STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWNWOOD REGIONAL MEDICAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1539

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent )

and )

) ST. MARY'S HOSPITAL, INC., and ) PALM BEACH GARDENS MEDICAL )

CENTER, )

)

Intervenors. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing issued to the parties by the undersigned in this case, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in West Palm Beach, Florida, on November 4 - 6, 1986. The issue for consideration was whether Lawnwood Regional Medical Center should be entitled to a Certificate of Need to add a cardiac catheterization laboratory and open heart surgery program at its facility in Ft. Pierce, Florida.

APPEARANCES

Petitioner: Thomas A. Sheehan, III

Moyle, Flanigan, Katz, Fitzgerald and Sheehan, P.A.

9th Floor, Barnett Center 625 North Flagler Drive

West Palm Beach, Florida 33401

Respondent: R. Bruce McKibben, Esquire

1323 Winewood Bloulevard Building One, Room 407 Tallahassee, Florida 32301

St. Mary's: Eleanor A. Joseph, Esquire

Harold F. X. Purnell, Esquire Oertel and Hoffman, P.A.

2700 Blairstone Road, Suite C Tallahassee, Florida 32314

PBGMC: Robert S. Cohen, Esquire

Ralph Haben & Associates

306 North Monroe Street Post Office Box 10095 Tallahassee, Florida 32302

BACKGROUND INFORMATION

On March 24, 1986, Lawnwood Regional Medical Center, (Lawnwood), filed a Petition for Formal Administrative Proceeding to contest the denial of Certificate of Need, (CON) Number 4326 to establish an open heart surgery program and a cardiac catheterization laboratory at its facility in Ft. Pierce, Florida. Thereafter, on April 25, 1986, the file was forwarded to the Director of the Division of Administrative Hearings for the appointment of a Hearing Officer and the case was originally assigned to Hearing Officer R.L. Caleen, Jr.

On March 28, 1986, Martin Memorial Hospital Association, (Martin), filed a Petition for Formal Hearing regarding Respondent, Department of Health and Rehabilitative Services, (DHRS), denial of a CON to establish a similar program at its facility in Stuart, Florida, and this Petition was forwarded to the Division on May 2, 1986 being assigned to Hearing Officer William J. Kendrick.

On May 2, 1986, St. Mary's Hospital, Inc., (St. Mary's), filed a Petition for Leave to Intervene in the Lawnwood case which was granted by Mr. Caleen on May 30. On May 12, 1986, John F. Kennedy Memorial Hospital, (JFK), filed a Petition to Intervene in the Lawnwood case and on May 29, 1986, Respondent, DHRS, moved to consolidate both the Lawnwood and Martin Memorial cases.

Thereafter, on June 10, 1986, Mr. Caleen entered an order consolidating the two cases and granting JFK's Petition to Intervene.

On July 16, 1986, Palm Beach Gardens Medical Center, (PBGMC), filed its Petition to Intervene in the consolidated cases and on July 22, 1986, the undersigned, to whom the cases had been transferred in the interim, granted JFK's Petition.

On October 27, 1986, Martin voluntarily dismissed its Petition for Formal Hearing and on October 30, 1986, JFK withdrew its Petition to Intervene. As a result of these latter developments, the issue in case number 86-1540 became moot and with the withdrawal of JFK as an intervenor, the only remaining intervenors were St. Mary's and PBGMC.

At the hearing, Lawnwood presented the testimony of Nicholas Carbone, Administrator of the Lawnwood facility; Dr. Shaik Kahuddus, a Board certified cardiologist practicing in Ft. Pierce, Florida; William Vachon, Comptroller of the Lawnwood facility; Gene Nelson, a health planner and consultant in the area of health planning; John L. Schliesser, Director of Projects Services for Hospital Corporation of America; and Dr. Ziad Marjieh, a Board eligible cardiologist practicing in Ft. Pierce. Petitioner also introduced Petitioner's Exhibits 1 through 4 and 6. Petitioner's Exhibit 5 for Identification, the deposition of Dr. James Whittle, was subsequently introduced as PBGMC's Exhibit 6.

DHRS presented the testimony of Joyce Farr, a health planner with the Department, and introduced the testimony of Liz Dudek, a health facilities consultant supervisor with the Department by deposition which was admitted as DHRS Exhibit 1.

