STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HILL5BOROUGH COUNTY HOSPITAL ) AUTHORITY d/b/a TAMPA GENERAL ) HOSPITAL, )
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Petitioner, )
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vs. ) CASE NO. 89-1286
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DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) WINTER HAVEN HOSPITAL, INC., )
)
Respondents. )
) LAKELAND REGIONAL MEDICAL CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1287
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DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) WINTER HAVEN HOSPITAL, INC., )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the above cases were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 6, August 14-18 and 21 and 22, and September 7, 8 and 28, 1989 in Lakeland, Tampa and Tallahassee, Florida.
APPEARANCES
For Petitioner: John A. Radey, Esguire (Case No. Jeffry L. Frehn, Esquire
89-1286) P. O. Drawer 11307
Tallahassee, FL 32302
For Petitioner: John H. Parker, Jr., Esquire (Case No. Jonathon A. Rue, Esquire
89-1287) 1200 Carniegie Building
133 Carniegie Way Atlanta, GA 30303
For Respondent: Leslie F. Mendelson, Esquire (agency) 2727 Mahan Drive, Room 103
Tallahassee, FL 32308
For Respondent: E. G. Boone, Esquire (applicant) Stephen K. Boone, Esquire
P. O. Box 1596 Venice, FL 34284
STATEMENT OF THE ISSUES
The issue is whether Winter Haven Hospital, Inc.`s application for a certificate of need to establish an open heart surgery program at its health care facility in Winter Haven, Florida should be granted.
PRELIMINARY STATEMENT
This matter began when respondent, Winter Haven Hospital, Inc. (WHH), filed an application, for a certificate of need seeking to establish an open heart surgery program at its facility in Winter Haven, Florida. After obtaining preliminary approval from respondent, Department of Health and Rehabilitative Services (HRS), a request for formal hearing was filed by petitioner, Hillsborough County Hospital Authority d/b/a Tampa General Hospital (TGH), seeking to challenge the proposed agency action. This matter was assigned Case No. 89-1286. A second petition for formal administrative hearing challenging the same proposed agency action was filed by petitioner, Lakeland Regional Medical Center (LRMC). That matter was assigned Case NO. 89-1287. The requests for hearing were transmitted by HRS to the Division of Administrative Hearings on March 10, 1989. By order dated April 19, 1989 the two cases were consolidated pursuant to Rule 221-6.011, Florida Administrative Code (1987). By notice of hearing issued the same date, a final hearing was scheduled to commence on July 6, 1989 in Lakeland and Tallahassee, Florida. At the outset of the hearing on July 6, 1989 the undersigned granted a motion in limini filed by LRMC which had the practical effect of denying the application. The hearings were accordingly ended at that juncture. By order entered on July 12, 1989 the undersigned reconsidered that ruling and the matters were rescheduled for final hearing on August 14-16, 1989 in Lakeland, Florida. Continued hearings were held on August 17, 18, 21 and 22, and September 7, 8 and 28, 1989 in Tampa and Tallahassee, Florida.
Petitioner LRMC also filed a petition under Section 120.56, Florida Statutes (1987) seeking to invalidate what it considered to be an illicit rule used by HRS in this proceeding. That matter was assigned Case No. 89-2157R and was heard on a consolidated record with Case Nos. 89-1286 and 89-1287. However, a separate final order was rendered in Case No. 89-2157R on November 15, 1989.
At final hearing, applicant presented the testimony of Lance W. Anastasio, its president and accepted as an expert in health care administation, Dr.
Stanley K. Smith, accepted as an expert in demographic analysis, Michael D. Jernigan, accepted as an expert in health planning, W. Eugene Nelson, accepted as an expert in health planning, Vinod K. Misra, accepted as an expert in health care planning and health facility planning, John T. Bigalke, accepted as an expert in health care accounting, Richard Knapp, accepted as an expert in health care accounting, finance and financial feasibility, Drs. Brian W. Hummel, Gary
R. Johnson, Edgar H. Willard, III, and Karan K. Bhatia, cardiologists or heart surgeons, Dr. M. Elizabeth West, Judy B. R. Cottrill, Robert G. Mahaffey, and Phillip N. Perry, employees of WHH, Craig Suwinski, accepted as an expert in health care administration, Billy R. Ready and Edward D. Mathews. Also, WHH offered respondent/applicant's exhibits 1-37. All exhibits were received in evidence except exhibits 35 and 37. Respondent HRS presented the testimony of Sharon Gordon-Girvin, its community health administrator and accepted as an
expert in health planning. Also, it offered HRS exhibits 1-5. All exhibits were received in evidence except exhibit 5. Petitioner TGH presented the testimony of Paul A. Powers, its chief financial officer and accepted as an expert in health care finance, Newell D. France, its president and accepted as an expert in hospital administration, Dr. Ronald T. Luke, accepted as an expert in health planning and health care finance, and Norman Stein, administrator at University Community Hospital. Also, TGH offered petitioner's exhibits 1-11.
