HEARINGS
STATE OF FLORIDA DIVISION OF ADMINISTRATIVE
NU-MED PEMBROKE, INC. d/b/a ) PEMBROKE PINES GENERAL HOSPITAL, )
)
Petitioner, )
)
vs. ) CASE NO. 89-
1255
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
)
and )
) SOUTH BROWARD HOSPITAL DISTRICT, )
)
Intervenor. )
)
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on August 14-16 and 22-24, 1989, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For | Petitioner: | Byron Mathews, Jr., Esquire Andrew B. Rosenblat, Esquire 700 Brickell Avenue McDermott, Will & Emery |
Miami, Florida 33131 | ||
For | Respondent: | Deanna Eftoda Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 |
For | Intervenor: | F. Philip Blank, Esquire Paul H. Amundsen, Esquire Blank, Hauser & Amundsen 204-B South Monroe Street Tallahassee, Florida 32301 |
STATEMENT OF THE ISSUES
The issue presented by the instant case is whether Petitioner's application for a certificate of need to provide inpatient cardiac catheterization services at Pembroke Pines General Hospital should be granted.
PRELIMINARY STATEMENT
On September 28, 1988, Petitioner filed with Respondent an application for a certificate of need to establish an inpatient cardiac catheterization program at Pembroke Pines General Hospital. In accordance with Respondent's request, Petitioner, on November 14, 1988, provided Respondent with additional information to
supplement its application. Following this submission, Respondent deemed Petitioner's application complete. On or about January 13, 1989, Respondent notified Petitioner in writing of its intent to deny Petitioner's application.
Further notice of this preliminary determination was published in the February 3, 1989, edition of Florida Administrative Weekly. On February 23, 1989, Petitioner requested a formal hearing on Respondent's proposed action. On March 9, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.
On March 16, 1989, the South Broward Hospital District filed a petition to intervene in this cause. The petition was granted by order issued April 6, 1989. On April 7, 1989, the Hospital Services and Development Corporation also petitioned to intervene in this matter. On April 25, 1989, the Hearing Officer issued an order granting the petition. The petition, however, was subsequently withdrawn.
The final hearing in the instant case was originally scheduled to commence on June 19, 1989. On May 25, 1989, Petitioner filed a motion requesting that the hearing be continued pending the outcome of "a challenge to the 1988 amendments to the rule by which the Department of Health and Rehabilitative Services evaluates need for cardiac catheterization services, Rule 10-5.011(1)(E)." Petitioner contended in its motion that if the requested continuance were not granted it would "have to go to hearing not knowing if need must be established pursuant to the methodology contained in the 1988 amendments to Rule 10-5.011(1)(e) or pursuant to the `old' need methodology." The
Hearing Officer denied the motion and instructed the parties in his order to "be prepared to address the issue of need under both the `old' and
`new' methodology in the event the aforementioned rule challenge case is not finally decided prior to the commencement of the hearing in the instant case." The Hearing Officer subsequently ordered the parties to provide him "at hearing with copies of the version of Florida Administrative Code Rule 10-5.011(1)(e) that they contend should be applied in the instant case."
On June 9, 1989, Petitioner filed another motion for continuance. Additional grounds were cited.. The motion was granted and the final hearing was continued until August 14, 1989.
At hearing, requests were made that the Hearing Officer take official recognition of the following documents: Section 381.701-381.715, Florida Statutes; Chapter 10-5, Florida Administrative Code, as amended effective November 17, 1987; pages 1420-1423 of the April 22, 1988, edition of Florida Administrative Weekly, reflecting proposed amendments to Florida Administrative Code Rule 10-5.011(1)(e); pages 2721-2724 of the July 29, 1988, edition of Florida Administrative Weekly, reflecting changes made to these proposed amendments; the February 16, 1989, order issued by the hearing officer in DOAH Case Nos. 88-3970R, 88-4018R, and 88-4019R; ME's
Response to Motions for a Corrected Order filed on August 16, 1989, in these rule challenge cases; the June 29, 1989, final order issued by the hearing officer in these cases holding that "the amendments to Rule 10-5.011(1)(e), F.A.C., published by the Department of Health and Rehabilitative Services on July 29 1988, with the
exception of the amendments to paragraph 2(h) paragraph 3(c) III, and paragraph 6(a) and the amendment regarding the definition of `inpatient visit' are an invalid exercise of delegated legislative authority, because they were adopted without adhering to the proper procedures for adoption delineated in Section 120.54, Florida Statutes;" the Motion foil Corrected Order filed by Respondent on or about July 10, 1989, in these rule challenge cases; the notice of appeal of the hearing officer's final order filed with the First District Court of Appeal on or about July 27, 1989; Florida Rule of Appellate Procedure 9.310(b)(2); the 1985-1987 State Health Plan; the 1988 District x Health Plan; population projections from the Office of the Governor, dated June 22, 1988; the decision rendered by the Fourth District Court of Appeal in Horgan V. South Broward Hospital District, which is reported at
477 So.2d 617; and the final order under review in that case. The Hearing Officer has taken official recognition of all of these documents pursuant to Section 120.61, Florida Statutes.
The following witnesses testified at hearing: Eugene P. Jones, Petitioner's Associate Executive Director of Finance; Nancy A. Persily, a health care planner and consultant; Dr. Joseph Horgan, a cardiologist; Dr. Barry Schiff, another cardiologist; Elizabeth Dudek, a Health Facilities and Services Consultant Supervisor in Respondent's Office of Regulation and Health Facilities; Forest Blanton, Assistant Administrator of Outpatient Services at Intervenor's Hollywood Memorial Hospital; Jay Weinstein, a health care consultant; John Chenoweth, the Assistant Finance Director at Hollywood Memorial Hospital; Robert J. Buehler, Jr., the Administrative Director of Radiology
Services at the hospital; Elton Scott, an Associate Professor of Finance at Florida State University; Michael Schwrtz, a hospital administrative consultant; Elfie Stamm, a Health Services and Facilities Consultant Supervisor in Respondent's Office of Comprehensive Health Planning; and Barry Greenberg, a Professor of Research at Florida International University. In addition to the testimony of these witnesses, the parties offered a total of 70 exhibits, all of which were received into evidence. These exhibits included the depositions of the following individuals: Edward Maas, the Executive Director of Petitioner's Pembroke Pines General Hospital; Dr. James R Margolis, a cardiologist; Dr. Allan Wolpowitz, another cardiologist; Kathleen Gilbert, the Chief Technologist at Hollywood Memorial Hospital's cardiac catheterization laboratory; and Dr. Silvio Sperber, one of three invasive cardiologists permitted to perform procedures in the laboratory.
At the close of the hearing, the Hearing Officer announced on the record that post-hearing pleadings had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on October 23, 1989. By order issued November 14, 1989, the deadline for the submission of post- hearing pleadings was extended until November 29, 1989, pursuant to Petitioner's request. On November 21, 1989, Intervenor filed a motion requesting that the deadline be further extended to December 15, 1989. The Hearing Officer granted the request on November 22, 1989. Respondent filed its proposed recommended order on December 7, 1989. Petitioner's and Intervenor's proposed
recommended orders were filed on December 15, 1989. 1/ The proposed findings of fact contained in these post-hearing pleadings submitted by the parties have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based on the evidence received at hearing and matters officially recognized, the Hearing Officer makes the following Findings of Fact:
Petitioner and its Parent Corporation
Petitioner is a for-profit Florida corporation formed on February 1, 1985, by Encino, California-based Nu-Med Hospitals, Inc. (NM), of which it is a wholly-owned subsidiary.
NM provides various administrative services to Petitioner. In return for these services, Petitioner pays NM an annual fee. The fee in 1987 was approximately $1.8 million. In 1988, it was about $952,000.
NM has also advanced loans to Petitioner. One such loan was in the amount of approximately
$31.4 million at an interest rate of 15.6%, the same interest rate that NM had to pay to obtain the money which was the subject of the loan.
Although interest rates have declined, the loan has not been refinanced. The failure to refinance has added substantially to Petitioner's costs.
Furthermore, there is a significantly greater cash flow from Petitioner to NM than would be the case had the loan been refinanced. The total pre-tax cash flow from Petitioner to NM, including the
amount attributable to the "excess interest" of the aforementioned loan, was $7,900,000 (or roughly 40% of NM's equity investment in Petitioner) in fiscal year 1987 and $4,387,000 (or roughly 23% of NM's equity investment in Petitioner) in fiscal year 1988.
In addition to providing administrative services and making loans to Petitioner, NM has also invested more than $17 million over the past four years in Petitioner.
Petitioner had an after-tax profit of
$852,300 in fiscal year 1987. In fiscal year 1988, it had an after-tax loss of $346,600.
Preliminary figures reveal that Petitioner suffered an after-tax loss of slightly more than
$1 3l0 in fiscal year 1989. Pembroke Pines General Hospital.
Petitioner owns and operates Pembroke Pines General Hospital (PPGH). PPGH is an acute- care hospital with a licensed capacity of 301 beds. It is fully accredited by the Joint Commission on Accreditation of Health Care Organizations. The hospital's bed complement includes 24 intensive care beds (12 coronary beds and 12 surgical beds) 2/ and 32 telemetry beds. Its telemetry unit will be expanded to 48 beds in the near future. In July, 1988, PPGH instituted an eleven bed obstetrical unit. Prior to the acquisition of the hospital in 1985, NM conducted a due diligence study to seek information about the hospital and became aware of the extent of the services provided by the hospital.
According to 1987 actual data collected by the Hospital Cost Containment Board (HCCB),
PPGH earned a 7.1% return on tangible equity and ranked 7th in this category of the 18 hospitals in Broward County reporting such information; PPGH had a cash flow to total debt ratio of .112% and ranked 9th in this category of the 20 hospitals in Broward County reporting such information; and its total margin percent was 2.6% and it ranked 8th in this category of the 20 hospitals in Broward County reporting such information.
According to 1988 actual data collected by the HCCB, in terms of gross revenue per adjusted admission, PPGH ranked 8th of the 30 hospitals in HCCB Group 5 and 3rd of the 20 hospitals in Broward County reporting such information; and in terms of net revenue per adjusted revenue, PPGH ranked 7th of the 30 hospitals in HCCB Group 5 and 5th of the 20 hospitals in Broward County reporting such information.
PPGH is located in Respondent's District x, the boundaries of which mirror those of Broward County. It is situated in the southwest quadrant of the county on the corner of Sheridan Street and University Drive. In the area surrounding the hospital is a large concentration of physicians' offices, including one housing a five-member group which limits its practice exclusively to cardiology and is the largest such group in Broward County. The group provides total cardiovascular care to its patients, including echocardiography and nuclear, invasive and clinical cardiology services. It has an active patient case load of 5,000 to 6,000. Of the members of the group, only Dr. Joseph Horgan and Dr. Barry Schiff practice invasive cardiology. Their practice is not confined to invasive
cardiology, however. They are also clinical cardiologists. Both are board-certified in internal medicine, as well as cardiology. The Horgan-Schiff group accounts for 15 to 35 patients a day at PPGH, which has an active cardiology service, notwithstanding that it does not offer open heart surgery. The group provides on-site coverage at PPGH from 8:00 A.M. to 7:00 or 8:00
P.M. during the weekday. At other hours members of the group are on call and are able to quickly respond to emergencies at the hospital. Approximately 25 to 30 physicians in the area surrounding the hospital refer their patients who need cardiac catheterizations exclusively to the group.
PPGH's primary service area, as defined by Petitioner, is bounded on the north by State load 84, on the south by the Broward County/Dade County line, on the east by the Florida Turnpike, and on the west by the eastern boundary of the conservation area. Included in this area are the cities of Pembroke Pines, Miramar, Davie and Cooper City. Most of Dr. Horgan's and Dr. Schiff's patients reside in PPGH's primary service area. While PPGH is not the only acute-care hospital that serves the residents of this area, it is the only hospital that is located within the area's geographic boundaries. Intervenor
PPGH's primary service area is within the jurisdictional boundaries of the South Broward Hospital District (SBHD). SBHD is an independent taxing district which encompasses roughly the southern third of Broward County. It was created in 1947 by a special act of the Legislature to
provide quality health care services to the residents of the district regardless of their ability to pay.
