STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAPTIST HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0899

)

STATE OF FLORIDA, ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on April 28, 1989. The Division of Administrative Hearings received a transcript of the proceedings on May 16, 1989, and the parties filed proposed recommended orders on July 21, 1989, waiving the requirements of Rule 28-5.402, Florida Administrative Code. See Rule 22I-6.031(2), Florida Administrative Code. The attached Appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Stephen A. Ecenia

Roberts, Baggett, LaFace, and Richard

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302

For Respondent: Richard A. Patterson

Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

Whether respondent Department of Health and Rehabilitative Services (HRS) should grant petitioner's application for a certificate of need to convert twelve acute care medical/surgical beds to a child psychiatric service, because the proposal is consistent with Section 381.705, Florida Statutes (1987) and Rule 10-5.011(1)(o), Florida Administrative Code; or deny the same, on the grounds HRS stated in its state agency action report?

PRELIMINARY STATEMENT

After HRS reviewed the application Baptist Hospital (Baptist) filed for a certificate of need, No. 5669, HRS prepared a state agency action report stating that the children's psychiatric service that Baptist proposed was not needed, would not enhance competition beneficial to patients, was not the best use of Baptist's resources, would not improve the quality of care, efficiency, appropriateness or adequacy of services in the district and should be denied.

In their prehearing stipulation, the parties stipulated that Section 381.705(1)(e), (f), (g), (h), (i) except "as it relates to Baptist's ability to achieve its projected utilization," (j), (k), (l) and (m) and (2)(c), (d) and (e), Florida Statutes (1987), either do not apply or are not at issue here. The parties dispute whether Baptist's application conforms to the requirements of Rule 10-5.011(1)(o), Florida Administrative Code, and Section 381.705(1)(a), (b), (c), (d) and (2), (a), (b) and (d) Florida Statutes, (1987).

FINDINGS OF FACT

1. A not for profit 520-bed acute care hospital in Pensacola, Baptist primarily serves not only residents of Escambia and Santa Rosa Counties, within Florida's HRS Service District I, but also patients from Escambia and Baldwin Counties in Alabama. The other two counties in District I, Okaloosa and Walton, lie outside Baptist's primary service area, but within a secondary service area, as does Covington County, Alabama.

   
   

2. Baptist proposes to convert twelve medical/ surgical beds to a children's psychiatric service, to complement an existing 38-bed psychiatric service housed in the Behavioral Medical Center across the street from Baptist's main campus. On average, eighty percent of Baptist's existing psychiatric beds are occupied at any one time.

   
   

3. Of four separate, psychiatric treatment programs Baptist now offers, all accredited by the Joint Commission on Accreditation for Health Care Organizations, none is designed for children below the age of 13. Seldom, and only in an emergency, has a child below this age been accepted into Baptist's program for adolescents, which is operated separately from any adult treatment program.

   
   

4. Baptist has treated indigent and medicaid patients in its psychiatric programs, as well as patients for whose treatment it has received greater remuneration. Hospital-wide, Baptist has had "medicaid utilization" of between six and nine percent. "Baptist was willing to do Baker Act patients." Farr deposition, p. 17. Rollins deposition, p. 30.

   
   

   Other Resources

   
   

5. Pensacola and Escambia County have extensive outpatient psychiatric services for children, offering a broad range of options, short of inpatient care in a treatment facility. Rollins deposition, pp. 15-16. Lakeview Community Health Center offers outpatients treatment, as do a number of private providers. The Children's Intervention Project System conducts home visits. Day care and therapeutic foster homes are also available.

   
   

6. Professionals distinguish between "crisis stabilization" which does not "focus on treatment" and even short-term psychiatric care. Lakeview Community Health Center has a 31-bed crisis stabilization unit, which was full as of the

   week before the hearing. Ten of the 31 beds are reserved for children, aged 9- 17, but children's beds are not segregated from beds for adolescents.

