STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY PUBLIC HOSPITAL ) BOARD d/b/a MEMORIAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1912

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) DOCTORS HOSPITAL OF SARASOTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 25- 27, 1988, in Sarasota, Florida, and August 1, l988, in Tallahassee, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

FOR PETITIONER: Robert E. Weiss, Esquire

Parker, Hudson, Rainer & Dobbs Sarasota County Public Hospital Board

118 North Gadsden Street Tallahassee, Florida 32301

Theodore Eastmoore, Esquire Williams, Parker, Harrison, Dietz & Getzen

1550 Ringling Boulevard Post Office Box 3258 Sarasota, Florida 33577

FOR RESPONDENTS: Donna A. Stinson, Esquire

HCA Doctors Hospital of Sarasota Noyle, Flanigan, Katz,

FitzGerald & Sheehan

118 North Gadsden Street Tallahassee, Florida 32301

Department of Health Edgar Lee Elzie, Jr., Esquire

and Rehabilitative Macfarlane, Ferguson, Allison & Kelly Services Post Office Box 82

Tallahassee, Florida 32302

By Petition dated March 22, 1988, Sarasota County Public Hospital Board, d/b/a Memorial Hospital (Memorial), challenged the initial approval of Certificate of Need No. 5283 to construct and operate a cardiac catheterization

laboratory at HCA Doctors Hospital of Sarasota (Doctors) in HRS Planning District VIII.

During the hearing, the Respondent Doctors presented seven witnesses and the pre-filed testimony of Abid A. Shah, M.D. Four exhibits were admitted into evidence, with the last exhibit being filed on August 23, 1988. The Respondent Department of Health and Rehabilitative Services (HRS) called two witnesses and submitted two exhibits, which were admitted. The Petitioner presented six witnesses and the pre-filed testimony of Paul Keller. Five exhibits were submitted. Exhibit Four, the current District Eight Health Plan, was rejected as the plan was not available during the initial review of the application. A transcript of the hearing was received on August 19, 1988, and proposed recommended orders were submitted by all parties. Specific rulings on the proposed findings are in the Appendix.

A preliminary matter to be decided is whether the testimony of John Bigalke should be stricken. The testimony is allowed to remain as part of the record.

However, the witness' failure to provide opposing counsel with the underlying data for the opinions offered at hearing which modified his opinions rendered only a few days before in discovery, causes the Hearing Officer to give no weight to his testimony in the factual findings in this proceeding.

ISSUES

The main issue in these proceedings is whether the Respondent Doctors is entitled to a certificate of need to establish a cardiac catheterization laboratory in Sarasota County. The parties stipulate that the only statutory and rule criteria which remain to be reviewed by the Hearing Officer areas follows:

1. Sections 381.705(1)(a) , (b) , (c) , (d) ,

1. , and (h), Florida Statutes. Section 38l.705(1)(h)) will be reviewed insofar as it refers to the availability of health manpower, management personnel, funds for capital and operating expenditures, the alternative uses

   of the applicant's resources, and the extent to which the proposed services will be accessible to all residents of the district.

   1. Section 38l.705(1)(1) and (n), Florida Statutes.

   2. Section 381.705(2)(a) , (b) and () Florida Statutes.

   3. Rule 10-5.011(1)(e), Florida Administrative Code.

5. Rule 10-5.011 (8)b and (8)0, (9)b, (9)d,

(9) e (1) and (9)e(ll)

The other statutory criteria and the remaining subsections of the rule have either been stipulated to by the parties or are inapplicable.

FINDINGS OF FACT

1. Respondent Doctors is a 168 bed, acute care general hospital. The hospital has a 40 bed cardiac care unit in which all beds are monitored. Hospital Corporation of America (HCA) owns Doctors. HCA owns or operates four hundred hospitals, including nineteen in Florida. Three of the in-state

   hospitals have cardiac catheterization laboratories (CCLs) . Two of the existing labs, located in Bradenton and Tallahassee, are available to assist in training and preparation which may be needed in the creation of a cardiac catheterization lab at Doctors.

   
   

2. In September 1987, Doctors applied for Certificate of Need No. 5283 to establish a cardiac catheterization laboratory. The certificate of need has been preliminarily approved by the Respondent HRS. The initial agency action has been challenged by the Petitioner, Memorial.

