STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOOD SAMARITAN HEALTH SYSTEMS, INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, ) CASE NO. 84-3722 and )

) VISUAL HEALTH AND SURGICAL CENTER ) OF THE PALM BEACHES, ST. MARY'S ) HOSPITAL, INC., AND PALM BEACH ) AMBULATORY SURGICAL CENTER, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Sharyn L. Smith, Hearing Officer with the Division of Administrative Hearings, on February 10-13, 1986 in West Palm Beach, Florida, and on August 18- 20, 1986, in Tallahassee, Florida. The parties were represented by counsel:

APPEARANCES

For Petitioner: Byron Mathews, Esquire Good Samaritan Paul H. Amundsen, Esquire Health Systems, MCDERMOTT, WILL & EMORY

Inc. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301

For Respondent: Douglas H. Mannheimer, Esquire Department of CULPEPPER, PELHAM, TURNER & Health and MANNHEIMER, P.A. Rehabilitative 300 East Park Avenue

Services Tallahassee, Florida 32301

1. Bruce McKibben, Esquire Assistant General Counsel Department of Health and

   Rehabilitative Services 1323 Winewood Boulevard

   Tallahassee, Florida 32301

   For Intervenor: Charles Stampelos, Esquire Visual Health & MCFARLAIN, BOBO, STEPNSTEIN,

   Surgical Center WILEY & CASSEDY

   of the Palm 666 First Florida Bank Building Beaches Tallahassee, Florida 32301

   
   

   For Intervenor: Terry Cole, Esquire St. Mary's OERTEL & HOFFMAN, P.A.

   Hospital, Inc. Post Office Box 6507

   Tallahassee, Florida 32314-6587

   
   

   For Intervenor: F. Philip Blank, Esquire Palm Beach Reynold D. Meyer, Esquire

   Ambulatory 241 East Virginia Street Surgical Center, Tallahassee, Florida 32301 Inc.

   
   

   ISSUE

   
   

   The issue involved in this case is whether the Petitioner Good Samaritan Health Systems, Inc., should be issued a Certificate of Need to construct an ambulatory surgical center in West Palm Beach, Florida.

   
   

   Testifying on behalf of the Petitioner at the final hearing were Kenneth A. Weda, President of Good Samaritan Hospital; Ms. Patricia Sher, an expert in alternative delivery systems; Samuel G. Tischler, an expert in ambulatory surgical design, administration and planning; Dr. Milton R. Tignor, Jr., a urologist on the staff of the Good Samaritan Hospital; Dr. Abraham Schmuckler, an anesthesiologist at Good Samaritan Hospital; Jerome A. Goebel, an expert in hospital design and architecture; Ross Raneri, an expert in architecture for health care facilities; Byron Thompson, an expert in health care finance; Ms.

   Linda Vossler, an expert in operating room administration, nursing, staffing and equipment; Robert L. Broadway, an expert in health care planning, administration and finance; and Daniel J. Sullivan, an expert in health care planning and finance.

   
   

   Elizabeth Dudek, Health Services and Facility Consultant Supervisor in the Office of Community Medical Affairs, testified for the Department of Health and Rehabilitative Services.

   
   

   Michael L. Schwartz, an expert in health care planning; Rick D. Knapp, an expert in financial feasibility; and Robert J. Zasa, a former vice-president of Alternative Care, testified on behalf of Intervenors. Nancy McAnallen, nursing director of surgical services at St. Mary's Hospital testified by deposition for Intervenors.

   
   

   Petitioner Good Samaritan's Exhibits 1-3, 6-9, 11-12, 14, 15(a)-(i) and Department of Health and Rehabilitative Services' Exhibits 1-4 were offered and admitted into evidence. The following Intervenor's Exhibits were offered and admitted into evidence: St. Mary's Exhibits 1-4, 6 and 7; Visual Health's Exhibit 1; Intervenor's Exhibits 1-4 and Palm Beach Exhibits 1, 2, 3(a), (b) and (c). At the final hearing ruling was reserved on Petitioner Good Samaritan's Exhibits 4-5 and Intervenor St. Mary's Exhibits 5-6 which are now admitted.