St. Mary's presented the testimony of Rick D. Knapp, a health care financial consultant and Michael Schwartz, a consultant and expert in the field of health planning, and introduced its Exhibit 2. PBGMC presented the testimony of Jane Lobell, Director of Planning and Development for PBGMC; Raymond N. Tuller III, Chief Financial Officer for the hospital; Joseph Balfour, Administrative Director of Diagnostic Services at PBGMC; and by deposition, the testimony of Dr. Sherrard L. Hayes, and Dr. James Whittle. Including these two depositions, PBGMC introduced its Exhibits 1-4 and 6.

Subsequent to the hearing, all parties with the exception of DHRS filed proposed findings of fact which have been considered and are treated in the Appendix hereto.

FINDINGS OF FACT

1. Lawnwood Regional Medical Center is a 225 bed community hospital in Ft. Pierce, Florida. It currently holds a CON to add an additional 50 beds. Lawnwood is owned and operated by Hospital Corporation of America, (HCA).

   
   

2. On October 14, 1985, Lawnwood submitted a CON application for authorization to provide cardiac catheterization and open heart surgery programs at the facility. The project for both services would involve a total of approximately 10,000 sq. ft. of construction consisting of both new construction and renovation of the present facility, with a project cost of approximately $3.6 million.

   
   

3. Lawnwood developed the project because it found a need therefor as a result of various visits to the administrator by physicians practicing in the area who indicated a growing demand for the services. The physicians in question indicated they were referring more and more patients to facilities out of the immediate area and the services in question were very much needed in this locality.

   
   

4. The main service area for Lawnwood consists of the northern four counties of DHRS District IX, including St. Lucie, Martin, Okeechobee, and Indian River Counties.

   
   

5. The majority of the cardiology practitioners in this service area find it necessary, because of the lack of cardiac catheterization and open heart surgery programs, to transfer patients to facilities either in Palm Beach County, which are from one to two hours away, or to facilities outside the District, primarily in Miami or the University of Florida area, which are even further. While many heart patients are not severely impacted by this, one specific class of patient, the streptokinase patient is. This procedure, involving the use of a chemical injected by catheter to dissolve a clot causing blockage must he done within a relatively short period of time after the onset of the blockage to be effective. However, this can he done outside a cardiac cath lab.

   
   

6. A representative sampling of doctors testifying for Lawnwood indicated that during the year prior to the hearing, one doctor, Kahddus, sent 140 patients outside the district for catheterization procedures and 90 additional patients for open heart surgery. Other physicians referring outside District IX included Dr. Hayes - 4; Dr. Marjieh - 240; and Dr. Whittle - 12. Doctors indicated that the situation was so severe that some physicians practicing in the Palm Beach area, who have cardiac catheter and open heart surgery services

   available to them in the immediate locale are nonetheless referring patients outside the District for these procedures. No physician who does this testified, however.

   
   

7. St. Mary's Hospital is a 358 bed not for profit hospital located in Palm Beach County. It has been issued a CON for a cardiac catheterization lab expected to come on line in April, 1987.

   
   

8. Palm Beach Gardens Medical Center is a 204 bed acute care hospital which currently operates a cardiac catheterization laboratory and an open heart surgery program. It, too, is located in Palm Beach County. A second cardiac catheterization laboratory was scheduled to open at this facility in February, 1987. An additional cardiac catheterization laboratory is operating at Delray Community Hospital and this facility, as well as the currently existing facility at PBGMC are the only two currently operating cardiac catheterization laboratories within DHRS District IX.

   
   

9. There are, however, other cardiac catheterization labs approved for District IX. These include the aforementioned second PBGMC lab, the aforementioned St. Mary's lab, one at JFK Hospital and one at Boca Raton Community Hospital. These latter four facilities are not yet operational.

   
   

10. As to open heart surgery programs, only PBGMC and Delray Community Hospital have open heart surgery programs on line. JFK has been approved for an open heart surgery program.

    
    

11. DHRS has promulgated rules for determining the need for cardiac catheterization and open heart surgery programs. These rules are found in Section 10-5.11(15) and (16), F.A.C. and establish methodologies based on use rates to determine need. The use rate for the applicable time period here, July, 1984 through June, 1985, is to be multiplied by the projected population for the District in the planning horizon, (July, 1987) which figure is then divided by 600 procedures per laboratory to determine the need for catheterization labs or 350 open heart procedures to determine the need for additional open heart surgery programs.

