STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GENE E. LYNN, CAREAGE AIRE )
HEALTHCARE CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1033
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for public hearing before P. Michael Ruff duly designated Hearing Officer on June 29, 1987. The appearances were as follows:
APPEARANCES
For Petitioner: Stephen T. Mindlin, Esquire
Robert S. Cohen, Esquire RALPH HABEN & ASSOCIATES
Post Office Box 10095 Tallahassee, Florida 32302
For Respondent: Richard A. Patterson, Esquire
Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32300
This cause arose upon an application for certificate of need filed by Gene
Lynn, Careage Air Healthcare Center, Inc. (Careage Aire or Careage). The application proposed the construction of a 60 bed nursing home in Escambia County, Florida. The application was reviewed in the Department of Health and Rehabilitative Services (HRS) July, 1986 batching cycle. After review, the Department ultimately recommended denial of the application by State Agency Action Report issued January 27, 1987. The 60 proposed beds will consist of 21 beds in a distinct unit dedicated to the care of Alzheimer's disease patients. Additionally, five beds are specified for provision of sub-acute services, that is, more intensive care than is offered in the normal skilled nursing home, in a manner akin to that offered in the extended care units of hospitals. Two beds are dedicated for treatment of "technology dependent children," that is, children who depend on various machines or devices for proper health care or life support itself. Careage Aire proposes to provide adult day care and respite care services at the proposed facility. "Respite care services" are generally nursing home services designed to allow the resident to spend part of his time in the nursing home and a significant part of his time with his family
in the family home. Adult day care is a similar type service designed to allow families to place members requiring nursing care in the nursing home during the day while family members are required to be at their jobs, with the provision that the family members take the nursing home resident home with them each night. Additionally, Careage proposes to offer certain amenities for residents, especially in the configurations of their rooms, which are not found in a normal nursing home.
The cause came on for hearing as noticed. At the outset of the hearing, the prehearing stipulations were submitted into the record, consisting of stipulations as to certain factual and legal issues, which are discussed in more detail in the Findings of Fact below. The Petitioner presented five witnesses by live testimony and by deposition, (one of which was submitted post-hearing) and 20 exhibits. All exhibits were entered into evidence. The Respondent presented one witness and two exhibits. Respondent's exhibit one was admitted into evidence.
The ultimate disputed issue concerns whether there is a need for the nursing home services proposed in Escambia County, Florida, and whether a certificate of need should be granted for the proposed 60 bed nursing home. The essential dispositive issues embodied within that general issue concern whether the population figures used to drive the bed need determination formula should be those extant at the time of the filing of the application or the most current figures available, which, in this case, were those reported in or about January, 1987. An additional issue concerns whether sufficient specialized services have been proposed to justify finding a need for the nursing home and beds, regardless of whether the rule mandated bed need determination methodology demonstrates a "need" for the proposed beds.
Upon conclusion of the proceeding, the parties ordered a transcription thereof and requested an extended briefing schedule. That procedure was authorized and proposed findings of fact and conclusions of law were timely submitted, with waiver of the time constraints of Rule 28-5.402, Florida Administrative Code. Those proposed findings of fact and conclusions of law have been considered in this recommended order and are treated once again in the specific rulings contained in the appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
Respondent, Department of Health and Rehabilitative Services (HRS, Department,) is the state agency empowered to review, grant, or deny certificate of need applications. Careage Aire filed a certificate of need application with the Department proposing a new 60 bed nursing home for Escambia County, Florida. The application was assigned certificate of need #4660 by HRS and was reviewed in the July, 1986 batching cycle. The Department recommended denial of the certificate of need application on January 27, 1987, in a "State Agency Action Report."
The parties to this cause submitted a joint prehearing stipulation which narrowed the issues to be presented at final hearing. The factual issues remaining for determination are thus as follows:
Whether there is a need for the nursing home facility proposed;
The appropriate inventory of licensed or approved beds in the relevant planning
district;
The appropriate occupancy rate for nursing home beds in the relevant planning district;
The relevant population projection figures to be utilized in accessing the need for Careage Aire's proposed facility;
Whether there is a need for the special services to be provided by Careage Aire;
Whether the proposed patient charges for sub-acute care and private VA care are reasonable.
The stipulated legal issues requiring determination include:
Whether there is a need for the nursing home facility proposed;
Whether there is a need for the proposed special services;
Which time period should be used to fix the relevant population, occupancy rate, and bed inventory for review of the application.
Additionally, it was stipulated that a timely petition for formal hearing was filed, and that the letter of intent was timely filed. It was also stipulated that the applicant is financially capable of proceeding to construct and operate the proposed project, that the applicant is capable of providing quality of care sufficient to meet pertinent regulatory requirements, and that the construction costs projected by the applicant, Petitioner, are reasonable.
The Proposed Project
Careage is a group of corporations owned by Gene E. Lynn, who has been involved in the nursing home industry for a long period of years. In the past, Careage has built more than 250 hospitals, nursing homes, and health-related facilities. It has built such facilities in approximately 30 states, centering its activities on the west coast of the United States. Careage does not currently operate any nursing home facilities in Florida, but has a number of applications pending. Careage is proposing to provide what might be termed an "upscale" nursing home in the sense of its providing certain special services and programs not commonly offered at nursing homes in Florida. This package of special services and programs is similar to those Careage operates at nursing homes in other states.
Careage Aire, in proposing to construct a new 60 bed nursing home, has designated 21 beds for a discreet unit for the care of Alzheimer's disease patients. It will be a self- contained unit separate from the rest of the nursing home. Additionally, 5 beds will be provided for sub-acute services which, generally, are services involving more intense medical care or therapy than is the case in the normal skilled nursing home. Sub-acute services are analogous to those provided at extended care centers operated by hospitals for patients who are no longer required by their medical conditions to be actual inpatients in the hospital. Two of the beds proposed are identified as being dedicated to the treatment of technology dependent children, that is, children who are dependent upon machines or other devices for treatment or life support,
such as ventilator patients. Additionally, Careage will provide other special services such as adult day care and respite care services at its proposed facility, those generally being described as part time residence in the nursing home by the patients involved.
