STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA HEALTH FACILITIES CORP. ) (OF CITRUS COUNTY), )
)
Petitioner, )
)
vs. ) CASE NO. 86-0049
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 21, 1987, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert D. Newell, Jr., Esquire
200 South Monroe Street, Suite B Tallahassee, Florida 32301
For Respondent: Paul V. Smith, Esquire
Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700 PROCEDURAL STATEMENT
In July of 1985, the Petitioner, Florida Health Facilities Corp. (of Citrus County), submitted an application to the Respondent, the Department of Health and Rehabilitative Services, for a certificate of need to construct a 120-bed nursing home in Citrus County, Florida. The Respondent denied the Petitioner's application. The Petitioner filed a Petition for Formal Hearing challenging the Respondent's proposed denial of its certificate of need application.
Several other applications for certificates of need were reviewed comparatively with the Petitioner's application. Those applications were also denied and some of the applicants filed petitions challenging the denial of their applications. Those petitions were consolidated for final hearing with this case. Prior to the formal hearing all of the petitioners in those cases filed notices of voluntary dismissal or settled their disputes with the Respondent. The Petitioner was the only applicant to participate in the final hearing. The cases involving other applicants were closed prior to, or subsequent to, the final hearing in this case.
At the final hearing the parties filed an Amended Prehearing Stipulation in which the parties stipulated to the issue in this case and certain facts. The parties' stipulation as to the issue and their stipulated facts are hereby accepted.
At the final hearing, the Petitioner presented the testimony of James McElrealth and Marty Clark. Mr. McElreath was accepted as an expert in health planning and certificate of need review for nursing homes.
The Petitioner also offered exhibits 1-7. Those exhibits were marked as "FHFC" exhibits.. FHFC exhibits 1-5 and 7 were accepted into evidence. A ruling was reserved on FHFC exhibit 6. FHFC exhibit 6 is hereby rejected as irrelevant.
The Respondent presented the testimony of Ed Carter. Mr. Carter was accepted as an expert in certificate of need review. The Respondent's exhibits 1-3, which were marked as "DHRS" exhibits, were accepted into evidence.
The parties also offered Joint exhibits 1-4, which were accepted into evidence.
Subsequent to the conclusion of the final hearing, the parties filed a Stipulation to Supplement the Record. The parties requested an order acknowledging the Stipulation and its contents as a late-filed exhibit. The parties' request is hereby granted.
The parties have timely filed proposed recommended orders. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. In the Appendix it has been indicated where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.
ISSUE
As stipulated to by the parties, the issue in this case is:
Whether there is a numerical need for FHFC's proposed facility when the need is calculated in accordance with Rule 10-5.11(21), F.A.C. [sic].
FINDINGS OF FACT
In July of 1985 the Petitioner filed an application for a certificate of need (number 4123), for the construction of a 120-bed nursing home in Citrus County Florida.
The Petitioner's application was initially denied by the Respondent and the Petitioner timely filed a Petition for Formal hearing contesting this proposed agency action.
The Amended Prehearing Stipulation contains the following stipulation:
2. DHRS and FHFC stipulate, as a matter of fact and law, that, providing FHFC demonstrates in accordance with Rule 10- 5.11(21), F.A.C., a numerical need for not less than 60 beds [sic] nursing home beds in Citrus County, then FHFC's application for 60 community nursing home beds in Citrus County meets all the remaining applicable criteria in S.381.494(6)(c) & (d), Fla. Stat., Rule 10-5.11, F.A.C.
The Petitioner is willing to accept a certificate of need for 60 nursing home beds for Citrus County.
The following procedures generally apply in reviewing certificate of need applications filed in a July batching cycle, as the Petitioner's application was:
Thirty days prior to the application due date, a letter of intent must be filed with the Respondent and the local health council;
The application must be filed by July 15;
Approximately one month after the application is received, an error and omissions letter is sent by the Respondent to the applicant;
A reply to the error and omissions letter is due 45 days after the omissions letter is sent;
The application is deemed complete or incomplete;
An opportunity for public comment is given; and
A decision to approve or disapprove the application is made.