    
    

12. The difficulty in applying this methodology to the current situation is in the calculation of the "use rate" used to measure the utilization of a service per unit of population. For the rule here, it is expressed as the number of procedures per 100,000 population. There is more than one way to calculate a use rate and the DHRS rules do not specify the method of calculation.

    
    

13. An "actual use rate" is determined by applying the actual number of procedures performed within a particular geographical area in a particular time period. Data to determine an actual use rate for catheterization services or open heart surgery is not currently available in District IX, however.

    
    

14. Applying the formula cited above to the existing figures, however, reflects a use rate of 62.3 procedures per 100,000 population in District IX. This is far below the 409.7 procedures per 100,000 population statewide. Lawnwood proposes to apply the statewide use rate rather than the District IX use rate because District IX is currently in a start up phase and does not have sufficient historical information available to provide an accurate use rate for the purpose of the need methodology. The lower the use rate, the lower the need will be shown to be.

15. If the lower District IX rate is applied, in light of the numerous other laboratories coming on line approved already, there would clearly be no need for any additional services in either the catheterization or open heart surgery areas. Some experts offer as a potential substitute for the actual use rate a "facility based use rate" which involves determining the number of procedures performed in all hospitals within a particular geographic area for the applicable time period and dividing that number of procedures by the population of that area. DHRS evaluators employed this "facility based use rate" in their need calculations. At least one expert, however, contends that the "facility based use rate" is appropriate only when certain conditions exist. These include an adequate supply of facilities or providers in the area; historical, long-standing experience rather than start-up programs; and a lack of a high number of referrals outside of the particular area. Since these three conditions are not met here, it would seen that the "facility based use rate" would not be appropriate.

    
    

16. In determining the statewide use rate of 409.07, Mr. Nelson, consultant testifying on behalf of Lawnwood, derived that figure by compiling utilization data for all hospitals in the state providing cardiac catheterization during the time period in question divided by the statewide population as of January 1, 1985. The resulting figure was thereafter converted into a rate per unit of population. A statewide figure such as this includes patients of all ages and it would appear that this is as it should be. Catheterization and open heart surgery services would be open to all segments of the state population and it would seem only right therefore that the entire population be considered when arriving at figures designed to assess the need for additional services.

    
    

17. On the other hand, experts testifying on behalf of the intervenors utilized statistical manipulation which tended to indicated that the need, reflected as greater under Mr. Nelson's methodology, was in fact not accurate and was flawed. He that as it may, it is difficult to conclude which of the different experts testifying is accurate and the chances are great that none is

    100 percent on track. More likely, and it is so found, the appropriate figure would be one more extensive than the population figures and resultant use rate for District IX alone and closer to the statewide rate across a broad spectrum of the population. When the fact that the older population of the District IX counties, the age cohort more likely to utilize catheterization and open heart surgery services, is greater in the District IX counties than perhaps in other counties north of that area, the inescapable conclusion must be reached that a use rate significantly higher than 62.3 would be appropriate. This may not, however, require the use of a statewide rate of 409.7.

    
    

18. Utilizing, arguendo, the statewide use rate of approximately 409 procedures per 100,000 population results in a projected number of procedures of 4,576 in District IX if the projected population figure of slightly more than

    1.1 million holds true. When that 4,576 figure is divided by the minimum number of procedures required by rule prior to the addition of further cardiac catheterization labs, (600),a need for 7.63 labs in District IX is shown. With six labs existing or approved, a net need of two additional labs would appear to exist since DHRS rounds upward when the number is .5 or higher.

    
    

19. A similar analysis applied to open heart surgery, using a statewide use rate of 120.94 per 100,000 population results in a procedure number of 1,353 for the same population. Utilizing the DHRS rule minimum of 350 procedures per lab for open heart surgery procedures, a net yield of 3.87 programs would be needed in District IX in January, 1988. Subtracting the three existing or

    approved programs now in the district, and rounding up, would show a need of one additional open heart surgery program. These are the figures relied upon by Lawnwood.

    
    

20. Accepting them for the moment and going to the issue of financial feasibility, DHRS apparently has agreed that the project costs for this facility are reasonable. Lawnwood has shown itself to be a profitable hospital and HCA is a large, well run corporation not known for the establishment of non- profitable operations. If one accepts that the actual utilization will approximate the projected utilization figures, then the operation would clearly be financially feasible. Both intervenors challenged the Petitioner's pro forma statement of earnings, but their efforts were not particularly successful. If Lawnwood can perform a sufficient number of procedures, then it should be able to break even without difficulty.