The facility proposed will be similar in design to the Careage facility in Coupeville, Washington. This design allows for various amenities and interior design features designed to enhance the quality of care rendered. Careage will thus provide an innovative semiprivate room bed configuration, which places the patients and beds "foot to foot" rather than beside each other. This configuration has been used in other nursing homes and it has been determined that this allows patients to more readily communicate with each other and enables them both to have a window view. The proposed facility will have a television receptacle across from every bed with speakers on the pillows so that residents can watch or listen to television without disturbing their roommates in a semiprivate room.
Additionally, Careage Aire will provide three separate patient areas for residents. These areas will be the lobby, passive activity room and an active activity room. The "active room" will have crafts, paints, or other activities available to engage in, with the "passive" room being devoted to such activity as reading, card playing and other more sedate pursuits. As part of the normal family activity, Careage will open its dining room to the general public on Sundays. It has been found at other facilities that such a practice encourages the quality of care within its facility, by being regularly exposed to the public view. Additionally, the Petitioner will have such amenities as a popcorn machine and aquariums in the walls of the entrance lobby, which although not directly related to quality of nursing care, do represent amenities very popular with residents and contribute significantly to the residents and their families sense of well-being and confidence in the quality of service rendered.
Appropriateness of Specialized Services in Nursing Home Setting
The application proposes to provide several specialized services. Among those services are an Alzheimer's unit, sub-acute care unit and the provision of specialized care to technology dependent children.
Alzheimer's disease is a degenerative neurological condition occurring most often after age 55. It is apparently an irreversible deterioration of brain cells and is characterized by short term memory loss, behaviorial changes and changes in personality accompanied by mood swings, and often manic depressive symptoms. In its final stages, patients usually become incontinent and are often not aware of their surroundings nor recognize family members.
Such patients often become disoriented, restless, and combative and lose their ability to recognize places, people and other sensory stimuli. They also seem to lose their sense of time, and go through stages of wandering.
Careage Aire proposes to provide a distinct 21 bed Alzeheimer's unit at the proposed facility. The provision of care for Alzeheimer's patients in a separate unit from other nursing home patients was shown to be the most appropriate way to care for them. This is because they can be offered specialized services, designed to fit their particular needs with less external stimuli and a more predictable environment. This tends to diminish the effects of many of the Alzheimer's symptoms which become more apparent when Alzheimer's patients are placed with other patients in a regular nursing home unit setting. The combative behavior of Alzheimer's patients can be alleviated by providing
for their separate care in a specialized unit. They can tend to maintain their mental levels at the highest degree in a unit of the type proposed by the applicant. The rooms for instance will be identified not only by a room number, but also by distinct physical identifiers, which are color coded. This will allow the individual patient four different means of recognition of which room is his. Additionally, Careage Aire will provide a specially trained staff within the unit to assist in the proper diagnosis of Alzheimer's patients. In certain cases, Alzeheimer's patients are being misdiagnosed when they are merely experiencing drug interactions or other medical conditions which result in similar symptoms.
The proposed design for the Alzheimer's unit includes a doorway separating it from the rest of the nursing home facility. The unit contains a control station for nursing supervision, activities and dining room, and a quiet room. At the back of the unit is a door opening onto a walkway within an attractively walled area where patients can walk and receive exercise and yet not wander into unsafe areas. In the walled area is a covered area for a picnic table and a resting bench. The area for walking enables the Alzheimer's patients who are subject to wander, to do so in a safe environment. The planning, physical layout and the training of the staff proposed by the applicant for the Alzheimer's unit constitutes appropriate quality care for Alzheimer's residents.
None of the existing nursing homes in the County provide a true distinct Alzheimer's unit. Although existing nursing homes accept such patients and care for them in a nursing home floor setting, the treatment of Alzheimer's patients in a specialized and distinct unit is more effective, economical and appropriate. The types of services proposed to be provided by the applicant in this unit would result in the treatment of such patients in the least restrictive, most humane and economically feasible manner. Existing nursing homes in Escambia County often do not choose to deal with "heavy" care patients, which may result in their being discharged when their best interests would dictate otherwise. The applicant established that physicians treating patients with Alzheimer's disease in the area would refer them to Careage Aire for placement in an Alzheimers unit if it were built.
Sub-Acute Care Services
The applicant has allocated five of the proposed beds for sub-acute care patients. Sub-acute care has not been provided in nursing homes traditionally, since it is a more intensive type of care, normally associated with the extended care facilities operated by hospitals. Careage, however, has experience in other states in providing such services in a nursing home setting. The definition of this type service proposed by the applicant (and adopted in the State of California) includes numerous services such as hyper-alimentation, IV therapy, IV antibiotic therapy, morphine drip therapy, ventilators, IPPB treatments, heparin flush, infusion pumps for the administration of fluid, kangaroo pumps for tube feeders, specialized inhalation therapy treatments, and concentrated rehabilitative therapies. These services are similar to care provided in extended care beds operated by acute care hospitals.
The provision of sub-acute care services is appropriate in a nursing home setting such as this. The existing nursing homes are not accepting ventilator dependent patients, for instance, and the early patient discharge from hospitals, mandated by the federal "DRG" system of reimbursement, has served to increase the need for "heavy care" of the type proposed for patients in non-hospital settings.
Careage Aire also proposes to provide services for "technology- dependent" children, allocating two beds for that purpose. Providing such care for children is a new concept, but is increasing as medical technology becomes more advanced, which results in the survival of a large number of children who are ill or severally injured who would have died in former years. Such children with birth defects, brain damage, injuries from accidents, or neuromuscular disease often require specialized care which could be provided in a nursing home setting. Such care is less restrictive and more appropriate than housing such pediatric patients in an acute hospital setting. Additionally, the intermingling of younger patients with elderly patients can sometimes have a beneficial psychological impact on both patient groups.
The local hospitals in the Pensacola area are experiencing difficulty in placing pediatric patients who require skilled care after hospital discharge. There are two such patients in the children's hospital associated with Sacred Heart Hospital in Pensacola at the time of this hearing and an additional two such patients in the neonatal unit of Sacred Heart Hospital. Placement of these ventilator dependent children has been an ongoing problem for the director of social work at Sacred Heart Hospital. In one instance, the director was required to look for placement for such a child for over seven months. The director of social work at Sacred Heart Hospital would use a nursing home such as this one proposed by Careage Aire which would accept Medicaid "ventilator- dependent" children and would consider the availability of that service in discharge planning for such patients. Existing Escambia County nursing homes are not accepting ventilator patients. Baptist Hospital in Pensacola does offer ECF services, but does not accept Medicaid patients into its ECF beds.