In this case, the letter of intent was filed in June, 1985, and the application was filed on July 15, 1985. The error and omissions letter was sent in August, 1985, and completeness was determined in September, 1985. A State Agency Action Report (hereinafter referred to as the "SAAR") was signed on November 7, 1985, by the reviewer of the application and on November 29, 1985, by the unit supervisor.
The parties have stipulated that if there is sufficient numerical bed need for at least 60 nursing home beds, the Petitioner's application should be granted. Numerical bed need is determined pursuant to Rule 10-5.011(1)(k)2, Florida Administrative Code (formerly Rule 10-5.11(21)(b), Florida Administrative Code).
Pursuant to Rule 10-5.011(1)(k)2, Florida Administrative Code (hereinafter referred to as the "Need Methodology"), need for nursing home beds is determined for the relevant planning district and for the relevant planning horizon.
Citrus County is located in the Respondent's planning district 3. For purposes of the Need Methodology, bed need is to be determined on a district- wide basis.
The planning horizon in this case is July, 1988.
The calculation of bed need pursuant to the Need Methodology requires a calculation of gross need and a calculation of net need.
The calculation of gross bed need pursuant to the Need Methodology is based upon certain population figures, occupancy rates and the number of licensed beds in the district.
In this case, the parties agreed that the relevant population figures (see Joint exhibit 1) are as follows: June 1, 1985 65 to 74 years population of 96,130; June 1, 1985 75 and over population of 56,717; July, 1988 projected 65 to 74 years population of 107,914; and July, 1988 projected 75 and over population of 68,413.
The relevant population figures were released on July 1, 1985, and were applied to applications submitted on July 15, 1985.
Occupancy data used in the Need Methodology is for the period October, 1984 through March, 1985. The parties agreed that the occupancy data collected by the local health council was the appropriate data. That data indicated an occupancy rate of .9037.
The relevant number of licensed beds for purposes of calculating gross bed need in district 3 is the number of licensed beds as of June 1, 1985. Rule 10-5.011(1)(k)2g, Florida Administrative Code.
There were 3,789 licensed beds in district 3 as of June 1, 1985. Although the Petitioner presented evidence that the Respondent had published a report of the number of licensed beds in district 3 indicating that there were 3,849 licensed beds on June 1, 1985, the evidence proved that 60 beds were included on that report in error. Those 60 beds were listed as licensed beds of Suwannee Valley Nursing Center on Joint exhibit 2. The evidence proved that those beds were not in fact licensed as of June 1, 1985, and were not even licensed as of November 27, 1985. The Petitioner also argued in its proposed recommended order that the Respondent had failed to take into account 60 additional licensed beds at Lake Highlands Nursing Home. This is not correct. Although it is true that the 60 beds in question were not included on the Semiannual Nursing Home Census Report and Bed Need Application report of June 3, 1985 (Joint exhibit 2), that report also indicates that there were 60 licensed beds at Suwannee Valley Nursing Center. Those beds were not, however, licensed. If the 60 beds at Suwannee are taken out and the 60 additional beds at Lake Highlands are added in, the June 3, 1985 report indicates that there were 3,789 licensed nursing home beds as of June 1, 1985. Additionally, the list of licensed nursing home beds attached to the SAAR includes the 60 additional nursing home beds at Lake Highlands. The SAAR list also includes 60 beds at Suwannee and 15 too many beds at Eustis Manor. If these 75 beds are subtracted from the correct total of 3,864 licensed beds listed on the SAAR attachment, there were 3,789 licensed nursing home beds as of June 1, 1985.
In calculating gross bed need, the Need Methodology also provides for a poverty adjustment. The parties agreed, however, that the poverty adjustment does not apply in this case because there were more than 27 beds per 1,000 population at the time the application was filed.
The Need Methodology also provides that the district-wide gross bed need is to be allocated to subdistricts where appropriate. The parties agreed that a subdistrict allocation of gross bed need is not required or appropriate in this case.