   
   

   The transcript of hearing was filed on September 16, 1986. The parties filed their proposed recommended orders on October 16, 1986. Ruling on the parties' proposed findings are contained in the attached appendix.

   FINDINGS OF FACT

   
   

   Based on the evidence produced at hearing, the following facts are determined:

   
   

   1. THE PROJECT

      
      

      1. The Petitioner Good Samaritan Health Systems, Inc. (hereafter Good Samaritan) is a not-for-profit corporation located in West Palm Beach, Florida.

         
         

      2. On May 4, 1984, Good Samaritan applied to the Respondent Department of Health and Rehabilitative Services (hereafter HRS or Department) for a Certificate of Need (hereafter CON) to construct a freestanding ambulatory surgical center to the west and across the road from the existing hospital. The application was amended in August, 1985, to reguest a change in the corporate organization and plans which then proposed to connect the ambulatory surgical center to the main hospital by way of an enclosed hallway. The application was subsequently amended in September and December, 1985.

         
         

      3. The applicant, Good Samaritan Health Systems, Inc., is a holding company which includes two for-profit and two not- for-profit subsidiaries. One of its for-profit subsidiaries, Good Samaritan Health Corp., proposes to be the general partner in a limited partnership called Good Samaritan Medical Center Limited. The partnership intends to market forty-five (45) limited partnership shares in its seven-story medical office building and parking garage in which the ambulatory surgical center would be located. Good Samaritan would lease space in the building for the partnership and the partnership would in turn, lease the land for the building from Good Samaritan.

         
         

      4. The proposed ambulatory surgery center would be located on the second floor of the medical office building and contain approximately 11,500 square feet. An enclosed walkway would connect the ambulatory surgical center directly into the second floor of the hospital.

         
         

      5. The applicant proposes to construct four operating rooms, an endoscopy room, exam rooms, a blood gas laboratory, an x-ray room, lab storage, cleanup and recovery areas and administrative offices in the ambulatory surgical center.

         
         

      6. By State Agency Action Report dated August, 1984, the Department denied the application of Good Samaritan because the number of existing and approved ambulatory surgical centers in Palm Beach County exceeded projected need through 1987.

         
         

      7. The Department reevaluated its position in August, 1985, and again in December, 1985, and affirmed its prior denial based on excess capacity in Palm Beach County.

         
         

      8. In January, 1986, the Department changed its position and indicated its intent to approve the application.

   2. THE APPLICANT

      
      

      1. Good Samaritan Hospital presently has ten Operating rooms. One of the rooms is presently used for an endoscopy room and one is closed and used for storage. As part of its application, the applicant would close three of its ten operating rooms in exchange for opening four operating rooms and an endoscopy room in the ambulatory surgical center.

         
         

      2. All but two of Good Samaritan's operating rooms were built in the 1950's. Those rooms are laid out in the hospital via long corridors and are inconvenient to use. Surgeons prefer to use the two operating rooms which were built in 1975 and are larger and more convenient.

         
         

      3. Some of the present operating rooms have a variety of problems including inadequate electrical outlets, insufficient power, improper location of gas columns, inadequate space, and lack of adjacent scrub rooms. Additionally, because of the design of the third floor of the hospital, there is a lack of storage space.

         
         

      4. Although not at issue in this proceeding, Good Samaritan has in the past considered remodeling its operating rooms to cure the deficiencies noted above. Regardless of whether the ambulatory surgical center is built, the present state of the operating rooms on the third floor of the main hospital would appear to necessitate that improvements must be made in order to ensure adequate patient care.

