STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VISITING NURSE ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3558

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a hearing in this cause was held before Ella Jane P. Davis, a Hearing Officer of the Division of Administrative Hearings, in Leesburg, Florida on January 22-23, 1987.

To be determined at the hearing was whether the Department of Health and Rehabilitative Services (HRS) should issue a certificate of need (CON) to Visiting Nurse Association (VNA) to conduct home health care agency services throughout District III (16 counties).

APPEARANCES

For Visiting Nurse Leo P. Rock, Jr., Esquire Association: Linda D. Schconover, Esquire

GARY, HARRIS & ROBINSON

201 East Pine Street, Suite 1200 Orlando, Florida 32801

For Department of John Rodriguez Health and Legal Representative

Rehabilitative Building One, Room 407 Services: 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700 BACKGROUND AND PROCEDURE

At hearing, Petitioner presented the oral testimony of Thomas K. Skemp, Sharon Cordon-Cirvin, Patricia A. Neville, Phillip C. Neal, John Jerrold Kassab, Mary Katherine Welch, Marcille McRae, Anne Henderson Russell, Margaret Ellen Delakot, and Leif Zetterlund. The testimony of Dr. James Noel, Jr., M.D., was accepted upon agreement of the parties by after-filed deposition. Petitioner also had admitted in evidence 20 other exhibits. Respondent presented the oral testimony of Reid Jaffee and joined Petitioner in offering Joint Exhibit A, which was admitted. Transcript of proceedings was filed in this cause and the parties have submitted post-hearing proposal within the extended timeframe agreed upon. Their respective proposed Findings of Fact have been ruled upon pursuant to Section 120.9(2), Florida Statutes, in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. VNA Healthcare Group of Florida, Inc. is a non- profit parent corporation with four health-related subsidiaries. Visiting Nurse Association, Inc. is a Florida not-for-profit corporation which is licensed and Medicare- certified to provide home health care in the District VII, counties of Orange, Seminole and Osceola. VNA Respite Care, Inc. (hereafter "VNA Respite") is a licensed and non-Medicare certified subsidiary of VNA Healthcare Group which presently Provides private duty nursing services across District borders to residents of Orange, Seminole, Osceola, Lake, Marion, Sumter, Volusia, Polk, and Brevard counties. VNA Respite currently has offices in Orlando, Sanford, Longwood, Kissimmee, and Leesburg. Community Health Services, Inc. d/b/a VNA of Brevard, provides licensed Medicare- certified home health services in Brevard County. VNA of Central Florida, Inc. is the Community Care for the Elderly program provided in Orange and Seminole counties.

   
   

2. On or before December 15, 1985, Visiting Nurse Association, Inc. (A) timely filed a CON application to establish a Medicare-certified home health care agency in District III. The application clearly identified Leesburg, Lake County, Florida, which is within District III, as the existing base of operations for the proposed agency. VNA applied for a CON to make its existing local home health agency, VNA Respite, Inc. eligible for Medicare reimbursement. The application, identified as CON number 4356, was denied by the State Agency Action Report (SAAR) of July 16, 1986. VNA's was the sole home health care agency application reviewed in this batching cycle, which contemplated a July, 1987 planning horizon. Since that time, HRS takes the position that it cannot tell what the horizon would be because its rules and policies have been invalidated. (TR 270-271).

   
   

3. HRS is the agency responsible for certification and licensure of home health agencies in Florida. A home health agency in Florida must obtain a CON from HRS before it can become eligible to receive Medicare reimbursement.

   
   

4. Medicare is a federally funded health program for elderly and disabled persons. Medicare reimbursement of home health agencies is on a cost reimbursement basis with a cap for each specific discipline covered. Home health agency costs in excess of the Medicare caps must be absorbed by the home health agency. This affects financial feasibility of individual applicants. Conversely, it also insures that traditional concepts of price competition have no applicability to home health agencies to the extent they provide Medicare reimbursable services and further establishes that there is negligible impact on competition among these labor (as opposed to capital) intensive providers.

   
   

5. On August 15, 1906, VNA timely petitioned for a formal administrative hearing to challenge the denial.

   
   

6. The only issue at the final hearing was whether VNA should be granted a CON. Both parties agreed that the only criteria remaining to be litigated were Florida Statutes subsections 381.494(6)(c) 1,2, 3, 4, 9, and 12 and 381.494 (6)(c) 8 as it relates to the extent to which the proposed services will be accessible to all residents of the service district.

