STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMEDEX INTERNATIONAL )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-0713
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
) FORUM GROUP, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-0715
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on January 13, 1988, in Tallahassee, Florida.
APPEARANCES
For Petitioner, Irwin M. Robbins,
Amedex Qualified Representative International 340 South Federal Highway
Corp.: Post Office Box 461 Dania, Florida 33004
For Petitioner, R. Terry Rigsby, Esquire
Forum Group, 325 John Knox Road, Suite C-135 Inc.: Tallahassee, Florida 32303
For Respondent: Richard A. Paterson, Esquire
Department of Health and Rehabilitative Services
Fort Knox Executive Center 2727 Mahan Drive, Suite 309
Tallahassee, Florida 32308
PRELIMINARY STATEMENT
Petitioner, Amedex International Corporation (Amedex) contests the decision of Respondent, Department of Health and Rehabilitative Services (Department), to deny its application for a certificate of need to construct a 240-bed nursing home in Broward County, Florida. Petitioner, Forum Group, Inc. (Forum), contests the decision of the Department to deny its application for a certificate of need to construct a 60-bed nursing home in Broward County, Florida. Being commonly batched applications, these cases were consolidated for comparative review.
At hearing, Amedex presented the testimony of Irwin M. Robbins, and its exhibits 1-3 were received into evidence. Forum presented the testimony of Donald I. Craig, Jr., accepted as an expert in health care planning and nursing home development; David Warner, accepted as an expert in health care planning, need analysis and health care finance; and, Rita Airese McDonald, accepted as an expert in nursing home operation and quality assurance. Forum exhibits 1-16 were received into evidence. Respondent presented the testimony of Elizabeth Dudek, accepted as an expert in health planning and Florida certificate of need review, and its exhibits 1 and 2 were received into evidence.
The transcript of hearing was filed January 26, 1988, and the parties were granted leave until February 22, 1988, within which to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.
FINDINGS OF FACT
The parties' stipulation
The parties have stipulated to the following facts:
Forum and Amedex timely filed their respective letters of intent and applications with the Department and the District Local Health Council for the July 1986 batching cycle. The Department ultimately deemed the applications complete and, following review, published its notice of intent to deny the applications. Forum and Amedex each timely filed a petition requesting a formal hearing on the denial of their application.
With regard to the Forum application, the Department contends that there is no need for the proposed facility, that such lack of need will render Forum's project financially unfeasible, that the project is not the best use of Forum's resources, and that Forum fails to meet the local health plan priority relating to the construction of freestanding facilities with a minimum capacity of 120 beds. All other statutory and rule criteria are satisfied, at least minimally, based on Forum's 60-bed proposal.
With regard to the Amedex application, the Department contends that there is no need for the proposed facility, that such lack of need will render Amedex's project financially unfeasible, and that the project is not the best use of Amedex's resources. The Department further contends that Amedex has not demonstrated that it can provide quality of care, that it has not demonstrated that its project is financially feasible in the short or long term, that it has not provided long range plans and that, even assuming minimal need, the size of Amedex' proposed project will cause difficulty in meeting projected utilization
needs based on Broward County's past utilization rates. All other statutory and rule criteria are satisfied, at least minimally, based on Amedex' 240-bed proposal.
As between the applicants, they agree that a comparative review is appropriate to determine the best applicant. Further, they agree for purposes of this proceeding that the other meets all statutory and rule criteria, at least minimally, except the following: need beyond 60 beds, ability to provide quality of care, and availability of funds for project accomplishment and operation.
The parties have further agreed that there are no special circumstances existent in this case upon which a certificate of need is being sought.
The Amedex Proposal
In July 1986 Amedex filed an application with the Department for a certificate of need to construct a 240-bed skilled and intermediate care nursing home in Broward County, Florida. The total project cost is projected to be
$9,040,228.
At hearing, Amedex failed to offer any competent proof to demonstrate the immediate and long-term financial feasibility of its proposed project, that it could provide quality care, or that it had available the necessary funds for project accomplishment and operation. 1/ While the Department contended that the proposed project was not the best use of Amedex's resources, it offered no proof to demonstrate what other health services would be a more appropriate use of the resources.