         
         

      5. The applicant failed to demonstrate that the proposed ambulatory surgical center is the most cost effective alternative available to remodeling existing space or converting adjacent space in the hospital into larger, more efficient operating rooms. Additionally, one of the problems experienced by the hospital, inadequate size of some of the existing operating rooms, would not be solved because the Operating rooms in the proposed ambulatory surgical center would be well under the minimum size recommended by the applicant's own architect.

         
         

   3. THE INTERVENORS

      
      

      1. Intervenor Visual Health, also known as Ophthalmology Outpatient Surgical Center is a for-profit ambulatory surgical center in West Palm Beach. It has two operating suites where ophthalmologic surgery is performed.

         
         

      2. Visual Health is located approximately fifteen to thirty minutes driving time from the proposed project. Both Visual Health and Good Samaritan share the same primary service area. Visual Health performed approximately 308 surgical cases during the last three months of 1985. As a result, Visual Health has a large percentage of unused capacity and is significantly under-utilized. For example, Visual Health can perform at its present level by being open only two or three days a week rather than a normal five.

         
         

      3. Visual Health can expect to lose a percentage of its future projected market share if the pending application is approved.

         
         

      4. St. Mary's Hospital is a nonprofit acute care hospital located approximately four miles from Good Samaritan. It has twelve operating rooms and performs both inpatient and outpatient surgery.

      5. Currently, St. Mary's does not have the patient case load to fill its operating rooms to capacity. Like Visual Health, its surgical services are under-utilized.

         
         

      6. Additional surgical facilities in the service area are likely to lead to a loss of patients, staff, and revenue at St. Mary's.

         
         

      7. Such a loss is especially significant because St. Mary's provides the largest share of indigent care in Palm Beach County. For example, St. Mary's provides 41 percent more indigent care and six times more charity care than Good Samaritan. A loss of patients and resulting revenues would lead to a serious impact upon St. Mary's ability to carry out its mission of being the primary provider of health care to the indigent in Palm Beach County.

         
         

      8. Intervenor Palm Beach Ambulatory Surgery Center is an existing freestanding ambulatory surgical center located in Palm Beach County. Palm Beach's facility is located three miles or approximately a five minute drive from Good Samaritan's proposed facility. Palm Beach, which opened in September, 1985, is licensed to operate four operating rooms and three special procedure rooms. Only two of the operating rooms are currently being utilized.

         
         

      9. Like Visual Health, Palm Beach has a significant excess capacity of unused surgical time in its facility. From September, 1985 through December, 1985, Palm Beach performed less than 200 cases which is well under a reasonable projected break even point.

         
         

      10. Due to their close proximity and overlapping staffs, Good Samaritan and Palm Beach would be in direct competition for the same patients. If the Good Samaritan project were built as proposed, it could be expected that as a result of physicians placing patients near their medical offices, a large percentage of existing and future growth would be lost by Palm Beach to Good Samaritan. In such a situation, the continued economic viability of Palm Beach is highly questionable.

          
          

   4. THE NEED FOR AMBULATORY SURGICAL SERVICES IN THE SERVICE DISTRICT.

      
      

      1. The Department has no rule for determining need when an applicant proposes to either shift outpatient services from a hospital to an ambulatory surgical center or establish a freestanding ambulatory surgical center.

         
         

      2. Although the Department has not promulgated an ambulatory surgical need rule, it does enforce a non-rule policy for determining need.

         
         

      3. The Department's methodology invokes the utilization of data from the District IX Local Health Council relating to inpatient and outpatient procedures and the number of licensed and approved ambulatory surgical centers.

         
         

      4. The methodology also utilizes a break-even figure for each of the licensed and approved centers which is determined by dividing net revenues in the second year by the number of procedures to be performed. The resulting number is divided into expenses to determine the break-even point.

         
         

      5. The Department's methodology utilized population projections for Palm Beach County only. Although the county is a reasonable planning unit, the

         District IX service district also includes Indian River, Martin, Okeechobee, and St. Lucie Counties. The Department's non-rule policy does not consider the need for services in those counties and, accordingly, limits its consideration solely to Palm Beach County.