The Need Methodology provides specific times or time periods for the determination of occupancy rates, population estimates and licensed beds for purposes of determining gross bed need.
Once gross bed need is determined pursuant to the Need Methodology, net bed need must be determined. Rule 10-5.011(1)(k)2i, Florida Administrative Code, provides that net need is determined as follows:
The net bed allocation for a subdistrict, which is the number of beds available for Certificate of Need approval, is determined by subtracting the total number of licensed
and 90 percent of the approved beds within the relevant departmental subdistrict from the
bed allocation determined under subparagraphs
1 through 9 [sic] unless the subdistrict's average estimated occupancy rate-for the most
recent six months is less than 80 percent, in which case the net bed allocation is zero.
[Emphasis added].
In calculating net bed need, the parties have disputed the point in time when approved beds are to be inventoried. The Need Methodology does not provide a specific date for determining approved beds (or licensed beds) for purposes of calculating net bed need.
The Respondent has taken the position that the inventory of approved beds is to be determined immediately prior to the signing of the SAAR by the unit supervisor. This non-rule policy is based upon Policy Memorandum No. 26 (FHFC exhibit 3). This Policy Memorandum contains no explanation of the policy or the rationale for counting approved beds in this manner.
Although Mr. Carter, the Respondent's only witness, speculated (he did not know why the Respondent adopted the policy) that the policy was implemented to prevent a proliferation of beds, the weight of the evidence does not support a conclusion that the policy is reasonable.
Based upon the Respondent's policy as to the relevant date for determining the number of approved beds, there were 933 approved beds as of November 29, 1985.
The Petitioner has taken the position that the inventory of approved beds for purposes of determining net bed need should be determined prior to the application filing deadline, at the same time data used to calculate gross bed need are determined.
There were 753 approved nursing home beds for district 3 at the time the Petitioner's application was filed.
The Office of Community Medical Facilities of the Respondent prepares monitoring reports in order to periodically capture the inventory of approved beds.
Based upon the Respondent's position with regard to the calculation of net bed need, there is a net surplus of 109 beds for district 3 in July, 1988: 4,520 gross beds needed minus (3,789 licensed beds plus 840 approved beds (90 percent of 933 total approved beds))(109).
Based upon the Petitioner's position with regard to the calculation of net bed need and using the correct number of licensed beds in the' calculation of gross bed need there is a net need for 53 beds for district 3 in July, 1988: 4,520 gross beds needed minus (3,789 licensed beds plus 678 approved beds (90 percent of 753 total approved beds)) 53.
Although the parties did not dispute the date for determining the number of licensed beds for purposes of determining the net need for nursing home beds, it has been concluded as a matter of law that the number of licensed beds for purposes of determining net bed need is to be determined based upon on the most current information as of the date of the final hearing. It has also been determined that the appropriate date for the determination of approved beds is also the date of the final hearing.
The Petitioner has failed to prove what the number of licensed beds and approved beds was as of the date of the final hearing.
In light of the fact that the evidence fails to prove the number of licensed and approved beds as of the date of the final hearing, the net need for nursing home beds in district 3 in July, 1988, cannot be determined.
The most current information concerning the number of licensed beds was the number of beds relied upon by the Respondent: 3,789 licensed beds.
The most current information concerning the number of approved beds is contained in the Quarterly Status Report of the Office of Community Medical Facilities dated January 7, 1987 (DHRS exhibit 1): 1,029 approved beds for district 3.
Applying the Need Methodology to the facts in this case indicates a gross need for 4,250 nursing home beds in district 3 in July, 1988:
STEP 1:
BA = LB / (POPC + (6 X POPDD)):
3789 / (90,130 + (6 X 56,717))
3789 / 436,432
BA = .008681764
STEP 2:
BB = 6 X BAs
6 X .008681764
BB = .052090554
STEP 3:
A (POPA X BA) + (POPB X BB)
(107,914 X .008681764) + (68,413 X .052090584)
936.88 + 3563.67
A = 4501
STEP 4:
SA = A X (LBD/LB) X (OR/.90) 4501 X l X (.9037/.90)
SA = 4520
Using the most recent information as to the number of licensed and approved beds in calculating net bed need, there is a surplus of 195 nursing home beds for district 3 in July, 1988: 4,520 gross beds needed minus (3,789 licensed beds plus 926 approved beds (90 percent of 1,029))(195).