Hollywood Memorial Hospital
SBHD operates several facilities in the district, including a 24-hour walk-in medical center in Pembroke Pines, a freestanding ambulatory surgical center, an oncology center and a radiation therapy center. Its flagship, however, is Hollywood Memorial Hospital (Memorial), a public acute-care hospital that has grown from a 100-bed facility to a 737-bed facility offering a wide variety of health care services. Memorial is located six or seven miles east of PPGH outside of PPGH's primary service area. It is the closest hospital to PPGH. Many of the physicians who have privileges at PPGH also have privileges at Memorial. For instance, 13 of the 16 clinical cardiologists on the medical staff of PPGH, including Dr. Horgan and Dr. Schiff, are also on the medical staff of Memorial.
The Horgan-Schiff group is responsible for 10 to 30 patients at Memorial on any given day.
Charity Care, Medicaid and Medicare
Memorial is the major provider of charity care to residents of the SBHD. In fiscal years 1987, 1988, and 1989, it provided
$16,928,000, $22,728,000, and $22,258,000,
respectively, in gross indigent charity care 3/ and $6,153 000, $13,739,000, and $7,587,000,
respectively, in net unfunded (by tax revenues) indigent charity care. For fiscal year 199(),
Memorial projects that it will provide $24,442,000 in gross indigent charity care, of which
$14,211,000 will be funded by tax reVenues. A sizeable portion of the hospital's indigent charity care is funded by its operating revenues. During fiscal year 1989, the hospital earned slightly less than $3 million from its operations. Total revenues over expenses that year, however, exceeded $12 million, more than $8 million of which was attributable to returns on its investments. For fiscal year 1988, the hospital's total revenues over expenses was almost $14 million.
In calendar year 1986, PPGH furnished 1.1% of the indigent charity care provided in Broward County. It ranked in the top 50% of hospitals in the county in this regard. Memorial ranked 2nd in the county, providing 22.8% of the county's indigent charity care during the calendar year.
In calendar year 1987, PPGH provided
$596,295 in indigent charity care. This constituted 1.29% of its gross patient revenues. In comparison, during this same period, Memorial provided $18,248,517, or 9.79% of its gross patient revenues, in indigent charity care. In terms of indigent charity care provided during calendar year 1987 as a percentage of gross patient revenue, PPGH ranked 5th of the 12 hospitals reporting in the county and 118th of the
209 hospitals reporting in the state. Memorial, on the other hand, ranked 3rd in the count, behind two other public hospitals, and 19th in the state
In calendar year 1988, PPGH ranked 16th of the 30 hospitals in HCCB Group 5 in this
category. Of the 20 hospitals reporting in the county, PPGH ranked 10th and Memorial ranked 2nd.
Both Memorial and PPGH participate in the Medicaid program. As participants in the program, they are reimbursed for the services they provide to Medicaid patients, but generally not in the amount private pay patients are charged for the same services. The difference between what they receive from Medicaid and what they would have received from a private pay patient is referred to as a "Medicaid deduction." In calendar year 1988, PPGH's "Medicaid deductions" represented .76% of its gross patient revenues.
In this category, it ranked 26th of the 30 hospitals in its HCCB group and 8th of the 20 hospitals in Broward County. Memorial, whose Medicaid deductions were 5.29% of its gross patient revenues, ranked 2nd in the county. Based on PPGH's operating budget for calendar year 1989, it ranks 192nd of the approximately 230 acute-care hospitals in the state in the amount of "Medicaid deductions" as a percentage of gross patient revenues. A further comparative review of calendar year 1989 operating budgets reveals that of the 22 hospitals in its HCCB group in calendar year 1989, PPGH ranks last in Medicaid days as a percentage of total patient days.
During the third quarter of calendar year 1988, 1.3% of PPGH's gross patient revenues and 5.4% of Memorial's gross patient revenues were attributable to Medicaid patients. PPGH's 1.3% was the 8th highest and Memorial's 5.4% was the third highest of Broward County's 20 hospitals.
Pursuant to a contractual arrangement with Respondent, PPGH provides medical services to
patients at South Florida State Hospital, a mental health facility operated by the state. In return for the provision of these services;, PPGH is reimbursed at rates comparable to those that apply to Medicaid patients. South Florida State Hospital patients constitute approximately 2 to 5% of PPGH's Average Daily Census.
Unlike Memorial, PPGH does not receive any tax revenues to help defray its expenses.
PPGH has offered to serve indigent patients who live in the SBHD if the SBHD will reimburse it the same rate the SBHD reimburses Memorial for such services. The SBHD, however, has refused the offer.
In terms of Medicare utilization, 1988 HCCB actual data reflects that PPGH ranked 13th of the 30 hospitals in its group and 11th of the 20 hospitals reporting in Broward County. District X Population and Demographics
The Executive Office of the Governor, in a report prepared June 22, 1988, estimated that on January 1, 1988, the adult population (15 years of age and over) of Broward County was 1,001,822, and projected that it would increase to 1,047,900 on January 1, 1991.
PPGH's primary service area in southwest Broward County has experienced rapid and sustained population growth in recent years. It is the site of several significant retirement communities, including a Century Village development which is expected to have 17,000 residents at build-out.
Nonetheless, the population of this area is younger than that of Broward County as a whole.
Approximately, 23% of the total population in southwest Broward County is over 55 years of age. While this is two percentage points higher than the national average, it is considerably lower than the countywide figure. Individuals aged 45 to 74 constitute 33.5% of the County's total population, but only 29.7% of the total population of southwest Broward County.
The leading cause of death in Broward County is heart disease, a disease to which individuals become more susceptible as they age. Average Daily Census, Occupancy Rates, and Market Scare
Notwithstanding the substantial population growth in Broward County, there is now, and has been since at least 1983, a large number of excess hospital beds in District X. The occupancy rates of Broward County hospitals, excluding PPGH, were as follows for calendar years 1983 through 1988: 1983- 65.4%; 1984- 61.3%;
1985- 57.1%; 1986- 55.5%; 1987- 56.2%; and 1988-
52.6%.
PPGH, which had a capacity of 301 licensed beds throughout the period, had even lower occupancy rates. During the period, its Average Daily Census (ADC) and, consequently, its occupancy rate declined each year as follows: 4/
Calendar ADC
Occupancy
Rate 42.5%
37.9%
37.2%
34.1%
32.9%
30.9%
Year
1983 | 127.9 |
1984 | 114 |
1985 | 111.8 |
1986 | 102.6 |
1987 | 98.9 |
1988 | 93 |
Based upon statistics for the first six months of calendar year 1989, however, it appears that the hospital's ADC for the entire calendar year will not further decline, but rather will increase to
100.6. 5/
Calendar Year | ADC |
1983 | 570.7 |
1984 | 533.7 |
1985 | 513.6 |
1986 | 538.7 |
1987 | 552.6 |
1988 | 560.5 |
During calendar years 1983 through 1988, Memorial's occupancy rates far exceeded those of PPGF, as reflected below:
Occupancy Rate 78.6%
72.5%
69.7%
73.1%
75.0%
76.1%
Based upon statistics for the first six months of calendar year 1989, it appears that for the entire calendar year Memorial's ADC will be 526.5 and its occupancy rate will be 71.3%.
Memorial's occupancy rates have been higher than PPGH's due, at least in part, to the fact that Memorial has been able to offer heavily used specialized services not available at PPGH, including neonatal, rehabilitative, and short-term psychiatric care. Furthermore, while PPGH and Memorial both have pharmacy, 6/ physical therapy, nuclear medicine, and cardiac rehabilitation programs, the regular hours of operation of these programs are longer at Memorial.
Based upon their ADCs, PPGH's and Memorial's share of the total Broward County market for calendar years 1983 through 1988 was as follows: 7/
Year | PPGH |
1983 | 3.6% |
1984 | 3.1% |
1985 | 3.3% |
1986 | 3.1% |
1987 | 3.0% |
1988 | 2.8% |
Calendar
Memorial 16.2%
14.7%
15.1%
16.2%
16.9%
17.2%
January, 1988, through June, 1988, discharge data reveals that during that period PPGH and Memorial were responsible for 19.2% and 61.8%, respectively, of the total number of patients from PPGH's primary service area who were discharged from PPGH and District X hospitals with existing or approved inpatient cardiac catheterization programs.
Although the ADC for PPGH's total bed complement declined from 1983 to 1988, the number of emergency room visits and emergency room admissions at PPGH increased 18.2% and 31.6%, respectively, during that period. The percentage increases are even greater if only the latter four years of this five-year period are considered. In terms of the average number of critical care beds
occupied on a daily basis PPGH has experienced an increase of 28.9% from 1983 to 1988 and an
increase of 35.4% from 1984 to 1988. Data reflecting PPGH's performance during the first five and six months of calendar year 1989 indicate that the increase in the number of emergency room visits, emergency room admissions and critical care beds occupied on a daily basis at PPGH has continued.
Cardiac Catheterization
As accurately described by Respondent in its rules a cardiac catheterization is
a medical procedure requiring the passage of a catheter into one or more cardiac chambers of the left and right heart, with or without coronary arteriograms, for the purpose of diagnosing congenital or acquired cardiovascular diseases, or for determining measurement of blood pressure flow. Cardiac catheterization also includes the selective catheterization of the coronary ostia with injection of contrast medium into the coronary arteries.
The flow of contrast medium through the coronary arteries may be recorded on x-ray film. The x-ray picture, or angiogram, that is produced can provide information quite helpful to the patient's physician. If it reveals a clot or other blockage restricting the flow of blood to the heart, a balloon-tipped catheter may be used to dilate or open the affected artery. Such a procedure is referred to as a coronary angioplasty. In
contrast to cardiac catheterization, which is a diagnostic tool, coronary angioplasty is a therapeutic procedure. A high percentage of patients who receive a coronary angioplasty require open heart surgery immediately following the procedure.
Cardiac catheterizations are generally, but not always, elective procedures which need not be performed immediately. There are occasions, however, where a patient is in the throes of a heart attack and requires an emergency coronary angioplasty to restore the flow of blood to the heart to minimize damage to the heart muscle. Under these circumstances, an emergency diagnostic cardiac catheterization, which can be completed in as little as five to six minutes, must also be performed so that the cardiologist will know precisely where in the arterial tree the blockage is located. Respondent permits health care providers to perform such emergency inpatient procedures regardless of whether they possess a certificate of need.
Cardiac catheterizations are performed in equipped laboratories and, in the absence of complications, are usually completed within 60 minutes. They may be done on an inpatient or outpatient basis, depending on the condition of the patient. The equipment used is the same, however, whether the procedure is performed on an inpatient or on an outpatient. Recent technological advancements have made it possible to perform more procedures on an outpatient basis than previously. Smaller-sized catheters can now be used. As a result, the entry wound typically heals faster and there are fewer vascular complications. Dr. Horgan and Dr. Schiff were
among the first invasive cardiologists in South Florida to employ these smaller- sized catheters.
Physicians performing cardiac catheterizations are assisted by technicians and nurses who have specialized skills and training. These technicians and nurses are, at times, in short supply. Competition amongst hospitals to recruit and retain these support staff members is therefore sometimes keen.
The majority of cardiac catheterizations are performed on individuals 45 to 74 years of age.
39 There has been no showing that there are any alternative diagnostic procedures which are preferable to cardiac catheterization.
District X Inpatient Cardiac Catheterization Programs
Broward County is not divided into cardiac catheterization subdistricts.
The following seven facilities in Broward County, each of which is within two hours travel time of 90% of the county's population, provide inpatient cardiac: catheterization services pursuant to certificates of need granted by Respondent: Broward General Hospital; Florida Medical Center; Holy Cross Hospital; Memorial; North Broward Regional Medical Center: North Ridge Hospital; and Plantation General Hospital. Broward General, North Broward, and Plantation General each have one cardiac catheterization laboratory. Memorial also has one laboratory, but has plans to construct another pursuant to a
"major renovation certificate of need" granted several years ago. It is unclear, however, as to when construction will begin. North Ridge has two laboratories. Florida Medical and Holy Cross each have two laboratories as well, plus one backup laboratory.