The Forum Proposal
In July 1986, Forum also filed an application with the Department for a certificate of need to construct a skilled and intermediate care nursing home in Broward County, Florida. Forum's application sought leave to construct a 60-bed facility.
The estimated cost for construction of Forum's proposed nursing home is
$2,39,800. Forum has the necessary resources for project accomplishment and operation.
While the Department contended that the proposed project was not the best use of Forum's resources, it offered no proof to demonstrate what other health service would be a more appropriate use of such resources.
Forum is a publicly held health services company which owns, develops, and operates retirement living centers and nursing homes on a national basis. Pertinent to this case, Forum proposes to develop a retirement living center in Broward County that would consist of 120 apartments for independent living, a 30-bed adult congregate living facility, and the proposed 60-bed skilled and intermediate care nursing home. Forum has packaged its centers to provide these three levels of service to meet the desires of retired persons they hope to attract to their retirement community.
Each of the three components which comprise Forum's retirement living center are physically connected and share some operational functions, such as a central kitchen and heating plant. Such design provides for an efficient operation, as well as an economical distribution of costs facility wide.
The nursing facility proposed by Forum would offer a wide range of services for its residents including: 24-hour skilled and intermediate nursing care, physical therapy services, and other restorative services. Additionally, Forum proposes to offer, as needed, subacute services such as: intravenous care, continuous bladder irrigation, oxygen therapy, nastrogastric tube feeding, ventilator care, insulin treatment, sterile dressing changes, and sterile care of tracheotomies.
Forum also proposes to offer in the future, if need is identified and if any necessary agreements can be reached, respite care, adult day care, meals on wheels and hospice care.
Forum proposes to seek medicare and medicaid certification, and will dedicate 25 of its beds to medicaid patients.
Forum has a history of providing quality care at its existing facilities, and will provide quality care at the proposed facility.
Forum has demonstrated the immediate and long term financial feasibility of its proposed project. Forum is a national company, with substantial experience in developing and operating nursing homes and retirement living centers. Due to the excellent growth potential in Broward County for retirement living centers, Forum should be able to capture a sufficient share of the nursing home market to render its proposed nursing home financially feasible. However, in view of the lack of numeric need for such facility as discussed infra, Forum's success will be to the detriment of existing and approved facilities.
Numeric need
The Department has established by rule the methodology whereby the need for community nursing home beds in a service district shall be determined. Rule 10-5.011(1)(k)2, Florida Administrative Code.
The first step in calculating need pursuant to the rule methodology is to establish a "planning horizon." Subparagraph 2 of the rule provides:
Need Methodology ... the Department will determine if there is a projected need for new or additional beds 3 years into the future according to the methodology specified under subparagraphs a. through i...
The Department interprets subparagraph 2, and the applicants concur, as establishing a "planning horizon" in certificate of need proceedings calculated from the filing deadline for applications established by Department rule. This interpretation is consistent with the numeric methodology prescribed by subparagraph 2, and with the decision in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986). Applying the Department's interpretation to the facts of this case, establishes a "planning horizon" of July 1989.
Pertinent to this case, subparagraphs 2 a-d provide the methodology for calculating gross bed need for the district/subdistrict (in this case the district and subdistrict are the same--Broward County) in the horizon year.
The first step in the calculation of gross need for the horizon year is to derive "BA," the estimated bed rate for the population age-group 65-74. This rate is defined by subparagraph 2b as follows:
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 65-74 years.
POPD is the current population age 75 years and over.
The parties concur that the district licensed bed figure (LB) is calculated based on the number of licensed community nursing home beds as of June 1, 1986, and that there were 3,226 licensed beds in the district on that date. 2/ The parties do not, however, agree as to the date on which POPC and POPD should be derived.
The formula mandated by the rule methodology for calculating BA requires that the "current population" for the two age groups be utilized. The rule does not, however, prescribe the date on which the "current population" is to be derived.
Forum contends that the appropriate date to establish the "current population" for POPC and POPD is January 1, 1986. The Department contends that the appropriate date is the date of application.