All exhibits were received in evidence. Petitioner LRMC presented the testimony of Jack Stevens, it chief executive officer and accepted as an expert in health care administration, Lee Faulconer, accepted as an expert in health care finance, Richard A. Baehr, accepted as an expert in health care planning and health finance, Daniel J. Sullivan, accepted as an expert in health care planning, administration, and finance, Dr. Harold S. Luft, accepted as an expert in health care planning, administration, economics and finance, Drs. Raul Lopez and Kevin Browne, cardiologists, and Elizabeth Allen, Jackie Yon, and Margaret
L. Scheel, LRMC employees. In addition, LRMC offered LRMC exhibits 1, 5-12, 21- 26, 40 and 41. All exhibits were received in evidence. Also, LRMC offered certain exhibits in support of its petition in Case No. 89-2157R which were received in evidence. Finally, the undersigned has taken official notice of various agency final orders.
The transcript of hearing (nineteen volumes) was filed on October 4, 1989. At the request of the parties, the time for filing proposed findings of fact and conclusions of law was extended to October 30, 1989. By agreement of the parties, this time was extended again to November 2, 1989, and the same were timely filed that date. A ruling on each proposed finding has been made in the Appendix attached to this recommended order.
FINDINGS OF FACT
Based upon all of the evidence, the following findings of fact are determined:
Background
On September 26, 1988 respondent/applicant, Winter Haven Hospital, Inc. (WHH), filed its application for a certificate of need (CON) with respondent Department of Health and Rehabilitative Services (HRS), seeking authorization to establish an adult open heart surgery program at its facility located at 200 Avenue F, Northeast, Winter Haven, Florida. According to the application, WHH proposed to implement an open heart surgery program in an existing operating room with a project expenditure of $714,000. After reviewing the application, HRS found certain items to be either incomplete or missing and requested WHH to furnish such data by November 20, 1988. After such items were timely submitted, HRS deemed the application to be complete on November 14, 1988. A further review of the application followed, and, despite noting at least ten deficiencies in the application, HRS issued its state agency action report and letter of intent to grant the application on January 13, 1989. This preliminary action was followed by a notice of intention to grant the CON published in the Florida Administrative Weekly on February 3, 1989.
After notice of HRS's preliminary decision was published, petitioner, Hillsborough County Hospital Authority d/b/a Tampa General Hospital (TGH), a 947-bed acute care hospital located at Davis Island, Tampa, Florida, filed a petition for formal hearing challenging the proposed agency action. A similar petition was also filed by petitioner, Lakeland Regional Medical Center (LRMC), a 897-bed acute care hospital in Lakeland, Florida. Both petitioners contended
that WHH's request, if approved, would adversely affect their existing open heart surgery programs in contravention of state law and agency rules. The parties have stipulated to the standing of petitioners.
The Omissions Process
When WHH filed its application with HRS on September 26, 1988, it inadvertently failed to submit (a) one page of the balance sheet of the financial statements and (b) the opinion letter of the certified public accounting firm that prepared the financial statements. During the initial review of the application, HRS noted that the financial statements were incomplete and requested WHH to file such data during the so-called omissions process. This process is authorized by statute and rule and affords an applicant the opportunity to supply missing or incomplete information after the initial application has been filed.
Pursuant to HRS's request, WHH supplied the two missing documents, and other requested information, by the specified due date. After receipt of this data, the agency deemed the application to be complete.
According to agency personnel, when the application was filed HRS had a policy of permitting this type of information to be routinely filed during the omissions process. Shortly thereafter, HRS changed its policy and required complete financial statements to be filed with the initial application. If complete financial statements were not initially filed, the application was deemed to be incomplete and rejected without further review or opportunity to supply the missing data. However, this policy was recently ended, and the agency has now reverted to the policy in effect at the time WHH filed its application. Thus, the filing of such data by WHH during the omissions process was consistent with then existing agency policy as well as HRS's governing rules and statutes.