   
   

7. Presently, HRS has no rule or policy designating a numeric methodology to determine the need for new home health agencies in any given district. Review of CON applications for home health agencies is based upon statutory

   criteria of Section 384.494(6)(c), the merits of the proposal, and the district need demonstrated by the applicant.

   
   

8. At final hearing, VNA, through its expert in need analysis for purposes of CON review, Sharon Gordon-Girvin. Presented two numeric methodologies to calculate need in District III. The method represented as the state's policy or "approach" for determining need was based upon an invalidated proposed rule which is no longer utilized by HRS and which, although pronounced reasonable" by both Ms. Gordon-Girvin and Respondent's spokesman, Reid Jaffee, cannot be legitimately used here as a reasonable methodology. (See Conclusions of Law.

   
   

9. The other methodology presented by Gordon-Girvin was the District III Health Council need methodology. Gordon-Girvin and Jaffee each opined that District III's methodology is a very conservative procedure because of its use of a 5 year horizon line to project home health agency need. It is applied on a county by county basis and reveals a need on each of Alachua, Columbia, Hamilton, Lake and Marion counties for 1989. Jaffee concedes these foregoing figures. The plan also reveals a net need in 1987 for an additional agency in Alachua, Lake, Hamilton, and Columbia counties and in 1988 for an additional agency in Alachua, Lake, Hamilton, Columbia, and Marion counties. The District III Health Plan provides for a separate sub-district for each county. However, a county basis for subdistricting District III is not required by statute or rule and no part of the District III Health Plan has been adopted by HRS as a rule. The SAAR addressed the entire district as the service area.

   
   

10. Although District III's need methodology does not establish a need for a home health agency for every county within the District, it provides that there are some circumstances in which the local need methodology may be set aside. District III's Review Guidelines provide that additional home health agencies may be granted certificates of need for counties within District III if certain circumstances are documented. The Review Guidelines propose that if residents of a specific area have not had access to home health services for the past calendar year preceding the proposal for new services or residents of a county have not had access to home health services for the past calendar year preceding the proposal for new services due to a patient's ability to pay or source of payment and the CON applicant documents an ability and willingness to accept patients regardless of payment source or ability to pay, the applicant may be approved as an additional home health agency. Although not a rule, this portion of the District III Health Plan is probative of need. In the absence of numeric need, it recommends additional home health agencies based upon a demonstration of unmet need for Medicaid and indigent patients.

    
    

11. As of the date of hearing, HRS resisted granting the CON to VNA primarily because of unspecified prior batched applicants still in litigation (TR 232-233). Applicants in litigation are neither approved nor established and their existence, even had it been demonstrated, which it has not, is irrelevant.

    
    

12. HRS' post-hearing proposals submit that neither of the proposed need methodologies suggested by VNA is applicable here. HRS urges the determination that VNA has thereby failed to establish numerical need for an additional District-wide home health agency and further submits that there is no compelment substantial evidence of unmet need for Medicaid and indigent patients. However, by a prehearing stipulation ratified at hearing, HRS agreed that,

    
    

    Although DHRS agrees that there is a need in District III for at least 18 other home health agencies, it contends that VNA should

    be denied its application because of certain other deficiencies in its proposals. (TR 14)

    
    

13. VNA's principal office for HRS Service District VII is in Orlando, Orange County, Florida. HRS witness, Reid Jaffee, was the HRS reviewer of VNA's CON application. He candidly admitted that HRS' initial denial was based in part on his Failure to note the existence of VNA's local base of operations for its proposed home health agency. Most of HRS' concerns and reasoning for denial contained within the SAAP were based upon Mr. Jaffe's erroneous cognitive leap that VNA intended to "cover" the entire 16 county geographic area designated as HRS District I II From its corporate headquarters in District VII. Actually, VNA seeks certification of its existing licensed home health agency in District

    III. VNA Respite, VNA's existing licensed but non-certified home health agency in Leesburg, Lake County, a county within HRS District III, was established in January, 1985, and licensed in July 1986. Its office has continuously been located in and has operated out of Leesburg, Lake County, Florida, and it has continuously provided, without Medicare reimbursement, the same types of home health services as VNA now proposes to provide for Medicare reimbursement if the sought-for CON is granted.