         
         

      6. In its State Agency Action Report dated August 31, 1984, the Department stated the following regarding this proposed project:

         
         

         The ability of Good Samaritan to generate sufficient, unduplicated, medicare, PPO, and other patients necessary in performance of these procedures is unlikely given the ability of existing and approved ambulatory surgery services to meet the 1987 Palm Beach County potential. (See Visual Health Exhibit 3, pg. 12)

         
         

         While Good Samaritan indicates that it

         will provide services to medicare (30 percent), medicaid (2 percent) and indigent (2 percent) patients; its historical record of

         service provision to this population does not support these projections. Good Samaritan Hospital has only recently begun participation in the medicare program (June, 1984), and has no record of providing services to medicare eligible patients prior to 1983. The facility does not hold a medicaid provider number. Using data collected by the District IX Local Health Council, Good Samaritan reported

         admitting only two charity patients from July through December, 1983. (Id., at 14.)

         
         

      7. The Department recalculated its position in August, 1985, and again in December, 1985, and reaffirmed its denial of a CON to Good Samaritan.

         
         

      8. In January, 1986, the Department changed its position and indicated its intent to approve the application.

         
         

      9. It is beyond serious dispute that Palm Beach County has an excess capacity of surgical suites over what was required in 1985 or projected in 1987. The Department has issued a large number of CON's in this county for ambulatory surgical centers, which far outstrip the need from any projected population gains or shift from inpatient to outpatient procedures. Additionally, many hospitals in Palm Beach County do a substantial percentage of outpatient surgery, and this is likely to increase in the future. Due to the abundance of surgical suites within the county, an excess capacity of as many as 78 suites presently exists.

         
         

      10. Good Samaritan, however, argues that its proposal will not add to the excess capacity within the county, but will allow the hospital to simply trade existing surgical suites within the hospital for the same number of new surgical suites in its proposed ambulatory surgical center.

      11. However, contrary to the applicant's assertion, the weight of the evidence establishes that the proposed ambulatory surgical center will add to the existing excess of surgical capacity in Palm Beach County. For example, the applicant proposes to close three operating rooms and add four to its proposed facility. In addition, one of the three rooms in the hospital is already closed and is presently not being utilized. Therefore, the net gain in terms of numbers of operating rooms in the district is two.

          
          

      12. Good Samaritan also attempted to justify its proposal by asserting that its present facilities are at capacity, are outdated and the community needed the proposed expansion. Although Good Samaritan's operating rooms are being heavily utilized, there is nothing in the Certificate of Need law to suggest that need should be determined by the individual needs or capacities of a hospital. To the contrary, need must be demonstrated on a district basis. This is especially true when existing health care providers in the district are seriously under-utilized and must attract additional patients to remain economically viable.

          
          

      13. Moreover, Good Samaritan's proposal will likely have a more significant impact on the utilization rates of its competitors than the addition of two suites would suggest. The proposal calls for the ambulatory surgical center to be located within a medical office building which would be occupied by limited-partner/physicians who would lease space in the building to Good Samaritan. The partnership would in turn lease the land for the medical office building from Good Samaritan.

          
          

      14. Due to the financial stake of the physicians in the project and its location directly under their offices, it is likely that the physicians in the Medical Center will utilize Good Samaritan's facilities whenever possible.

          Since physician rather than patient preference ordinarily determines a patient's choice of hospitals, it is logical that the effect the expansion would have on the Intervenors is in all likelihood much greater than what would ordinarily be anticipated by the simple addition of two operating suites.

          
          

   5. AVAILABILITY, QUALITY OF CARE, EFFICIENCY, APPROPRIATENESS, ACCESSIBILITY, EXTENT OF UTILIZATION,

      AND ADEQUACY OF LIKE AND EXISTING HEALTH CARE SERVICES IN THE SERVICE DISTRICT OF THE APPLICANT.