The average hospital charge and the average length of stay per inpatient admission to these inpatient cardiac catheterization programs during calendar years 1986 and 1987 and the first nine months of calendar year 1988 were as follows:
Calendar Average
Average Stay
3.71 days
3.27 days
3.43 days
2.98 days
3.70 days
3.00 days
Year Charge
1986 (All $4,365.14
Patients)
4936 (Excluding $3,932.44
Medicaid and Medicare)
1987 (All $4,359.92
Patients)
1987 (Excluding $4,041.80
Medicare and Medicaid)
1988 (All $5,054.17
Patients)
1988 (Excluding $4,393.60
Medicare and Medicaid)
Cardiac catheterizations are also performed on an outpatient basis at these seven existing facilities. The number of cardiac catheterizations performed in Broward County increased almost 60% from 1985 to 1987, an increase that can be attributed to the aging of the county's population and the advances in cardiac catheterization technology. During the period from April, 1987, through March, 1988, there was a total of 9,289 cardiac catheterization admissions, both inpatient and outpatient, at these facilities, an amount substantially less than their combined capacity. During the period from July, 1987, through June 1988, they also collectively operated well below their combined capacity, handling a total of 9,236 inpatient and outpatient cardiac catheterization admissions Each of the existing laboratories in Broward County can handle at least 1,000 to 1,200 cardiac catheterizations a year during their normal hours of operation with their regular staff. 8/ These laboratories appear to be operating efficiently and to be available to all segments of the county's adult population requiring routine/diagnostic cardiac catheterization services. Furthermore, there is no indication that the quality of care offered at these laboratories is in any way lacking.
In addition to these seven existing programs, Respondent has also granted certificates of need authorizing routine/diagnostic inpatient cardiac catheterizations to be performed at two other health care facilities: Imperial Point Hospital and Humana Bennett Hospital.
Humana Bennett's primary service area overlaps PPGH's service area. It takes approximately 15 to 20 minutes by car to get to Humana Bennett from PPGH under normal driving conditions.
The programs at Imperial Point and Humana Bennett are not yet operational. If their laboratories have hours of operation and staffing levels comparable to those of the laboratories in the county that are currently in operation, these laboratories will also each have the capacity to handle at least
1,000 to 1,200 cardiac catheterizations annually. The same can be said for Memorial's proposed second laboratory.
Memorial's Inpatient Cardiac Catheterization Program
Since 1981, Memorial's inpatient cardiac catheterization program has been open only to those cardiologists who devote their entire practice to performing cardiac catheterizations. It is closed to cardiologists, like Dr. Horgan and Dr. Schiff, who are not full-time invasive cardiologists. While it has its disadvantages, closing the program in this manner is a policy decision that, on balance, tends to enhance, rather than compromise, the program's efficiency as well the quality of care received by the program's patients. Other cardiac catheterization laboratories in Broward County are "closed" like Memorial's laboratory. The majority of the county's cardiac catheterization laboratories, however, including those at Broward General, Florida Medical, North Broward Regional and Plantation General, have laboratories that are
open to any qualified invasive cardiologist. In addition, the laboratories at Humana Bennett and Imperial Point will be "open" when they become operational.
In 1984, Dr. Horgan applied for privileges at Memorial's cardiac catheterization laboratory. Following a hearing before the SBHD's Board of Commissioners, final action was taken by the board to deny Dr. Horgan's application. Dr. Horgan appealed the board's decision to the Fourth District Court of Appeal. The board's decision was affirmed by the appellate court.
Thereafter, in early 1987, at the request of the administrator of Memorial, Dr. Horgan, as well as his partner Dr. Schiff, discussed with Memorial representatives the possibility of their performing cardiac catheterizations at Memorial. Although approval of such an arrangement was initially given by the hospital, it was later withdrawn after members of the hospital's cardiology department complained about the arrangement.
At present, three full-time invasive cardiologists, Dr. Mario Sperber and his partners Dr. Barry Alter and Dr. Michael Mareke have privileges to perform cardiac catheterizations at Memorial. They charge $1-500 for a routine/diagnostic left and right heart catheterization. Included in this charge is a fee of $191 that is passed on to the radiologist who assists in the interpretation of the angiogram.
Because it has an open heart surgery program, Memorial is also authorized to perform routine/non-emergency angioplasties. These
angioplasties are performed in Memorial's cardiac catheterization laboratory. The total number of procedures done in this laboratory during fiscal year 1988 was 1,635, seven of which were performed on Medicaid patients and 176 of which were performed on an outpatient basis. The total number of procedures, including angioplasties, done in Memorial's cardiac catheterization laboratory during fiscal year 1989 increased slightly to 1,650. The number of those procedures performed on an outpatient basis, however, almost doubled. The ratio of routine/diagnostic inpatient cardiac catheterizations to routine/diagnostic outpatient cardiac cathetrizations performed at Memorial has decreased from about 6 to 1 to approximately 4 to
A further decrease is likely in view of the technological improvements that have been made.
During calendar year 1988, 1,238 routine/diagnostic cardiac catheterizations, 234 angioplasties, and 512 open heart surgeries were performed at Memorial. During the first six months of calendar year 1989, there ware 680 routine/diagnostic cardiac catheterizations, 168 angioplasties, and 241 open heart surgeries done at Memorial.
Approximately 23% of the total number of inpatient procedures performed in Memorial's cardiac catheterization laboratory during the first six months of calendar year 1988 were done on patients who resided in PPGH's primary service area.
From fiscal year 1988 to fiscal year 1989, the revenues over direct expenses of Memorial's cardiac catheterization laboratory increased slightly. PPGH's Cardiac Catheterization Laboratory
In addition to the previously mentioned cardiac catheterization laboratories in Broward County, there is also a 695-square foot cardiac catheterization laboratory located inside the operating room suite at PPGH. Cardiac catheterizations are performed at this laboratory, however, exclusively on an outpatient basis. It is the only such outpatient laboratory in Broward County and it was the first of its kind in South Florida.
The laboratory at PPGH is leased to a Florida limited partnership, University Heart Institute, Ltd (Partnership) which operates the outpatient cardiac catheterization program at the hospital. 10/ The leasing of a department of a hospital is not an uncommon practice in Broward County.
Petitioner provides the space needed to operate the outpatient cardiac catheterization program at PPGH, as well as other support services, pursuant to a management agreement with the Partnership. In return for the space and services it provides, Petitioner receives a nominal sum of $1.00 a month from the Partnership.
The management agreement has a termination provision which permits Petitioner to terminate the agreement if, at any time after the
first twelve months, "the Partnership has a negative cash flow over a period of six or more calendar months."
Petitioner is a 50% general partner of the Partnership. Accordingly, pursuant to generally accepted accounting principles, Petitioner must reflect: the financial activities of the Partnership on its balance sheet as though they were its own.
The other general partner in the venture is University Hospital, Inc., (UHI), a corporation controlled by Dr. Horgan and Dr. Schiff and their partner, Dr. Dweck. Petitioner and UHI have equal control over the Partnership. There are also about 20 limited partners, all of whom are physicians.
The profits and losses of the Partnership are divided as follows: 50% to Petitioner; 25% to UHI; and 25% to the limited partners. During the first year of operation of the cardiac catheterization laboratory, the Partnership earned a profit of approximately
$100,000.
PPGH's cardiac catheterization laboratory began operation on April 29, 1988, after the area of the hospital in which it is located received less than $50,000 worth of renovation work. Two-hundred and forty-eight outpatients received cardiac catheterizations at the laboratory in the first twelve months of its operation. During the thirteenth month of its operation, cardiac catheterizations were done on an additional 22 outpatients. Of the 270 outpatients who received cardiac catheterizations
during the first thirteen months of the laboratory's operation, only one was a Medicaid patient.
The overwhelming majority of outpatients who have received cardiac catheterizations at PPGH's laboratory have been from southwest Broward County and have been referred to the laboratory by Dr. Horgan and Dr. Schiff.
Dr. Joseph S. Horgan, M.D., P.A., and Dr. Barry H. Schiff, M.D., P.A., are the exclusive providers of cardiac catheterization services at PPGH's laboratory pursuant to a professional services agreement they entered into with the Partnership. Under the agreement, only "physicians that are associated with, employed or otherwise engaged under contract with" these two Florida corporations run by Dr. Horgan and Dr. Schiff, respectively, may use the laboratory. Dr. Horgan and Dr. Schiff therefore have the sole authority to determine who may perform cardiac catheterizations at PPGH's laboratory. They also serve as co-medical directors of the laboratory and, in these capacities, are responsible for the development and implementation of all policies pertinent to the operation of the laboratory.
To date, only Dr. Horgan and Dr. Schiff have performed cardiac catheterizations at the laboratory. A third invasive cardiologist, however, will soon join Dr. Horgan and Dr. Schiff in providing such services at the hospital. The hospital's laboratory will be closed to all other invasive cardiologists.
Dr. Horgan and Dr. Schiff charge $950 for a routine/diagnostic right or left heart
catheterization and $1,175 for a routine/diagnostic right and left heart catheterization. These charges are consistent with the provision of the professional services agreement with the Partnership which requires that their fees "be competitive with the usual and customary fees charged in the community for similar services." Under the agreement, Dr. Horgan and Dr. Schiff are entitled to keep the fees they receive for the professional services they render.
Most of Drs. Horgan's and Schiff's patients receive a right and left heart catheterization. As a result, they average 1.8 procedures per patient and their average charge per patient is $1,100.
Unlike the invasive cardiologists who practice at Memorial's laboratory, Dr. Horgan and Dr. Schiff do not utilize radiologists to assist them in interpreting the angiograms they produce.
Dr. Horgan and Dr. Schiff have proven to be highly competent and skilled invasive cardiologists and they offer high quality care to the outpatients they catheterize at PPGH's laboratory. There have been no moralities at the laboratory and only a few outpatients have experienced complications after being catheterized. Furthermore, approximately 91% of the catheterizations performed at the laboratory reveal some abnormality. This high rate of abnormal catheterizations suggests that Dr. Horgan and Dr. Schiff are exercising sound judgment in referring outpatients to the laboratory, as opposed to making these referrals without justification.
In the professional services agreement with the Partnership, Dr. Horgan and Dr. Schiff have agreed "not to provide outpatient cardiac catheterization and peripheral vascular procedure services within Broward or Dade Counties, Florida for a two (2) year period after the commencement of the term of this Agreement [at any facility other than PPGH] except that [they) shall continue to provide such services at Plantation General Hospital, Florida Medical Center, University of Miami, Jackson Memorial Hospital and Cedars Medical Center of Miami."
Most of the cardiac catheterizations that Dr. Horgan and Dr. Schiff perform are done on an outpatient basis. They do cardiac catheterizations on an inpatient basis only if the patient's medical condition warrants. They perform these inpatient cardiac catheterizations at Florida Medical and Plantation General.
Between May 1, 1988, and April 30, 1989, they performed inpatient cardiac catheterizations on about 125 to 150 patients in these two facilities.
Florida Medical and Plantation General are each within a half hour driving time of PPGH. Florida Medical offers open heart surgery and routine/non-emergency angioplasty. Plantation General has received preliminary approval from Respondent to provide open heart surgery services. Dr. Horgan's and Dr. Schiff's patients receive good care at Florida Medical and Plantation General.
In addition to performing these inpatient cardiac catheterizations at Florida Medical and Plantation-General, during the one year period ending April 30, 1989, they also
referred approximately 160 patients to Memorial for cardiac catheterization services. If Petitioner had the certificate of need that it is seeking in the instant case, none of these referrals would have been made.
When they are performing cardiac: catheterizations at PPGH, Dr. Horgan and Dr. Schiff are assisted by a highly qualified and well-trained support staff consisting of a catheterization technician and three Registered Nurse's, one of whom is the staff director. All four staff members are employees of Petitioner, not the Partnership. Their combined annual
salaries total about $119,000. Collectively, they receive approximately another $36,000 from Petitioner in fringe benefits. The Partnership reimburses Petitioner for monies expended “0 compensate these staff members for the work they perform in PPGH's cardiac catheterization laboratory. These staff members, however, do not work full-time in the laboratory. They are also assigned to other-areas of the hospital, most notably the intensive care unit. The majority of cardiac catheterization laboratories in Broward and Dade Counties have support staffs similar in size to the support staff assigned to PPGH's laboratory.