Careage Aire also proposes to provide both adult daycare and respite care services at its nursing home facility. The provision of such services, involving elderly residents staying only a portion of the day or for a limited number of days at the nursing home facility before changing their residency back to their family homes, is certainly an appropriate and patient benefiting nursing home service.
Need for Proposed Beds
The proposed project is located in HRS service District 1. Sub- district 1-A of District 1 is composed of Escambia and Santa Rosa Counties. In determining need for a particular project, health planners utilize the inventory of licensed and approved beds for a district or sub-district, as the case may be. Additionally, need is projected within a given "planning horizon" for a service district or sub-district. For the July, 1986 nursing home batching cycle, in which this application was filed and reviewed, the relevant planning horizon is July, 1989. In Escambia County, there are 1,024 licensed community nursing home beds, with 30 sheltered beds and 140 "approved" community beds. Santa Rosa County has 180 licensed beds and 120 "approved" beds. In Sub- district 1-A there are 1,204 licensed community beds, 30 sheltered beds, and 260 approved community beds for the July, 1989 planning horizon.
In determining the numerical need for nursing home facilities, the Department utilizes the "nursing home bed need rule" appearing at Rule 10.5.011(1)(k), Florida Administrative Code. That rule methodology for numerical need is referenced in the State Agency Action Reports regarding this application. Utilizing the bed inventory as of the application's filing date and utilizing a 90.94 percent occupancy rate for Sub-district 1-A, there results
an 18 bed surplus, over actual need, for Sub- district 1-A as a whole. The same assumptions and methodology, however, result in a 45 bed, specific need for Escambia County itself.
The Department's bed need rule states that "current" population figures are to be used in determining the population projection for purposes of the need calculation. The term "current", referencing population projections, is not defined in the rule itself, however it is generally taken to mean that which is most recent or "prevalent at the moment." 1/ It is reasonable from a health planning standpoint to utilize the most recent available population estimates for the relevant planning horizon, which is July, 1989. The use of the most current population data increases the accuracy with which the 1989 population forecast can be made. The most recently available population estimates are contained in the January, 1987 population report contained in Exhibit 11. That data, being available, should be employed in calculating need for the proposed beds.
The underlying support documents prepared and compiled by the Department for nursing home occupancy and licensed bed inventory, indicate some confusion concerning the number of licensed beds and the occupancy levels at the Azalea Trace nursing home. The occupancy level data for that nursing home, as well as the reported number of licensed beds, show an unexplained fluctuation during relevant time periods involved in this application. The last three months of reported data by Azalea Trace shows that it was running at 96 percent occupancy. For the first quarter of 1987, however Azalea Trace merely indicated greater than 90 percent occupancy based upon 90 licensed beds. The number of licensed beds, however, have been reported as varying between 90 and 60 licensed beds and some reporting periods no data concerning numbers of licensed beds was reported at all. In light of the inconclusive data noted in the underlying source documents and in the absence of data being reported in certain months, it has not been demonstrated that the occupancy data and number of licensed beds contained in data relied upon by the Department (referenced in Exhibits 13 and
14 and transcript pages 89-97) is reliable. It is thus reasonable, from a health planning standpoint, to infer that Azalea Trace enjoyed the same average occupancy rate as other Escambia County nursing homes during the pertinent 6 month period used for determining sub-district occupancy, and such an inference is made at this juncture. No contradictory evidence was adduced.
Accordingly, if it be assumed that Azalea Trace operated at the same occupancy rate as other Escambia County nursing homes for the pertinent 6 month period from October, 1985 to March, 1986, the resulting occupancy rate for the sub- district as a whole would be 92.4 percent. This is at variance with the
94.9 percent occupancy rate relied upon by the Department in arriving at the information in the State Agency Action Report. See Exhibit 11.
If the occupancy rate of 92.4 percent is used for the sub-district, along with the employment of the most recent available population estimates based upon the January, 1987 reported estimates, discussed above; and if all other factors are static, a net need is shown for Escambia County of 81 nursing home beds for the July, 1989 planning horizon, and a net need of 25 beds in Sub- district 1-A as a whole.
Local Health Plan Considerations
The Northwest Florida Health Council, Inc. has prepared a local health plan which addresses the need for long-term care in District I. The local health plan dated March 26, 1986, was in force at the time the application was
submitted for review and is the most recent version of the local health plan. The local plan lists several priorities for the review of CON applications for nursing homes in that district. Careage Aire's application for 60 beds has been shown to be consistent with the pertinent priorities identified by that plan.
Priority number 1 of the local health plan states that counties within sub-districts which indicate a greater need, applying the state rule methodology, will receive priority over proposals for counties within such sub- districts which indicate less need. Application of the state rules methodology to Sub- district 1-A indicates there is a greater need in Escambia County, where the applicant proposes to construct its nursing home, than prevails in Santa Rosa County.
Local health plan priority number 2 provides that the county with the greatest percentage of population aged 65 and over, living in poverty conditions, should receive priority over proposals from other counties with less of a corresponding percentage. The percentage of population 65 and older living in poverty in Escambia County was 22.4 percent. This is a greater percentage of persons in such category than were living in Santa Rosa County.
Priorities 3 through 7 of that health plan are not applicable to this proceeding or have been satisfied by the application and are not at issue. The local health plan also includes a methodology for determining nursing home bed need. The local health plan methodology is based on a comparison of the percentage of local persons living in poverty between District 1 and the entire State of Florida. The District 1 poverty level is 22 percent, compared to a state average of 12.7 percent. The medicaid occupancy rate for Escambia County, in Sub-district 1- A, is 70 percent, compared to 57 percent for the State of Florida as a whole. If as a "reality check," one applies the local health council methodology (albeit different from the HRS rule methodology) to the data used in calculating need there results a bed need for the July, 1989 planning horizon of 120 beds for Sub-district 1-A as a whole.