   
   

3. Memorial is the primary existing health care facility which would compete with Doctors by providing cardiac catheterization services in the same city where the new lab is to be located.

   
   

   Consistency with State and Local Health Plans

   
   

4. The local health plan does not directly address the need for CCLs in the area. As nothing in the plan is relevant, no inconsistencies are created with the plan in the balancing of criteria with regard to the certificate of need determination.

   
   

5. The State Health Plan provides that an average of 600 cardiac catheterization procedures per laboratory are to be maintained in each district through 1990.

   
   

6. To determine the use rate under Rule 10-5.011, Florida Administrative Code, HRS must look to the number of procedures provided in the district between June 1984 and July 1986. The data reveals that seven programs completed 5,841 procedures. The required averages were exceeded by over two hundred procedures per lab. The need criteria has been met by Doctors for purposes of the State Health Plan, and the local plan, as it existed at the time of the initial review of the application.

   
   

   Existing Facilities

   
   

7. Memorial is an 849 bed, acute care hospital which is a regional referral hospital in the area. The hospital provides Level 3 cardiac services. These services include angioplasty and open heart surgery in addition to cardiac catheterization. Memorial's first catheterization lab opened in 1978. Memorial currently contains two CCLs that assist in fulfilling the health care needs of the district.

   
   

8. Before the recent addition of three CCLs within the district, Memorial served as the center for cardiac services. Manatee County and Charlotte County now have their own CCLs, which reduces Memorial's pool of potential patients in need of those services.

   
   

9. In spite of reductions in the patient pool in the past, Memorial's use of its two CCLs has continued to grow.

   
   

10. The Sarasota County area has a unique characteristic in that many tourists who arrive in the winter months (October-April) make use of the two local hospitals, Doctors and Memorial. The use of Memorial's CCLs increases as the local cardiologists need to complete a number of diagnostic tests in order to evaluate these new patients quickly, in times of critical need.

11. Because of the season, Memorial's CCLs are heavily utilized for emergency procedures in the winter months. Accordingly, patients who have elective procedures scheduled are often reprioritized because of the emergency needs for use of the CCLs for more seriously ill patients. This last-minute rescheduling results in prolonged hospitalizations for the nonemergency patients and increases the cost of their medical care.

    
    

12. Although the quality of testing does not appear to suffer from the season, a significant pool of patients is denied the opportunity for convenient medical care. The treating physicians are denied lab use and test results at the anticipated times within these patients' courses of treatment.

    
    

13. Because of Memorial's inability to make the labs readily accessible to the pool of patients scheduled for elective procedures in the winter, a need exists for a CCL for this pool of patients.

    
    

14. Doctors primarily seeks to provide cardiac catheterization services for diagnostic purposes. However, the lab will be capable of providing immediate endocardiac catheterization pacemaking in cases of cardiac arrest. A rapid mobilization team will be available for emergency procedures when the need arises. Angioplasty and open heart surgery procedures are not planned in conjunction with the CCL services. The lab will be in operation from 7:30 a.m. to 4:00 p.m. Monday through Friday, excluding holidays.

    
    

    Quality of Care

    
    

15. Doctors currently provides quality care. There are no complaints outstanding, and the hospital has sufficient capabilities and support services to provide for a CCL.

    
    

16. Doctors is JCAH accredited and provides the necessary services required under the catheterization rule.

    
    

17. The same cardiologists are on staff of both Memorial and Doctors. Most of these physicians admit patients to both hospitals.

    
    

18. Approximately one-third of Doctors' admissions are patients with cardiac problems. Many of these patients require catheterization and are transferred to Memorial. If it is determined that a catheterization is needed before admission, physicians admit those patients to Memorial.

    
    

    Alternative Care

    
    

19. The other CCL which currently exists in Sarasota is an outpatient lab. This facility is owned and operated by a group of invasive cardiologists who also perform catheterizations at Memorial. Because the outpatient lab restricts a patient's selection of a physician able to perform a cardiac catheterization to the lab owners, this lab is not a realistic alternative for most patients or the referring physicians. A hospital-based lab gives those involved greater personal choice, and it is better equipped to handle unanticipated emergencies.

    
    

    Reasonable and Economic Accessibility

    
    

20. Memorial's CCL services are not always accessible at the times scheduled for elective procedures. Some patients have remained hospitalized for days until they can be rescheduled. The delays increase the costs attached to

    the procedures due to the length of the hospital stay and the additional services required.