The equipment in PPGH's cardiac catheterization laboratory was purchased by the Partnership from Dr. Horgan at Dr. Horgan's cost. Dr. Horgan paid approximately $250,000 for the equipment when he purchased it from EWA Industries, Inc., shortly before the opening of the laboratory. A portion of the money Dr. Horgan used to pay for the equipment came from a loan he received from Petitioner. At the time of its
original purchase, the equipment was, for the most part, newly reconditioned. The equipment is not "state-of-the-art." It lacks certain features that are available on other equipment, such as digital/computer analysis capability. These features, however, are of relatively insignificant value. Despite lacking these features, the equipment in PPGH's outpatient cardiac catheterization laboratory is more than adequate, as evidenced by the high quality of Dr. Horgan's and Dr. Schiff's angiograms. Furthermore, although the equipment is made of parts manufactured by different manufacturers, obtaining parts for repair is not a major problem. They are readily available from EWA, which is based in Miami. In addition, there are two distributors and service centers located in Broward County from whom replacement parts may be obtained.
Although PPGH has the medical and support staff and the equipment, as well as the ancillary services, necessary to provide routine/diagnostic cardiac catheterization services to inpatients at the hospital, it has not been authorized to do so by Respondent. PPGH's inability to offer these inpatient services places it at a competitive disadvantage relative to those facilities in the county that are authorized to provide these services. For instance, it makes it more difficult for PPGH to compete for contracts with health maintenance organizations and other third party payers. More significantly, PPGH's competitors offering inpatient cardiac catheterization services are able to capture patient revenues that would otherwise be received by PPGH if it were able to provide such services. PPGH's situation, however, is not unique. The majority of hospitals in Broward County are not
authorized to offer inpatient cardiac catheterization services. Moreover, even though its competitive position would be enhanced if it were able to offer such services, its inability to do so does net threaten its survival as a health care facility in the Broward County market.
If an inpatient at PPGH needs a routine/diagnostic cardiac catheterization that, because of the patient's unstable medical condition, cannot be performed on an outpatient basis, the patient must be transferred to another facility that is authorized to provide inpatient cardiac catheterization services. During fiscal year 1988, PPGH transferred 106 such patients to other facilities to receive inpatient cardiac catheterizations. Even if PPGH had been able to provide inpatient cardiac catheterization services to these patients, some of them would have had to have been ultimately transferred to another facility in any event to receive routine/non- emergency angioplasty or open heart surgery.
Patients transferred from PPGH to another facility to receive cardiac catheterizations on an inpatient basis are generally transported by ambulance. A round-trip ambulance ride from PPGH typically costs between
$500 and $700. In addition to increasing these patients' costs, such transfers may also cause them to experience additional stress.
Clearly, in hindsight, it can be said that these transferred patients would have been better off if they had been initially admitted to a facility with inpatient cardiac catheterization capability instead of PPGH. Unfortunately, however, it is often difficult to determine at the
time of admission whether a patient will need cardiac catheterization services. Furthermore, there are occasions where a patient arrives at PPGH's emergency room in such a medically unstable condition that he must wait at the hospital until his condition improves before he can be transported to another facility.
It is not uncommon for Dr. Horgan's and Dr. Schiff's patients who need to be transferred from PPGH to receive an inpatient cardiac catheterization to have to wait two or three days before there is an opening in the cardiac catheterization laboratory schedule at Florida Medical or Plantation General that is convenient to them and their physician. During this time, these patients remain at PPGH, thus increasing the length of their stay there and they undergo expensive diagnostic testing designed to provide information that may be useful in managing these patients until they are able to be transferred and catheterized.
While such scheduling problems have been experienced in the past, the situation should improve when the laboratories at Imperial Point and Humana Bennett become operational. Furthermore, there has been no Chowing that the patients who had to wait two or three or more days to be transferred from PPGH to Florida Medical or Plantation General could not have received such services at another existing provided, such as Memorial, had they so desired.
Patients of Dr. Horgan and Dr. Schiff have died at PPGH while waiting to be transferred to another facility to receive an inpatient cardiac catheterization. A significant number of
these patients could have survived had they received an emergency cardiac catheterization and angioplasty. Although the necessary equipment and staff were available at PPGH to perform these procedures, these procedures were nonetheless not performed. Because these were emergency situations where the 34 patients' lives were threatened, PPGH's lack of a certificate of need did not preclude Dr. Horgan and Dr. Schiff from performing these procedures at PPGH.
Petitioner's Application for a Certificate of Need
Approximately five months after the first outpatient cardiac catheterization procedure was performed at PPGH, Petitioner submitted an application for a certificate of need to provide inpatient cardiac catheterization services at the facility. Petitioner proposes to use, in providing these services, the same laboratory, equipment and staff it now uses for its outpatient program.
The application estimates that the total cost of the project will be only $10,000, which represents "the legal and consulting fees associated with the Certificate of Need Application." There will be no financing, refinancing, professional services, construction or equipment costs, according to the application.
In estimating the total cost of the project, Petitioner does not include the costs that were incurred to commence operation of PPGH's outpatient cardiac catheterization program, notwithstanding that these costs were incurred in contemplation of the filing of the instant application. 11/
The application also contains an estimate of revenues and expenses for the first two years of operation of the proposed project. The estimate includes projected revenues and expenses attributable to both the inpatient and outpatient operations of the laboratory.
Petitioner projects in its application that 532 patients (320 inpatients and 212 outpatients) will visit PPGH's cardiac catheterization laboratory the first year it is able to offer inpatient services 12/ and that 592 patients (355 inpatients and 237 outpatients) will visit the laboratory the following year. Given Dr. Horgan's and Dr. Schiff's track record 13/
and reputation and the financial interest they have in the successful operation of the laboratory, 14/ it is not unreasonable to believe that they will attract these projected numbers of patients to the laboratory. Moreover, they, along with the third invasive cardiologist who will soon join them, should easily b able to handle such patient case loads at the laboratory during reasonable hours of operation with the laboratory's existing support staff and equipment.
In projecting the gross revenues that will be generated by the inpatients who visit the laboratory, Petitioner assumes that these inpatients will be charged an average of $4,935 per patient the first year and $5,176 per patient the second year. These charges are consistent with the average charges of existing providers in the county. With respect to outpatients, Petitioner assumes that they will be charged on the average $2,300 per patient the first year and
$2,415 per patient the second year. These charges
are consistent with the laboratory's current average charge per outpatient.
In view of the foregoing, Petitioner's projections in its application regarding gross revenues are reasonable.
Of the patients that will visit the laboratory during the first two years of the inpatient program, Petitioner projects in its application that 2% will be Medicaid recipients and 3% will receive charity or free care. In view of PPGH's past performance in these areas, it appears unlikely that these percentages will be realized.15/ Accordingly, Petitioner's projections in its application regarding the deductions from gross revenues for Medicaid contractual allowances and charity care are unreasonably high.
The projections made by Petitioner regarding direct and indirect expenses, in the aggregate, are not unreasonably low, notwithstanding that the application's statement of projected revenues does not make specific reference to certain expense items relating to inpatient care, such as nursing care and food supply costs. If anything, Petitioner has overestimated total expenses.16/
Providing only outpatient services, which generate less net income per patient than do inpatient services, the laboratory at PPGH returned a profit of approximately $100,000 in its first year of operation. The profitability of the laboratory will likely increase, as Petitioner projects, if it is able to offer inpatient, in addition to outpatient, services. In both the
short-term and the long-term, Petitioner' proposal to provide such services is financially feasible.
As evidenced by the attachments to Petitioner's application, as supplemented in response to Respondent's October 13, 1988, omissions letter, PPGH has transfer agreements with St. Francis Hospital and Florida Medical, both of which are within thirty minutes driving time of PPGH and have open heart surgery capability.
Potential Impact of Granting the Application
While Petitioner will benefit if its application is granted, the same cannot be said for existing providers of 16 For example, Petitioner allocates the entire salary of each of the four support staff members to the cardiac catheterization laboratory, even though these employees also work in other parts of the hospital. 38 inpatient cardiac catheterization services in Broward County. They will have to contend with another effective competitor seeking a share of the already highly competitive Broward County inpatient cardiac catheterization market. Collectively, the existing facilities will lose inpatient cardiac catheterization patients and net revenues they otherwise would have had if the laboratory at PPGH did not offer inpatient services.17/
Memorial will be among those `facilities suffering the greatest such losses. While it is difficult to predict the precise extent of these losses, they no doubt will be significant and therefore adversely impact Memorial's ability to provide charity care. At the very least, Memorial
will lose to PPGH the inpatient cardiac catheterization patients that Dr. Horgan and Dr. Schiff now refer to Memorial's laboratory and the net revenues these patients generate. As previously mentioned, Dr. Horgan and Dr. Schiff referred 160 patients to Memorial's laboratory during the year ending April 30, 1989.96.
Routine/non-emergency angioplasties and open heart surgery will not be performed at PPGH if Petitioner's application is granted. Accordingly, Memorial will not lose to PPGH any patients requiring these services as a result of the granting of the application.
Although patients at PPGH who require routine/diagnostic inpatient cardiac catheterization services will not have to be transferred to another facility to receive inpatient cardiac catheterizations if the application is granted, it will still be necessary to transfer patients needing routine/non-emergency angioplasty and open heart surgery. With the advent of an inpatient cardiac catheterization program at PPGH, the hospital will attract, in far greater numbers than it does presently, individuals who require, not only inpatient cardiac catheterization services, but also routine/non emergency angioplasty or open heart surgery and who therefore must be transferred to another facility. Therefore, there likely will be more, rather than fewer, total transfers of patients than there would be if PPGH did not offer inpatient cardiac catheterization services.18/
Although cardiac catheterization support staff are generally difficult to recruit and retain, the granting of the instant application will not make it any more difficult for existing
providers in Broward County to attract and keep such staff members inasmuch as Petitioner already has a support staff assigned to its cardiac catheterization laboratory at PPGH and it does not intend to expand its staff if it is given authorization to provide services at the laboratory on an inpatient basis.
Regardless of whether Petitioner's application is granted, the adult population of Broward County requiring inpatient cardiac catheterization services will be able to receive such services from existing and approved providers in the county, which have the collective capacity to meet the population's demand for these services. It is more efficient to make greater use of the current collective capacity of these providers than to add to the county's overall capacity to serve cardiac catheterization inpatients. Furthermore, there is no reason to believe that PPGH will provide quality of care appreciably different from that offered by any existing or approved inpatient cardiac catheterization provider.
Even if Petitioner's application is denied, patients of Dr. Horgan and Dr. Schiff who live in the area surrounding PPGH will still be able to receive routine/diagnostic cardiac catheterizations from these two invasive cardiologists, albeit at a facility that is slightly further from their homes and Dr. Horgan's and Dr. Schiff's offices than is PPGH.
If an inpatient cardiac catheterization program is established at PPGH, the program's charges will be comparable to those of its competitors. They will neither be excessive, nor
unusually low, in relation to those of other programs. Accordingly, approval of the program will have no significant impact on costs and patient charges.
Florida Administrative Code Rule 10-5.O11(1)
Respondent has adopted procedures governing its review of applications, such as Petitioner's, for certificates of need authorizing the establishment of an inpatient cardiac catheterization program. These procedures are found in Florida Administrative Code Rule 10- 5.011(1)(e).41
Respondent published notice in the April 22, 1988, edition of Florida Administrative Weekly of the amendments it proposed to make to the rule as it existed at that time. (The version of the rule that Respondent sought to amend Bill be referred to hereinafter as the "old rule.") These proposed rule amendments were the subject of rule challenge petitions filed with the Division of Administrative Hearings. The petitions were voluntarily dismissed after the challengers and Respondent negotiated a settlement, pursuant to which Respondent made certain modifications to the proposed amendments to Rule 10- 5011(1)(e). Among the modifications was the addition of the following language relating to the intent of the rule:
It is the intent of the department to allocate the projected growth in the number of cardiac catheterization admissions to new providers regardless of the ability of existing providers to absorb the projected need.