Need for Specialized Services
Aside from the determination of whether a numeric need for a given certificate of need nursing home project exists, it is pertinent to consider specialized services which the applicant proposes. There is no existing Alzheimer's care unit in any nursing home in Escambia County at the present time. The applicant proposes such a unit for Sub-district 1-A. A reasonable estimate of the number of Alzheimer's patients presently in nursing homes in Sub-district 1-A is 367. None of these are in specialized care units. The estimates in the Department's "Alzheimer's Disease Initiative" published in May of 1986, indicate there may be as many as 3,957 Alzheimer's patients in Sub- district 1-A by July, 1989. See Exhibit 17 in evidence.
There is a need in Sub-district 1-A, for the sub-acute care services proposed by the applicant. Careage Aire will admit Medicaid patients to its facility, including ventilator dependent patients. These services are not currently available in either nursing home or extended care facilities in the sub-district for Medicaid patients, who have a problem with "financial accessibility" to such services.
There is a need for the services proposed to be provided to technology dependent children. There is an existing problem for the hospitals in the Pensacola area in successfully placing "technology dependent children" once they have progressed sufficiently to no longer require acute hospital care. The
number of such children requiring ventilators or other speciality equipment is likely to increase with the improvement of medical technology which allows brain damaged or other severely handicapped children to survive, but be dependent upon speciality equipment. Additionally, Careage Aire proposes other speciality services, involving adult daycare and respite care services, which are currently needed in Sub-district 1-A and which would help alleviate some of the problems attendant to financial inaccessibility of nursing home care to some families.
It would allow families to place elderly family members in nursing home care during the day while the family members work and allow them to be taken home each night. Such care would often be a feasible alternative for families who can not afford full time nursing home care and for patients whose condition does not necessarily require full-time nursing care, but who are unable to care for themselves if left entirely to their own devices for a full day.
Patient Charges
The applicant's patient charges or estimated patient charges are enumerated in Exhibit 1, Table 8. The $70 charge for Veteran's Administration patients is reasonable based on the level of care to be afforded and is lower than Careage's experience with such charges in other states in which it operates. The Medicaid charge of $59.50 and the $105 charge for Medicare patients was shown by the applicant's expert to be reasonable and that testimony was unrefuted. The rather unique sub-acute care service was shown to have an estimated charge of $135, which is less than that prevailing at the Baptist Hospital's existing extended care facility. The expert testimony in support of these charges establishes that they are reasonable.
In summary, existing nursing home facilities in Sub- district 1-A are experiencing an increase in occupancy which is at high levels at the present time. The Department's bed need rule methodology allows flexibility to grant certificate of need applications even where there is no actual showing of a numeric need under that rule. In the instance situation, when the most current population projections for the static July, 1989 planning horizon are employed, in conjunction with the above found average occupancy levels for the sub- district, there is demonstrated an actual numeric need, albeit not for 60 beds or more for the entire sub-district. There was shown to be an 81 bed need for Escambia County itself. It is also true, however, that in view of the needed special services to be provided by the applicant and the fact that the relevant priorities of the local health plan have all been satisfied by the applicant, a need exists for the proposed 60 bed nursing home facility. In fact, although the rule-mandated methodology must be used in determining the question of numeric need, the rule allows for granting an application even when no numeric need exists by consideration of other factors, including the priorities and goals of the local health plan. It is noteworthy, in a corroborative sense, that the local health plan methodology reveals a need for 120 beds in Sub- district 1-A for the July, 1989 planning horizon. Although this methodology is not mandated to be considered by the Department's numeric need calculation rule, since "other circumstances" can be considered in favor of granting an application, even when numeric need is not shown to exist, such a factor, along with the special services offered by the applicant, corroborates the existence of a need for the proposed project, especially since some need for beds is shown by the "rule calculation" itself.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Department is a state agency empowered to review, grant or deny certificate of need applications in the State of Florida. Section 381.494(8)(a), Florida Statutes. The Department must conduct its review and make decisions concerning granting or denying of certificate of need applications pursuant to the statutory criteria emodied in Section 381.494(6)(c 1-13), Florida Statutes, and the pertient rules contained in Chapter 10-5, Florida Administrative Code.
The parties to this case entered into a prehearing stipulation by which the statutory criteria remaining at issue were identified, as well as those which were stipulated to have been compiled with by the applicant. The legal issues, determined by the parties to remain for resolution, were stipulated to all depend on the central issue of whether or not there was a need for the nursing home facility proposed to be constructed and operated in Escambia County.
The statutory and rule criteria upon which a decision herein must be based are thus as follows:
Section 381.494(6)(c) "The Department shall determine the reviewability of applications and shall review applications for certificate of need determinations for health care facilities and services, hospices, and health maintenance organizations in context with
the following criteria:
The need for the health care facilities and services and hospices being proposed in relation to the applicable district plan and State health plan adopted pursuant to Title XV of the Public Health Service Act, except in emergency circumstances which pose a threat to the public health.
The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the service district of the applicant.
* * *
9. The immediate and long term financial feasibility of the proposal.
Numerical Need
In determining need for a proposed nursing home, the Department employs the numerical methodology found in Rule 10- 5.011(1)(k), Florida Administrative Code. This rule contains a built-in flexibility which allows a certificate of need be granted where no numerical need exists, if other justifying factors are established. However, in computing need by the rule
methodology, the factors of number of licensed and approved beds, occupancy levels and population projections must be considered. The rule cited above provides which occupancy figures must be considered. In the pertinent July, 1986 batching cycle, the appropriate occupancy figures to employ are those available for October, 1985 through March, 1986. As a necessary part of this exercise, the number of licensed and approved beds must be established. The Department has a policy of determining the number of "approved beds" as of the date the State Agency Action Report was signed by the Department's supervisor. This "cutoff date" for determining the number of approved beds in the relevant sub-district is not mandated by the rule, but is a reasonable policy tool and interpretation of what constitutes "approved beds" for purposes of performing the rule mandated need calculation. The State Agency Action Report for Careage Aire was signed on January 13, 1987. The number of approved beds in the planning district on that date was 445. The number of licensed beds to be used in performing the calculation under the rule methodology is 1,739. See Exhibit
5 and Exhibit 11, page 13, in evidence and Rule 10-5.011.(1)(k), Florida Administrative Code.