The Parties
The Department of Health and Rehabilitative Services is the state agency charged with the responsibility of administering the Health Facility and Services Development Act, also known as the Certificate of Need (CON) law. In this proceeding, and consistent with its proposed agency action, HRS supported WHH's application.
Winter Haven Hospital, Inc. is a non-profit community hospital licensed for 579 long-term and psychiatric beds. Of that total, 259 are designated as medical/surgical beds while 36 are classified as intensive care unit (ICU) beds. Established more than fifty years ago, WHH has two campuses, a 160-member medical staff with a broad range of medical specialties, and provides all major medical services with the exception of open heart surgery, comprehensive burn treatment, and Level III neonatal intensive care. In August 1988 WHH opened a cardiac catherization laboratory with the intention of later adding an open heart surgery unit. The facility treats Medicaid and Medicare patients and indigents and has contracts with local health management and preferred provider organizations and other groups. Although not disclosed in the letter of intent, WHH is a subsidiary corporation of Mid-Florida Medical Services, Inc., a holding company for WHH and various other affiliated entities.
Hillsborough County Hospital Authority is a public agency created in 1980 by the Florida Legislature for the express purpose of operating Tampa General Hospital. Licensed for 947 beds, the facility serves as a major teaching and tertiary referral hospital providing a complete range of services
twenty four hours per day, including open heart surgery. In addition, TGH is the primary teaching hospital for the University of South Florida medical school. By law, TGH is required to provide indigent care.
Lakeland Regional Medical Center operates a large, regional referral acute care facility at 1324 Lakeland Hills Boulevard, Lakeland, Florida. Of its licensed 897 beds, approximately 700 are licensed medical/surgical and ICU beds. LRMC has historically provided a wide range of acute care services, including open heart surgery and diagnostic and therapeutic cardiac catherization, and is a major tertiary referral center. According to Health Care Cost Containment Board data, LRMC treats twice as many patients, including those acutely ill, as does WHH and has a substantially larger operating budget.
District 6 Open Heart Programs
The facilities of WHH, LRMC and TGH are located in district 6, a geographic area composed of Hillsborough, Polk, Manatee, Hardee and Highlands Counties and artificially created by HRS for, among other things, the purpose of determining need for new or additional health facilities within that area, including open heart surgery programs.
In addition to TGH and LRMC, there are four other existing adult open heart surgery programs in district 6. These include St. Joseph's Hospital in Tampa, a well established program, and Manatee Memorial Hospital (Bradenton), L.
W. Blake Hospital (Bradenton) and University Community Hospital (Tampa). The latter three programs opened in February 1988, March 1989 and June 1989, respectively. None have intervened in this proceeding. When WHH's application was reviewed, a seventh open heart surgery program within the district (Humana- Brandon) had been preliminarily approved, but that approval was subsequently withdrawn. Therefore, for purposes of this proceeding, Humana- Brandon will not be considered as an existing or approved program.
According to the state agency action report made a part of this record, the programs and number of open heart procedures performed during the twelve month period ending June 30, 1988 were as follows:
Program Procedures
St. Joseph's 933
TGH 1230
University Community Hospital 0
L. W. Blake 0
Manatee Memorial 70
LRMC 503
Total 2736
For the twelve months ending September 30, 1988, there were 2,672 procedures performed by district 6 programs, or a decline of 64 procedures when compared to the total performed during the year ending June 30, 1988. Of that amount, 1614 procedures were performed on district 6 residents while 1058 procedures were performed on non-district 6 residents. The latter number included 541 residents from district 5 of whom 473 were Pasco County residents.
The service area of TGH's open heart surgery program encompasses a nine-county area with a range of seventy miles. It receives 42% of its open
heart patients from district 6, with 34% from Hillsborough County and 5% from Polk County. As to the patients from outside district 6, TGH receives 33% from district 5 and 14% from district 3.
Approximately 75% of LRMC'$ open heart surgery patients are Polk County residents. Indeed, of 496 Polk County residents having open heart surgery during the year ending September 30, 1988, approximately 73% of those residents had surgery at LRMC. The remainder used facilities outside the county, such as TGH. In 1986 approximately 200 patients came to LRMC from locations outside of the City of Lakeland but within Polk County, and some 67 cases per year have been referred by WHH to LRMC.
The service area of WHH is not as clearcut. In its application, WHH designated all of Polk County as its primary service area, and Highlands and Hardee Counties as the secondary service area for its proposed program. However, in its answers to interrogatories, WHH represented that its primary service area was eastern Polk County. At hearing, the service area was redesignated as eastern Polk County, Hardee County and Highlands County. Since over 90% of WHH's patients reside in Polk County, it is found that Polk County is its primary service area.
