheterization are transferred to Memorial Hospital, a few miles away. Memorial Hospital is about a ten minute drive from Hollywood Medical Center. The cost of transfer is about 5300 to 5400. Although Hollywood Medical Center cardiac patients needing diagnostic catheterization at times must wait a day or two before Memorial can provide that service, such delays were not typically of major significance or life-threatening. A more significant problem experienced on occasion by Hollywood Medical Center has been inability to transfer unstable patients to Memorial for diagnostic catheterization. Acutely ill patients at times may need catheterization for diagnostic purposes, but are too ill to be transferred by ambulance to Memorial for the procedure. However, the record does not contain evidence of how frequently this occurs. In any event, these
inconveniences are normal and expected where not every hospital has cardiac catheterization facilities. Stated another way, the above would be evidence of a "not normal" condition only if the normal condition was for all acute care hospitals to have catheterization laboratories, which is not the case.
As discussed above, cardiac catheterization is also used for emergency treatment of heart attack by the injection of streptokinase directly to the clot causing the attack. Cardiac catheterization facilities must be available at the hospital initially receiving the heart attack patient because these patients are usually too unstable to be transferred from the emergency room of the receiving hospital to Memorial. Treatment by streptokinase injection is therapeutically most beneficial only in the first few hours of the heart attack, or at least within six hours of the emergency, because it is during this period that the permanent damage caused by the clot will occur.
Dr. Stephen Roth, a cardiologist on the staff of Hollywood Medical Center, had from 5 to 10 heart attack patients in 1984 who needed streptokinase injection by catheterization, and who suffered a deterioration of their condition due to the unavailability of facilities for catheterization at Hollywood Medical Center. He implied that his two other partners had a similar experience, but the record does not contain competent evidence to support a finding as to the magnitude of the problem for them. Dr. Jeffrey Erlich, also a cardiologist, has had a similar problem of having heart attack patients arrive at Hollywood Medical Center in need of emergency streptokinase injection by catheterization, but did not testify as to the magnitude of the problem. In Dr. Erlich's opinion, every acute care hospital that treats heart attack victims should have a cardiac catheterization laboratory to provide emergency injection of streptokinase. Dr. Silvio Sperber, who is one of the only three physicians who run the cardiac catheterization facility at Memorial Hospital, testified that he had performed about 7 streptokinase injection procedures since the beginning of 1984. The foregoing is insufficient evidence of a "not normal" need for a cardiac catheterization laboratory at Hollywood Memorial Hospital. The number of emergencies are not that great, the problem is not atypical of other hospitals not having cardiac catheterization facilities, and there is no evidence of any failed efforts to have emergency vehicle operators take all heart attack patients directly to the available laboratories in the area. See paragraph 24, ahead.
Administratively, the process of transferring a patient from Hollywood Medical Center to Memorial for cardiac catheterization causes the sort of problems normally associated with transfer of ill patients. Though the drive is only ten minutes, the time preparing the patient and actually transferring the patient is much longer, and is a hardship on the patient. However, almost all of the cardiologists at Hollywood Medical Center are on the staff of Memorial, and can follow their patients at that facility without much difficulty, since it is only ten minutes away.
In 1983, Memorial Hospital had 942 catheterization procedures. If the 1984 experience continues at 4.7 percent less than 1983, Memorial Hospital will perform about 898 procedures. If thereafter it experiences only a 10 percent growth rate, Memorial Hospital will perform 1086 procedures in 1986, and 1195 procedures in 1987. It is reasonable to conclude that it will reach its maximum capacity in a few years, probably by 1988.
However, although not currently used by Hollywood Medical Center, there are or will be two catheterization facilities within less than eight miles. Broward General Hospital is the next closest, apparently about six miles
away. In 1983, Broward General performed only 551 procedures, indicating significant future capacity. Additionally, a new laboratory has been approved for Plantation General Hospital, about eight miles away. Since this laboratory will be new, it will have a long way to go before it reaches a 1200 capacity.
The driving distance to these two other facilities may be a few miles more than this, but the distance is not significantly greater than Memorial. Although Petitioner's physicians testified that they did not consider the hospitals further north to be acceptable as alternatives to Memorial, the distance alone does not pose a significant problem. The major problem is not in the driving distance, as long as the trip is 10 or 20 minutes driving time, but the administrative preparation time at either end, which would be the same inconvenience for transportation regardless which alternative was used.
Typically patients who suffer a heart attack are transported to the emergency rooms of any number of hospitals in Broward County. Dr. Erlich testified that his prior patients do not usually call him before arriving at a hospital, and that he has no ability to direct his patients to a hospital having cardiac catheterization capability. Thus, he felt that all such hospitals should have the capability. There is no evidence that Memorial Hospital could not handle more heart attack patients, or that emergency vehicle operators could not transport more heart attack patients to Memorial. An ambulance carrying a heart attack patient could just as easily arrive at the emergency room of Memorial than it could at Hollywood Medical Center, only ten minutes away. The problem of having heart attack patients arrive in an unstable condition at Hollywood, where there is no catheterization facility, ought to be solved at least in part by greater coordination with emergency vehicle operators in the vicinity of the two hospitals.