    
    

21. Patients admitted to Doctors who require the services of a CCL are moved to Memorial by ambulance and have to be admitted there. These transfers cost patients an additional $180-$340. The ambulance charges are not reimbursed by medicare so the majority of the patients pay these charges themselves.

    
    

22. The proposed lab will be capable of providing a range of diagnostic tests without the need to admit patients to another hospital prior to, or during treatment at, Doctors. This will reduce costs two ways: The additional ambulance and hospital costs will be omitted, and the proposed charge for the service is less than the current charge set by Memorial.

    
    

    Availability of Resources

    
    

23. Doctors currently has a staff of trained cardiac nurses. There are two nurses on staff who have taught cardiac catheterization techniques at an accredited nursing school prior to moving to Sarasota. Although the husband and wife team was originally recruited to the area by Memorial, the two nurses chose to leave that facility because of the stress from the high level of activity in those labs.

    
    

24. Doctors plans to cross train staff and to allow for a trained special procedures staff with alternating roles and duties.

    
    

25. The proposed CCL will be staffed with 2.5 FTEs. These consist of the 1 FTE cardiac nurse and 1.5 FTE special procedures technicians. The budgeted FTEs do not include an allocation of time for an administrative director or secretarial/clerical services. The assistant hospital administrator anticipates that provisions will be made for management personnel at a later stage of the lab's development.

    
    

26. Although the number of FTEs scheduled is less than those anticipated for a CCL which provides more complex procedures, the number scheduled by Doctors is reasonable for the number of services and kind of services it seeks to provide for the type of cardiac patients in its care.

    
    

27. The proposal for the lab, as described in the application and revised in the omissions response, is financially feasible.

    
    

28. The proposed expenditure of funds will serve the needs of the hospital's current patient pool as well as the special needs of the community for cardiac catheterization services.

    
    

29. While Doctors' proposal does not increase geographic access, it will increase access in the population center, where services are currently inaccessible for one pool of patients at certain times.

    
    

30. A need for a project is evidenced by the utilization of like and existing services. The rule which contains the need methodology takes into account the utilization of existing facilities in determination of numeric need. Numeric needs exists in this district, pursuant to Rule 10-5.011.

    Written Referral Agreement

    
    

31. Doctors submitted a written referral agreement with a facility with open heart surgery services within 30 minutes travel time by emergency vehicle under average travel conditions. The agreement meets the general requirements of HRS. The agency does not require a detailed agreement during the preliminary granting of a certificate of need because other local providers do not wish to assist applicants during the CON process. However, such applicants are able to obtain more detailed agreements after the certificate is approved. The agency has determined that the agreement is sufficient. Because a rational basis has been given for the determination, the agency's acceptance of the agreement is given great weight by the Hearing Officer.

    
    

    Competition and Service

    
    

32. Doctors' project will affect competition between Doctors and Memorial. Doctors will provide services for patients who would have gone to Memorial for such services in the past because Doctors was unable to provide the service. This is because of the geographic location and the fact that the same cardiologists are on staff at both hospitals.

    
    

33. It appears that Doctors will be providing services for patients who are not in critical need of the services. This will allow Memorial to concentrate on the more complex cases has traditionally dealt with in the past. The stress from "unhappy" elective patients will be reduced at Memorial's labs, but so will the economic incentive for the staff which is related to the number of procedures performed. The elective cardiac catheterizations are quicker and easier to perform and increase the earnings of the lab staff.

    
    

34. Both hospitals compete directly for staff. There is a "revolving- door" situation in staffing as local heath care personnel negotiates and works in either hospital, most of the time. Because of cash bonuses offered by Doctors for joining its staff Memorial is concerned about the adverse impact upon its CCL staff.

    
    

35. Testimony presented at hearing showed by substantial and competent evidence that Memorial is committed to equipping its two labs with the most responsive equipment available for its more complex needs. The preservation of its current lab staff has been planned for by an able administrator.

    Recruitment is done nationwide and plans are being made with the local community college to provide nurses training involving cardiac catheterizations.

    
    

36. The evidence also demonstrated that Memorial plans to meet the competition by improving the health services delivery, quality assurance, and cost-effectiveness. It appears that there is room for all three labs in Sarasota, and that healthy competition will occur in the area.