In addition, the prefatory language of the provision relating to need determination was modified to read as follows:
In order to assure patient safety and staff efficiency, to foster
competition
among providers, and to achieve maximum economic use of existing resources,
the following criteria shall be considered
in the approval of Certificate of Need applications for new adult cardiac catheterization programs.
The minimum annual projected net program volume need for the establishment of a new adult cardiac catheterization program shall be at or exceed 300 admissions for the service planning area.
Applicants shall demonstrate that they will be able to reach an annual program volume of 300 admissions within
2 years after the program becomes operational.
Notice of these changes and the other modifications that were made to the April 22, 1988, proposed rule amendments was published in the July 29, 1988, edition of Florida Administrative Weekly. Eleven days earlier, these proposed rule amendments, as modified, (hereinafter referred to as the "new rule") had been filed with the Secretary of State.
In August 1988, the new rule was challenged on the ground that Respondent had not
complied with the procedural requirements of Section 120.54, Florida Statutes, in making changes to the proposed rule amendments originally published on April 22, 1988.19/ The hearing officer assigned to these cases treated the rule challenge petitions as having been filed pursuant to Section 120.54, Florida Statutes, rather than Section 120.56, Florida Statutes, notwithstanding that the new rule had been filed with the Secretary of State more than 20 days prior to the filing of any of these petitions. Following a hearing on the matter, the hearing officer, on June 29, 1989, entered a final order holding that "the amendments to paragraph 2 (h), paragraph 3(c) III, and paragraph 6(a) and the amendment regarding the definition of `inpatient visit' are an invalid exercise of delegated legislative authority, because they were adopted without adhering to the proper procedures for adoption delineated in Section 120.54, Florida Statutes."
On or about July 27, 1989, Respondent appealed the hearing officer's final order to the First District Court of Appeal. The appeal is still pending.
Since August, 1988, Respondent has been applying the new rule in evaluating inpatient cardiac catheterization certificate of need applications. It applied the new rule in making its preliminary determination to deny Petitioner's application, which was in the first batching cycle after the effective date of the new rule.20/ Although the packet of application materials Respondent sent to Petitioner did not contain any express indication that the new rule would be applied in evaluating its application, Petitioner conceded in its completed application that it had
"been informed [through other means) by [Respondent) that the [new rule would] likely be used in evaluating this CON application." In view of this advisement, Petitioner addressed in its application the various provisions of the new rule as they related to its application.
The State Health Plan
Issues relating to cardiac catheterization are discussed in the 1985-1987 State Health Plan. Among such issues is that of minimum case loads. Regarding this issue, the plan contains the following discussion:
Up until 1977 the literature showed a consensus on the need for minimum case loads. Since 1977, expert opinion has become more divided on the issue with many provider representatives advocating that the standards now reflected in federal and many state laws are no longer necessary and justifiable. However, a general opinion among the medical
profession
is that a certain minimum number case
load
is essential to assure quality results. A number of complications can occur in catheterization programs if all personnel are not experienced and active. Studies may have to be repeated because
inadequate
data were received. This could result in unnecessary exposure of patients to
radiation
and hazards caused by the injection of
of
engaged
contrast materials and the manipulation
catheters. The established federal and state minimum standards of 300 procedures annually for adult and 150 for pediatric cardiac catheterization laboratories are believed to be adequate to maintain the expertise of the professional team
in this highly specialized service.
The plan also addresses the "concern surrounding. . . the physical proximity and the relationship between the [cardiac catheterization] diagnostic facility and a cardiovascular surgical program." It notes that the "Inter-society Commission on Heart Disease Resources (ISCHDR) stresses the need for a very close relationship between the two services;" "national health planning guidelines support this emphasis through a recommendation that no new cardiac catheterization unit be opened in any facility not providing open heart surgery;" and the "Florida rule requires that cardiac catheterization laboratories where coronary angioplasty (e.g., plastic surgery upon blood vessels) is performed must be located in health care facilities which also provide open heart surgery."
One of the goals of the State Health Plan is to ensure the appropriate availability of cardiac: catheterization services at a reasonable cost. An objective of the plan is to "maintain an average of 600 cardiac catheterization procedures per laboratory in each district through 1990." The project proposed by Petitioner in the instant case conforms with this goal and objective to the extent that the services offered at PPGH will be
competitively priced and that it is likely that the laboratory at PPGH will average at least 600 procedures annually.
Local Health Plan
The 1988 District X Comprehensive Health Plan contains the following analysis and recommendation with respect to the provision of cardiac catheterization services in Broward County:
AVAILABILITY AND ACCESSIBILITY
The hospitals offering cardiac catheterization services are well located throughout the County for geographic accessibility. Financial barriers continue to raise questions about accessibility of these services to the poor.
QUALITY
All of the facilities offering cardiac catheterizations in Broward County are providing in excess of the minimum number of procedures recommended.21/
RECOMMENDATION 1
Applicants for Certificate of Need approval should document either their intention and/or experience in meeting or exceeding the standards promulgated by the appropriate national accreditation body and by HRS.
RECOMMENDATION 2
Applicants proposing to initiate or expand cardiac catheterization must make
those services available to all segments of the population regardless of the ability to pay.
RECOMMENDATION 3
Outpatient cardiac catheterization services should continue to be regulated under the Certificate of Need program.
Petitioner has demonstrated that the inpatient cardiac catheterization program it proposes to establish at PPGH will meet or exceed the accreditation standards referred to in Recommendation 1 of the plan.
Petitioner's stated policy is to make the services of PPGH available to all segments of the population regardless of their ability to pay. Petitioner's past performance in the area of indigent care suggests, however, that Petitioner may not be firmly committed to implementing this policy.
The suggestion is also made in the plan that "[a)11 else being equal applications to establish new cardiac catheterization laboratories in Broward County in facilities with existing open heart surgical capability will receive priority - when being considered for certificates of need."
CONCLUSIONS OF LAW
Respondent has been "designated as the single state agency to issue, revoke or deny certificates of need [for health- care-related projects) and to issue, revoke or deny exemptions from certificate-of-need review in accordance with the district plans, the statewide health plan, and
present and future federal and state statutes." Section 381.704(1), Fla. Stat.
Among the health-care-related projects for which a certificate of need must be obtained from Respondent are those involving the establishment of an inpatient cardiac catheterization program. (Outpatient cardiac catheterization programs, however, are not subject to Respondent's certificate- of-need review.) Section 381.706(1), Fla. Stat.
To obtain a certificate of need, a health care provider must submit first a letter of intent and then an application to Respondent.
Upon being deemed complete, the application is reviewed and compared with competing applications submitted during the same batching cycle. Based on such comparative review, the Respondent makes a preliminary determination to grant or to deny the application. If Respondent preliminarily determines to deny the application, the applicant is entitled to an administrative hearing on the matter upon making a timely request therefor.
Section 381.709, Fla. Stat.
The administrative hearing is a "de novo proceeding at which the applicant [must) carry the burden of proving [by a preponderance of the evidence that) it meets the statutory criteria and is entitled to a [certificate of need)." Boca Raton Artificial Kidney Center, Inc. v. Florida Department of Health and Rehabilitative Services
475 So.2d 260, ?62 (Fla. 1st DCA 1985). Because it is a de novo proceeding, the hearing officer "is not limited to consideration of the record made by [Respondent) during its preliminary investigation and may freely consider any and all
additional evidence presented by the parties, including evidence of changed conditions, so long as it is relevant" to the application. Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 7;99, 710 (Fla. 1st DCA 1985). Additional documents which, rather than support the application, serve to significantly revise it, may not be considered, however. 22 See Manor Care Inc. v. Department of Health and Rehabilitative Services, 14 FLW 2323 (Fla. 1st DCA October 3, 1989).
With one exception not pertinent to this case, existing health care providers have a right to intervene in the de novo proceeding requested by the applicant "upon a showing that [its) established program will be substantially affected by the issuance of a certificate of need to [the applicant's) competing proposed facility or program within the same district." Section 381.709(5)(b), Fla. Stat. See also Florida Medical Center v. Department of Health and Rehabilitative Services, 484 So.2d 1292, 1294 (Fla. 1st DCA 1986)("competing health care facilities within the same service area have the right to intervene as third parties" in certificate of need proceedings). Intervenor has made such a showing in the instant case. Accordingly, it has standing to intervene in this cause.
The evidence adduced at the administrative hearing must be examined in light of the following statutory criteria set forth in Section 381.705(1), Florida Statutes, before a
determination can be made as to whether the applicant has met its burden of demonstrating its entitlement to the certificate of need for which it has applied:
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.
The availability, quality of car, efficiency, appropriateness, accessibility, event of utilization,
and adequacy of like and existing health care services and hospices in the service district of the applicant.
The ability of the applicant to provide quality of care.
The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant, such as outpatient 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.
Probable economies and improvements in service that may be derived from operation of joint, cooperative, or shared health care resources.
The need in the service district of the applicant for special equipment and services which are not reasonably and economically accessible in adjoining areas.
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.
The availability of resources, including health manpower, personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health
training programs in the service district; the extent to which the services will be accessible to
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.
The immediate and long-term financial feasibility of the proposal.
The special needs and circumstances of health maintenance organizations.
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 professions, schools, multidisciplinary clinics, and specialty services such as open-heart surgery, radiation therapy, add renal transplantation.
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.
The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of less costly, or more effective methods of construction.
The applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent.
Furthermore, where, as in the instant case, the project is one which involves the provision of a new inpatient service requiring a "capital expenditure," as that term is defined in Section 381.702(1), Florida Statutes, the
following additional findings must be made in accordance with Section 381.705(2), Florida Statutes: 23/
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.
That existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner.
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.
That patients will experience serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service.
In the case of a proposal 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 home health services.
"[T)he weight to be given to each individual criterion [of Section 381.705(1) and (2), Florida Statutes,] is not fixed, but rather must vary on a case-by-case basis, depending on the facts of each case." See Collier Medical
Center, Inc. v. State Department of Health and Rehabilitative Services, 462 So.2d 83, 84 (Fla.
1st DCA 1985).
Pursuant to the rulemaking authority given it in Section 381.704, Florida Statutes, Respondent has supplemented the foregoing statutory review criteria with the following general criteria which are set forth in Florida Administrative Code Rule 1o-5.011(1)(b):
The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all residents of the district, and. in particular low income persons, racial and ethnic minorities, women, handicapped persons, other undeserved groups and the elderly, are likely to have access to those services.
The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved
which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care.
The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particularly those needs
identified in the applicable local health plan and State health plan as deserving of priority.
In determining the extent to which
a
proposed service will be accessible, the following will be considered:
The extent to which medically underserved individuals currently use the applicant's services, as a proportion of the medically underserved population in the applicant's proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved;
The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community service, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant;
The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; arid
The extent to which the applicant offers a range of means by which a person will have access to its services.
In addition to these criteria that
amply to the review of all certificate of need applications, Respondent has also adopted, by rule, criteria to be used specifically for the evaluation of proposed cardiac catheterization projects. These criteria are found in subsection
(1)(e) of Florida Administrative Code Rule 10-
5.011. The parties disagree as to whether the pre- April 22, 1988, version of the rule (old rule) or the version of the rule published in the July 29, 1988, edition of Florida Administrative
Weekly (new rule) should be applied in the instant case. Petitioner contends that the old rule governs. Respondent and Intervenor, on the other hand, argue that the new rule is applicable.
Having carefully considered the matter, the Hearing Officer concludes that Respondent and Intervenor are correct.