   
   

7. Treating children and adolescents together (if not stabilizing their crises in the same facility) is inappropriate. They have different needs and require different structures. Adolescents require more autonomy; children need more supervision. See deposition of Cruz. Farr deposition, p. 21. Rollins deposition, p. 22.

   
   

8. Only Harbor Oaks, a free-standing facility more than 45 minutes from Pensacola and Gulf Breeze, accepts children as psychiatric patients. Harbor Oaks has 19 children's beds but does not accept medicaid patients. The children's unit at Harbor Oaks experienced an occupancy rate of approximately 74 percent in 1988. Occasionally, girls were put on waiting lists.

   
   

9. University hospital does not accept children as psychiatric patients. It rarely accepts adolescents. West Florida Hospital, which has a program for adolescents, refuses child psychiatric patients admission. West Florida Community Center accepts no children. Nor does Humana Hospital in Ft. Walton.

   
   

   Play Therapy

   
   

10. Rather than convert a part of an existing medical or surgical ward to a children's psychiatric ward, Baptist proposes to spend $565,660 to construct a facility abutting but distinct from its Behavioral Medical Center. Lakeview Medical Health Center is nearby. Farr deposition, p. 32.

    
    

11. The parties have stipulated that "the costs and method of proposed construction, including ... energy provision and the availability of alternative, less costly or more effective methods of construction" are not in dispute, and that "the facility design schematic is reasonable and appropriate."

    
    

12. Baptist would hire a child psychiatrist to head up to the children's psychiatric unit. Treatment teams for existing programs also include psychologists, psychiatric social workers, occupational therapists, certified recreational therapists, and nursing staff. Dr. DeMaria recommends that "somebody in the creative arts therapy," (T.99) be hired for the children's unit, as well. The parties agree that "the availability of resources, including health manpower, management personnel, and funds ... are not at issue."

    
    

13. The plan is to create a homelike environment where children will sleep two to a room and eat together family style in a dining room. A living room, at least one classroom, a playroom and a playground out of doors are to be the situs of art, dance, music and play therapy, individual, group, and family, all in a "therapeutic milieu."

    
    

14. Baptist intends that the children's psychiatric unit be the least restrictive inpatient facility for children possible and has given assurances that the same rigorous review now taking place in its existing psychiatric programs would see to it that children are discharged to a still less restrictive environment as soon as their conditions permitted.

    
    

15. In large part, Baptist is counting on medical staff at the Lakeview Community Health Center, all of whom have admitting privileges at Baptist, to identify children who will need inpatient care but cannot afford to pay. Baptist has committed to reserve two beds in the proposed unit for patients who are indigent, or eligible for medicaid benefits. Baptist has also undertaken

    "not [to] turn away patients," Farr deposition, p. 49, needing psychiatric care. Baptist has agreed to accept a requirement that it honor this commitment, as a condition to any certificate of need it obtains.

    
    

16. Less than 20 percent of the children seen by 19 of the 55 child psychologists practicing within Baptist's service area who responded to a survey seemed to require inpatient care, but only 60 percent of this group actually received such care. Baptist's Exhibit No. 30. A survey of referral agencies indicated some 80 children in Baptist's service area needing inpatient psychiatric care in 1988 did not receive it.

    
    

17. Projected daily charges of $390 in Baptist's second year of operating the children's psychiatric unit are less than the $450 a day now charged by Harbor Oaks. The parties stipulated that "the pro forma income and expense statement relating to the children's short-term psychiatric beds is reasonable and requires no further proof except for validation of the number of patients days."

    
    

18. Assuming admission rates comparable to elsewhere in the South, children in Baptist's service area would keep ten children's psychiatric beds at

    70 percent average occupancy. Baptist's Exhibit No. 26. Twelve beds would make it economically feasible to serve the medically indigent as well as other children needing inpatient care.

    
    

19. The first seven days following a child's admission staff would devote to evaluating the child. Children not discharged to a less restrictive situation by the end of the evaluation period, Baptist projects, would have an average stay totalling 28 days, as compared to the 35- to 40-day average length of stay harbor Oaks has reported.