    
    

    Past and Proposed Indigent care

    
    

37. Doctors has given little care to the medically indigent in the past. In fact, the hospital has maintained a written policy suggesting that those who cannot pay for services should be transferred by physicians to another hospital. Rather than admit such patients, the Doctors has chosen to pay into an indigent care fund.

    
    

38. The new assistant director maintains that the current hospital policy is to provide health care to Medicaid and indigent patients in the CCL. Doctors

    projects that 2.5 per cent of its catheterization volume will be Medicaid and

    .75 per cent will be indigent care.

    
    

    Alternatives to the Project

    
    

39. The alternative which has been developed and studied by Doctors is its past use of Memorial's CCLs. This use has been found to be more costly for elective cardiac catheterizations than the current proposal. The status quo has not met the needs of the elective catheterization patients in the geographical area.

    
    

    Similar Inpatient Services

    
    

40. Memorial is using its similar facilities in an efficient manner. It is not using the facilities in an appropriate manner as most elective catheterization patients do not want to be in a hospital any longer than necessary. These people are predominantly type A personalities who do not like being rescheduled and charged additional hospital costs.

    
    

    Problems in Outpatient Inpatient Care

    
    

41. Elective catheterization patients have a problem obtaining local inpatient care when they want it and when their cardiologists have prepared for it in their treatment plans. This does not appear to be a serious health problem, but the evidence has demonstrated it is a serious problem.

    
    

    Proposed Volume of Catheterizations

    
    

42. Based upon numeric need, utilization of Memorial, physician support, and the growth history of other providers within the district, the projected utilization of 246 procedures in 1990, 294 in 1991, and 351 in 1992 is reasonable. There is no evidence which has been extrapolated from reliable data which shows that the proposed lab, coupled with alternative treatments and currently available noninvasive technological advancements, will reduce the average number of procedures per lab within the district below 600 each year.

    
    

43. Due to the population growth projections for Sarasota County, approval of Doctors' application will have minimal impact on lab utilization at Memorial or other facilities within the district. Doctors' projected number of procedures will not decrease procedures at Memorial below its 1987 level of 2,495 cardiac catheterization procedures performed on an annual basis.

    
    

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

45. Doctors, as the applicant for a certificate of need, has the burden of demonstrating entitlement to the certificate. 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 778 (Fla. 1st DCA 1981).

    
    

46. Section 381.705 Florida Statutes (1987) and Rule 10-5.011(e), Florida Administrative Code, establish the criteria which must be evaluated in evaluating applications for certificates of need. Balsam v. Department of

    Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986) . The weight to be given to criteria will vary in each case, depending upon the particular circumstances. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985).

    
    

47. In the balancing of the statutory and rule criteria in this case, it appears that a need exists for another cardiac catheterization laboratory in the Sarasota County area in order to meet the service needs of noncritical patients. The need for the additional laboratory fluctuates on the basis of the tourist season which places emergency demands on the existing inpatient lab facility.

    
    

48. The opportunity for less expensive hospital costs and a more expansive choice for invasive cardiologists who can schedule convenient lab procedures will greatly improve access to informal treatment. This should improve the overall health care services provided in the community.

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter its Final Order approving the Respondent Doctors' application for Certificate of Need No. 5283.

DONE AND ENTERED this 26th day of September, 1988, at Tallahassee, Florida.

VERONICA E DONNELLY

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 30th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1912

Petitioner Memorial's proposed findings of fact are addressed as follows:

1. Accepted. See H.O. 1.

2. Accepted. See H.O. 1.

3. Accepted. See H.O. 2.

4. Accepted. See H.O. 3.

5. Rejected. Irrelevant.

6. Stipulated to prior to hearing.

7. Accepted. See H.O. 5.

8. Accepted. See H.O. 4.

9. Rejected. Irrelevant.

10. Accepted.

11. Stipulated to prior to hearing.

12. Rejected. Irrelevant.

13. First sentence accepted. Second sentence rejected as conclusionary. See H.O. 11-13. Third sentence accepted.

14. Accepted. See H.O. 11.

15. Accepted. See H.O. 33, 35, and 36.

16. Rejected. Irrelevant.

17. First sentence accepted. See H.O. 1. Second sentence rejected as speculative.

18. Rejected. Irrelevant.

19. Rejected. See H.O. 20.

20. Accepted.

21. Rejected. Irrelevant.

22. Rejected. Fails to distinguish between accessible times and efficient times.

23. Rejected as speculative.

24. Accepted. See H.O. 14, 25.

25. Accepted. See H.O. 42.

26. Rejected as conclusionary.

27. Rejected as conslusionary.

28. Conclusion of law.

29. Accepted.

30. Rejected. See H. O. 31.

31. Rejected. Irrelevant. See H.O 31.

32. Rejected. Irrelevant.

33. Rejected. Irrelevant.

34. Conclusion of law

35. Rejected. Contrary to evidence

36. Rejected as conclusionary.

37. Rejected. See H.O. 19.

38. Rejected. See H.O. 43.

39. Rejected. Irrelevant.

40. Contrary to evidence. Conclusionary.

41. Rejected. See H.O. 28.

42. Rejected. See H.O. 28. 43-51. Accepted.

52. Rejected as speculative. 53-57. Accepted.

58. Rejected. See H.O. 27. 59-62. Rejected.

1. Rejected. See H.O. 27.

2. Rejected. Irrelevant.

3. Rejected. See H.O. 32-36.

4. Accepted.

5. Rejected. See H.O. 32-36.

6. Accepted all but the last conclusionary sentence.

7. Accepted. See H.O. 37.

8. Accepted. See H.O. 38.

9. Rejected. See H.O. 39.

10. Rejected. See H.O. 4l.

Proposed findings of fact of Respondent HRS are addressed as follows:

1. Accepted. See H.O. 1.

2. Accepted. See H.O. 2.

3. Accepted.

4. Accepted. See H.O. 14.

5. Accepted.

6. Accepted.

7. Accepted. See H.O. 14.

8. Accepted. See H.O. 37 and 38.

9. Accepted.

10. Accepted. See H.O. 42.

11. Accepted. See H.O. 3l.

12. Accepted. See H.O. 3l.

13. Accepted. See H.O. 3l.

14. Accepted. See H.O. 4.

15. Rejected as conclusionary.

16. Accepted. See H.O. 40.

17. Accepted. See H.O. 29.

18. Stipulation in case.

19. Accepted. See H.O. 15 and 16.

20. Accepted. See H.O. 15.

21. Accepted. See H.O. 15.

22. Accepted. See H.O. 17.

23. Accepted. See H.O. 25.

24. Accepted.

25. Accepted. See H.O. 23.

26. Accepted.

27. Rejected. Irrelevant.

28. Rejected. Irrelevant.

29. Rejected. Irrelevant.

30. Accepted. See H.O. 26.

31. Accepted. See H.O. 19.

32. Accepted. See H.O. 19.

33. Accepted.

34. Accepted.

35. Accepted. See H.O. 27.

36. Accepted. See H.O. 22.

37. Accepted. See H.O. 43 and 36.

38. Accepted in part. See H.O. 36 and 38.

39. Accepted. See H.O. 21 and 39.

40. Accepted. See H.O. 40.

41. Accepted. See H.O. 13.

42. Accepted. See H.O. 11

43. Rejected. See H.O. 12.

44. Accepted.

45. Rejected as conclusionary.

46. Accepted. See H.O. 40.

47. Accepted. See H.O. 10-13.

48. Accepted. See H.O. 21.

49. Rejected as conclusionary.

50. Rejected as oonclusionary.

51. Accepted. See H.O. 11.

52. Rejected as conclusionary.

53. First part rejected as contrary to fact. See H.O. 21 Second sentence accepted.

54. Accepted. See H.O. 22.

55. Accepted.

56. Accepted.

57. Accepted.

58. Accepted.

Proposed findings of fact of Respondent Doctors are addressed as follows:

1. Accepted. See H.O. 1.

2. Accepted. See H.O. 2.

3. Accepted.

4. Stipulation of the parties.

5. Accepted. See H.O. 3.

6. Stipulation of the parties.

7. Accepted. See H.O. 6.

8. Accepted. See H.O. 10 and 11.

9. Accepted.

10. Accepted.

12. Accepted.

1. Accepted.

2. Rejected as speculative.

3. Rejected. Irrelevant.

4. Rejected. Irrelevant.

5. Rejected. Summary. Conclusionary.

6. Stipulation of the parties.

7. Rejected. Irrelevant.

8. First sentence rejected as conclusionary. Remainder is accepted. See

   H.O. 11.