Based upon the foregoing, there is insufficient need pursuant to the Need Methodology to warrant approval of the Petitioner's application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
The only issue in this case is whether there is sufficient numeric bed need as calculated under Rule 10-5.011(1)(k)2, Florida Administrative Code (formerly Rule 10-5.11(21)(b), Florida Administrative Code), to warrant approval of a certificate of need for 60 or more nursing home beds for district 3 in July, 1988. The parties have stipulated that the Petitioner's proposal otherwise satisfies the applicable criteria of Section 381.494(6)(c), Florida Statutes (1985), and Rule 10-5.011, Florida Administrative Code.
Although there is no dispute as to the manner in which the Need Methodology is applied, the parties are in dispute over the correct number of licensed and approved beds to be taken into account in applying the Need Methodology. In order to resolve this dispute, it is necessary to review the steps which should be taken in applying the Need Methodology.
The first step is to calculate the gross need in the
relevant district (district 3) for the appropriate planning horizon (July, 1988). The first step in calculating gross need is to determine the current bed use rate for those persons 65-74 years of age in district 3: "BA". The manner of calculating BA is provided in Rule 10-5.011(1)(k)2b, Florida Administrative Code:
BA = LB / (POPC + (6 X POPD))
Where:
LB is the number of licensed community nursing home beds in the relevant district.
POPC is the current population age 65-75 years.
POPD is the current population age 75 years and older.
In determining LB, the number of licensed community nursing home beds in the relevant district, Rule 10-5.011(1)(k)2g, Florida Administrative Code, provides:
Review of applications submitted for the July batching cycle shall be based upon the number of licenses [sic] beds (LB and LBD) as of June 1 preceding that cycle;...
The second step in the calculation of gross bed need is to determine the current bed rate for the population age group 75 and over: "BB". This determination is made by multiplying BA X 6. Rule 10-5.011(1)(k)2c, Florida Administrative Code.
The third step in the calculation of gross bed need is to determine the district's "age-adjusted number of community nursing home beds": "A". This figure is the result of an application of the current use rate for the population 65 and older on the estimated 65 and older population for the planning horizon. Rule 10-5.011(1)(k)2a, Florida Administrative Code.
The fourth step in the calculation of gross bed need is to determine the "preliminary subdistrict allocation of community nursing home beds": "SA". SA is calculated pursuant to Rule 10-5.011(1)(k)2d, Florida Administrative Code, as follows:
SA + A X (LBD/LB) X (OR/.90)
Where:
SA is the preliminary subdistrict alloca- tion of community nursing home beds.
LBD is the number of licensed community nursing home beds in the relevant subdistrict.
OR is the average occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district. Review of applications submitted for the July batching cycle shall be based upon occupancy rate data for the months of October through March preceding that cycle;.... For the purpose of this
rule, the occupancy data to be considered
shall be that collected by the Department's Office of Health Planning and Development or a contractor assigned to collect the data.
The number of licensed community nursing home beds -- LBD -- is defined in the same manner as LB pursuant to Rule 10-5.011(1)(k)2g, Florida Administrative Code.
There is a fifth step in calculating gross bed need involving a poverty adjustment. The parties have agreed, however, that this step will not affect the determination of net bed need in this case.