The bed need methodology rule cited above states that "current" population is to be used in performing the need calculation. The term "current" is not defined in the rule but, as found above, it is reasonable from a health planning standpoint to use the most recent available population figures, so long as the appropriate static planning horizon (July, 1989) is adhered to. Such a procedure insures that the most accurate population data is available to "drive" the rule calculation. In this instance, the most recent population estimates for the July 1989 planning horizon are contained in the January 1987 population report promulgated by the Office of the Governor. The Rule requires that the population projections be based upon the official estimates and projections issued by the Executive Office of the Governor(EOG), but the rule is silent concerning the appropriate release date of the estimates. The Department has taken the position in this case that the appropriate EOG population figures to use are those which were released immediately prior to the submission of the CON application. The Petitioner contends that the appropriate source of population data is the most recent publication available prior to the final hearing.
It is true that an agency's interpretation of its own rules is entitled to great weight. However, that interpretation must be founded on logic and reason and supported by a record foundation. Here no such record foundation exists. The Department offered no substantial testimony or evidence which would explicate its reasons for declining to allow the use of the most current population estimates and projections available as of the hearing. If an agency intends to rely on non-rule policy, without resort to formal rule making, it must defend such policy by skillfully explaining and expounding upon it by conventional methods of proof. McDonald v. Department of Banking and Finance,
346 So.2d 569 (Fla. 1st DCA 1977); City of Delray Beach v. Department of Transportation, 456 So.2d 944 (Fla. 1st DCA 1984); Florida Medical Center v. Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). Here the agency failed to explain its rationale for such a policy choice which would require the use of data which is not the most current. Indeed, such estimate is no longer the "official estimate" for purposes of the above cited rule provision, since the most recent January, 1987 population data release, must be construed to be the "official estimate."
This most recent release of population data, to be used when determining the need for nursing home beds, was shown to be the most accurate and reliable evidence available of demographic trends in the sub-district. The purpose of the certificate of need review requirements is to ensure that there
is a real need in the future for health care facilities and to ensure that the health care needs of the community are continually evaluated. See Section 381.493(2), Florida Statutes. The Department's attempted use of data, which is not the most current, could result in an "overbedding" or "underbedding" situation. Such result would not serve the legislative purposes behind the certificate of need review process, which seeks to ensure that public health care needs are met as well as to eliminate the unnecessary duplication of health care services. It is simply not responsible health care planning to fail to take into account the most recent data available and relevant for such health planning purposes. The purpose of a de novo proceeding like this one is to gather the most accurate and reliable evidence available and make findings of fact to determine which action should be taken by the agency. It has clearly been demonstrated that the most recent releases of population projections are the most reliable and accurate ones. The most recently published data at the time of final hearing was that published in January, 1987.
In fact, as mentioned above, the rule cited above requires that official estimates and projections adopted by the Governor's office must be used. As stated by Hearing Officer Tremor in Meridian, Inc., et al. v. HRS; Health Care and Retirement Corporation v. HRS in Case Nos. 86-0060 and 86-0246. (Recommended Order filed November 6, 1987)
. . . Again, common sense would dictate that there would be one set of "official" population data for two reasons. The latter data, based on secondary and refined information is more accurate. An equally compelling reason is to ensure that all units of governments utilize a common data base for planning, funding, and spending purposes.
Indeed, all state agencies are required to utilize the official information generated by the concensus estimating conference when performing their duties under the state planning and budgeting system. Section 216.135, Florida Statutes. Thus, when HRS renders its determinations regarding the need for health care services, it must consider the most recent "official" data available.
The Department urges in its posthearing proposed recommended order that the case of Gulf Court Nursing Center v. Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986) mandates the use of a cutoff date for population data considerations, which it maintains should be the date of the application's filing. The Department urges that that policy would fix need pools and discourage health care providers filing applications in every batching cycle in the hope that new population estimates will eventually support a finding of need in the planning horizon. In fact, however, it would seem that the existence of "fixed need" pools based upon a specified set of population figures, tied to such a cut off-date, would more readily encourage health care providers filing applications in each subsequent batching cycle, in hopes that later cycles would show more available bed need based upon the more recent sets of population data attributable to the later population "cutoff dates," which would become available under the Department's purported policy in this regard. Thus the Department's position appears illogical, because if population data used in the rule calculation is tied to such fixed cut off dates (i.e. as of the
filing of the date of the application), that would appear to encourage applicants to file in each batch to take advantage of later population figure releases.
In addition, if more recent and accurate population estimates and projections indicated a need for services (whether for the planning horizon for which an application is submitted or another planning horizon for which a new application would be required under the Gulf Court decision, supra), applicants should be given the opportunity to file applications, seek to prove up and fulfill that need. The use of outdated population figures tied to the filing date of an application in a given batch, without the possibility of later population release figures being used in that batch (so long as they relate to the same planning horizon), would tend to discourage other applicants from filing applications and seeking to fulfill the need that those more recent population figures would generate. Such a policy is contrary to the purpose of the certificate of need law and the review process attendant thereto.
As stated by Hearing Officer Tremor in the above-cited order, the Gulf Court opinion indeed confirms the applicability of the de novo concept to the Administrative Hearing process for certificate of need applications and acknowledges the right of parties to present evidence of changed conditions occurring after the agency's preliminary "free form review process," so long as such evidence is relevant to the application actually under consideration and not related to what amounts to substantial amendment of the application. Here the Petitioner is not seeking to amend its application, nor is it seeking to take advantage of planning data related to a different planning horizon, which were the problems confronted by the court in Gulf Court. They simply seek to use the most accurate data available pertinent to their base year of July, 1986 and the original planning horizon of July, 1989.
Certificate of need determination should be based upon the most rational application of accurate information. If an initial determination by HRS occurs without a resulting challenge after the preliminary review process, then it is quite likely that the data relied upon, as of the filing date of the application, will be recent and accurate information. However, if an applicant or substantially affected person timely asserts his right to an administrative proceeding, the ultimate determination must be based upon the best evidence available at the time for presenting such evidence, that is at hearing.