    
    

14. If granted a CON, VNA proposes to initially provide medical home health care services to patients in Lake, Citrus, Sumter, Marion, and Alachua counties. Services will initially be coordinated through the existing office of VNA Respite in Leesburg, Lake County, Florida. VNA would later phase in the remaining counties of District III by establishing another base office located in Alachua County. Reid Jaffee stated HRS probably would not have any cause to oppose the CON on the basis of anticipated geographic problems impinging on feasibility or quality of care if the service area were Lake, Sumter, Citrus, and Marion counties serviced from the existing Leesburg, Lake County base. (TR 256-258). In the first year VNA estimates 6,000 visits. In the second year it estimates 12,000 visits. A visit" is defined as the provision of service to meet the needs of a patient at his place of residence. In their Leesburg office, VNA Respite has received an average of 10 calls per week for Medicare reimbursable services which they currently must turn down.

    
    

15. VNA submitted corrected financial information because of some inadvertent errors that had been made in the initial application. This was accepted by HRS and permitted by the Hearing Officer because it did not constitute a substantial amendment. It will cost VNA a maximum of $50,000 in start-up costs to operate in District III, although many of these costs have already been met by VNA Respite's previous and existing presence in Lake County. The initial application mistakenly submitted VNA's actual operating budget for a two year period in the place in the application designated for start-up costs. VNA's charges for a visit in the existing service area would be $55 the first year and $60 per visit the second year. The corrected financials reflect a net income projection of $10,442 in the first year and of $19,078 the second year. The project is financially feasible on both a short and a long term basis. Significant economies of scale will be realized by virtue of VNA's size in District VII which affords and will afford VNA Respite in District III the benefits of centralized accounting, billing, personnel services, nurse education services, and quality assurance programs while the use of VNA Respite in Leesburg as a dispatching base will assume quick, quality responsiveness to District III patients' needs. In the past, VNA has never exceeded Medicare cost caps. The projected costs of the VNA application are less than the cost caps in effect for District III. VNA will be operating cost effectively in District III in part because its cost per visit will be less than the Medicare cap. VNA's

    proposed home health agency will operate with reasonable efficiency if it is phased in as projected by VNA planners and economic experts.

    
    

16. VNA proposes to offer the full six-core range of Medicare reimbursable services. It will provide, among other services, skilled nursing and medical supplies, physical therapy, occupational therapy, speech therapy, home health aid, and medical social services to patients in their homes. These are now offered out of VNA Respite's Leesburg office but are not Medicare reimbursable without a CON. VNA currently offers and proposes to offer high-tech home health services including enterostomal therapy, psychiatric nursing, parenteral-enteral therapy, and oncology and pediatric services. Additionally, homemakers and medical supply services are offered and are proposed to be offered. They are now, and if the application is granted, will continue to be made available 24 hours a day, 7 days a week.

    
    

17. VNA proposes a voluntary advocacy program. The program anticipates added support to service elderly patients by coordination of volunteers who make daily telephone calls to the elderly or visit them at home. A similar program is working successfully in VNA's District VII operation at the present time. No other similar program is offered by other existing District III providers.

    
    

18. By competent, substantial evidence, VNA has demonstrated considerable community and professional health care provider support for approval of its application. VNA Respite has a modest but positive record of community involvement in the areas of citizen education and continuing medical education. It offers health fairs on a regular basis and offers blood pressure clinics and diabetic screening programs weekly. VNA offers special training programs for home health aides which meet the State criteria. Graduates of the program are then employable by any Florida home health agency. The program is taught by VNA's Director of Education and VNA staff members. VNA offers clinical nursing programs ( internships) to students of the nursing schools of the University of Central Florida and University of Florida for nursing, dietary, and medical social worker master level programs. VNA is also a community-based agency, that is, it is governed by a board of directors which is comprised of community members who without pay, serve on the board and set policy.

    
    

19. The District Health Plan, Table Home Health 6 entitled "Estimate of Population in Need of Home Health Services District III 1984 and 1989" reveals that: The licensed and approved home health agencies in District III in 1984 were only able to meet 72 percent of the existing need for home health services in District III. In 1984 only 66 percent of the need for home health services was met by licensed and approved home health agencies in Lake County. In 1984 only 59 percent of the need for home health services was met by licensed and approved home health agencies in Marion County. In 1984 only 58 percent of the need for home health services was met by licensed and approved home health agencies in Alachua County. In 1934 only 51 percent of the need for home health services was met by licensed and approved home health agencies in Sumter County. There was no hint that more recent figures (i.e. figures for the calendar year immediately preceding the proposal) are in existence or available.