The new rule, which superceded the old rule, was filed with the Secretary of State in July, 1988. Bay operation of Section 120.54(13)(a), Florida Statutes, the new rule was adopted upon its filing with the Secretary of State and it became effective 20 days later. See Florida administration Commission v. District Court of Appeal, 351 So.2d 712, 714 (Fla. 1977)("Agency action is final in rulemaking proceedings when the rule has been adopted and filed"). It has remained in effect in its entirety since that time, notwithstanding that a hearing officer, in a rule challenge proceeding initiated after the new rule's adoption, issued a final order declaring certain portions of the rule invalid. Because the hearing Officer's final order was timely appealed by Respondent to the First District Court of Appeal and the appeal is still pending, the portions of the new rule declared invalid by the hearing officer have not yet become void. See Section 120.56(3), Fla. Stat. ("The rule or part thereof declared invalid [by the hearing officer) shall become void when the time for filing an appeal expires or at a later date specified in the decision"); Fla.R.
App.P. 9.310(b)(2)("The timely filing 7: a notice shall operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission, or other public body seeks review"). If the hearing officer's order is affirmed by the appellate court, it will be deemed void and unenforceable only as of the date the appellate court's decision becomes final. See State Board of Optometry v.
Florida Society of Ophthalmology, 538 So.2d 878, 889 (Fla. 1st DCA 1988)("Applying the theory underlying section 120.56(3) to this case, we hold that rule 21Q- 10.001, which was held invalid by the hearing officer and our opinion, will become void and ineffective as of the date the decision of this court becomes final;" to hold otherwise would create "chaotic uncertainty that would necessarily flow from retroactively invalidating agency action taken in reliance of the presumed validity of its rule"). In view of the foregoing, Petitioner's application, which was submitted after the new rule's effective date, must be evaluated in accordance with the provisions of the new rule. To do so is not in any way unfair inasmuch as Petitioner was provided adequate advance notice of the new rule's potential applicability as well as "an opportunity to conform its proof" at hearing to the new rule's requirements. Turro v. Department of Health and Rehabilitative Services, 458 So.2d 345, 346 (Fla. 1st DCA 1984)(rule establishing need methodology, which became effective after the commencement of the hearing on the applicant's certificate of need application, was properly applied by Respondent, where the applicant "was aware of the impending amendment to the rule and had an opportunity to conform proofs to that methodology while preparing its case in support of the application").
The new rule imposes certain minimum requirements as to program staffing, equipment, accreditation, accessibility, and the availability of ancillary services. Fla. Admin. Code Rule
10-5.011(1)(e)3.,4. and 5. Petitioner has demonstrated that its proposed project meets these threshold requirements.
The new rule further requires applicants who, like Petitioner, propose to initiate inpatient cardiac catheterization services in a facility not performing open heart surgery to "submit a written protocol as part of their certificate of need application for the transfer of emergency patients to a hospital providing open heart surgery, which is within 30 minutes travel time by emergency vehicle under average travel conditions." This minimum requirement has also been met by Petitioner.
Furthermore, in accordance with the new rule, applicants must "demonstrate that they will be able to reach an annual program volume of 300 admissions within 2 years after the program becomes operational." Fla. Admin. Code Rule 10- 5.011(1)(e)8.b. Petitioner has made such a showing in the instant case.
In addition to imposing the foregoing requirements, the new rule also sets forth a formula to be used in determining whether there is a need for the proposed inpatient cardiac catheterization program. Fla. Admin. Code mule 10- 5.011(1)(e) 8.c. As Petitioner candidly concedes, the application of this formula to the facts of the instant case results in the determination that no numeric need exists for the
project proposed by Petitioner. An applicant's failure to demonstrate the existence of need pursuant to this formula, however, is not necessarily fatal to its application. It still may be entitled to the certificate of need it has requested if it is able to show that there are unusual or unique circumstances present which justify the granting of the application. See NME Hospitals, Inc. v. Department of Health and Rehabilitative Services, 494 So.2d 256, 257 (Fla. 1st DCA 1986). Therefore, any decision made with respect to Petitioner's application must be based, not just on Petitioner's failure to demonstrate numeric need, but rather on a "balanced consideration of [all pertinent) statutory and rule criteria." St. Joseph's Hospital v.
Department of Health and Rehabilitative Services, 536 So.2d 346, 348 (Fla. 1st DCA 1988).
Petitioner's application, however, fares no better when examined in light of the totality of pertinent statutory and rule criteria. If approved, the inpatient cardiac catheterization program at PPGH will provide quality care, at competitive prices, to the adult population of Broward County and will do so at a profit. There has been no showing, though, that any segment of the program's potential non-emergency patients, 24/ including those residing near PPGH in southwest Broward County, would have serious difficulty in obtaining comparable care from one of the existing or approved Broward County providers in the absence of an inpatient cardiac catheterization program at PPGH. While residents of southwest Broward County will have to travel a slightly further distance from their homes to receive inpatient cardiac catheterization services if Petitioner's proposed project is rejected, such
services will nonetheless be readily accessible and available to them at prices similar to those Petitioner proposes to charge at PPGH.
The entry of another provider into the Broward County inpatient cardiac catheterization market will obviously increase competition. Such an increase in competition, however, if anything, will do more harm than good, overall, inasmuch as it will cause Memorial to lose market share and operating revenues to PPGH and will thus adversely impact Memorial's ability to provide indigent care. Such a result would be undesirable because Memorial is the major provider of indigent care in the southern third of Broward County and it has made in the past, and will no doubt continue to make in the future, a far more substantial commitment to the medically indigent than PPGH.
To be sure, certain individual patients, 25/ as well as Petitioner, Drs. Horgan and Schiff, and others connected with the Partnership, will benefit by the institution of an inpatient cardiac catheterization program at FPGH. There is a lack of proof, however, that the public as a Whole needs such a program and that it will likewise profit from its operation. It therefore cannot be said that the expenditures made in furtherance of the program constitute a prudent use of the available health care resources in District X.
Weighing the facts of the instant case against all pertinent statutory and rule criteria, the hearing Officer concludes that the balance lies in favor of a finding that Petitioner is not
entitled to the certificate of need it is seeking.26/ Accordingly, its application should be denied.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order denying Petitioner's application for a certificate of need to establish an inpatient cardiac catheterization program at Pembroke Pines General Hospital.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990.
Administrative Hearings Parkway
32399-1550
of the
Administrative Hearings January, 1990.
STUART M. LERNER
Hearing Officer Division of
The DeSoto Building 1230 Apalachee
Tallahassee, Florida (904) 488-9675
Filed with the Clerk Division of
this 12th day of
ENDNOTES
1/ Petitioner's proposed recommended order was accompanied by a motion requesting permission to exceed the 40--page limit prescribed by Florida Administrative Code Rule 22I-6.031(3). Upon consideration, the motion is hereby granted.
2/ These beds would be available to cardiac catheterization inpatients.
3/ Indigent charity care, as used herein, does not include uncollected debts of persons whose earnings exceed the federal poverty level.
4/ While a hospital's ADC sheds some light on its overall performance, it has no significance in the determination of whether there exists a need for an inpatient cardiac catheterization program at the hospital.
5/ Other hospitals in Broward and Dade Counties with ADCs comparable to that of PPGH have inpatient cardiac catheterization programs.
6/ Although PPGH's pharmacy is not, like Memorial's, staffed 24 hours a day, all emergency medications that might be needed to be administered to cardiac catheterization patients are available from other departments of the hospital, including the intensive care unit, on a 24-hour a day basis.
7/ A hospital's market share may vary from service to service. Therefore, its overall market share may be substantially lower than its share of
the inpatient cardiac catheterization market, as has been the experience of Florida Medical Center, another District X hospital.
8/ That is not to say, however, that they all do so. Some handle fewer than 1,000 to 1,200 catheterizations annually, while others, with expanded operating hours, handle more.
9/ The most significant disadvantage, which exists whenever a patient is referred to a specialist that he has never before seen, is that there is a break in the continuity of care.
10/ The Partnership will also operate the laboratory's inpatient program if the requested certificate of need is granted.
11/ That such a plan existed to eventually utilize the laboratory for both outpatient and inpatient procedure may be inferred from, among other things, the timing of the preparation and submission of Petitioner's application and the statements made by Petitioner reflecting its views regarding tie need for it to have an inpatient cardiac catheterization program at PPGH.
12/ Because it already has the space, equipment and staff necessary to provide inpatient cardiac catheterization services, PPGH will be able to offer such services immediately if awarded a certificate of need.
13/ As noted above, during the one year period d April 30,1989, they catheterized 248 outpatients at PPGH's laboratory, 125 to 150 inpatients at the
laboratories at Florida Medical and Plantation General, and, in addition, referred 160 patients to Memorial's laboratory.
14/ Because these factors relate to the particular service that will be offered at the laboratory, they are fad more helpful in predicting the utilization of the laboratory than are PPGH's ADC, its occupancy rate, and its share of the total Broward County market for all services.
15/ Petitioner also projects that 40% of the laboratory's inpatients during the first two years of the project's operation will be Medicare recipients, a projection which is not unreasonable given PPGH's historic payer mix. (From July 1,1988, to September 30, 1988, for instance, 42.7% of the hospital's patients were Medicare recipients.)
16/ For example, Petitioner allocates the entire salary of each of the four support staff members to the cardiac catheterization laboratory, even though these employees also work in other parts of the hospital.
17/ There has been no showing, however, that PPGH's entry into the inpatient cardiac catheterization market will have such an adverse financial impact on any existing provider that that provider will be forced to cease operation of its program.
18. While it is preferable for a provider of inpatient cardiac catheterization services to also have cardiovascular surgery capability, the absence of such capability, under Respondent's
present policy, is not necessarily fatal to an application for a certificate of need to provide inpatient cardiac catheterization services.
19/ Three rule challenge petitions were filed. The first such petition was filed on August 12, 1988, five days after the new rule took effect.
20/ Because of time constraints, however, Respondent did not establish a fixed need pool prior to the first batching cycle following the effective date of the new rule.
21/ In a preceding paragraph of the plan it is noted that "the National Health Planning Guidelines and HRS have established that a minimum of 300 catheterizations should be performed annually in each laboratory."
22/ In its proposed recommended order, Intervenor argues, as it did at hearing, that Petitioner's Exhibits, 14 and 15 should not be considered by the Hearing Officer because they here not made available to Respondent during its preliminary [g of Petitioner's application. Because these documents do not change in any significant way the application submitted by Petitioner, Petitioner's failure to furnish these documents to Respondent prior to the application being deemed complete does not provide a basis upon which to exclude these documents from consideration.
23/ The purchase of the equipment for the cardiac catherization laboratory at PPGH, which was made in contemplation of the filing of the instant application, constitutes a "capital expenditure," within the meaning of Section 381.702(1), Florida Statutes. Accordingly, inasmuch as Petitioner
seeks to provide a new inpatient service, the review of its application is governed by the provisions of subsection (2), as well as subsection (1), of Section 381.705, Florida Statutes.
24/ As noted above, Petitioner will be able to serve emergency patients at PPGH's laboratory even if its application is denied.
25/ Among the beneficiaries will be those inpatients needing only routine/diagnostic cardiac catheterization services who would otherwise have to be transferred from PPGH to another facility to receive such services. As noted above, however, the elimination of the need to transfer these patients will likely be more than offset by the increase in the number of p who will have to be transferred from PPGH to receive a routine/non-emergency angioplasty and open heart surgery.
26/ In its proposed recommended order, Petitioner S for the first time that the "District X [health) plan cannot be applied in the instant case" because it has never been adopted as part of Respondent's rules as required by Section 381703(l)([b)l Florida Statutes. The issue raised by Petitioner, however, is an academic one because whether or not the District X health plan is considered the outcome of the instant case is the same.
27/ On this point, the Hearing Officer has credited the testimony of Elfie Stamm, a Health Services and Facilities Consultant Supervisor in Respondent's Office of Comprehensive Health Planning.
28/ As Petitioner accurately points out, approval of the application "will unquestionably allow a new provider to offer service, thereby enhancing competition." Tee fostering of competition, however, is only one of the objectives of the new rule.
29/ There is no proposed finding 81, nor is there a proposed finding 82.
30/ Notwithstanding that the provisions of the old rule are referenced in the 1988 District X Comprehensive Health Plan, they are inapplicable to the instant proceeding inasmuch as they have been replaced by the provisions of the new rule.
31/ There is no proposed finding of fact 139 in Petitioner's proposed recommended order.