In the opinion of David Warner, which opinion is credited, the base for POPC and POPD should correspond to the period for which the average occupancy rate (OR) is calculated. For the July batching cycle, OR is based upon the occupancy rates of licensed facilities for the months of October through March preceding that cycle. January 1, 1986, as the midpoint of that date, is the appropriate date to derive POPC and POPD.
Supportive of Dr. Warner's opinion are the past practices of the Department. Between December 1984 and December 1986, the Department routinely used a three and one half year spread between the base population period and the horizon date for "current population" in its semiannual nursing home census report and bed need allocation. That three and one half year spread was adopted by the Department for the same reasons expressed by Dr. Warner. In the batching cycle of January 1987, which cycle immediately followed the cycle at issue in this case, the Department utilized a three and one half year spread between the base population period and the horizon date for "current population" when it awarded beds in that cycle. The Department offered no explanation of why, in this case, it proposed to use a three year spread between the base population period and the horizon date for "current population" in calculating POPC and POPD.
Application of the methodology prescribed by subparagraph 2b to the facts of this case produces the following calculation:
BA = 3,226 / (158,878 + (6 x 110,217)
BA = 3,226 / (158,878 + 661,302)
BA = 3,226 / 820,180
BA = .0039332
The second step in the calculation of gross need for the horizon year is to derive "BB," the estimated bed rate for the population age group 75 and over. This methodology is defined by subparagraph 2c, and calculated in this case as follows:
BB = 6 x BA
BB = 6 x .0039332
BB = .0235992
The third step in the calculation of gross need for the horizon year is to derive "A," the district's "age-adjusted number of community nursing home beds" at the horizon year. This methodology is defined by subparagraph 2a as follows:
A = (POPA x BA) + (POPB x BB)
Where:
POPA is the population age 65-74 years in the relevant departmental district projected three years into the future.
POPB is the population age 75 years and older in the relevant departmental district projected three years into the future.
The parties concur that POPA and POPB are, respectively, 165,533 and 128,250 for the horizon year. Accordingly, application of the methodology prescribed by subparagraph 2a produces the following calculation:
A = (165,533 x .0039332) + (128,250 x .0235992)
A = 651.07439 + 3,026.5974
A = 3,677.67
The final step in the calculation of gross need in the horizon year is to derive "SA," the "preliminary subdistrict allocation of community nursing home beds" (gross bed need in this case. 3/ This calculation is defined by subparagraph 2d as follows:
SA = A x (LBD/LB) x (OR/.90)
Where:
LBD is the number of licensed community nursing home beds in the relevant subdistrict.
OR is the average 6 month occupancy rate for all licensed community nursing homes within the subdistrict of the
relevant district. Occupancy rates established prior to the first batching cycle shall be based upon nursing home patient days for the months of July 1 through December 31; occupancy rates established prior to the second batching cycle shall be based upon nursing home patient days for the months of January 1 through June 30.
The batching cycle in which these applications were filed occurred before the Department amended its rule to include the fixed need pool concept. Accordingly, the parties agree that the six month period on which the average occupancy rate is calculated is not as set forth in subparagraph 2d, but, rather is defined by former rule 10-5.11(21)(b)4 as follows:
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 data for the months of October through March preceding that cycle...
In Broward County (District X) LB and LBD are the same since the county has not been divided into subdistricts.
Application of the foregoing methodology to the facts of this case produces a gross need in July 1989 of 3,453 beds, computed as follows: 4/
SA = 3,677.67 x (3226/3226) x (.845/.9) SA = 3,677.67 x 1 x .938888
SA = 3452.92
The net need calculation
The final step in the numeric need methodology is to derive net reed from gross need. According to subparagraph 2i, this need is calculated as follows:
The net bed need 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 sub- district from the bed allocation determined under subparagraphs 2.a. through f.
Notably, former rule 10-5.11(21)(b)9 comports with the new rule in all material respects.