Section 120.57(1), Florida Statutes, provides a hearing process by which each party has an opportunity to establish what the relevant facts are concerning disputes with the agency. That process is not designed as a review process dealing in artificial facts, frozen in time as of the filing date of an initial application for licensure. The result of the HRS position would be that the Section 120.57(1) hearing process would become an appeal process whereby the facts are established or "frozen" in time as of the filing date of the application or initial agency free-form review. The hearing process is obviously not an appeal process. See McDonald, supra. It is rather the initial step in the decision-making process in which the facts are determined which culminate in the agency's final order. "It is only rational that an agency head render decisions based upon the best available information, and not based upon facts which are fictional, either because they never existed or because they no longer exist." See Meridian, Inc., supra. The basing of the need determination herein upon population data which existed at the time of the filing of the application, but which, by the filing of the January, 1987 official estimate, has been shown to no longer exist, would be to base the determination upon fiction rather than fact.
Concerning the question of the appropriate occupancy rate to be used in the rule calculation formula, a preponderance of the evidence shows that the occupancy figures for Azalea Trace Nursing Home are suspect in that Azalea Trace reported to the Department data which utilized a variety of numbers of licensed beds over the relevant time period. Additionally, the data also demonstrated unusual shifts in occupancy. When this is considered, in conjunction with Azalea Trace's failure to report data at all for some of the appropriate months, it is reasonable to interpolate an occupancy rate for Azalea Trace equal to that of the average of other Escambia County nursing homes. The reasonableness of this approach was established by uncontroverted testimony and no other evidence was adduced to refute that approach. This method of arriving at an occupancy rate was shown to be reliable because the preponderant evidence shows that Azalea Trace's actual occupancy rate, if anything, would be higher during the relevant time period than the interpolated figure. Utilizing the above found occupancy rate for Azalea Trace, within the 6 months occupancy period relevant to the rule calculation, results in a sub-district average occupancy level of
92.4 percent rather than the 90 percent figure advanced by the Department, taken from its State Action Agency Report. Using this occupancy figure and the most recent population estimates, which are appropriately used, and applying them to the Department's rule methodology yields a resultant net bed need for Escambia County, in July, 1989, of 81 beds, with a Sub-district 1-A bed need for that planning horizon for 25 beds.
Additional Need Determinants
Pursuant to Section 382.494(6)(cl), Florida Statutes, each certificate of need application must be reviewed and considered in relation to the applicable district plan. This section requires consideration of Careage Aire's application to put a nursing home in Escambia County in conjunction with the district plan developed by the Northwest Florida Health Counsel, the so called "local health plan." That plan contains several relevant priorities to be considered in determining whether the proposed nursing home project for Escambia County should be approved. The evidence of record and the above findings of fact shows that the relevant priorities of the local plan have been met by the applicant, in particular, those related to the determination that Escambia County should have a priority. The local health plan states that counties within a sub-district, which indicate a greater need applying the state rule methodology, should receive priority consideration in a nursing home proposal over counties within the sub-district which show less need. Here Escambia County clearly has a greater need than Santa Rosa County, Escambia being the county where the applicant proposes to locate its nursing home.
The first two priorities of the local health plan have been satisfied by the applicant and a need has been shown in the relevant sub-district, with the greater need being shown for Escambia County where the applicant proposes to locate its nursing home. The remaining priorities of the local health plan have been shown to be either not applicable or to have been satisfied by the application and evidence in support of it. The local health plan was adopted pursuant to Title XV of the Public Health Service Act, enacted by the Congress of the United States. Thus, Section 381.494(6)(c)1, Florida Statutes, mandates that certificate of need applications must be reviewed in relation to the local health plan, which was adopted as a matter of federal law, and need shown by the consideration of the criteria of the local health plan is thus a binding consideration in the review of a certificate of need application. Inverness
Convalescent Center v. HRS, 9FALR 3137 at 3140 (Final Order Case Nos. 85-2896 et al, November 26, 1986); see also, University Medical Center v. HRS, 483 So.2d 712 (Fla. 1st DCA 1986).
Because Rule 10-5.011(1)(k), Florida Administrative Code, the numeric methodology for determining nursing home bed need, contains flexibility factors which allow a finding of need, even where no need by the numeric calculation provided in the rule is shown, and in consideration of the criteria, priorities and methodology of the local health plan, which indicate in this case that there is a need for the nursing home beds proposed, especially in Escambia County, it must be concluded that the proposed 60 bed nursing home is needed. In fact, however, for the reasons determined above, there is indeed an actual, numeric bed need under the above rule's methodology itself.
A preponderance of the evidence also demonstrates a need in the district and sub-district for the specialized services proposed by Careage Aire. Although such care is not traditionally provided in nursing homes, the nursing home setting was shown to be a reasonable one in which to provide such services. The availability of sub-acute care to adults and technology dependent children will ease an existing problem in placing such persons needing special services upon the discharge from acute care hospitals in Escambia County. Careage Aire has demonstrated, by a preponderance of the evidence, that its proposed 60 bed nursing home, including a 21 bed distinct Alzheimer's unit, a 5 bed sub-acute care unit and treatment services for technology dependent children, including Medicaid patients, is the most appropriate setting for the provision of the needed care in a cost effective and efficient manner.
In summary, Careage Aire has demonstrated by a preponderance of the evidence that the overall scope of the services that it would provide are both unique and needed in the service district and sub-district. Many of the services are not being provided in any nursing home in the relevant service district. The statutory criteria of Section 381.494(c) 1 & 2 are therefore satisfied by Careage Aire. It has also satisfied Section 381.494(6)(c)9, as to financial feasibility, which was contested by the parties only as it relates to the issue of need. Since the other need criteria addressed above have been satisfied, this criterion, to the extent that it is dependent upon need, has also been satisfied. Thus, based upon the above findings of fact and the preponderant evidence of record, Careage Aire has demonstrated that there is a need for the 60 bed nursing home it proposes to operate in Escambia County, Florida.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED that the application of Gene E. Lynn, Careage Aire Health Care Center for a certificate of need authorizing construction and operation of a 60 bed nursing home in Escambia County, Florida, be approved.
DONE and ENTERED this 31st of December, 1987, in Tallahassee, Florida.