    
    

    Not Normal

    
    

20. District I has a total of 240 short-term psychiatric beds. According to the state agency action report, short-term psychiatric bed utilization was

    88.9 percent at Harbor Oaks for 1987, 73.5 percent at Ft. Walton's Humana Hospital, 59.4 percent at University Hospital and 58.1 percent at West Florida. Baptist's recent experience of psychiatric bed utilization in excess of 80 percent dates to January of 1988, and is a substantial increase over the 55.8 percent reported for the period July 1986 to June 1987. Baptist's Exhibit No. 9.

    
    

21. Projected 1993 population for District I is 601,559. Baptist's Exhibit No. 23. The parties agree that the formula set out in Rule 10- 5.011(1)(o), Florida Administrative Code, for determining "numeric need" for acute care, short-term, general psychiatric beds does not indicate a need for additional acute care short-term general psychiatric beds in District I.

    
    

22. But 53 percent of the District's population resides in Escambia County where no treatment facility has any children's psychiatric beds. A significant number (compare Baptist's Exhibit No. 23 with T. 133) of Baptist's psychiatric admissions are patients who reside in Alabama. Although Escambia County has 52 percent of the District I population, between ages 1-12, it has none of the children's psychiatric beds.

    
    

23. More than half the District's population lives more than 45 minutes travel time from Harbor Oaks, complicating arrangements for family therapy, often essential in these cases, Rollins deposition, pp. 28-29, and for other

    conferences, including discharge conferences, where parents and community-based professionals work out details necessary to effect a smooth transition from inpatient to something less restrictive.

    
    

24. The District I Health Plan, approved on June 1, 1988, provides:

    
    

    The following policies and priorities are to be used in CON review in tandem with the bed need numbers on the preceding pages.

    
    

    POLICIES AND PRIORITIES FOR PSYCHIATRIC AND SUBSTANCE ABUSE BEDS

    
    

    1. Psychiatric or substance abuse beds which are not used by residents of the District shall not be included in the resource inventory count of the District. [NOTE:

       There have in the past, been facilities in another district treating patients originating solely from outside of that district. The facility's intake policies precluded the treatment of "local" district residents. In addition, the facility's marketing effort was directed entirely out- of-state. A local marketing effort plus treatment of patients originating within the district can easily be demonstrated.]

       
       

    2. Priority will be given to applicants who can demonstrate that all existing short term inpatient psychiatric beds in the subdistrict have had an average annual occupancy rate equal to or greater than 70% for the preceding year.

       
       

    3. Priority will be given to applicants who can demonstrate that all existing short term inpatient substance abuse beds in the subdistrict have had an average annual occupancy rate equal to or greater than 80% for the preceding year.

       
       

    4. Proposals for new facilities, expansions, conversions and additional services will be given priority for applicants who agree to continue or enter into Baker Act, Medicaid, Medicare and other medically indigent contracts for the provision of services to qualifying patients.

       
       

       Among the goals, objectives, and recommended actions set out in the 1985-1987 State Health Plan, now expired but not replaced, is a goal that short-term inpatient hospital psychiatric beds not exceed .35 per thousand population. HRS Exhibit No. 1.

       
       

25. In requiring that .15 (of a total of .35) short-term psychiatric beds per 1,000 population be located in general hospitals eligible for medicaid

    reimbursement, HRS's rules do not distinguish between children and adults. But no children's psychiatric beds in Distract I are located in a facility that accepts medicaid patients.

    
    

26. If the ratio prescribed for psychiatric beds generally applied specifically to children's psychiatric beds, District I would already have at least eight such beds: Multiplying the 19 existing beds by .15/.35 yields 8.14. Applying the rule's .15 beds per 1,000 population methodology to the 111,211 children projected to be in District I by 1993, see Baptist's Exhibit No. 23, yields a need for 16.68 children's psychiatric beds in facilities that accept medicaid patients.