      
      

      1. Within Palm Beach County, there are 12 existing hospitals which provide both inpatient and outpatient surgery.

         
         

      2. Additionally, three hospitals have been approved but were not operational at the cutoff time for exhibits in this case. There are six approved or existing ambulatory surgery centers in the county.

         
         

      3. All of these facilities are currently operating at less than capacity.

         
         

      4. Thus, there is no question and it was not disputed or an issue at the hearing that there is currently available and accessible adequate like and existing health care services in the county and service district of the applicant.

         
         

      5. The quality of care of these facilities was never an issue and the only issue of efficiency relates to the already low utilization rates of the existing and approved facilities.

      6. Adequate health care facilities and services are available in the service district and county of the applicant, including both outpatient and ambulatory surgical care which would serve as alternatives for the proposed facility. The application contained the statement that the proposed ambulatory surgery center is the most cost-effective alternative available and that expansion of existing surgical facilities at the hospital would be prohibitively expensive and would disrupt hospital operations. However, alternatives were not investigated in terms of the operating rooms and no estimate as to the cost of converting adjacent space in the hospital into additional operating rooms should some be needed was presented.

         
         

      7. Without considering all of the alternatives and providing an estimated cost for those alternatives it cannot be concluded that the applicant has met the requirement regarding the availability and adequacy of alternatives for the proposed health care facilities services to be provided by the applicant. That is particularly true in regard to the lack of a cost estimate for renovation of the existing facilities to accomplish closing three rooms and enlarging the remaining operating rooms. Moreover, the failure to consider the renovation of adjacent space in the hospital or adding space adjacent to the existing surgery rooms, similar to other ongoing construction at the hospital, referred to as the horizontal expansion, was also not adequately addressed.

         
         

   6. ACCESSIBILITY TO RESIDENTS OF THE SERVICE DISTRICT

1. Currently Good Samaritan Hospital has no medicaid provider contract for the provision of health care services to indigents other than emergency room services. Good Samaritan Hospital has never had a medicaid provider contract for other than emergency services.

   
   

2. Although the application states that Good Samaritan intends to obtain a medicaid provider contract for the proposed ambulatory surgery center, there is still not a commitment on the part of the hospital itself to obtain such a medicaid provider contract for other than emergency services.

   
   

3. The medicaid provider contract provides access to health care services for indigents within a service district.

   
   

4. Good Samaritan Hospital and Good Samaritan Health Systems, Inc. have no historical basis on which to substantiate their ability or willingness to provide services to indigents in the future.

   
   

5. The proposed ambulatory surgery center will be located on the second floor of a private medical office building above a privately owned parking facility. Due to the physical layout of the proposed center and Good Samaritan's historic lack of access to indigents, it is extremely unlikely that any substantial number of indigents will ever utilize this facility, even if Good Samaritan obtains a medicaid provider number.

   
   

   VI. OTHER STATUTORY CRITERIA

   
   

6. The cost of the proposed ambulatory surgery center is approximately

   2.3 million. This cost and all inclusive costs are reasonable.

   
   

7. The equipment proposed by the applicant is adequate and reasonably priced.

8. The staffing plan and associated salaries proposed by the applicant are reasonable.

   
   

9. Good Samaritan is in a strong financial position and the project is financially feasible in the short term.

   
   

10. The project is likewise financially feasible in the long-term based on utilization forecasts, which are on the conservative side and the reasonableness of expense projections.

    
    

11. Good Samaritan will perform at least 30 percent of its surgeries on an outpatient basis in 1990.

    
    

12. Good Samaritan will provide a high quality of care if the application is approved.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

    
    

14. Section 120.57(1), F.S. hearings are de novo proceedings conducted to formulate final agency action, not to review prior action or action taken preliminarily. Boca Raton Artificial Kidney Center, Inc. v. HRS, 475 So.2d 260,

    262 (Fla. 1st DCA 1985); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Good Samaritan, as the applicant, has the burden of demonstrating that it is entitled to a certificate of need. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778, 788-89 (Fla. 1st DCA 1981). Similarly, the Intervenors carry the burden of establishing that their substantial interests would be affected by the grant of the certificate of need to the applicant. Id. at 789.