Dr. Sperber and his two partners apparently have a monopoly over the performance of cardiac catheterization procedures at Memorial Hospital. This factor is somewhat relevant to the issue of need for the proposed new catheterization laboratory, but absent additional evidence that patients will in fact be denied the service, or will receive service of poor quality or at unreasonable expense due to this apparent monopoly, this one factor alone does not show sufficient need to warrant approval of the application.
Some patients prefer to go to Hollywood Medical Center, which is a smaller, for-profit hospital, but patient preference of this sort does not show a "not normal" need for the proposed catheterization laboratory.
Based upon all of the foregoing, there is not sufficient evidence on this record demonstrating a "not normal" condition of need by 1986 to justify granting this application. However, if there were a need shown by the evidence, the following additional findings are made.
Thomas Porter testified for HRS that the requirement that there be adequate care for indigents is satisfied if such care is provided by the District as a whole, and that there was no question that indigents were adequately served in District X. Petitioner will provide cardiac catheterization for indigents only on an emergency basis, and will rely upon Memorial to provide other indigent care. Based upon the testimony of Mr. Porter, the criteria with respect to indigent care, rule 10- 5.11(15)(h)3, F.A.C., has been satisfied.
Since nearly all of the cardiologists on the staff of Hollywood Medical Center are also on the staff of Memorial Hospital, it is probable that Hollywood Medical Center would do a substantial number of catheterization
procedures in the first year of operation, which is projected to be 1986. By the third year of operation, 1989, the Hollywood Medical Center facility would satisfy the requirement of rule 10-5.11(15)(i)4, F.A.C., that it annually perform at least 300 procedures within three years of initiation of service.
For these limited purposes it is appropriate to consider the proximate population served, since this population is the most reliable source of patients and revenue. Most of the patients for the Hollywood Medical Center catheterization laboratory will come from its current actual service area, which was defined by the evidence to be a region in southern Broward County. Given the shared cardiologist staffing at both hospitals, it is not at all unreasonable to project that Hollywood Medical Center will service 30 percent of the need in the southern region of Broward County. Based on the 1983 Broward use rate, Hollywood Medical Center would do 518 catheterizations in 1989 if it handled only 30 percent of the need. Memorial would handle the remaining 70 percent, doing 1207 procedures annually. Even using the lower 1981 use rate provided by HRS, 329.5 per 100,000, Hollywood Medical Center would do 372 procedures in 1989, using the assumed market share of 30 percent. (As noted above, however, these figures do not demonstrate need, however, since existing facilities will be able to serve this same population adequately.)
As already found above in calculation of need, rule 10- 5.11(15)(o)1 and 3, F.A.C., is satisfied if the 1983 use rate is used. Beginning with 1986, and in every year thereafter, there will be enough catheterization procedures needed so that the average volume for all facilities in the district will be at least 600 annually.
HRS stipulated that if all other criteria were satisfied, the project proposed by Petitioner would be financially feasible. From the foregoing findings, all other criteria in dispute have been satisfied, and the project would be financially feasible.
All other findings of fact proposed by the parties which have not been discussed above have been considered and have been deemed to be irrelevant.
CONCLUSIONS OF LAW
Since rule 10-5.11(15)(f), F.A.C., allows consideration of "not normal" circumstances as an exception to calculation of need by the formula in subparagraph (1) of the same rule, Petitioner is allowed to present evidence of "not normal" need in Broward County. However, the effect of consideration of a "not normal" circumstance pursuant to rule 10-5.11(15)(f) is that subpart (15)(l), which contains the 1981 use rate, and subpart (15)(o), which contains the 600 procedures standard for allocation among laboratories, no longer necessarily apply. Need must be assessed upon all the evidence if a "not normal" need is proposed by an applicant. The critical question them is whether the evidence shows that for some reason a significant number of patients will be denied the service if the application is not approved. This issue could involve proof that existing providers will fail to serve a significant need either due to lack of capacity, lack of accessibility, poor management or quality of care, or other similar reasons. The final order in Plantation General Hospital v. HRS, DOAH Case No. 82-1838, 6 FALR 6796 (1984), is construed as not containing an exclusive list of circumstances that may be considered to determine need in a "not normal" situation.
There is no need for the proposed cardiac catheterization laboratory, whether need is computed under the rule or upon consideration of "not normal" need.
If need did exist on this record, Petitioner's application meets all other criteria of the rule and statute, and should be approved.
THEREFORE, it is recommended that Petitioner's application for a certificate of need for a cardiac catheterization laboratory to initiate service in 1986 be denied.
DONE and ORDERED this 16th day January, 1985, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
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 16th day of January, 1985.