    
    

    CONCLUSIONS OF LAW

    
    

27. After HRS indicated its intention to deny Baptist's application for a certificate of need, Baptist instituted the present proceedings by requesting a formal administrative hearing. Because HRS referred the matter to the Division of Administrative Hearings "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

    
    

28. The courts view it "as fundamental that an applicant for a license or permit carries `the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985)(certificate of need); Zemour, Inc., v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977)(lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

29. Baptist must show that, on balance, its application conforms to the sometimes competing criteria governing issuance of certificates of need, which are set out in statute and rule. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985); Department of Health and Rehabilitative Services v. Johnson and Johnson, 447 So.2d 361 (Fla. 1st DCA 1984). Section 381.705, Florida Statutes (1987), captioned "Review criteria," provides:

    
    

    1. 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:

       1. The need for the health care facilities and services and hospices being proposed in relation to the applicable district plan and state health plan, except in emergency circumstances which pose a threat to the public health.

       2. 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.

       3. The ability of the applicant to provide quality of care and the applicant's record of providing quality of care.

       4. The availability and adequacy of

          other health care facilities and services and hospices in the service district of the applicant, such as outpatients care and ambulatory or home care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant.

       5. Probable economies and improvements

          in service that may be derived from operation of joint, cooperative, or shared health care resources.

       6. The need in the service district of the applicant for special equipment and services which are not reasonably and economically accessible in adjoining areas.

       7. The need for research and educational facilities, including, but not

          limited to, institutional training programs and community training programs for health care practitioners and for doctors of osteopathy and medicine at the student, internship, and residency training levels.

       8. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health professional training programs in the service district; the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities; the availability of alternative uses of such resources for the provision of other health services; and the extent to which the proposed services will be accessible to all residents of the service district.

       9. The immediate and long-term financial feasibility of the proposal.

       10. The special needs and circumstances of health maintenance organizations.

       11. The needs and circumstances of those entities which provide a substantial portion of their services or resources, or both, to individuals not residing in the service district in which the entities are located or in adjacent service districts. Such entities may include medical and other health districts. Such entities may included

           medical and other health professions, schools, multidisciplinary clinics, and specialty services such as open-heart surgery, radiation therapy, and renal transplantation.

       12. The probable impact of the proposed project on the costs of providing health services proposed by the applicant, upon consideration of factors including, but not limited to, the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost- effectiveness.

       13. The costs and methods of the proposed construction, including the costs and methods of energy provision and the

           availability of alternative, less costly, or more effective methods of construction.

       14. The applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent.

    2. In cases of capital expenditure proposals for the provision of new health services to inpatients, the department shall also reference each of the following in its findings of fact:

       1. That less costly, more efficient, or more appropriate alternatives to such inpatient services are not available and the development of such alternatives has been studied and found not practicable

       2. That existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner.

       3. In the case of new construction, that alternatives to new construction, for example, modernization or sharing

          arrangements, have been considered and have been implemented to the maximum extent practicable.

       4. That patients will experience

          serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service.

       5. In the case of a proposal for the addition of beds for the provision of skilled nursing or intermediate care services, that the addition will be consistent with the plans of other agencies of the state responsible for the provision and financing of long-term care, including come health services.

    Implementing these statutory criteria with specific reference to short term psychiatric beds is Rule 10-5.011(o), Florida Administrative Code, which provides, in pertinent part:

    
    

    (o) Short Term Hospital Inpatient Psychiatric Services.

    1. Bed allocations for acute care short term general psychiatric services shall be based on the following standards:

       1. A minimum of .15 beds per 1,000 population should be located in hospitals holding a general license to ensure access to needed services for persons with multiple health problems. These beds shall be designated as short term inpatient hospital psychiatric beds.

       2. 20 short term inpatient hospital

          beds per 1,000 population may be located in specialty hospitals or hospitals holding a general license. The distribution of these beds shall be based on local need, cost effectiveness, and quality of care considerations.

       3. The short term inpatient psychiatric bed need for a Department services district shall be projected 5 years into the future

          based on the most recent available January or July population estimate prior to the beginning of the respective batching cycle.