    
    

20. There is no minimum amount of indigent care required by Statute or rule which must be provided by a Medicare-certified home health agency.

    
    

21. VNA committed at formal hearing to serve the following mix of patients by payor class from its VNA Respite base in District III if a CON is granted:

    37 percent Medicare; 7.2 percent Insurance; 2.5 percent Medicaid; 2.3 percent Indigent. This revised commitment is more than eight times greater than the

    other District III home health agencies average commitment of .28 percent for indigent and three times their average for Medicaid patients.

    
    

22. There was uncontroverted testimony that occasionally in instances when a patient's funding has been depleted or a patient is temporarily off Medicare for some reason, other District III home health agencies have discontinued all or select services even though the patient was still in need of the services. The VNA Respite office in Leesburg has provided indigent care in many past situations despite its lack of Medicare and Medicaid funding. VNA proposes to expand its service area to include District III in part to meet the need it perceives in District III for a nonprofit charitable home health agency. VNA's application states a commitment to provide totally uncompensated care to indigents. This noble ideal has to be taken with a grain of salt, however. A more realistic commitment is contained in VNA's Mission Statement, which reflects the basic philosophy and direction for VNA. It states that based upon the financial ability of the agency through available charity monies, VNA will provide select services to those patients having medical need regardless of their ability to pay. Absent a greater demonstration of guaranteed public and private beneficiary funding than appears in this record, the former lofty goal cannot be accepted as credible. However, the latter Mission Statement may be taken as a credible and valid commitment which is reasonably capable of fulfillment by VNA Respite for the reasons set out in the next Finding of Fact.

    
    

23. VNA's dedication to providing indigent care and its Mission Statement policy have been implemented beyond the ramifications set forth in the Mission Statement through a policy of VNA's board of directors which transfers proceeds from other VNA subsidiaries to meet the service requirements of the certified home health agency. This policy allows VNA to provide more charity care than that for which it has been reimbursed by charitable contributions. VNA is one of only two nonprofit licensed home health agencies in District III. Due to VNA's non- profit status, it has opportunities to obtain charity monies to provide care to patients who have no payment source. In District VII, VNA typically receives monies from the public United Way and other private foundations. VNA`s dedication to service of indigents is reflected by its service in District VII. In District VII, in 1985, 70 percent of all charity visits were provided by VNA, although there were five other certified agencies.

    
    

24. VNA maintains a professional advisory group which reviews the voluntary board's policy and VNA's provision of services. Such a professional advisory group is mandated under Medicare. It is made up of physicians and social workers but also includes lay members from the counties served. Qualifications for all members, but particularly for lay membership, was not sufficiently explored at hearing to make it possible to determine how "professional" the advisory group is, but it will be expanded to include representatives from District III counties if a CON is granted. VNA has established several internal departments and agency policies to insure a high quality of the home health services it provides. The intent behind VNA's Quality Assurance Department program is to oversee quality review controls and monitor nursing services through utilization and clinical record reviews to assure adherence to professional standards, corporate goals, and statements of policy (including the Mission Statement.) The evidence as to the implementation of each part of this lofty intent in actual practice in the Leesburg office of VNA Respite is hardly overwhelming, however, VNA has adequately demonstrated by competent substantial evidence that each VNA staff member receives a 3-week orientation upon initial employment and that after 3 months each staff member is evaluated by a quality assurance staff member accompanying the newcomer on home visits to review and verify the newcomer's clinical skills. It is also

    established that VNA's Community and Staff Education Department trains and orients staff and develops continuing medical education programs as discussed above. VNA publishes and provides its contract nurses and therapists with a detailed Policy and Procedure Manual, thereby providing further quality assurance, uniformity of care, and further staff training beyond that already described. The "track record" of its existing home health agency offices elsewhere provides some further insight for predicting the quality of care to be offered if the present CON application is granted. In 1985, VNA, Inc. made 144,000 visits or 48 percent of the total 297,000 visits made by home health agencies in Orange, Osceola, and Seminole counties. VNA, Inc. was formed in 1951 and has been Medicare-certified since 1966. Annual state licensing surveys conducted for VNA operations in Osceola, Orange and Seminole Counties have revealed either no deficiencies in operations or minimum deficiencies, none of which have ever addressed the quality of care provided.