32/ These projections are unreasonable because they include in the number of "lost" cases (1) outpatients who would be able to receive cardiac catheterization services at PPGH even if the instant application were denied, and (2) patients requiring routine/non-emergency angioplasty and open heart surgery, services PPGH would not be able to offer even if the instant application were granted.
33/ This proposed finding addresses the "policy," rather than the practice, of PPGH. The preponderance of the evidence reflects that PPGH's policy is to make its services available to all segments of the community regardless of their ability to pay.
34/ Existing providers can compensate for lost market share by raising the fees charged private pay patients.
35/ The unrefuted evidence reflects that Petitioner projects that 2% of its patients will be Medicaid recipients.
36/ The average number of admissions per cardiac catheterization laboratory in District X was approximately 844.
37/ The figures given are for fiscal year 1989, not 1988.
38/ While its contribution to indigent care has not been nearly as substantial as Intervenor's, Petitioner has in the past provided such care. Accordingly, it cannot be persuasively argued that Petitioner has made "no commitment to these patients."
39/ The proposed project will "bring about additional continuity of care that does not now exist" inasmuch as patients of Dr. Horgan and Dr. Schiff who now must transferred from PPGH to Memorial to be catheterized by another invasive cardiologist will be able to remain at PPGH and be catheterized by Dr. Horgan and Dr. Schiff.
40/ Regardless of whether the number of admissions projected by Petitioner in its application constitutes 45% of the total number of cardiac catheterization patients in its primary service area or a greater share of the market, the projection is reasonable given the factors discussed above.
41/ There has been no showing that PPGH has fared poorly in attracting "patients of all types." Among the patients PPGH has been successful in attracting are cardiac catheterization outpatients.
1255
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-
The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties:
PETITIONER'S PROPOSED FINDINGS OF FACT
1-19. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
To the extent that it states that the imaging equipment in PPGH's cardiac catheterization laboratory has "digital capabilities," this proposed finding has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
22-23. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding asserts that "the staff, space and equipment necessary to provide this [inpatient cardiac catheterization) service are already in place," it has been accepted and incorporated. To the extent that it suggests that it is reasonable to include only legal, accounting and consulting fees in determining the total
project cost, it has been rejected as unpersuasive argument.
Rejected because it is contrary to tee greater weight of the evidence. In addition to "the incremental increase in supply cost," there will be the additional expenses associated with the provision of inpatient cafe which are not incurred when cardiac catheterization services are delivered on an outpatient basis.
26-33. Accepted and incorporated in substance.
To the extent that it suggests that the smaller catheters are not used at other health care facilities where inpatient cardiac catheterization services are presently available and that, for this reason, cardiac catheterization inpatients' length of stay at PPGH will be shorter than at these other facilities, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is not supported b persuasive competent substantial evidence. At present, PGH's cardiac catheterization laboratory is open only to Dr. Horgan and Dr. Schiff. Qualified invasive cardiologists must first obtain Dr. Horgan's and Dr. Schiff's approval to perform cardiac catheterizations in the laboratory.
Accepted and incorporated in substance.
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
38-46. Accepted and incorporated in substance. 47-49. To the extent that they state that inpatients have died because they did not receive an emergency diagnostic cardiac catheterization and angioplasty at PPGH, these proposed findings have been accepted and incorporated in substance.
To the extent that they indicate that a certificate of need was required to perform these emergency, lifesaving procedures, these proposed findings have been rejected because they are contrary to the greater weight of the evidence.
27/
Accepted and incorporated in substance, except to the extent that it suggests that emergency diagnostic cardiac catheterization services may not be provided at PPGH in the absence of a certificate of need. As noted above, the preponderance of the evidence reflects that such emergency services can be provided, notwithstanding the lack of a certificate of need.
To the extent that this proposed finding intimates that, as a general rule, patients at PPGH requiring inpatient cardiac catheterization services must wait "two and three days and more" before any facility offering such services can take them, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
52-53. Accepted and incorporated in substance.
54. Accepted and incorporated in substance, except to the extent that it suggests that the patients of Dry. Horgan and Dr. Schiff requiring in patient cardiac catheterization services will be denied "continuity of care" if the requested certificate of need is not granted. This suggestion has been rejected because it is not supported by persuasive competent substantial evidence. These patients will still be able to receive such services from Dr. Horgan and Dr. Schiff at Florida Medical, Plantation General, and the other facilities at which they have, or may gain, privileges to perform cardiac catheterizations. Second sentence: Rejected
because it is not supported by persuasive competent substantial evidence. Even if Petitioner had had permission to perform inpatient cardiac catheterizations at PPGH, some of these patients would still have to have been transferred to receive routine/non-emergency angioplasty and open heart surgery.
56-58. Accepted and incorporated in substance.
To the extent that it indicates that the hearing officer invalidated the new rule in its entirety, rather than just portions of the new rule, this proposed finding has been rejected because it not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because they constitute legal argument rather than findings of fact.
Rejected because it constitutes legal argument rather than a finding of fact.
62-63. Accepted and incorporated in substance.
64. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as unpersuasive argument.
65-69. Rejected as irrelevant and immaterial inasmuch as the new rule, not the old rule, must be applied in the instant case.
70. Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
71-72. Accepted and incorporated in substance.
Rejected as unpersuasive argument. As an application of the new rule's numeric need formula to the facts of the instant case demonstrates, not all of the policy considerations 28/ underlying the formula will be promoted by the granting of Petitioner's application.
To the extent that it states that 295 patients received cardiac catheterizations at PPGH's laboratory during its first year of operation, this proposed finding is rejected because it is contrary to the greater weight of the evidence. The number is actually 248. Otherwise, this proposed finding has been accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence. The preponderance of the evidence reflects that the equipment in PPGH's cardiac catheterization laboratory is neither new nor state-of-the art. Furthermore, if Petitioner's application is denied, Dr. Horgan and Dr. Schiff will nonetheless be able to perform inpatient catheterizations utilizing their innovative techniques at other facilities in the county.
Rejected because it constitutes legal argument rather than a finding of fact.
Rejected as unpersuasive argument. Petitioner does not require a certificate of need to provide emergency inpatient services to those of its patients whose health problems demand immediate attention.
78-80. Accepted and incorporated in substance.
83. 29/ Rejected because it is contrary to the greater weight of the evidence.
84-85. Accepted and incorporated in substance.
86. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony; Fourth sentence: Rejected because it adds only unnecessary detail.
87-88. Rejected because they constitute legal argument
rather than findings of fact.30/
Accepted and incorporated in substance.
To the extent that this proposed finding suggests that inpatient cardiac services are currently unavailable or inaccessible to the residents of southwest Broward County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
First and third sentences: Rejected as unpersuasive argument; Second sentence: Accepted and incorporated in substance.
Rejected as unpersuasive argument.
First sentence: To the extent that it suggests that the proposed project constitutes the best use of resources from a district-wide perspective, this proposed finding has been rejected as unpersuasive argument. Otherwise, it has been accepted and incorporated in substance. Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is contrary to the greater weight of the evidence. While PPGH's competitive position would be enhanced if it were able to offer routine/diagnostic cardiac catheterization services on an inpatient basis, its inability to offer these services does not render it an ineffective competitor.
Rejected as unpersuasive argument because it is based upon the premise, which is contrary to the greater weight of the evidenced that the staff, space and equipment costs associated with the establishment of the cardiac catheterization laboratory at PPGH were not incurred in contemplation of the proposed project and therefore should not be considered in assessing the total cost of the project. Furthermore, regardless of whether the project "is a less costly, more effective alternative to the
establishment of a cath lab at another hospital," it is not a "less costly, more effective" alternative to utilizing the laboratories of existing and approved inpatient cardiac catheterization programs that are currently on- line or under construction.
95-97. Accepted and incorporated in substance.
To the extent that this proposed finding indicates that the project will significantly reduce the hospital costs of those inpatients who, because they want only Dr. Horgan or Dr. Schiff to perform the catheterization, must wait at PPGH before being transferred to a facility that offers inpatient cardiac catheterization services, it has been accepted and incorporated in substance. To the extent that it suggests that other inpatients at PPGH, who are willing to be catheterized by any qualified invasive cardiologist at any facility in the county, will likewise experience a significant reduction in hospital costs, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence.
To the extent that it asserts that overall charges for physician services is less at PPGH's cardiac catheterization laboratory than at any other laboratory in the county, this proposed finding is rejected because it is not support by persuasive competent substantial evidence. Otherwise, it is accepted and incorporated in substance.
100-101. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as unpersuasive argument.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that it asserts that the application's projection regarding the laboratory's utilization by Medicare
inpatients is reasonable, this proposed finding of fact has been accepted and incorporated in substance. The contentions relating to the reasonableness of the application's projection of the utilization of the laboratory by those inpatients receiving Medicaid and charity care, however, have been rejected because they are not supported by persuasive competent substantial evidence.
104-109. Accepted and incorporated in substance.
110. Rejected as unpersuasive argument. Furthermore, it is inconsistent with the projection made in Petitioner's application that the number of Medicaid inpatients as a percentage of the total number of inpatients utilizing the laboratory during the first two years of operation will be identical to the number of Medicaid outpatients as a percentage of the total number of outpatients utilizing the laboratory during that same period.
111-113. Accepted and incorporated in substance.
Rejected as unpersuasive argument.
Accepted and incorporated in substance.
To the extent that this proposed finding contends that Petitioner has satisfied the criteria set forth in Section 381.705(1)(h), Florida Statues, it has been rejected because it constitutes legal argument rather than a finding of fact. To the extent it asserts that PPGH "already employs the skilled staff necessary to operate a cath lab," it has been accepted and incorporated in substance.
117-118. Rejected because they constitute legal argument rather than findings of fact.
Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it adds only unnecessary detail.
Rejected because it adds only unnecessary detail.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
Rejected as immaterial argument. While it may be unreasonable to assume that all cardiac patients referred by the Horgan-Schiff group to Memorial Hospital will be hospitalized at [PPGH) if this application is approved," it is not unreasonable to assume, particularly given Dr. Horgan's and Dr. Schiff's financial interest in PPGH's cardiac catheterization laboratory, that they will refer to PPGH all of their patients who, if PPGH did not offer inpatient cardiac catheterization services, would otherwise be referred to Memorial for such services.
Rejected because it is more in the nature of argument concerning the weight to be given evidence adduced at hearing than a finding of fact based on such evidence.
128-132. Accepted and incorporated in substance.
Accepted and incorporated in substance, except to the extent that it asserts that, based on actual 1988 HCCB data, PPGH is not in the 80th percentile of Broward County hospitals with respect to gross revenues per adjusted admission. To this extent, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
Rejected because it constitutes legal argument rather than a finding of fact.
136-137. Accepted and incorporated in substance.
138. Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they constitute, not findings of fact, but rather argument concerning the weight to be given testimony adduced at hearing.
140-141. 31/ Rejected because they constitute, not findings of fact, but rather argument concerning the weight to be given testimony adduced at hearing
RESPONDENT'S PROPOSED FINDINGS OF FACT
1. Accepted and incorporated in substance, except for the third sentence, which has been rejected because. it is not supported by persuasive competent substantial evidence.
2-5. Accepted and incorporated in substance.
6. Accepted and incorporated in substance, except for the fourth and fifth sentences, which have been rejected because they constitute legal argument rather than findings of fact.
7-9. Accepted and incorporated in substance.
To the extent that it asserts that PPGH's primary service area is the same as those hospitals ire Broward County currently offering inpatient cardiac catheterization services, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second, third and fourth sentences: To the extent that they suggest that the projections referenced therein are reasonable, these proposed findings have been rejected because they are contrary to the greater weight of the evidence. 32/ To the extent that these proposed findings
simply indicate that these projections were made during the evidentiary portion of the hearing, they have been rejected because they are summaries of testimony rather than findings of fact based on such testimony
First sentence: Rejected because it constitutes legal argument rather than a finding of fact; Second and third sentences: Rejected because they are more in the nature of explanations of the format followed by Respondent in drafting its proposed recommended order than findings of fact.
13-15. Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence. 33/
First and second sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence.
18-20. Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement of the issues in this case than a finding of fact.