The parties are generally in agreement as to how gross need is to be calculated. Their only dispute concerns the number of licensed nursing home beds which should be taken into account in calculating LB and LBD. Pursuant to Rule 10-5.011(I)(k)2g, Florida Administrative Code, it is clear that the number of licensed nursing home beds to be taken into account is the number of licensed beds as of June 1, 1985. The parties do not dispute this conclusion. The Petitioner, however, has argued there were 3,849 licensed nursing home beds as of June 1, 1985. The Respondent, on the other hand, has argued that there were 3,789 licensed nursing home beds as of that date. The figure used by the Petitioner was taken from a "Semi-Annual Nursing Home Census Report and Bed Need Allocations" report issued by the Respondent (Joint exhibit 2). Mr. Carter, the Respondent's witness, testified that 60 beds listed on this report for Suwannee Valley Nursing Center were approved beds and not licensed. Those beds were still not licensed as of November 27, 1985. Therefore, those beds should not be counted as licensed beds. Blind adherence to a report of the Respondent by the Petitioner where the evidence proves that the report contains errors is not appropriate. The correct number of licensed beds for purposes of calculating gross bed need in this case is 3,789 beds.
Based upon the foregoing, the determination of the gross need for nursing home beds for district 3 in July, 1988, shows the following:
STEP 1:
BA = LB / (POPC + (6 X POPD)):
3789 / (96,130 + (6 X 56,717))=
3789 / 436,432
BA = .008681764
STEP 2:
BB = 6 X BA
6 X .008681764
BB = .052090584
STEP 3:
A = (POPA X BA) + (POPB X BB)
(107,914 X .008681764) + (68,413 X .052090584)
936.88 + 3563.67
A = 4501
STEP 4:
SA = A X (LBD/LB) X (OR/.90) 4501 X 1 X (.9037/.90)
SA = 4520
Based upon this application of the first step of the Need Methodology (calculating gross bed need) indicates there is a gross need for 4,520 nursing home beds for district 3 in July, 1988.
The final stop in applying the Need Formula is to determine the net need for nursing home beds for district 3 in July, 1988. This determination is made pursuant to Rule 10-5.011(1)(k)2i, Florida Administrative Code:
The net bed allocation for a subdistrict, which is the number of beds available for Certificate of need approval, is determined by subtracting the total number of licensed
and 90 percent of the approved beds within the relevant departmental subdistrict from the
bed allocation determined under subparagraphs
1 through 9 [sic] unless the subdistrict's average estimated occupancy rate for the most
recent six months is less than 80 percent, in which case the net bed allocation is zero.
The Petitioner has taken the position that the number of licensed beds to be subtracted from the gross number of beds needed is the number of licensed beds used in the calculation of gross need (as of June 1, 1985). The Respondent has not disputed this position. Despite the Respondent's apparent agreement with the Petitioner on this question, it is concluded that the number of licensed beds to be taken into account is the most current number of licensed beds.
The Petitioner has also taken the position that the number of approved beds to be subtracted from the gross number of beds needed is the number of approved beds as of June 1, 1985. The Respondent, on the other hand, has taken the position that approved beds as of the date the SAAR is approved by the unit supervisor is the number of approved beds to be taken into account. Neither position is correct.
In order for the policy followed by the Respondent in this case to control as to the date approved and licensed beds are to be inventoried, the Respondent must present evidence to expose and elucidate its policy choice. Florida City's Water Company v. Public Service Commission, 384 So.2d 1280 (Fla. 1980); Home Health Professional Services, Inc. v. Department of Health and Rehabilitative Services, 463 So.2d 345 (Fla. 1st DCA 1985); Baker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983; and McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
In this proceeding the Respondent has failed to present a reasonable evidentiary basis for its policy of considering the number of licensed nursing home beds as of June 1, 1985 or its policy of considering the number of approved nursing home beds as of the date the SAAR is approved by the unit supervisor for purposes of determining net nursing home bed need.
Although the Petitioner presented testimony to support its position as to the appropriate date for determining licensed and approved nursing home beds, that testimony is not persuasive. This question is a question of law and must be based upon a reasonable interpretation of the relevant language of the rule. In deciding this question of law, the testimony of the Petitioner's witness is not entitled to any special consideration.