While the rule requires that net need be calculated by subtracting "the total number of licensed and 90 percent of the approved beds" in the subdistrict from the gross need previously calculated, it is silent as to the
date that inventory should be calculated. The Department asserts, through application of "policy," that the number of licensed beds should be calculated as of June 1, 1986 (the date established by former rule 10-5.11(21)(b)7 for calculating LB and LBD), and the number of approved beds as of December 1, 1986 (the date the Department's supervisory consultant signed the state agency action report). Forum would likewise calculate licensed beds as of June 1, 1986, but would also calculate approved beds as of that date.
The Department offered no proof to expose and elucidate its policy choice. As discussed below, the dates used by the Department and Forum for purposes of calculating net need were facially unreasonable. 5/
The inventory of licensed and approved beds under subparagraph 2i, as well as former rule 10-5.11(21)(b)9, are inextricably linked. As approved beds are licensed, the approved bed inventory decreases and the licensed bed inventory increases. The Department's policy choice concerning the dates at which licensed and approved beds are to be counted is neither logical nor rational since it could result in some nursing home beds not being counted as either licensed or approved. For example, if beds were approved and not yet licensed in June 1, 1986, but licensed before the supervisory consultant signed the state agency action report (SAAR), they would not be counted in either inventory.
Since the purpose of subparagraph 2i is to calculate a realistic estimate of the net bed need for the horizon year, it is appropriate to use the most current inventory of licensed and approved beds at the point a decision is rendered on an application. This assures, to the greatest extent possible, that the horizon population will not be over or underserved.
In those circumstances where the SAAR becomes final agency action, the Department's approach of calculating inventory on the date the supervisory consultant signs the SAAR, assuming that inventory includes licensed and approved beds on that date, might be reasonable. However, where, as here, the SAAR constitutes only preliminary agency action, and a de novo review of the application is undertaken, there is no rational basis for subsuming that inventory. The rule methodology considered, the only rational conclusion is that net need be derived on the date of de novo review, and that it be calculated by reducing the gross need calculation by the inventory of licensed and approved beds, from previous batching cycles, existent on that date.
As of the date of administrative hearing, there were 3,226 licensed beds and 695 approved beds in the district/subdistrict. Applying the methodology prescribed by subparagraph 2i to the facts of this case calculates a surplus of 399 community nursing home beds in the district for the June 1989 planning horizon.
Consistency with State and local health plans
The parties have stipulated that both proposals are consistent with the State and local health plans except for Forum's facial failure to comply with the local health plan priority relating to the construction of freestanding facilities with a minimum capacity of 120 beds.
Pertinent to this issue, the local health plan provides:
In addition to controlling capacity in order to discourage the construction of
unneeded beds, the certificate of need program addresses cost containment by encouraging efficiencies in operation as a criteria to certificate of need approval. A number of operational models have historically proven to be positive influences on efficiency. Licensure laws, for instance, require nursing home staffing patterns to be structured in minimum modules of 30 bed configurations. As a result, the construction of nursing homes with beds totalling numbers not divisible by 30, has the capability of encouraging over staffing. Similarly, experience has shown that freestanding nursing homes constructed at less than 120 beds also are less cost efficient compared to larger facilities.
Likewise, since construction and corresponding debt service retirement is greater for freestanding facilities than for new construction on existing facilities, expansion and conversion as an alternative to new construction frequently acts to reduce costs.
The basis for the 120-bed minimum size for a "freestanding" facility in the local health plan is to insure efficiency and economy of scale. The 60- bed project proposed by Forum is not "freestanding" but is an integral part of a retirement center which also includes 120 independent living units and a 30-bed adult congregate living facility. Under the circumstances, the economies and efficiencies contemplated by the local health plan will be achieved, and Forum's proposal is consistent with such plan.
The local health plan also provides, as a recommendation, that:
... applications for certificates of need to construct additional nursing home beds should be approved so as to support the State policy of 27 beds/1000 population over age 65 in Broward County.
Considering the population over age 65 at the applicants' planning horizon, as well as the number of licensed and approved beds in the district, calculates a
14.36 beds/1000 population over age 65 for July 1989. Accordingly, the applicants' proposal is consistent with state and local health plans regarding bed to population ratio.