          The projected number of beds shall be based on a bed need ratio of .35 beds per 1,000 population. These beds are allocated in addition to the total number of general acute care hospital beds allocated to each Department District under Paragraph 10- 5.011(1)(m). The net need for short term psychiatric beds shall be calculated by subtracting the number of licensed and approval beds from the number of projected beds. The population estimates are based on population projections by the Executive Office of the Governor.

       4. Occupancy Standards. New facilities must be able to project an average 70% occupancy rate for adult psychiatric beds and 60% for children and adolescent beds in the second year of operation, and must be able to project an average 80% occupancy rate for adult beds and 70% for children and adolescent short term psychiatric inpatient hospital beds for the third year of operation.

       5. ... No additional beds for adolescents and children under 18 years of age shall normally be approved unless the average annual occupancy rate for all existing adolescent and children short term hospital

          inpatient psychiatric beds in the Department district is at or exceeds 70% for the preceding 12 month period.

       6. Hospitals seeking additional short term inpatient psychiatric beds must show evidence that the occupancy standard defined in paragraph six is met and that the number of designated short term psychiatric beds have had an occupancy rate of 75% or greater for the preceding year. ...

    2. Other standards and criteria to be considered in determining approval of a Certificate of Need application for short term hospital inpatient psychiatric beds are as follows:

       1. Applicants shall show evidence that the type of service and the number of proposed beds are consistent with the needs in the community stated in the local Health Council plans, local Mental Health District Board plans, State Mental Health Plan, and local needs assessment data.

       2. Applicants shall indicate in their application for new or expanded short term hospital inpatient psychiatric service.

          1. Expected source of

          2. Service area

          3. Expected average length of stay

          4. The relationship of the proposed services to other components of the community health system within the proposed service area.

       3. In order for the Department to ensure that short term hospital inpatient psychiatric service needs of all segments of the population in a given service area are adequately met, the applicant shall indicate the percentage of patient days allocated to:

          1. Indigent clients

          2. Medicaid clients

          3. Baker Act funded clients

          4. Private pay patients

          5. Other

             Priority consideration for initiation of new short term hospital inpatient psychiatric services or capital expenditures should be given to applicants with a documented history of providing services, or a commitment to provide services, to medically indigent patients, particularly Baker Act funded clients where there is an identified need and nonfunded indigent clients.

       4. Applicants shall indicate the availability of other inpatient psychiatric services in the proposed service area, including the number of beds available in crisis stabilization units, short term

          residential treatment programs, and other inpatient beds whether licensed as a hospital facility or not.

       5. Hospital based psychiatric services must provide outpatient services or must be formally linked with community outpatient programs, such as local psychiatrists, local psychologists, community mental health programs, or other local psychiatric outpatient programs.

       6. Development of new short term hospital inpatient psychiatric beds shall be through conversion of underutilized beds in other hospital services, unless conversion costs are prohibitive when compared with development of new facilities, or other factors to be specified by the applicant prohibit such conversion.

       7. Access standard. Short term inpatient hospital psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90% of the service area's population.

    
    

    Even though none of the children's psychiatric beds in District I is available to patients dependent on medicaid, girls must sometimes wait for vacancies.

    
    

30. By reserving two beds for medicaid-eligible and medically indigent children, and making ten others available, if needed, Baptist's proposal would remedy the dearth of children's psychiatric beds for medicaid patients in District I. Financial projections reasonably assume that "paying patients" would occupy most of the other ten beds, but Baptist has undertaken to keep the doors of its new children's inpatient psychiatric service open to all who need care. The service Baptist proposes would also solve the less urgent "access problem" confronting those District I residents needing to travel to a children's psychiatric facility who live more than 45 minutes from the only existing children's psychiatric beds.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That HRS grant Baptist's application for certificate of need No. 5669, on condition that Baptist honor its commitments to care for medically indigent and medicaid-eligible children in need of inpatient psychiatric care.