    
    

25. VNA demonstrated that accessibility of residents of certain counties within District III to certain types of core home health services is currently limited, particularly as to certain high-tech services and certain non- traditional forms of nursing. VNA has demonstrated that the 19 existing providers within District III have often failed to render certain types of high- tech and specialty nursing services within District III. It has been stipulated that two of the 19 existing providers have home offices located outside District

    III. They are Central Florida Home Health Service based in Volusia County and Gulf Coast Home Health Service based in Pinellas County. Lakeview Terrace Christian Retirement's CON and license limit it to providing home health care only to its residents, rather than to the general population of District III. Unfortunately, the evidence of record on the inaccessibility of services does not always follow the same county lines and this factor together with the variation of types of service which are sometimes inaccessible renders reaching any determination with regard to inaccessibility and unmet need on a District- wide basis difficult. The evidence is, however, clear that VNA has received a number of pediatric referrals because of the inability of other home health agencies to provide this nursing service. These remain a continuing need. Another continuing need is for long term intermittent visits which are difficult to obtain in District III, particularly11 for the elderly. Referrals to VNA Respite in District III have also been made from HRS in Lake and Marion Counties because of VNA's proven ability to provide otherwise inaccessible and unavailable high-tech services. Some of these latter referrals are somewhat remote in time from the date of hearing but there was no contrary HRS evidence that these situations of unmet need have alleviated. Seasonal fluctuations of population and the inadequacies of competing home health agency staffs put an increased strain on the existing District III home health agencies' ability to meet the current population's needs.

    
    

26. VNA provides nurses specially trained and certified in a variety of the high-tech specialties. For example, VNA Respite in Leesburg offers certified enterstomal therapists, as well as certified intravenous (I.V.) therapy nurses with specialized training. From this specialization, it may be inferred that VNA is able to offer a higher level of care, increase the continuity of patient care, and decrease the amount of time necessary for each home visitation with certain patients within counties within a reasonable radius of Leesburg.

    
    

27. VNA's application, as modified, satisfies the applicable planning guidelines established by the most recent District III Plan.

28. There is negligible impact on competition in labor intensive providers such as home health agencies.

    
    

    CONCLUSIONS OF LAW

    
    

29. Division of Administrative Hearings has jurisdiction of the parties and subject matter to this cause.

    
    

30. HRS initially evaluated Petitioner's application by an "approach" which was something less than incipient policy, proposed rule, or published rule. This "approach" substantially tracked a proposed rule which has been invalidated and which has since been abandoned by HRS after invalidtion and prior to final hearing in this cause. As of the date of final hearing, HRS stipulated as its agency position with regard to this CON application that at least 18 home health agencies were needed in District III. The thrust of HRS' post-hearing submittals is that because this number of "18" was derived by use of the old, invalidated "approach" and therefore since that "approach" has been invalidated in rule form, the number 18 cannot be used in these proceedings to establish VNA's CON eligibility based on numerical need. Such a position by an agency which is supposed to lend its expertise to these types of proceedings is insupportable. Such reasoning ignores the fact that numerical need of 18 was stipulated as a fact. Such stipulations are appropriate in administrative proceedings and are binding on the parties who enter into them. Manatee County

    v. Florida Public Employees Relations Commission, 387 So.2d 446, (Fla. 1st DCA 1980), Nest v. Department of Professional Regulation, Board of Medical Examiners, 490 So.2d 987 (Fla. 1st DCA 1986). The fact that the parties also stipulated to other figures based solely upon whether or not the invalidated HRS "approach" were applicable is irrelevant. It therefore is also irrelevant that both parties' respective experts felt the invalidated "approach" was a reasonable methodology when invalidation of the rule the "approach" was based upon is conclusive evidence of its unreasonableness. Moreover, the parties stipulated that no rule exists and HRS did not attempt to develop at formal hearing any current agency policy for a home health agency need methodology, a procedure which is acceptable under certain circumstances, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The parties stipulated that the only relevant criteria as to need exists in the statute. It is therefore irrelevant what the District III numeric need methodology provides, even though HRS is correct in its position that the District III numeric need methodology, as presented in this cause, cannot be reasonably applied on a District-wide basis or for the horizon year locked into this application I have reached this conclusion of law despite the opinion of both parties' experts that the District III Plan represents a reasonable, it conservative, numeric need methodology. It may, on a whole, be reasonable; in this hearing, it as not demonstrated to be applicable to the present circumstances. In the presence of the numerical stipulation of 18 needed home health agencies, HRS' arguments that neither the HRS "approach" methodology nor the District III numeric need methodology was established by competent substantial evidence is moot.