Comparative Review
As between the competing applicants, the proof demonstrates that Forum is the superior applicant, and that were the award of a certificate of need appropriate in this case that its application would be the one of choice. Under no circumstance does the proof support an award to Amedex, since it failed to demonstrate the immediate and long-term financial feasibility of its project, failed to demonstrate that it would provide quality care, and failed to demonstrate that it had sufficient resources for project accomplishment and operation.
The criteria on balance
In evaluating the applications of Amedex and Forum, none of the criteria established by Section 381.705, Florida Statutes (1987), or Rule 10- 5.011(k), Florida Administrative Code, have been overlooked. In the case of Amedex, the lack of need in the district, as well as its failure to demonstrate compliance with relevant criteria as discussed in paragraph 46, demonstrates that, on balance, its application should be denied. In the case of Forum, its application meets all relevant statutory and rule criteria except need. Need is the key criteria in the instant case. Forum's failure to satisfy that criterion by proof of numeric need or special circumstances is dispositive of its application for licensure, and such failure is not outweighed by any other, or combination of any other, criteria.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
At issue in this proceeding is whether the applications of Amedex and Forum to construct a new nursing home should be approved. Amedex and Forum, as the applicants, have the burden of demonstrating their entitlement to a certificate of need. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985), and Florida Department of Transportation v. J.W.C. Company, 396 So.2d 788 (Fla. 1st DCA 1981).
Pertinent to this proceeding, Section 381.705, Florida Statutes (1987), and Rule 10-5.011(k), Florida Administrative Code, establish the criteria which must be considered in evaluating applications for a certificate of need. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986), and Department of Health and Rehabilitative Services
v. Johnson and Johnson Home Health Care, Inc., 447 So.2d 361 (Fla. 1st DCA 1984). The weight to be accorded each criteria and the consequent balancing of the criteria will vary, however, depending on the facts and circumstances of each case. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985). See also: Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981).
Under the facts of this case, as heretofore set forth, Amedex and Forum have failed to demonstrate their entitlement to a certificate of need.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the applications for certificate of need filed by Amedex
and Forum be DENIED.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February, 1988.
WILLIAM J. KENDRICK
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 February, 1988.
ENDNOTES
1/ The proof offered by Amedex consisted primarily of its application, its omissions response, and the state agency action report. These documents were received into evidence subject to Forum's hearsay objections, and with the proviso that they would not form the basis of a finding of fact unless corroborative of competent proof. Such competent proof was not forthcoming.
2/ The batching cycle in which these applicants filed occurred prior to the Department's adoption of its fixed need proof rule. The parties agree that such rule is not applicable to the instant case. Pertinent to this case, former rule 10-5.11(21)(b)1-9, Florida Administrative Code, subparagraph (b)7 defined the licensed bed figure (LB) as follows:
Review of applications submitted for the July batching cycle should be based upon the number of licenses (sic) beds (LB and LBD) as of June
1 preceding that cycle; applications for the January batching cycle shall be based upon the number of licensed beds (LB and LBD) as of December 1 preceding that cycle.
In all other pertinent respects, except as discussed in paragraph 33, infra, the current and former rule methodologies are substantially the same.
3/ SA is denoted as preliminary since an additional adjustment (poverty adjustment) is possible under subparagraphs 2e and f. Where, as here, that adjustment is not appropriate, SA is the gross bed need for the horizon year.
4/ Forum contended that the occupancy rate should not be calculated based on the number of licensed beds in the district but on the number of "beds in use." To support this contention, it offered proof that the number of licensed beds in the district was not equivalent to the actual number of beds offered for use.
This proof demonstrated that nursing homes do reduce the actual inventory of beds being offered at various times by removing beds to accommodate a patient's request for a private room or to provide administrative space. If only the actual beds available for use in the relevant time period were used to calculate the average occupancy rate (OR), the OR in this case would be 89.26. Forum's contention that "beds in use," as opposed to the actual number of licensed beds, should be utilized to calculate OR is rejected as unpersuasive and contrary to the rule mandated methodology. Rejection of Forum's contention is not, however,
significant to the ultimate resolution of this case. Even if Forum's contention were credited, there would still be a lack of numeric need where gross need is reduced by the existing inventory of licensed and approved beds.