The number of licensed and approved beds to be considered in calculating net bed need under Rule 10-05.011(1)(k)2i, Florida Administrative Code, are inextricably linked. If approved beds are licensed, the number of approved beds and the number of licensed beds changes. Therefore, if beds which were approved on June 1, 1985, are licensed before the SAAR is signed, those approved beds will not be counted as licensed or approved beds in determining net bed need under the Respondent's interpretation of the Need Methodology.
This result is not logical or rational.
The primary problem with the position of the parties is their assumption that the number of licensed beds is to be determined for purposes of calculating net bed need pursuant to Rule 10-5.011(1)(k)2g, Florida Administrative Code. Interpreting the Need Methodology as a whole, the only logical conclusion that can be drawn is that Rule 10-5.011(1)(k)2g, Florida Administrative Code, only provides for the date for determining the number of licensed beds for purposes of calculating LB add LBD in calculating gross bed need. It does not provide for the date to determine licensed bed inventory for purposes of determining net bed need.
Rule 10-5.011(1)(k)2a-g, Florida Administrative Code, provides the manner in which gross bed need for the planning horizon is calculated. Pursuant to these sections of the Need Methodology, a current bed utilization rate based upon the current occupancy rate of the current population is determined. That current bed utilization rate is based upon the current number of licensed beds. The rate is then applied to the projected population for the planning horizon to determine the gross number of beds that will be needed.
In calculating the current bed utilization rate, the current inventory of nursing home beds (LB and LBD) must be taken into account. Therefore, Rule 10-5.011(1)(k)2g, Florida Administrative Code, defines LB and LBD, the current inventory of beds, as the number of licensed nursing home beds in the relevant district as of June 1, 1985.
The Position of the parties as to the date that licensed or approved beds is to be determined for purposes of Rule 10-5.011(1)(k)2i, Florida Administrative Code, ignores the purpose of that portion of the Need Methodology: to determine a realistic estimate of the actual or net number of beds which will be needed in the planning horizon year. In light of the fact that licensed and approved beds from previous batching cycles will serve a portion of the need for beds for the planning horizon, it makes no sense to ignore those beds in calculating net bed need. Therefore, it would be- unreasonable to ignore any licensed or approved beds between June 1, 1985 and the date a decision is rendered in this case. This conclusion is consistent with the language of Rule 10-5.011(1)(k)2i, Florida Administrative Code, that "the total number" of licensed and 90 percent of approved beds should be subtracted from the gross number of beds needed.
Based upon the foregoing, it is concluded that, in order to calculate the most realistic estimate of the net number of beds needed, it is appropriate to use the most up-to-date information at the time a decision is rendered on an application as to the number of licensed and approved beds. This more realistically insures against a proliferation of beds. Therefore, if a SAAR constitutes final agency action, it would be appropriate for the Respondent to count the number of licensed and approved beds as of the date the SAAR is
approved. Where, however, as here, the SAAR constitutes preliminary agency action, and a de novo review of the application takes place, there is no reason for not taking into account the most current number of licensed and approved nursing home beds in determining net bed need.
The parties did not provide sufficient information as to the number of licensed and approved nursing home beds as of the date of the final hearing in this case. The most recent information indicates that there are at least 3,789 licensed beds and 1,029 approved beds. Subtracting the licensed beds and 90 percent of the approved beds from the gross need of 731 beds indicates that there is a net surplus of nursing home beds for district 3 in July, 1988, of 195 beds. The Petitioner, therefore, has failed to meet its burden of proving sufficient need to warrant approval of its application.
Based upon the stipulation of the parties that the only issue in this case is whether there is sufficient need for additional nursing home beds as determined under the Need Methodology, it is concluded that the Petitioner's application should not be approved.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for certificate of need
number 4123 be DENIED.
DONE and ORDERED this 25th day of March, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
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 25th day of March, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0049
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are refereed to as "RO ."
Petitioner's Proposed Findings of Fact:
Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection
RO 5.
RO 6.