    
    

15. In determining whether to grant or deny an application for a Certificate of Need, HRS must consider the application against all relevant statutory and rule criteria. And, as noted in North Ridge General Hospital, Inc. v. NME Hospitals, 478 So.2d 1138 (Fla. 1st DCA 1985), and in the cases cited therein:

    
    

    [T]he appropriate weight to be given to each individual criterion contained in the statutes regarding CON applications is not fixed, but rather must vary on a case-by-case basis, depending on the facts in each case.

    
    

16. In the instant case, the applicant and the Department assert that the proposed project merely transfers and does not add to, existing service. Accordingly, the capacity based analysis advocated by the Intervenors in such a situation is inappropriate.

    
    

17. However, the Intervenors have established by a preponderance of the evidence that the proposed project will add both in numbers and capacity to the glut of unused ambulatory surgical services presently in existence in Palm Beach County. As accurately noted by the applicant in its Proposed Recommended Order,

    at 21 n.22, "none of the five freestanding ambulatory centers in Palm Beach County would have been approved..." under the Intervenor's capacity based methodology. This is in all likelihood a reasonable assumption and raises the question as to why they were approved given the extremely low utilization rates experienced by Visual Health and Palm Beach Ambulatory Surgical Centers.

    
    

18. Had the Department included a break-even analysis for approved but not operational facilities, both the Department and the Intervenors agree, a surplus of surgical suites exists in Palm Beach County. Since the Department has no rule for determining need in ambulatory surgical cases, it leaves the burden of explicating and defending the policy in Section 120.57(1), F.S. proceeding squarely on the Department.

    
    

19. The Department's non-rule policy for ambulatory surgical centers was previously rejected in Spector v. Department of Health and Rehabilitative Services, DOAH Case No. 84-3722, Recommended Order entered January 15, 1986, a case which like the instant one, involved an application for a free standing ambulatory surgery facility in Palm Beach County. In Spector, supra, at 13, the Hearing Officer found that the Department's non-rule policy for ambulatory surgical centers

    
    

    fails to recognize the general principle that the cost of health care rises when a facility is under utilized, and that per unit costs tend to decrease as use approaches optimum capacity levels...

    The policy also does not take into account the additional costs which it imposes on the community by way of increased government subsidy of health care, a subsidy ultimately borne by the taxpayers and the community at large.

    There is no evidence that the cost implications of this policy on medicare have been assessed or even considered. A primary purpose of the CON law is containment of health care costs to a community. In health care planning the community includes persons who pay taxes to support the medicare system.

    
    

20. Moreover, in Spector, the Hearing Officer found that the applicant failed to prove a need existed for the proposed facility in Palm Beach County. As the Hearing Officer observed:

    
    

    [t]he evidence convincingly establishes that there is excess licensed ambulatory surgical capacity in Palm Beach County in the form of existing and approved facilities. The capital expenditures for these existing and approved facilities have already been allocated

    to the community through CON licensing and medicare reimbursement. As such, their enhanced utilization is a less costly and more efficient alternative to approving Petitioner's application.

    See Spector, supra, at 15.

    
    

21. The attempt of the applicant to demonstrate need on a facility specific basis is not contemplated by the statutory criteria found at Section 381.494, F.S. The certificate of need law focuses specifically on the availability and adequacy of like and existing health care services in the service district of the applicant as opposed to the needs of any individual health care provider. As aptly observed by the Intervenors, an applicant may not frustrate the purpose of the statutory framework which is to provide a uniform methodology for determining need on a district basis by using numbers derived from an institution-specific experience.