COPIES FURNISHED:
Michael J. Glazer, Esquire
AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR
Post Office Box 391 Tallahassee, Florida 32302
Louise Jeroslow, Legal Intern CULPEPPER, TURNER & MANNHEIMER
Post Office Drawer 11300 Tallahassee, Florida 32302
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NME HOSPITALS, INC., d/b/a HOLLYWOOD MEDICAL CENTER,
Petitioner,
vs. CASE NO. 84-3626
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICE,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (hereinafter referred to as "DOAH") in the above-captioned case has submitted a Recommended Order to the Department of Health and Rehabilitative Services (hereinafter referred to as "HRS"). A copy of that Recommended Order is attached here to as Exhibit A.
Petitioner, NME Hospitals, Inc., d/b/a Hollywood Medical Center (hereinafter ("NME") filed Exceptions to Recommended Order. A copy is attached hereto as Exhibit B. Respondent, Department of Health and Rehabilitative Services (hereinafter "DHRS") filed Exceptions to Recommended Order. A copy is attached hereto as Exhibit C.
RULING ON EXCEPTIONS
Rule 10-5.11(15), Florida Administrative Code, is a valid rule. It requires the application of 1981 use rate to determine the need for cardiac catheterization in a service area. The use of any other date to determine need under subparagraph (1) is unauthorized. Section 120.56, Florida Statutes, sets forth the procedure for an administrative determination of the invalidity of a rule, not Section 120.57, Florida Statutes. NME's exception No. 1 is denied. HRS's exceptions Nos. 1, 2, 3, and the first sentence of 6 as it relates to Finding 29 of the Recommended Order are granted.
Rule 10-5.11(15), Florida Administrative Code, does not set forth a formula to determine need in a "not normal" situation. It is incumbent upon Petitioner to prove its application should be granted despite the fact that it fails to qualify under the rule need methodology. This it has failed to do. NME's exceptions 2 and 3 are denied.
Section 120.57(1)(b)8, Florida Statutes, provides "The agency shall allow at least ten (10) days in which to submit written exceptions to the recommended order." (emphasis added). There is no provision for submission of exceptions to another party's exceptions. Therefore, NME's exceptions 4, 5, 6, and 7, which take exception to HRS's exceptions, will not be addressed.
Paragraph 28 finds what Mr. Porter testified to. It is not alleged that Mr. Porter did not testify as set forth or that there is no competent substantial evidence to support the findings of fact, however, "the criteria with respect to indigent care, Rule 10-5.11(15)(h)(3), F.A.C., has been satisfied" is a conclusion of law and will be struck in accordance with HRS's exception No. 5.
There is no competent substantial evidence for the finding in paragraph
29 that Hollywood Medical Center will service 30 percent of the need in the southern region of Broward County. The second sentence of HRS's exception 6 is granted.
It is the responsibility of the local health council to decide whether to subdistrict. If it elects to subdivide, it must do so within HRS's established guidelines. The State of Florida, Department of Health and Rehabilitative Services is responsible for promulgating rules to effectuate subdistricting. HRS's exception 4 is denied.
The finding at paragraph 30 is one of fact, not a conclusion of law. It merely recites that Rule 10-5.11(15)(o)1 and 3, Florida Administrative Code,
is satisfied if the 1983 use rate is used, not that it is appropriate to use the 1983 figure.
Since it is not appropriate to use 1983 figures except when availability, quality of care, efficiency, accessibility or extent of utilization is a problem, the presence of Finding 30 will not weaken the conclusions reached. The first sentence of HRS's exception 6 is denied.
FINDINGS OF FACT
The findings of fact in the Recommended Order are adopted with the following modifications:
Paragraph 9, second sentence, is really a conclusion of law which does not accurately reflect agency interpretation of the rule; therefore, it is deleted from this Final Order.
Paragraph 28, third sentence of the Recommended Order, is deleted from this Final Order for the reasons set forth in paragraph 4 of the Ruling on Exceptions.
Paragraph 29, fifth sentence of the Recommended Order, is deleted from the Final Order for the reasons set forth in paragraph 5 of HRS's exceptions.
CONCLUSIONS OF LAW
There is no need for the proposed cardiac catheterization laboratory proposed in Petitioner's application under the need methodology set forth in Rule 10-5.11(15).
The Petitioner has failed to establish extenuating and mitigating circumstances which would justify the granting of its application where no need exists under the rule need methodology in Rule 10-5.11(15). Although the Petitioner has attempted to show need outside the rule need methodology, such data is not authorized under the rule.
It is therefore ADJUDGED that
Petitioner's application for a certificate of need for a cardiac catheterization laboratory to initiate service in 1986 is DENIED.
DONE and ORDERED this 23rd day of May, 1985, in Tallahassee, Florida.
DAVID H. PINGREE
Secretary
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES.
| Issue Date | Proceedings |
|---|---|
| May 26, 1994 | Final Order filed. |
| Jan. 16, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 23, 1985 | Agency Final Order | |
| Jan. 16, 1985 | Recommended Order | Certificate of Need (CON) denied. This was not a normal need assessed on all evidence. Petitioner failed to show mitigating circumstances or many patients will be denied services. |