The rule is designed to calculate how many beds should be licensed in the district. Nursing homes may, for many reasons, elect not to offer a given bed at any one time. That bed is not, however, removed from licensed inventory and may be restored to service at any time which, presumably, it would be if demand were present. Ignoring such capacity artificially inflates the occupancy rate, and is contrary to logic and the rule methodology. Notably, Forum agreed that there were no special circumstances in this case that would demonstrate need, and offered no proof pursuant to subsection 2j of the rule to demonstrate that any person in need of nursing home services in the district was unable to access them.
5/ In considering the respective contentions of the parties, I have not overlooked the fact that the provisions of subparagraph (b)7 of the former rule have been applied to this case since these applications predate the fixed pool concept. The parties' apparent assumption, however, that subparagraph (b)7 defined licensed bed inventory for purposes of calculating net need under subparagraph (b)9 of the former rule is misplaced. Subparagraph (b)7 defined LB and LBD ("current" licensed beds) for the gross need calculation under subparagraphs (b)1-4 of the former rule, and did not presume to define licensed beds for purposes of the net need calculation under subparagraph (b)9. The parties' contention that subparagraph (b)7 defines licensed bed inventory under subparagraph (b)9 not only ignores the inextricable link between subparagraph (b)7 and the gross bed need methodology, but also the language and purpose of subparagraph (b)9. The purpose of that subparagraph is to derive a realistic estimate of actual (net) need in the horizon year. Since all licensed and approved beds from previous batching cycles were intended to serve at least a portion of the horizon population, it would be illogical to ignore any of those beds when calculating net need. Accordingly, it would be unreasonable not to count any beds licensed or approved from prior cycles between June 1, 1986, and the date a decision is rendered on the application. Indeed, subparagraph (b)9 speaks to "the total number" of licensed and approved beds, not beds existent on June 1, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-0713, 87-0715
Forum's proposed findings of fact are addressed as follows:
Addressed in paragraph 11.
Addressed in paragraphs 1 and 8.
Addressed in paragraph 11.
Addressed in paragraph 12.
Rejected as not relevant or subordinate.
Addressed in paragraph 9.
Addressed in paragraph 13.
Addressed in paragraph 15.
Addressed in paragraph 14.
10-12. Addressed in paragraphs 6 and 7.
Addressed in paragraphs 18 and 19.
Addressed in paragraphs 19, 22, 29, 30, and 32.
Addressed in paragraph 19.
Addressed in paragraph 20.
Addressed in paragraphs 23 and 31. 18-21. Addressed in paragraphs 23-28.
22-26. Addressed in footnote 4 and paragraphs 35-41. Otherwise rejected as contrary to the proof.
Addressed in paragraphs 28, 29, 31, 34 and 41. Otherwise rejected as contrary to the proof.
Addressed in paragraph 45. Otherwise rejected as contrary to the proof.
29-34. Addressed in paragraphs 35-41. Otherwise rejected as subordinate.
35-36. Addressed in footnote 4. Otherwise rejected as subordinate.
37-38. Addressed in paragraph 45.
39-45. Addressed in paragraphs 42-45. Otherwise rejected as not necessary to the result reached since not in issue.
46-47. Addressed in paragraph 11.
Addressed in paragraph 17.
Addressed in paragraph 9.
Addressed in paragraph 7.
Rejected as not a finding of fact.
Addressed in paragraph 17.
Addressed in paragraph 7.
Rejected as not a finding of fact. 55-59. Addressed in paragraph 16.
Addressed in paragraph 7.
Rejected as not a finding of fact.
The Department's proposed findings of fact are addressed as follows:
Addressed in paragraphs 1, 2, and 8.
Addressed in paragraphs 2 and 3.
Addressed in paragraph 18.
Addressed in paragraphs 21 and 33.
Addressed in paragraphs 18-41.
Addressed in paragraph 23 and footnote 2.
Addressed in paragraphs 23-31. Otherwise rejected as contrary to the proof.
Addressed in paragraphs 25-41.
Addressed in paragraphs 33-34, and footnote 4.
Addressed in footnote 3.
11-12. Addressed in paragraph 5 and footnote 4.