3 RO 13-14.
4 RO 13.
See RO 16 and 31. Although it is proper to count the number of licensed beds as of June 1, 1985, for purposes of determining gross bed need, it has been concluded as a matter of law that it is not proper to count the number of licensed beds as of June 1, 1985 for purposes of determining net bed need pursuant to the Need Methodology.
The first sentence is accepted in RO 17. Although the second and third sentences are technically correct, the weight of the evidence established that there were 3,789 licensed nursing home beds as of June 1, 1985.
Irrelevant.
Although Mr. McElreath did so testify, the weight of the evidence supports a finding of fact that there were 3,789 licensed nursing home beds as of June 1, 1985. See RO 17.
Not supported by the weight of the evidence. The additional 60 beds of Lake Highlands Nursing Home (for a total of 142) were taken into account in the SAAR.
Although the first sentence is correct, there was evidence that indicates there was an error in the report. The last sentence is not supported by the weight of the evidence. See RO 17.
11 RO 15.
12 RO 18.
The first sentence is generally true-- the specific point in time for the calculation of licensed beds is only for purposes of calculating gross bed need. See RO 20 and 31. The last sentence is irrelevant.
The first sentence is accepted in RO 21. The second sentence is rejected to the extent that it suggests that a date is specified for inventoring licensed beds for purposes of determining net bed need. See RO 20 and 31.
The first sentence is accepted in RO 28. The last sentence is irrelevant.
Irrelevant.
17 RO 23.
18 RO 23. The evidence did not prove that there is not "any other published statement of the rationale...." The testimony only proved that none of the
witnesses were aware of any such publication.
19 RO 24.
Irrelevant.
Not supported by the weight of the evidence. Mr. Carter gave a reason for the policy.
22-23 and 25-31 Irrelevant. These proposed findings of
fact are proposed in support of the Petitioner's proposed interpretation of the Need Methodology. The correct interpretation of the Need Methodology is a question of law.
24 Not supported by the weight of the evidence. The witnesses were not aware of any such statement and no evidence was presented to find that such a statement exists, but the evidence did not prove that none exist.
32 Not supported by the weight of the evidence. See RO 36-37.
The Respondent's Proposed Findings of Fact: 1 RO 1-2.
RO 3.
RO 4.
Although the parties stipulated that for purposes of this case, approval of the Petitioner's application would depend upon whether need exists under the Need Methodology, this conclusion of law is not generally correct. The determination depends upon a weighing of all the criteria, absent a stipulation of the parties, of Section
381.494(6)(c) , Florida Statutes (1985).
RO 9.
Not supported by the weight of the evidence. See RO 36-37.
Although this is the Respondent's position, the evidence failed to support a conclusion that the Respondent has adopted a valid policy. See RO 23 and 24.
COPIES FURNISHED:
Robert D. Newell, Jr., Esquire
200 South Monroe Street Suite B
Tallahassee, Florida 32301
Paul V. Smith, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
FLORIDA HEALTH FACILITIES, CORP. (OF CITRUS COUNTY),
Petitioner,
CASE NO. 86-0049
vs CON NO. 4123
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
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 (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
RULING ON EXCEPTIONS HRS
Exception number one (1) is granted. Baptist Hospital, Inc., vs. DHRS, 500 So2d 620(Fla. 1st DCA 1987).
Exception number two (2) is granted. Gulf Court Nursing Center vs. DHRS et al, 483 So2d 700(Fla. 1st DCA 1986)
Exception number three (3) is granted. Gulf Court.
Exception number four (4) is granted in that the findings excepted to state a conclusion of law inconsistent with the conclusions of law in this Final Order.
Exception number five (5) is granted for the reason expressed in the ruling on exceptions number four (4).
FLORIDA HEALTH FACILITIES CORPORATION
Exception number one (1) is denied. The Hearing Officer's findings are supported by competent substantial evidence.
Exception number two (2) is denied. Paragraph 20 is only a general statement on the need methodology.
Exception number three (3) is granted. Chapter 10-5.011(1)(k)g, F.A.C. provides the date for determining licensed beds. This date is also to be used in subsection (k)i.