    
    

21. Turning to the question of the impact that the opening of Lawnwood's facilities would have on the other providers or prospective providers in the area, both PBGMC and St. Mary's contend that there would be a substantial adverse impact on their existing services as well as on the prospective units already approved.

    
    

22. Lawnwood proposes to service a portion of the indigent population with its two new operations. Were this to be done, indeed an impact would be felt by St. Mary's which is currently a substantial provider of indigent and Medicaid treatment and St. Mary's will be particularly vulnerable since it is in the start-up phase of its cardiac catheterization lab. Currently, PBGMC draws patients in both services from Martin and St. Lucie counties as well as from Palm Beach County. The percentage of patients drawn from these more northern counties is, while not overwhelming, at least significant, being 14 percent from Martin County and 9 percent from St. Lucie. Taken together, this constitutes 23 percent of the activity in these areas. St. Mary's anticipates a loss of 25 percent of its potential catheterization cases and if this happens, it will lose approximately $719,000.00 of its gross revenue in catheterization cases alone.

    
    

23. St. Mary's further predicts that if Lawnwood's facility is opened, it will have difficulty recruiting and maintaining qualified personnel. PBGMC, figuring it's loss to be approximately $492,000.00, estimates that a layoff of nursing and other staff personnel or the redirecting them into other areas of the hospital would be indicated. PBGMC also refers to the cumulative impact not only of Lawnwood's proposal but of the other cardiac programs in the District which have been approved but are not yet on line. If all come into operation, PBGMC estimates it could lose as much as 69 percent of its activity in these areas. These negative predictions are not, however, supported by any firm evidence and are prospective in nature. From a historic perspective, it is doubtful that any lasting significant negative impact would occur to either PBGMC or St. Mary's overall operation by the opening of Lawnwood's facility.

    
    

24. Turning to the question of staffing and its relationship to the issue of quality of care, there is little doubt that Lawnwood could obtain appropriate staffing for both its services if approved. Of the physicians already on staff at the facility, many are now certified and the hospital and the medical community plans training programs for those who are not. As to nurses and other support personnel, Lawnwood is satisfied that it can recruit from other HCA facilities and will recruit from the open market. It has a full time recruiter on staff.

25. Quality of care is of paramount concern to the administration of Lawnwood. It has a current three year accreditation from the Joint Commission on Hospital Accreditation. It also has a quality control committee made up of both physicians and other staff members and the laboratory is approved by appropriate accrediting agencies. These same types of quality control programs would be applied to both new requested services as well.

    
    

26. The rules in question governing the approval of cardiac catheterization laboratories and open heart surgery programs set down certain criteria for the approval of additional services which, as to the question of cardiac catheters states at subparagraph 15(o)1a that there will be no additional adult cardiac catheterization laboratories established in a service area unless the average number of catheterizations performed per year by existing and approved laboratories performing adult procedures in the service area is greater than 600. Much the same qualification relates to open heart surgery programs except that in that latter case, the minimum number would be

    350 open heart procedures annually for adults and 130 for pediatric heart procedures annually.

    
    

27. Ms. Farr, consultant for DHRS, feels that Petitioner's application would be inconsistent with the minimum standards set forth in the rule because she does not believe the Petitioner would do enough procedures in either cardiac catheterization or open heart surgery to meet the 600/350 criteria. She also contends that the proposal is not consistent with the District Health Plan, because the District plan requires the rule which addresses need be followed. Since, in her opinion, the application of the rule shows no need, there would be a violation of the District Health Plan if these proposals were approved.

    
    

28. In the area of cardiac catheterization laboratories, of the six licensed and approved labs in District IX, only that existing currently at PBGMC is presently performing more than 600 procedures per year. Substantial testimony tending to indicate that a well organized cardiac catheterization lab can handle between 1500 and 2000 procedures per year, the 600 figure would tend to be a minimum and was so recognized by the drafters of the rule. No evidence was introduced by any party to show the numbers of open heart surgery procedures currently being performed in the three existing or approved open heart surgery programs in the District. Again, however, it would appear that DHRS criteria of

    350 would be a minimum rather than an optimum or maximum figure.

    
    

29. The parties have stipulated that as to the travel time criteria set forth in the rule for both procedures, 90 percent of the population of District IX is within two hour automobile travel time from availability to either or both procedures.