For the year ending September 30, 1988 one hundred twenty-five residents of Highlands County had open heart surgery. Only 8% used LRMC while 74% went to a facility in Orlando. For the same time period, sixteen Hardee County residents had open heart surgery, of whom approximately 63% used LRMC's facility.
Applicable Statutory and Rule Criteria
By prehearing stipulations the parties agreed that, except for the criteria contained in Subsections 381.705(1)(g), (j), and (2)(e), Florida Statutes (Supp. 1988), all other relevant statutory criteria must be satisfied. These include subsections 381.705(1)(a)-(f), (h) and (i), (k)-(n), and (2)(a)- (d). 1/ In addition, the criteria in Rule 10-5.011(1)(f), Florida Administrative Code (1987) are in issue. Of special concern in this proceeding is the appropriate manner in which to satisfy the requirements of subpart 11.a.(I) of the rule. To demonstrate compliance or noncompliance with the criteria, the parties presented a number of expert witnesses. As might be expected, the testimony on this issue is sharply conflicting. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony on the issue, and that testimony is embodied in the findings below.
Subsection 381.705(1)(a), F. S. - The first statutory criterion requires that HRS consider "the need for the health care facilities and services
. . . being proposed in relation to the applicable district plan arA state health plan." In this regard, the parties have offered into evidence copies of the relevant portions of the two plans.
The 1988 District VI Health Plan has application in this proceeding. That plan requires, among other things, that (a) all existing programs in a particular service area must be operating at 350 procedures per year, (b) the proposed unit must be able to reach a level of 200 procedures within three years, and (c) the proposed program cannot reduce the average utilization in the applicant's service area below 350 procedures per year. In addition, the plan expresses a preference for applicants which have an historical commitment to the provision of indigent care and those hospitals with documented status as major regional referral centers. Finally, the plan expresses a preference for
applicants from subdistricts not having existing and/or approved programs. Notwithstanding WHH's contention that the foregoing objectives apply only to comparatively reviewed applications, it is found that these objectives must be taken into account in determining whether the proposal is consistent with the plan.
The evidence reflects that not all of the existing programs in the service area are operating at 350 procedures per year. Indeed, University Community Hospital, L. W. Blake and Manatee Memorial Hospital are operating at substantially below that number. The record also indicates that the applicant has not reasonably demonstrated that it will reach a level of 200 procedures within three years. Further, unless 700 procedures per year can be generated by LRMC and WHH, which is highly questionable, the requirement that the new program not reduce average utilization in the applicant's service area (Polk County) below 350 will not be met. As to the requirement that an applicant have a historical commitment to the provision of indigent care, WHH's historical commitment, while substantially less than some providers such as TGH, is marginally sufficient to satisfy this requirement. Next, even though the district is not apportioned into subdistricts for the purpose of determining open heart surgery program need, it is noted that WHH's proposed facility would lie within fifteen miles of LRMC. Finally, WHH is considered a community hospital rather than a major regional referral center and thus it falls short on that objective. Even if WHH was a step above a community hospital, it must still be recognized that open heart surgery is a specialized tertiary service which should be regionalized and performed in a limited number of institutions. Therefore, it is found that the proposal is inconsistent with the local health plan.
Chapters 4 and 5 of the state health plan contain various objectives and goals for specialized services such as open heart surgery programs. Goal 1 of chapter 4 of the plan establishes an objective of developing "acute-care resources in quantity and mix which appropriately meet population needs in the most cost-efficient manner." Goal 4 of chapter 5 provides an objective of insuring "the appropriate availability of cardiac catherization and open-heart services at a reasonable cost." In addition, objective 4.2 of chapter 5 provides that its goal is "to maintain an average of 350 open heart surgery procedures per program in each district through 1990." The parties have not relied upon or cited any other applicable portions of the state plan.
Since the existing programs within the district are not operating at capacity, the approval of the application would be inconsistent with goal 1 of chapter 4 which provides that acute-care resources should be developed in the most cost-efficient manner. The evidence further supports a finding that as to goal 4 of chapter 5, the approval of another program within the district will drive up costs at existing programs. The bases for this finding is set forth in findings of fact 43-46. Thus, the proposal is inconsistent with the plan in this respect. Finally, the proposal is found to be consistent with objective
4.2 of chapter 5 since an average utilization of 350 procedures per program should be maintained through 1990 even with the addition of a new program. Given the above two shortcomings, it is found that the proposal is inconsistent with the state plan.