First paragraph: Adopted and incorporated in substance, except to the extent that it states that at the time the instant application was filed there were two laboratories at Memorial. The preponderance of the evidence establishes that Memorial had at that time, and still has, only one laboratory in operation, although it has been authorized to construct another laboratory.
Second paragraph: Rejected because it constitutes legal argument rather than a finding of fact..
First sentence: Rejected because it is more in the nature of a statement of Intervenor's position than a finding of fact; Remaining sentences: Rejected because they constitute legal argument rather than findings of fact.:
24-26. Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it adds only unnecessary detail.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence. 34/
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they constitute legal argument rather than findings of fact.
First and second sentences: Rejected because they are contrary to the greater weight of the evidence; Third sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence; Fourth sentence: Rejected because it constitutes legal argument rather than a finding of fact.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence; Third sentence: Rejected because it constitutes legal argument rather than a finding of fact.
First, fourth and fifth sentences: Rejected because they constitute legal argument concerning an inapplicable rule provision, rather than findings of fact; Second sentence: To the extent that it asserts that Petitioner "does propose to serve all persons needing catheterizations, including Medicare and Medicaid patients," this proposed find has been accepted and incorporated in substance. To the extent it states that "Medicaid projected utilization is only 3%," this proposed finding has been rejected because it is not supported by persuasive competent substantial
evidence. 35/ To the extent that it contends that the projected utilization by Medicaid patients is "essentially cosmetic," it has been rejected because it is more in the nature of argument than a finding of fact. Third sentence: Rejected as unpersuasive argument; Fourth and fifth sentences: Rejected because they are more in the nature of legal argument than findings of fact.
33-34. Rejected because they constitute legal argument concerning an inapplicable rule provision, rather than findings of fact.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it constitutes legal argument concerning an inapplicable rule provision, rather than a finding of fact.
Rejected because it constitutes legal argument concerning an inapplicable rule provision, rather than a finding of fact.
First and second sentences: Rejected because they constitute legal argument concerning an inapplicable rule provision, rather than findings of fact; Third and fourth sentences: Rejected because they constitute a summary of evidence adduced at hearing rather than findings of fact based on such evidence; Fifth sentence: Accepted and incorporated in substance.
39-41. Rejected because they constitute legal argument concerning an inapplicable rule provision, rather than findings of fact.
42. First sentence: Rejected because it constitutes legal argument concerning an inapplicable rule provision, rather than a finding of fact; Second sentence: Rejected because it constitutes legal argument rather than a finding of fact.
43-44. Rejected because they constitute legal argument concerning an inapplicable rule provision, rather than findings of fact.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of argument than a finding of fact.
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony; Second sentence: Rejected because it constitutes legal argument rather than a finding of fact.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it adds only unnecessary detail.
Rejected because it relates to the computation of numeric need under the old rule which is inapplicable to this proceeding.
First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Rejected because it constitutes legal argument concerning an inapplicable rule provision, rather than a finding of fact.
Rejected because it is more in the nature of argument than a finding of fact.
Rejected because it adds only unnecessary detail.
Rejected because it constitutes legal argument rather than a finding of fact.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
Rejected because it constitutes legal argument rather than a finding of fact.
First and third sentences: Rejected because they constitute legal argument rather than findings of fact; Second sentence: Accepted and incorporated in substance.
Rejected because it constitutes legal argument rather than a finding of fact.
To the extent that it indicates (1) the number of cardiac catheterization admissions in District X from April 1, 1987, to March 30, 198,
(2) the number of adults residing in District X as of January, 1988, and (3) the projected adult population of District X in January, 1991, this proposed finding has been accepted and incorporated in substance. Otherwise, it has been rejected because it constitutes legal argument rather than a finding of fact.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact baked on such testimony; Remaining sentences: Rejected because they constitute legal argument rather than findings of fact.
First sentence: Rejected because it is not a finding of fact, but rather a statement of the parties' respective positions regarding a legal issue; Second sentence: Accepted and incorporated in substance; Third and fourth sentences: Rejected because they constitute legal argument rather than findings of fact.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony; Second sentence: Rejected because; it is not supported by persuasive competent substantial evidence.
Rejected because it constitutes legal argument rather than a finding of fact.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; 36. Second sentence: Rejected because it is contrary to the greater weight of the evidence.
Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected because it is more in the nature of argument than a finding of fact.
INTERVENOR'S PROPOSED FINDINGS OF FACT
1-8. Accepted and incorporated in substance.
9. To the extent that it suggests (1) that the Partnership pays Petitioner $1.00 a month to lease space at PPGH in addition to the $1.00 a month management fee it pays Petitioner, and (2) that Petitioner, not the patient, pays a laboratory fee that is retained by the Partnership, this finding has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
10-17. Accepted and incorporated in substance.
18. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. 37/
19-22. Accepted and incorporated in substance.
To the extent that it states that Memorial will lose cardiac catheterization patients if Petitioner's application for a certificate of need is approved, this proposed finding has been accepted and incorporated in substance.
Otherwise, it has been rejected because it is contrary to the greater weight of the evidence.
First sentence: Rejected because it constitutes legal argument rather than a finding of fact; Second sentence: Rejected because it is not a finding of fact, but rather a statement of the parties' respective positions regarding a legal issue.
25-28. Accepted and incorporated ire substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not-a finding of fact, but rather a statement of Petitioner's position.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony; Remaining sentences: Accepted and incorporated in substance
31-33. Accepted and incorporated in substance.
To the extent that this finding suggests that PPGH did not provide any charity care from May 1, 1987, to April 30, 1988, it has been rejected because it is contrary to the greater weight of the evidence.
First and third sentences: Rejected as unpersuasive argument; Second sentence: Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as unpersuasive argument. 38/
37-40. Accepted and incorporated in substance.
41-42. Rejected because they add only unnecessary detail.
Accepted and incorporated in substance.
First sentence: Rejected because it is not a finding of fact, but rather a statement of Petitioner's position; Second sentence: To the extent that it asserts that of the 16 cardiologists on PPGH's medical staff, 13 are also
on the Memorial's medical staff, it has been accepted and incorporated in substance.
Otherwise, it has been rejected because it is more in the nature of argument than a finding of fact. Third sentence: To the extent that it contends that "continuity of care . . . already exists" for cardiac catheterization patients at Memorial, it has been rejected as unpersuasive :It
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
46-48. Accepted and incorporated in substance.
49. Rejected as unpersuasive argument. 39/
50-51. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it adds only unnecessary detail; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
Accepted and incorporated in substance.
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
Accepted and incorporated in substance.
First sentence: Rejected as unpersuasive argument; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
57-58. Accepted and incorporated in substance.
First sentence: Rejected because it is contrary to the greater weight of the evidence; Second sentence: Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it
adds only unnecessary detail; Third sentence: Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
62-63. Rejected because they are contrary to the greater weight of the evidence.
64-65. Accepted and incorporated in substance.
First sentence: Rejected because it adds only unnecessary detail; Second and third sentences: Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it adds only unnecessary detail.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that it suggests that the project is not financially feasible, this proposed finding has been rejected as contrary to the greater weight of the evidence.
First sentence: Rejected because it is contrary to the greater weight of the evidence; second sentence: Accepted and incorporated in substance.
70-71. Rejected because they add only unnecessary detail.
Rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
First and second sentences: Rejected because they are contrary to the greater weight of the evidence; Third sentence: Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
Rejected because it adds only unnecessary detail. 40/
Rejected because it is not supported by persuasive competent substantial evidence. 41/
First sentence: Rejected because it is more in the nature of a statement of Petitioner's position regarding a factual issue than a finding of fact; Second sentence: Rejected because it adds only unnecessary detail; Third sentence: To the extent that it suggests that fewer than 106 patients were transferred from PPGH to another hospital to receive inpatient cardiac catheterization services, this proposed finding has been rejected as contrary to the greater weight of the evidence. To the extent that it indicates that Petitioner was unable to locate the bills of a number of these patients, this proposed finding has been rejected because it adds only unnecessary detail. Fourth sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
79-80. Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
83-84. Rejected because they are contrary to the greater weight of the evidence.
85. First, second and fourth sentences: Accepted and incorporated in substance; Third sentence: Rejected because it adds only unnecessary detail. 86-89. Accepted and incorporated in substance.
90-94. To the extent that these proposed findings address (1) how much Broward County hospitals presently providing inpatient cardiac catheterization services charge patients receiving such services, and (2) how long these patients remain in these hospitals on the average, they have been accepted and incorporated in substance. To the extent that they compare these charges and
the average length of stay at these hospitals to those at PPGH, these proposed findings have been rejected because, unlike these other hospitals, PPGH does not offer inpatient cardiac catheterization services and therefore the comparison sought to be made is not a meaningful one.
95-96. Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
99-100. To the extent that they suggest that the estimates of Memorial's projected losses, found in Intervenor's Exhibits 9,10 and 11, are accurate, these proposed findings have been rejected because they are contrary to the greater weight of the evidence. To the extent that proposed finding 100 states that Memorial's loss of revenue, "in and of itself, is not grave enough to restrict the entry of another competitor in the catheterization market," it has been rejected because it constitutes legal argument rather than a finding of fact. Otherwise, these proposed findings of fact have been accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
To the extent that this proposed fir-ding contends that Petitioner has made "no commitment to the medically indigent," it has been rejected as unpersuasive argument. Otherwise, it has been accepted and incorporated in substance.
First and fourth sentences: Rejected as unpersuasive argument; Second sentence: Accepted and incorporated in substance; Third sentence:
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
Rejected because it constitutes legal argument rather than a finding of fact.
Accepted and incorporated in substance. 107-108. Rejected because they are summaries of testimony rather than findings of fact based on such testimony.
To the extent that it contends that the new rule "became effective August 7, 1988," this proposed finding has been rejected because it constitutes legal argument rather than a finding of fact. Otherwise, it has been accepted and incorporated in substance.
Rejected because it constitutes legal argument rather than a finding of fact.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based on such testimony; Remaining sentences: Rejected because they constitute legal argument concerning an inapplicable rule provision, rather than a finding of fact.
First, second and third sentences: Rejected because they constitute a statement of Petitioner's position rather than findings of fact; Fourth sentence: Rejected because it constitutes legal argument rather than a finding of fact.
First sentence: Rejected because it more appropriate for inclusion in the Statement of the Case than the Findings of Fact portion of this Recommended Order; Second sentence: Rejected because it is more in the nature of argument than a finding of fact; Third sentence: Accepted and incorporated in substance.
114-115. Accepted and incorporated in substance.
116-117. Rejected because they are summaries of testimony rather than findings of fact based on such testimony.
Accepted and incorporated in substance.
Rejected because it constitutes legal argument rather than a finding of fact.
Rejected because it is a summary of testimony rather than a finding of fact based on such testimony.
121-122. Rejected because it adds only unnecessary detail.
123-126. Rejected because they constitute legal argument concerning an inapplicable rule provision rather than findings of fact.
First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence.
First and third sentences: Rejected because they constitute legal argument rather than findings of fact; Second sentence: Accepted and incorporated in substance.
129-130. Rejected because they constitute legal argument rather than findings of fact.
131-132. Accepted and incorporated in substance.
133. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is more appropriate for inclusion in the Statement of the Case than the Findings of Fact portion of this Recommended Order.
134-135. Accepted and incorporated in substance.
COPIES FURNISHED:
Byron Mathews, Jr., Esquire Andrew B. Rosenblatt, Esquire McDERMOTT, WILL
EMERY
700 Brickell Avenue
Miami, Florida 33131-2802
Deanna Eftoda
Department of Health and Rehabilitative Services
2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
F. Philip Blank, Esquire Christiana T. Moore, Esquire Paul H. Amundsen, Esquire 204-B South Monroe Street Tallahassee, Florida 32301
Clarke Walden, Esquire 3501 Johnson Street
Hollywood, Florida 33021
| Issue Date | Proceedings |
|---|---|
| Jan. 19, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 23, 1990 | Agency Final Order | |
| Jan. 19, 1990 | Recommended Order | No entitlement to inpatient cardiac catheter Certificate Of Need when application viewed in light of all pertinent statutory and rule criteria. New cardiac catheter rule applied. |