9. Accepted. See H.O. 12.

10. Rejected as conclusionary.

11. Rejected. Irrelevant.

12. Accepted. See H.O. 34.

13. ReDected. Irrelevant.

14. Rejected. Irrelevant.

15. Accepted. See H.O. 25.

16. Accepted.

17. Accepted.

18. Accepted.

19. Accepted. See H.O. 23.

20. Rejected. Irrelevant.

21. Accepted but irrelevant as to angioplasties.

22. Accepted. See H.O. 21.

23. Accepted. See H.O. 21.

25. Accepted. See H.O. 2l.

1. Accepted. See H.O. 37 and 38.

2. Rejected. Irrelevant.

3. Accepted. See H.O. l5 and :l6.

4. Accepted. See H.O. l7.

5. Accepted. See H.O. l8.

6. Rejected. Conclusionary. Statistical calculation faulty.

7. Accepted.

8. Accepted. See H.O. 42.

9. Rejected. Irrelevant.

10. Accepted. See H.O. 42.

11. Accepted. See H.O. 19.

12. Accepted. See H.O. 19.

13. Accepted. See H.O. 31.

14. Accepted. See H.O. 3l

15. Accepted. See H.O. 3l.

16. Accepted. See H.O. 27.

17. Rejected. Irrelevant.

18. First sentence is accepted. The remainder is conclusionary.

19. Accepted.

20. Rejected. The testimony was not given weight by the Hearing Officer.

21. Rejected. Irrelevant. Improper burden placement.

22. Accepted. See H.O. 43.

23. Accepted. See H.O. 43.

24. Accepted. See H.O. 42 and 43

COPIES FURNISHED:

Robert E. Weiss, Esquire Parker, Hudson, Rainer & Dobbs

118 North Gadsden Street Tallahassee, Florida 32301

Theodore Eastmoore, Esquire Williams, Parker, Harrison,

Dietz & Getzen

1550 Ringling Boulevard Post Office Box 3258 Sarasota, Florida 33577

Donna A. Stinson, Esquire Noyle, Flanigan, Katz,

FitzGerald & Sheehan

118 North Gadsden Street Tallahassee, Florida 32301

Edgar Lee Elzie, Jr., Esquire Yacfarlane, Ferguson, Allison

& Kelly

Post Office Box 82 Tallahassee, Florida 32302

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

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

SARASOTA COUNTY PUBLIC HOSPITAL BOARD d/b/a MEMORIAL HOSPITAL,

Petitioner, CASE NO.: 88-1912

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and DOCTORS HOSPITAL OF SARASOTA,

Respondents.

/

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 SARASOTA COUNTY PUBLIC HOSPITAL d/b/a MEMORIAL HOSPITAL (MEMORIAL)

1. Memorial excepts to the statement of issues to be litigated as being incomplete in that financial feasibility was omitted. The omission is harmless as the Hearing Officer made findings on financial feasibility. The exception is denied.

   
   

2. Memorial excepts to the statutory citations for the criteria at issue. Again, the error is harmless. The exception is denied.

   
   

3. Memorial excepts to the finding of fact, at paragraph 1, that Doctors parent company, Hospital Corporation of America ("HCA") operates an existing cardiac catheterization laboratory in Bradenton. The exception is granted as the department and Doctor's Hospital concur that the laboratory in Bradenton is not yet operational.

   
   

4. Memorial excepts to the finding of fact, at paragraph 4, that "the local health plan does directly address the need for CCLs in the area." The finding is based on competent, substantial evidence; therefore, the exception is denied.

   
   

5. Memorial excepts to the finding at paragraph 6, that the calculation of the use rate is based on the number of Procedures provided in the district between June 1984 and July 1986. Memorial is correct with regard to the

   relevant time period for data used in Rule 10-5.011(1)(e)12, Florida Administrative Code; however, the error is harmless, as it was stipulated by the parties that proper calculations under the rule showed a need for 11 cardiac oath labs in the district, and there were 9 existing and approved, leaving a net need for 2 additional labs.

   
   

6. Memorial excepts to the finding of fact at paragraph 6, that "the required averages were exceeded by over two hundred procedures per lab". Memorial is correct, but again, the error is harmless as there was no disagreement regarding the projection of numeric need.