Exception number four (4) is denied. The Hearing Officer's finding on gross need is supported by competent substantial evidence.
Exception number five (5) is granted. See ruling of FHFC's exception number three (3).
Exception number six (6) is granted.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where conclusions of law are found under the heading of findings of fact and are inconsistent with the conclusions of law expressed in this Final Order.
CONCLUSIONS OF LAW
The Department adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:
The Hearing Officer properly concluded that when an agency utilizes a non rule policy in the exercise of its authority granted by Statute and the non rule policy is challenged in a 120.57 proceeding, the agency must establish by evidence the reasons for its policy. Florida Medical Center vs. DHRS, 463 So2d 380(Fla. 1st DCA 1985). The evidentiary foundation required for non rule policy is not applicable to an agency's interpretation of its rules. To the contrary, an "agency's interpretation of its own rule is entitled to great weight and persuasive force"...Humana vs. DHRS, 492 So2d 388(Fla. 4th DCA 1986). An agency is free to reject a Hearing Officer's conclusions of law. Baptist Hospital vs. DHRS, 500 So2d 620 at 623(Fla. 1st DCA 1986).
The Hearing Officer improperly rejected the HRS interpretation of Chapter 10-5.011(1)(k)2i, F.A.C, to compute net numeric need. The Hearing Officer based his conclusion that the inventory should be counted as of the date of the final
120.57 hearing on the concept of de novo review. In Gulf Court Nursing Center vs. DHRS et al, 483 So2d 700 at 709(Fla. 1st DCA 1986) the court commented "Neither that case (McDonald vs. Department of Banking and Finance, 346 So2d
569) nor any other cited Florida appellate decision subsequent to McDonald has applied the de novo concept to final administrative hearings reviewing the denial of a CON application." The Hearing Officer's conclusion is inconsistent with Gulf Court's requirements that applications address fixed planning horizons and fixed pools of need.
HRS construes Chapter 10-5.011(1)(k)2i to require that net need be determined during 120.57 proceedings by using an inventory of licensed and approved beds taken during the time of initial review. More specifically, the date that the supervisor signs the State Agency Action Report (SAAR) is the cutoff date for making the determination of net Rule need. Approved beds are counted at same time as licensed beds are counted under subsection (k)2g in calculating the gross need, then beds approved between this time and the date the supervisor signs the SAAR are added to obtain total approved beds. Should any approved beds be licensed during the interval between the initial count of licensed and approved and the time of the signing of the SAAR when subsequently approved beds are added, the newly licensed beds continue to be counted as approved. The total count of approved beds is reduced by 10 percent per subsection (k)2; then added to licensed beds to obtain the inventory figure to subtract from gross need to reach net need.
The petitioner's contention that the inventory of licensed and approved beds should be taken at the time specified in subsection (k)2g is rejected. The count of approved beds during initial review is more realistic if the count is taken during the later part of the initial review process.
The only criteria at issue in this case was numeric need and HRS concludes there is insufficient numeric need for petitioner's proposal.
Based upon the foregoing, it is
ADJUDGED, that Florida Health Facilities Corporation's application for CON 4123 be denied.
DONE and ORDERED this 26th day of May 1987, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Assistant Secretary for Programs
COPIES FURNISHED:
Robert D. Newell, Jr., ROBERT D. NEWELL, JR., P.A.
102 South Monroe Street Tallahassee, Florida 32301
Paul V. Smith, Esquire 1323 Winewood Blvd.
Building One, Room 407 Tallahassee, Florida 32399-0700
Nell Mitchem(PDDR)
Larry J. Sartin Hearing Officer
DOAH, The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
FALR
Post Office Box 385 Gainesville, Florida 32602
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 27th day of May, 1987.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
NOTICE OF RIGHT TO JUDICIAL REVIEW
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. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Mar. 25, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 26, 1987 | Agency Final Order | |
| Mar. 25, 1987 | Recommended Order | Petitioner failed to prove numeric need for nursing home beds for Citrus County. Licensed & approved beds at issue. |