    
    

30. It would further appear from an evaluation of the evidence, that while difficulty is experienced in arranging treatment for indigent transfer patients outside the District, little if any difficulty is experienced in arranging transfer treatment for those who can pay for the service. Little difficulty is experienced in securing treatment for these individuals in either Miami, Orlando, or elsewhere, and aside from inconvenience, there was no showing that a real, substantial health risk existed as a result of the transfer process.

    
    

31. All things taken together, then, though the numerical evaluation under the rule process, applying a statewide use rate, tends to indicate that there is a "need" for this additional service, the subparagraph "o" criteria of 600/350 procedures requirement prior to authorization of additional service is not met.

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

33. In their prehearing stipulation, the parties have agreed that this proceeding will be governed by Section 381.494 (6)(c), Florida Statutes, and Rules 10-5.11(15)and (16), Florida Administrative Code. The parties have also stipulated that Subsections 38l.491(6)(c),6,7,8 (to the extent of availability of resources), 10,11,and 13 (if the project is needed) are either not in issue or are not applicable to these proceedings.

    
    

34. The above cited rules, as promulgated in the Florida Administrative Code, implement the statutory provisions pertinent to cardiac catheterization laboratories and open heart surgery programs and establish methodologies to determine the need for such facilities. Both PBGMC and St, Mary's, as existing or approved providers of the identical service, have standing to intervene in this proceeding and contest Lawnwood's application for these services. Both argue that approval of these services at Lawnwood would have a substantial negative impact on the services offered by PBGMC now and that the cumulative impact of the addition of these programs and those at St. Mary's. JFK, Boca Raton, and Delray, would be significantly negative.

    
    

35. In light of the demonstrated continued and anticipated growth in the area; the fact that a large percentage of the population in this area is made up of those individuals most requiring the services in issue here; and the fact that hospitals generally seem to find patients to take advantage of available service; these contentions have not been sustained. The likelihood is that any negative impact on PBGMC and St. Mary's will be minimal in extent and non- protracted in duration.

    
    

36. The issue is not so clearly defined, however, in the area dealing with the demonstrated compliance with applicable district and state health plans. Disregarding for the moment the issue of the sufficiency of proposed indigent care to be provided, in light of the fact that parties agreed that 90 percent of the district taken as a whole is within two hours driving time of the service required at the present time, Lawnwood's attempt to demonstrate need on the basis of the northern four counties in the district, less than the entire district, is inappropriate. The local and state plans call for the evaluation of need for this service on the basis of the district as a whole and no unusual need has been shown to justify deviation from that direction.

    
    

37. No doubt Lawnwood has the adequate financial resources and the ability to provide quality care in the event these two services are approved and initiated. It is clear, however, that though Lawnwood has a qualified and certified staff, it will be necessary to recruit and in fact train both physicians and support staff before these services can be implemented at this facility. This would not, however, appear to be a major problem and even though recruiting may be required outside District IX, there is little doubt that appropriate staff can and would be acquired.

    
    

38. In the area of financial feasibility, there is little question that Lawnwood has sufficient resources to finance the construction and equipping of the proposed services. Notwithstanding the intervenors' misgivings as to whether long term financial feasibility exists or not, the evidence is sufficient to establish that even in the long term, the facility will pay its own way. The attacks on Lawnwood's financial pro forma are non-persuasive.

39. The intervenors also contend that, "in all likelihood", the cost of providing cardiac catheterization and open heart surgery in District IX will increase if Lawnwood's proposals are approved and that this increase will be occasioned by the under-utilization of existing and approved facilities elsewhere within the district. The evidence of a diminishment of clientele for St. Mary's, PBGMC, and the other providers was less than persuasive. The anticipated growth of population in the area, along with the other factors discussed above, should more than offset any diminishment in patients of the existing providers and should not result in any costs of providing the service.

    
    

40. Turning, then, to the ultimate issue of need for the services in question, the key to unlocking this puzzle rests in the use rate of existing cardiac catheter labs and open heart surgery programs in the service area. The

    62 plus use rate arrived at by the use of only District IX figures is patently unreasonable. The rule clearly states that in the event the local use rate is not available, then the statewide use rate is to be used. It well may be that the use of a statewide use rate overstates the need for cardiac catheterization and open heart surgery in District IX and an alternative to both would probably be more appropriate. St. Mary's expert attempted to examine other health planning districts which resemble District IX in terms of demographics and types of hospitals and compare those districts to District IX. There is no provision in the rule, however, to do this since the rule clearly mandates the use of the statewide use rate and when that is done, a need as was described above, sufficient to provide for the approval of both services applied for here, was shown. The major drawback to approval, however, is that portion of the rule which calls for minimum procedures to be performed by all existing and approved facilities before any new facilities are approved. The evidence is clear that a minimum of 600 cardiac catheterizations are not being performed at each existing or approved facility in District IX nor are a minimum of 350 open heart surgeries being performed.