DONE and ENTERED this 2nd day of November, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1989.

APPENDIX

Petitioner's proposed findings of fact Nos. 1 through 6, 8 through 21, 28

through 35, 40, 44, 45, 47 through 50, 60, 61, 64, 69, 72, 73, 75, 76, 78, 79,

81 and 82 have been adopted in substance as fare as material.

With respect to petitioner's proposed finding of fact No. 7, either a music therapist or an art therapist is contemplated.

With respect to petitioner's proposed finding of fact No. 22, children in Escambia and Santa Rosa counties can go to Harbor Oaks.

Petitioner's proposed findings of fact Nos. 23 through 26 here not established by the evidence.

With respect to petitioner's proposed finding of fact No. 27 at least one eleven-year-old was also admitted.

Petitioner's proposed findings of fact Nos. 36 and 37 are immaterial. Petitioner's proposed findings of fact Nos. 37, 39, 42, 43, 46, 51 through

59, 62, 63, 65, 67, 70, 71, 74, 77 and 80 relate to subordinate matters.

With respect to petitioner's proposed finding of fact No. 41, the evidence did not show that everybody living in Escambia and Santa Rosa counties was more than 45 minutes from Harbor Oaks.

Petitioner's proposed finding of fact No. 66 is properly a proposed conclusion of law.

Respondent's proposed findings oil fact Nos. 1, 2, 5 through 8, 11, 14 and

15 have been adopted in substance insofar as material.

With respect to respondent's proposed finding of fact No. 3, the petitioner's stipulation further narrowed the issues.

Respondent's proposed findings of fact Nos. 4 and 17 are properly proposed conclusions of law.

Respondent's proposed findings of fact Nos. 9, 10, 21, and 23 have been reject in whole or in part as unsupported by the evidence.

Respondent's proposed findings of fact Nos. 12, 13, 16, 18, 20 and 22 pertain to subordinate matters.

With respect to respondent's proposed finding of fact No. 19, whether institutionalizing of children is ever a good idea is not at issue in this proceeding. The question is whether services available to others should also be available to indigent patients.

COPIES FURNISHED:

Sam Power Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Gregory Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Stephen A. Ecenia Roberts, Baggett, LaFace, and Richard

101 East College Avenue Post Office Drawer 1838 Tallahassee, FL 32302

Richard A. Patterson Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103

Tallahassee, FL 32308

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

BAPTIST HOSPITAL,

Petitioner,

CASE NO.: 89-0899

vs. CON NO.: 5699

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 THE DEPARTMENT

Counsel for the department excepts to finding of fact 26 wherein the Hearing Officer finds a need for 16.68 children's psychiatric beds in facilities that accept medicaid patients. This figure was not obtained by application of the numeric need rule, Section 10-5.011(o), F.A.C.; in fact, it was stipulated there was no numeric need under the rule. (See finding of fact 21). Numeric need may be calculated only by using the rule prescribed formula. See Health Quest Realty vs. HRS, 477 So2d 576, 579 (Fla. 1st DCA 1985). The exception is granted.

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 ruling on exceptions.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that Baptist Hospital's application for CON 5669 to convert 12 acute care beds to a 12 bed children's psychiatric unit be APPROVED. Baptist

Hospital's commitment to serve the medically indigent and medicaid eligible children are imposed as conditions of approval.

DONE and ORDERED this 1st day of December, 1989, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Programs

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

Copies furnished to:

Stephen A. Ecenia, Esquire ROBERTS, BAGGETT, LaFACE &

RICHARD

101 East College Avenue Post Office Drawer 1838 Tallahassee, FL 32301

Richard Patterson, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 2727 Mahan Drive

Fort Knox Executive Center Tallahassee, FL 32308

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550 Wayne McDaniel (PDDR) Susan Lincicome (PDRH)

FALR

Post Office Box 385 Gainesville, FL 32602

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to th above-named people by U.S. Mail this 5th day of Dec, 1989.

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

Docket for Case No: 89-000899

Orders for Case No: 89-000899