Subsections 381.705(1)(b), (2)(a),(b) and (d), F.S.- These criteria require that HRS consider the "availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the service district of the applicant," whether less costly and more efficient and appropriate services are
available, and whether patients will experience "serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service." To put these criteria in perspective, it is noted that when the application was reviewed by HRS, there were four existing open heart surgery programs within the district. At time of hearing, two other approved programs had commenced operations.
The areas with highest population densities, such as Lakeland, Tampa and Bradenton, all have open heart programs in the vicinity. Thus, the existing programs in the district are geographically distributed consistent with the relative population distribution within the district. There are no programs in either Hardee or Highlands Counties, but they have a very small population base. Indeed, HRS acknowledged in the state agency action report that a new program at WHH would not enhance access to residents of those two counties.
According to traffic engineering studies introduced into evidence, open heart surgery services currently are available to 90% of the population of district 6 within a two hour drive time, as required by subparagraph 4.a. of rule 10- 5.011(1)(f). The City of Lakeland is only fifteen miles, or thirty minutes drive time, from Winter Haven. Therefore, the addition of a new program in Winter Haven will not materially enhance geographic accessibility. Further, there is no demonstrated accessibility problem by residents of the district.
The existing facilities in the district have sufficient excess capacity to perform additional open heart surgery cases. This projected growth can be accommodated without any additional capital expenditures. Indeed, greater utilization of the existing programs would be a less costly alternative to the establishment of a new program at WHH. Also, there is no evidence that cardiac patients in the district will experience serious problems in obtaining open heart surgery services in the absence of a program at WHH. Therefore, it is found that the applicant has failed to show that the existing programs are inadequate or unavailable, that residents have an accessibility problem to existing facilities, that the quality of care, efficiency, utilization and appropriateness of other programs are less than satisfactory, that less costly, more efficient alternatives are not available, that patients will experience a serious problem in obtaining care in the absence of the proposed new service, or that existing facilities are being used in an inappropriate or inefficient manner.
Subsections 381.705(1)(c) and (h), F.S. - These two criteria go hand in hand and require HRS to consider "the ability of the applicant to provide quality of care and the applicant's record of providing quality of care," and whether the applicant has sufficient resources, including manpower, to accomplish and operate the project. Petitioners suggest that WHH will be unable to offer adequate quality of care because the new program will not attract a sufficient number of patients and because of a lack of adequate planning. They also contend that WHH will not be able to recruit and hire the necessary personnel to support its program.
To ensure quality of care, WHH intends to enter into a contract with The Watson Clinic in Lakeland to provide a surgical team. Since those physicians are performing surgeries at LRMC, WHH proposes that the team would split its time between the two facilities. The team now performs more than 500 procedures per year at LRMC. Thus, WHH asserts that the team can easily maintain its proficiency even if it does not meet its projected level of procedures. For that matter, WHH points to a suggested standard by the American College of Surgeons (ACS) that 150 procedures per year is a reasonable standard,
a goal that WHH obviously believes it can reach. It goes on to contend that the surgical team, and not the hospital, performs the procedure, and that as long as the combined efforts of the surgical team surpasses the 500 threshold, the quality of care will be maintained.
As to the resources and manpower needed to accomplish the project, WHH projected in its application the need to hire two scrub technicians, two registered nurses and one perfusionist for a single surgical team in one operating room. However, it projected no incremental staffing needs for additional ICU nurses or technicians. The applicant concedes it may "encounter some difficulty in hiring the necessary personnel" for its program but points to a good track record in hiring other personnel and the fact that the perfusionist may be provided by the surgical team from The Watson Clinic. It further posits that aside from the five positions, it is unlikely that any other personnel must be hired. This is because it already has some experienced personnel in the employ of the hospital who can be transferred to the open heart surgery program and others can be readily trained.
The evidence establishes the fact that there is a direct relationship between the volume of open heart surgery performed at a hospital and the quality care afforded open heart surgery patients. In other words, as the volume of cases increases, mortality rates generally decrease. As demonstrated in studies introduced by LRMC witness Luft, hospitals performing between 20 and 100 coronary artery bypass graft procedures per year had a risk adjusted mortality rate of 5.2%. This rate decreased to 4.1% for hospitals with annual volumes of between 201 and 350 procedures, and dropped even farther for facilities performing in excess of 350 procedures per year. This measure has proven to be accurate at LRMC, for as the volume at the hospital has increased, mortality has decreased. The above statistics are accepted as being a more reliable measure than the ACS standard of 150 procedures per year suggested by WHH.