   
   

7. Memorial excepts to the finding of fact, at paragraph 10, that the winter season in Sarasota is from October through April. The finding is based on competent, substantial evidence; therefore, the exception is denied.

   
   

8. Memorial excepts to the finding of fact, at paragraph 12, that "a significant pool of patients is denied the opportunity for convenient medical care." The finding is based on competent, substantial evidence; therefore, the exception is denied.

   
   

9. Memorial excepts to the finding of fact, at paragraph 13, that Memorial has been unable to make its labs "readily accessible" to patients scheduled for elective procedures in the winter. The finding is based on competent, substantial evidence; therefore, the exception is denied.

   
   

10. Memorial excepts to the finding of fact, at paragraph 26, that the number of FTEs proposed for Doctors' laboratory is reasonable. The finding is based on competent, substantial evidence; therefore, the exception is denied.

    
    

11. Memorial excepts to finding of-fact at paragraph 27, :that the "proposal for the lab, as described in the application and revised in the omissions response, is financially feasible." The finding is based on competent, substantial evidence; therefore, the exception is denied.

    
    

12. Memorial excepts to the finding of fact at paragraph 31, that Doctors submitted a written referral agreement with a facility with open heart surgery services. The finding is based on competent, substantial evidence; therefore, the exception is denied.

    
    

13. Memorial excepts to the finding of fact, at paragraph 37, that Doctors has chosen to pay into an indigent care fund rather than treat patients. The finding is an incorrect conclusion of law as payment to the Public Medical Assistance Trust Fund is mandatory. See Section 395.101(2), Florida Statutes.

    
    

14. Memorial excepts to the finding of fact at paragraph 40 that elective catheterization patients "are predominantly type "A" personalities who do not like being rescheduled and charged additional hospital costs." The finding is based on competent, substantial evidence; therefore, the exception is denied.

    
    

15. Memorial excepts to the finding of fact, at paragraph 41, that "elective catheterization patients have a problem obtaining local inpatient care when they want it...". The finding is based on competent substantial evidence; therefore, the exception is denied.

    
    

16. , 17., 18. Memorial excepts to the Hearing Officer's rejection as irrelevant of Memorial's proposed findings 21, 41, and 39, relating to the availability and accessibility of like and existing health care services. While

the Hearing Officer's ruling is incorrect, I conclude that the error is harmless because; first, Memorial does not request remand to the Division of Administrative Hearings for further fact finding. Instead, Memorial requests that the application for a CON be denied. Second, there was no issue as to numeric need.

1. Memorial excepts to Doctors' lack of a written referral agreement with a facility providing open heart surgery services. The referral agreement submitted by Doctors was with an HCA hospital holding a CON for an open heart program to open soon. The exception is denied.

   
   

2. Memorial excepts to the denial of Memorial's motion to strike the testimony of John Bigalke. The error, if any, is harmless. The exception 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 except where inconsistent with the rulings on the exceptions.

ADJUDGED, that certificate of need application number 5283 by Doctors Hospital of Sarasota for a cardiac catheterization laboratory be approved.

DONE and ORDERED this 24th day of October, 1988, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Assistant Secretary for Programs

Copies furnished to:

Veronica E. Donnelly Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

Robert A. Weiss, Esquire PARKER, HUDSON, RAINER & DOBBS

The Perkins House

118 North Gadsden Street Suite 101

Tallahassee Florida 32301

Theodore Eastmoore, Esquire WILLIAMS, PARKER, HARRISON DIETZ & GETZEN

1550 Ringling Boulevard Post Office Box 3258 Sarasota, Florida 33577

Donna A. Stinson, Esquire MOYLE, FLANIGAN, KATZ, FITZGERALD & SHEEHAN, P.A.

The Perkins House - Suite 100

118 North Gadsden Street Tallahassee, Florida 32301

Lee Elzie, Esquire Guyte McCord, Esquire

MACFARLANE, FERGUSON, ALLISON & KELLY

215 South Monroe Street Tallahassee, Florida 32302

INFORMATION COPIES:

Janie Block (PDDR) FALR

Post Office Box 385 Gainesville, Florida 32602

Theodore Mack, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive

Fort Knox Executive Center Tallahassee, Florida 32308

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 27th day of October, 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.

Docket for Case No: 88-001912

Orders for Case No: 88-001912