    
    

41. In CON proceedings, the applicant, here Lawnwood, carries the burden of proving entitlement to the CON. Florida Department of Transportation vs. JNC Company, Inc., 396 So2d 778, (Fla IDCA 1981). The Hearing Officer has the burden of making a balanced consideration of all the statutory and rule criteria, balancing the uncertain determination of need based on the formula provided by DHRS against the clear and unambiguous terms of the rule which state that additional services will not be approved unless or until certain minimum requirements are met. It becomes evident that Lawnwood has failed to show sufficiently that its proposed services are needed in District IX.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Lawnwood's application for a CON to add a cardiac catheterization laboratory and open heart surgery program at its facility in Ft. Pierce, Florida, be denied.

RECOMMENDED this 16th day of March, 1987 at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1539

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By Petitioner - Lawnwood

1. Rejected as indicating a need for 2 additional cath labs.

2. Rejected as calling for determination of "not normal status for District IX.

3. Accepted in general but rejected insofar as there is an implication that non-indigent patients experience "significant" difficulty securing treatment.

4. Accepted.

19 & 20. Accepted as to the streptokinase patients specifically.

1. Accepted but not considered to be of major significance.

2. Accepted and incorporated.

23 & 24. Accepted and incorporated.

25 & 26. Accepted and incorporated.

27 & 28. Accepted and incorporated.

29. Accepted.

30 & 31. Accepted and incorporated in substance.

32. Rejected as not supported by the best evidence. 33-36. Accepted and incorporated.

1. Rejected as contrary to the evidence.

2. Accepted.

39-42. Accepted.

By Intervenor - St. Mary's

1 - 4. Accepted and incorporated.

5 & 6. Accepted and incorporated.

7 - 9. Accepted and incorporated.

10. Rejected as not supported by the best evidence.

11 & 12. Accepted and incorporated.

1. Accepted and incorporated.

2. Accepted and incorporated.

3. Rejected as not supported by the best evidence.

4. Accepted.

5. Accepted.

6. Accepted.

19-21. Merely a summary of testimony. Not a Finding of Fact. 22-24. Summary of testimony. Not a Finding of Fact.

1. Accepted as ultimate Finding of Fact.

2. Rejected.

3. Rejected as a summary of testimony. Not a Finding of Fact.

4. Irrelevant.

5. Accepted.

6. Accepted.

7. Subordinate.

32-36. Rejected as a recitation of testimony and not Finding of Facts.

37-40. Rejected as contrary to the weight of the evidence.

41 & 42. Accepted.

43-46. Accepted.

1. Rejected.

2. Irrelevant.

3. Accepted.

4. Rejected.

By Intervenor - PBGMC

1 & 2. Accepted and incorporated.

1. Accepted except for last sentence which is irrelevant.

2. Accepted.

3. Accepted and incorporated.

6 & 7. Accepted and incorporated. Accepted.

9. Accepted and Incorporated.

10 & 11. Accepted and incorporated.

12. Accepted.

13-16. Accepted and incorporated.

1. Accepted.

2. Accepted.

3. Rejected ultimately as contrary to the weight of the evidence.

4. Accepted.

5. Rejected.

6. Accepted.

23 & 24. Accepted.

25 & 26. Rejected as contrary to the weight of the evidence.

27. Accepted.

COPIES FURNISHED:

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Thomas A. Sheehan, III, Esquire 9th Floor, Barnett Centre

625 North Flagler Drive

West Palm Beach, Florida 33401

R. Bruce McKibben, Esquire 1323 Winewood Blvd. Building 1, Room 407 Tallahassee, Florida 32301

Eleanor A. Joseph, Esquire Harold F.X. Purnell, Esquire 2700 Blairstone Road, Suite C Tallahassee, Florida 32314

Robert S. Cohen, Esquire

306 North Monroe Street Post Office Box 10095 Tallahassee, Florida 32302

Docket for Case No: 86-001539

Orders for Case No: 86-001539