    
    

31. Regardless of the numerical need stipulation, the statutory criteria as addressed at hearing establish a need based solely on inaccessibility and unmet need. All criteria as regard unmet need and inaccessibility are fully discussed in the Findings of Fact above. Although the evidence presented is largely anecdotal and perhaps at the lowest end of any theoretical yardstick of "substantiality,', it is unrefuted. In making this determination that need has been demonstrated on inaccessibility and unmet need measurements, I have been

    influenced by the weight assigned by both parties to the District III Health Plan's goals, guidelines, and implementation as set out above.

    
    

32. All other criteria at issue have also been fully discussed above. HRS never established that any of its initial concerns about geographic distance for dispatched services existed once Mr. Jaffee became aware that VNA Respite had been up and running in Leesburg, Lake County, District III (not Orlando, Orange County, District VII) since 1985. Even so, the location of certified Central Florida Home Health Service based in Volusia County and Gulf Coast Home Health Service based in Pinellas County, both outside District III, suggests that any denial of a CON to VNA on location of home office grounds, without more, would rank as arbitrary and capricious.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a Final Order granting VNA a CON to establish a District-wide home health agency as set forth in the proposal and conditioned upon its fulfilling its 2.3 percent indigent and 2. 5 percent Medicaid percentage commitments and upon phasing in its services in two stages, beginning with its first base at VNA Respite in Leesburg, Lake County.

DONE and ORDERED this 21st day of May, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 21st day of May, 1987.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-3558

The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the respective proposed findings of fact (FOF):

Petitioners proposed FOF:

1-6 Covered in FOF 1.

8-14 Accepted but as stated subordinate to the facts as found. 15-17 Covered in FOF 16.

18 Accepted but subordinate to the facts as found. 19-21 Covered in FOF 17.

1. Rejected as conclusionary and not supported by credible competent substantial evidence.

2. Covered in FOF 18.

3. Covered in FOF 16.

4. Covered in FOF 24.

5. Covered in FOF 14.

27-23 Covered in FOF 24.

29 Covered in FOF 18. 30-35 Covered in FOF 24. 36-37 Covered in FOF 18.

38 Rejected as a conclusion of law of facts as found 25-26. 39-40 Covered in FOF 16, 22 and 25.

41-52 Except as covered in FOF 16, 22, and 25-26, these proposals are subordinate and unnecessary to the facts as found, or to the degree indicated in those FOF, are not supported by direct competent substantial evidence.

53-55 Except as covered in FOF 3, 25-26, these proposals are subordinate to the facts an found and unnecessary.

56-57 Covered in FOF 19.

58 Rejected as stated as not supported by the direct credible evidence as a whole.

59-68 Covered in FOF 22-23.

1. Covered in FOF 21.

2. Covered in FOF 20.

71-74 Subordinate and unnecessary to the facts as found in FOF 21.

75-86 In large part these proposals are irrelevant for the reasons stated in the facts as found; that material which is not irrelevant is CUMULATIVE, subordinate and unnecessary to the facts as found. Additionally these proposals are so unsatisfactorily numbered or otherwise delineated as to be something apart from proposals of findings of ultimate material fact. See FOF 10, 19, and 27.

87-94 Covered in FOF 15.

95-96 Covered in FOF 14.

97-98 Subordinate and unnecessary to the facts as found. 99-101 Covered in FOF 15.

102-105 Rejected in part for the reasons set out in FOF 4 and 28 in part as not supported by the record as a whole and in part as subordinate and unnecessary.

106-110 Except as covered in FOF 7-12, 19, 22, and 25, and the conclusions of law (COL), these proposals are rejected as not supported by the record as a whole.

111. Rejected as not supported by the record as a whole. See FOF 2 and 8.

Respondent's proposed FOF:

1. Covered in FOF 2.

2. Covered in FOF 5.

3. Covered in FOF 6.

4. Covered in FOF 1.

5. Covered in FOF 2-3.

6. Covered in FOF 16.

7. Covered in FOF 17.

8. Covered in FOF 21.

9. Covered in FOF 3.

10. Covered in FOF 2-3.

11. Covered in FOF 4.

12. Covered in FOF 7.

13. Covered in FOF 8-12.

COPIES FURNISHED:

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Leo P. Rock, Jr., Esquire Linda D. Schoonover, Esquire Suite 1200

201 East Pine Street Orlando, Florida 32801

John Rodriguez, Esquire, Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-003558

Orders for Case No: 86-003558