P. MICHAEL RUFF 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 31st day of December, 1987.
ENDNOTE
1/ See Webster's New Collegiate Dictionary, 1981 Edition.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1033
Petitioner's Proposed Findings of Fact: 1-15. Accepted
Rejected as irrelevant.
Accepted in part, but subordinate to the Hearing Office's findings of fact on the relevant subject matter.
Accepted, but not material to disposition of any issue in dispute.
19-32. Accepted.
33-34. Rejected as immaterial, irrelevant, redundant and cumulative.
35-54. Accepted.
Rejected as immaterial, unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter.
57-65. Accepted.
66. Rejected as unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter.
67-68. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
69-73. Accepted.
74. Rejected as redundant, cumulative and subordinate to the Hearing Officer's findings of fact on this subject matter.
75-78. Accepted.
79-81. Rejected as cumulative and subordinate to the Hearing Officer's findings of fact on this subject matter.
Respondent's Proposed Findings of Fact
1-4. Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as contrary to the preponderant evidence of record.
Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as contrary to the preponderant evidence of record.
Rejected as immaterial, as subordinate to the Hearing Officer's findings of fact on this subject matter and as contrary to the preponderant weight of the evidence.
Rejected as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as contrary to the Hearing Officer's findings of fact on this subjects matter.
Rejected as immaterial.
COPIES FURNISHED:
Richard A. Patterson, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Building 1, Room 407
Tallahassee, Florida 32399
Steven T. Mindlin, Esquire HABEN & CULPEPPER, P.A.
O. Box 10095 Tallahassee, Florida 32302
Gregory L. Coler Secretary
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller
Acting General Counsel 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power, HRS Clerk 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
GENE E. LYNN, CAREAGE AIRE HEALTHCARE CENTER,
Petitioner,
CASE NO.: 87-1033
vs. CON NO.: 4660 A
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 excepts to that portion of the findings of fact and conclusions of law located at pages 9 - 10 and page 32 wherein the Hearing Officer found a need for nursing home beds for patients suffering from Alzheimers disease. The Hearing Officer specifically found that existing nursing homes accept and care for Alzheimer's patients. However, without requiring petitioner to comply with Florida Administrative Code Rule 10-5.011(1)(k)2.j., the Hearing Officer then concluded that petitioner proved special circumstances justifying approval of 21 additional nursing home beds in the subdistrict to treat Alzheimer's patients. HRS is obligated to apply its rules; therefore, exception number one (1) is granted as the Hearing Officer erred as a matter of law. Section 120.68(12)(b), Florida Statutes.
HRS excepts to that portion of the findings of fact and conclusions of law located at pages 10 - 11 and page 32 wherein the Hearing Officer found a need for sub acute beds. As with the alleged need for "Alzheimer's beds", the Hearing Officer found that special circumstances justified the approval of 5 additional nursing home beds to provide "sub acute" services. Exception number two (2) is granted for the same reason given in the ruling on exception number one (1).
HRS excepts to that portion of the findings of fact and conclusions of law located at pages 11 and 32 relating to "technology dependent" children. Again, petitioner did not comply with Florida Administrative Code Rule 10- 5.011(1)(k)2.j. Even if HRS could accept this finding, a 2 bed need does not
justify approval of a 60 bed nursing home. The Hearing Officer disregarded the applicable certificate of need statutes and rules in making a finding of "special circumstances need" in this case. Exception number three (3) is granted as the Hearing Officer erred as a matter of law.
HRS excepts to the inference contained in the findings of fact and conclusions of law located at pages 12 and 18 that adult daycare has relevance in the determination of need for community nursing home beds. Such a service does not require a nursing home. Adult day care and respite care services might be relevant where there was need and there were more than one applicant competing for a certificate of need to fill the need. Exception number four (4) is granted.
HRS excepts to the finding of fact located at page 13, wherein the Hearing Officer calculated a numeric need for Escambia County. Such a "finding" is irrelevant and violates Florida Administrative Code Rule 10-5.011(1)(k)3., which states, "The department shall use the subdistrict designation shown in Rules 10-17.013 through 10-17.023 for Districts 1 through 11 respectively in making certificate of need determinations. Florida Administrative Code Rule 10- 17.013(1) specifies, "Subdistrict 1 consists of Escambia and Santa Rosa Counties" (emphasis added). Any separate consideration of either portion of the rule mandated subdistrict in determining numeric need is improper. Exception number five (5) is granted.
HRS excepts to the portion of the finding of fact and conclusions of law located at pages 13 - 14 and 23 - 29 where the Hearing Officer rejects the department's interpretation of its own rule regarding the appropriate population estimates to be utilized at the final hearing. The Hearing Officer's interpretation is contrary to previous Final Orders of the department and decisions of the Florida First District Court of Appeal. Florida Health Facilities Corp. (of Polk County) d/b/a Imperial Village Care Center vs. HRS, 9 FALR 2708, affd.-So2d-, DCA Case No. 87-503, op. dated 1/20/88 (Fla. 1st DCA 1988); Broward Healthcare Ltd. d/b/a Broward Convalescent Center vs. HRS, 9 FALR 1973, affd.-So2d-, DCA Case No. BT-258, op. dated 1/21/88 (Fla. 1st DCA 1988). Exception number six (6) is granted.
HRS excepts to that portion of the findings of fact and conclusions of law located at pages 14 - 15 and 29 - 30 where the Hearing Officer interpolated an occupancy rate for one of the licensed facilities in the subdistrict (Azalea Trace). Actual reported occupancy rates for the facility were received into evidence and should have been used. Exception number seven (7) is granted.
HRS excepts to that finding of fact located at page 15 that the department relied on a 94.9 percent occupancy rate. The department used a 90.94 percent occupancy rate. See T 160 - 161; Petitioner's Exhibit 5, page 5. The Petitioner also excepted to this finding; therefore, exception number eight (8) is granted.
HRS excepts to those findings of fact and conclusions of law located at pages 15 and 30, wherein the Hearing Officer calculated a numeric need for Escambia County, for the reasons stated in exception 5 above. HRS excepts to the Hearing officer varying some methodology factors, holding others "static," and finding a 25 bed numeric need in the subdistrict, for the reasons stated in exception 6 and 7 above. Exception number nine (9) is granted.