13. Addressed in paragraphs 43-44.
COPIES FURNISHED:
Mr. Irwin W. Robbins Post Office Box 461 Dania, Florida 33004
R. Terry Rigsby, Esquire
325 John Knox Road C-135
Tallahassee, Florida 32303
Richard A. Patterson, Esquire Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller, Acting General Counsel 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
AMEDEX INTERNATIONAL CORPORATION,
Petitioner,
CASE NO.: 87-0713
vs. CON NO.: 4767
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/ FORUM GROUP, INC.,
Petitioner,
CASE NO.: 87-0715
vs. CON NO.: 4769
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 FILED BY HRS
HRS takes exception to paragraphs 37 through 41 of the findings of fact. These findings are based on the Hearing Officer's incorrect interpretation of former Fla. Admin. Code Rule 10-5.011(21)(b)(currently Fla. Admin. Code Rule 10- 5.011(1)(k)2). The department's interpretation is set forth in Broward Healthcare, Ltd. vs. MRS, 9 FALR 1973 (March 31, 1987), affirmed, So2d (Fla. 1st DCA Case No. BT-258, opinion filed January 21, 1988). The "number of licensed nursing home beds in the relevant subdistrict" is clearly defined in a contiguous subsection of the same need methodology. Current data under the rule means data available at the time of the initial review.
The correct net need calculation for this case requires reducing the gross need calculation ("5A") by the inventory of licensed beds in the subdistrict as of June 1, 1986, and the inventory of approved beds in the subdistrict as of December 1, 1986, the date the department's consultant supervisor signed the state agency action report. Exception number one (1) is granted.
HRS takes exception to that portion of paragraph 44 of the finding of fact which finds that Forum's 60 bed nursing home proposal is "not freestanding." The finding is a legal conclusion. The local health plan refers to the economies and efficiencies of a 120 bed nursing home, not to economies and eff- iciencies of non-nursing home components of a retirement community. Although Forum's proposal might lead to economies and efficiencies in its "retirement community," it does not address any economies and efficiencies of the nursing home. Exception number two (2) is granted.
RULING ON EXCEPTIONS FILED BY FORUM
Forum excepts to finding of fact number 17 to the extent it states Forum's project, if approved, would be to the detriment of existing and approved facilities, on the grounds that the finding is contrary to the weight of the evidence. HRS has no authority to reweigh the evidence; therfore, exception number one (1) is denied.
Forum excepts to the occupancy rate of 84.5 percent, as found in finding of fact number 34. The finding is based on competent, substantial evidence; therefore, exception number two (2) is denied.
Forum excepts to finding of fact number 32 to the extent it states the date used by forum to calculate need was facially unreasonable. See ruling on HRS exception number one (1). Exception number three (3) is denied.
Forum excepts to finding of fact number 39, 40, and 41. The findings are supported by competent, substantial evidence; therefore, exception number four (4) is denied.
Forum excepts to finding of fact number 42. The findings are supported by competent, substantial evidence; therefore, exception number five (5) is denied.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the rulings on the exceptions.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order. When the need methodology is correctly interpreted regarding current populations and inventory of licensed and approved beds, there is no numeric need for the nursing home beds proposed by either applicant. Section 10-5.011(1)(k)2, Florida Administrative Code.
Based on a balanced weighing of all applicable rule and statutory criteria it is
ADJUDGED, that applications for certificate of need numbers 4767 and 4769 by Amedex International Corporation and Forum Group, Inc. be DENIED.
DONE and ORDERED this 15th day of March, 1988, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Assistant Secretary for Programs
Copies furnished to:
Irwin M. Robbins Qualified Representative
340 South Federal Highway Post Office Box 461 Dania, Florida 33004
Terry Rigsby, Esquire
325 John Knox Road Suite C135
Tallahassee, Florida 32303
William J. Kendrick Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Richard A. Patterson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services
2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
Nell Mitchem (PDDR) FALR
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 15th day of March, 1988.
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 |
|---|---|
| Feb. 25, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 15, 1988 | Agency Final Order | |
| Feb. 25, 1988 | Recommended Order | Failure to demonstrate need or special circumstances fatal to application for Certificate Of Need |