    
    

22. In regard to the remaining relevant statutory criteria at issue, the preponderance of the evidence establishes that the applicant will provide quality care, and that the project is financially feasible in the short and long term. The applicant failed to establish by a preponderance of the evidence that the facility would be available to indigent, charity or underprivileged clients in the community, that other ambulatory surgery facilities in the service district are unavailable or inadequate, that the proposed project would serve to contain health care costs or foster competition or that less costly alternatives to the proposed facility do not exist.

    
    

23. The Intervenors have established by a preponderance of the evidence that they possess the requisite substantial interests in this proceeding to be granted standing. The grant of a certificate of need in this case would endanger St. Mary's ability to continue to provide substantial amounts of indigent care and would place the other two Intervenors in an extremely precarious position.

    
    

24. Finally, the Intervenors Motion to Sever and For Summary Recommended Order is DENIED. The applicant is a separate legal entity from the hospital and will be physically attached to the hospital via a covered walkway. The two entities are housed in different locations, staffed by different personnel and will operate independently of one another. Under such circumstances, Good Samaritan Health Systems, Inc., is not a part of the hospital. However, Intervenors' "Request for Official Recognition" filed February 4, 1986, is granted and the Request is made a part of the record of this proceeding.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner's application for a Certificate of Need authorizing establishment of an ambulatory surgical facility in Palm Beach County, Florida be DENIED.

DONE and ENTERED this 9th day of March, 1987 in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3722 RULINGS ON PETITIONER'S JOINTLY

PROPOSED FINDINGS OF FACT

Paragraphs

1-14 Accepted.

15-28 Accepted, but not in dispute at the hearing.

29-30 Accepted and covered in paragraphs 3-5 of Recommended Order.

31-32 Not relevant to this proceeding. 33-39 Accepted.

40-54 Accepted, but not relevant only to the extent institution specific criteria are considered.

55-58 Accepted.

59-64 Rejected. The preponderance of the evidence supports a finding that the proposal will not merely shift existing services, but will add to the under-utilization problem experienced in the service district.

65-66 Accepted, except as modified in the Recommended Order. 67-70 Rejected.

71-78 Accepted.

79 It is unclear from the record whether scheduling problems exist because of the size of the rooms or doctor preference.

80-81 Accepted.

82-84 Accepted, but modified to show that although the applicant's present operating rooms are far from ideal, less costly and more efficient solutions were not adequately considered as an alternative to the Ambulatory Surgical Center.

1. Rejected.

2. Accepted.

87-90 Accepted.

91-109 Rejected. Table 7 was not utilized in the formulation of the Recommended Order primarily because it uses only a portion of the population of Palm Beach County, the North Palm Beach subdistrict, instead of the entire county or health planning district population as

health care field, any added health care provider will foster competition. However, the law permits a CON to issue only when a need for the service is demonstrated. It is based on the assumption that excess services will not lower prices, but will instead result in under- utilized, over-duplicated facilities in the service district.

INTERVENORS' PROPOSED FINDINGS OF FACT

Paragraphs

COPIES FURNISHED:

Byron Mathews, Esquire Paul H. Amundsen, Esquire MCDERIOTT, WILL & EMORY

101 North Monroe Street Suite 1090

Tallahassee, Florida 32301

Douglas H. Mannheimer, Esquire CULPEPPER, PELHHAM, TURNER

& MANNHEIMER, P.A.

300 East Park Avenue Tallahassee, Florida 32301

R. Bruce McKibben, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Charles Stampelos, Esquire MCFARLAIN, BOBO, STERNSTEIN,

WILEY & CASSEDY

666 First Florida Bank Bldg. Tallahassee, Florida 32301

Terry Cole, Esquire OERTEL & HOFFMAN, P.A.

Post Office Box 6507 Tallahassee, Florida 32314-6507

F. Philip Blank, Esquire Reynold D. Meyer, Esquire

241 East Virginia Street Tallahassee, Florida 32301

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 84-003722

Orders for Case No: 84-003722