HRS excepts to the finding of fact and conclusions of law located at page 16 and pages 30 - 31 wherein the Hearing officer finds a "greater need" in
Escambia County, for the reasons stated in exception 5 above and also because the Hearing officer misconstrued the local health plan provision relating to "priority". The consideration of priorities within a subdistrict is only appropriate when there is need in the subdistrict as a whole. Exception number ten (10) is granted.
HRS excepts to the finding of fact located at page 17 based on the use of a local health council methodology. Where a need methodology is Prescribed by law only the Rule methodology may be used to determine need; therefore, exception number eleven (11) is granted. Health Quest Realty vs. HRS, 477 So2d 576 at 579 (Fla. 1st DCA 1985).
HRS excepts to the finding of fact and conclusions of law located at pages 17 - 18 which speculate as to the number of Alzheimer's patients in the subdistrict. This finding is stricken as irrelevant inasmuch as there was no finding that any of the placements of Alzheimer's patients in existing nursing homes was inappropriate or that there were patients suffering from Alzheimer's disease who could not be placed in existing nursing homes. Exception number twelve (12) is granted
HRS excepts to the finding of fact located at page 18 wherein the Hearing Officer opined that the proposal would allow placement of patients who cannot afford full time nursing home care and characterized this as a need for a specialized service. Such findings would be relevant if there were applicants competing to fill an established need for nursing home beds and if there were also findings that such patients could not be treated by less expensive and restrictive alternatives to nursing home care such as home health agencies in the present case the finding is irrelevant; therefore, exception number thirteen
(13) is granted.
HRS takes exception to the "summary" paragraph of the finding of fact located at pages 19 - 20 as follows:
The finding that existing nursing homes in subdistrict 1A re experiencing increasing occupancy rates. The increase in occupancy in the subdistrict is already taken into account in the nursing home methodology; thus, such a finding is irrelevant to numeric need and special circumstances need. Health Quest Realty vs. HRS, 477 So2d 576 at 578 and 579 (Fla. 1st DCA 1985). This exception is granted.
The "flexibility seen by the Hearing Officer to approve a CON on the basis of special circumstances where there is no numeric need. As pointed out in the ruling on exception number one (1), HRS is obligated to apply its rules and beds may be approved under the special circumstances exception only pursuant to Florida Administrative Code Rule 10-5.011(1)(k)2.j. This exception is granted.
The conclusion that HRS incorrectly interprets Florida Administrative Code Rule 10-5.011(1)(k)2. a-i, regarding population estimates. This exception is granted. See the ruling on exception number six (6).
The finding of a numeric need for Escambia county by itself. This exception is granted. Health Quest Realty vs. HRS, 477 So2d 576 at 579 (Fla. 1st DCA 1985), and see the ruling on exception number five (5).
The conclusion regarding the priorities of the local health plan. This exception is granted. See the ruling on exception number ten (10).
The conclusion based on a non rule need methodology. This exception is granted. See the ruling on exception number eleven (11).
The conclusion that "some" need exists pursuant to the Rule methodology. This conclusion is based on incorrect interpretations of the Rule methodology. This exception is granted. See the ruling on exceptions numbers five (5), six (6), and eight (8).
HRS excepts the conclusion of law at page 30 that the department "advanced" a 90 percent occupancy rate. The department used a 90.94 percent occupancy rate. Careage in its exception number two (2) also points out the
percent was the rate used by HRS. Exception number fifteen (15) is granted.
RULING ON EXCEPTIONS FILED BY GENE E. LYNN (CAREAGE)
This exception is granted. See ruling on HRS exception number eight
(8).
This exception is granted. See ruling on HRS exception number fifteen
(15).
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except to the extent that the findings are based on incorrect interpretations of law or typographical error, as pointed out in the rulings on the exceptions. Because the Hearing Officer's findings regarding numeric need and special circumstances are based on incorrect and interpretation of the Florida Administrative Code Rule 10-5.011(1)(k)2, it is necessary to make the following corrected findings.
There is no numeric need in the appropriate planning horizon for Careage's proposed nursing home; to the contrary, there is an 18 bed surplus, and
There are no special circumstances justifying approval despite lack of numeric need.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the rulings on the exceptions.
Based on a balanced weighing of all applicable statutory and rule criteria, I conclude that petitioner's application for a CON should be denied.
Based on the foregoing, it is
ADJUDGED, that Careage's application for CON 4660 be DENIED.
DONE and ORDERED this 10th day of February, 1988, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Assistant Secretary for Programs
ENDNOTE
1/ HRS relies on Humana vs. HRS, 492 So2d 388 at 393, 394 (Fla. 4th DCA 1986) and HBA Corporation vs. HRS, 482 So2d 461 (Fla. 1st DCA 1986) in making these findings of fact. In Humana the Hearing Officer recommended that certificates of need be granted to 3 hospitals, authorizing the hospitals to establish cardiac catheterization laboratories at each hospital. In the Final Order, the department properly concluded that only 2 new laboratories were needed. The department then concluded that 2 . of the hospitals had submitted applications which were superior to the application of the Appellant, Humana, and based on that finding the department denied Humana's application for a certificate of need. The Court rejected Humana's contention that the department had no authority to make findings of fact. The Hearing officer had not weighed the relative merits of the 3 application because he had recommended that the applications of all 3 be approved and found that all 3 were at least minimally qualified.
In HBA Corporation vs. HRS, page 464, the Court concluded that it was proper for the department to make an additional finding of fact on the basis of competent, substantial evidence where a certain finding of fact by the Hearing Officer had been properly rejected.
COPIES FURNISHED:
Richard A. Patterson, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
Steven T. Mindlin, Esquire Robert S. Cohen, Esquire HABEN & CULPEPPER, P.A.
Post Office Box 10095 Tallahassee, Florida 32302
P. Micheal Ruff Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Theodore Mack Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
FALR
Post Office Box 385 Gainesville, Florida 32602
Nell Mitchem (PDDR)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 11th day of February, 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 |
|---|---|
| Dec. 31, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 10, 1988 | Agency Final Order | |
| Dec. 31, 1987 | Recommended Order | Nursing home bed need rule shows need as do rules flexibility factors. This is de novo and facts are not "frozen" as of time of filing of Certificate Of Need application. |