The more credible evidence reflects that WHH will not be able to perform 200 adult open heart surgery procedures annually within three years of initiating its program. This level could only be achieved if WHH gains a substantial share of Highland County's market. However, the vast majority of Highland patients are currently migrating out of the district to a church sponsored facility in Orlando. This suggests that these patients are motivated by factors other than proximity since they are already bypassing the closest facility, LRMC. In addition, LRMC's cardiovasular surgeons, who WHH plans to use, receive no referrals from that county, and only 4% of LRMC's total hospital discharges come from that county. Further, there is no evidence that WHH would be able to change existing referral patterns. Finally, although WHH projected
164 procedures in its first year, 206 the second year and a minimum of 200 by year three, it made no credible market share analysis to support those projections. Indeed, existing use rates of Polk County residents, which are another good indication of the future demand for a new service, belie WHH's projections and suggest that only 30 additional open heart surgery cases will be generated in 1990 beyond current volumes. This is consistent with the fact that LRMC has experienced the smallest growth in open heart surgery volume of any district 6 program over the last three years. It is noted that HRS projects a growth in volume of less than 200 cases by 1990 for the entire district with much of that growth being accounted for at the new programs. A more credible and reasonable projection shows that by 1993 there will be 2,700 open heart procedures available for the six existing facilities in district 6, which is only 28 procedures more than performed by the four operational programs in district 6 during the year ending September 30, 1988. It should be noted here
that WHH's recently initiated cardiology program has been facing slow growth, market saturation and potential decline.
All parties recognize the critical shortage of nursing personnel that exists nationally, and particularly in the areas of cardiovascular surgery and intensive care. Even today, LRMC has a number of nursing vacancies, including vacancies in its intensive care unit, despite having a full time recruiter and an aggressive recruiting program. Thus, LRMC's fear of losing skilled personnel to WHH should the application be granted are well-founded, particularly since it has lost staff to WHH in the past. In addition, qualified perfusionists are extremely difficult to hire. Indeed, The Watson Clinic has been attempting, unsuccessfully, to hire an additional perfusionist for the LRMC program for almost a year. Current salaries for a perfusionist range from $70,000 to as high as $100,000 per year. This contrasts with the unrealistic projection of WHH that it could hire a perfusionist for $40,000 per year.
A back-up open heart surgery operating room fully equipped and staffed will be necessary in order for WHH to assure patient safety and to be able to provide angioplasties. Additional ICU space is also required. Because WHH has made no provision for an additional operating room or ICU space, and the necessary related staffing, it is apparent that WHH has not adequately planned and demonstrated the intensive care capacity necessary to serve open heart surgery patients.
The applicant must have more than one surgical team so as to allow for vacations, sick days, 24-hour coverage, and emergencies. However, table 11 of the application reflects that WHH intends to provide for only one assembled surgical team. With the proposed limitation of one operating room and one surgical team, WHH would not be able to handle emergency cases that arise during normal hours when a scheduled procedure is in progress. It should be noted here that The Watson Clinic now employs only three cardiovascular surgeons. One of those surgeons is leaving, and the clinic has been attempting, unsucessfully so far, to recruit another surgeon. Until a replacement is recruited, the clinic will have only two surgeons who ostensibly would work at both WHH and LRMC if the application was approved.
The application does not provide for the additional intensive care staff necessary to care for 200 open heart patients per year. A 1:1 patient to nurse ratio for the first twenty-four hours following surgery is desirable. Even if WHH utilized a less desirable 2:1 ratio, at least four additional intensive care nurses would be required to handle the incremental patient load.
During the start-up period for a new open heart surgery program, a hospital cannot be expected to perform the number of cases necessary to achieve the desired low mortality rates. This reality has been taken into acount by HRS by giving new programs three years in which to reach the 200 procedure threshold. Even with this grace period, the evidence supports a finding that WHH will not be able to reach that threshold within the required three year time period. Given this fact, and the shortcomings in applicant's planning for staff and equipment, it is found that WHH has failed to demonstrate that it can ensure the requisite quality of care required by the law. It is further found that applicant has failed to demonstrate that it will have the necessary resources, including manpower, to accomplish and operate the project.
Subsections 381.705(1)(d) and (2)(c), F.S. - These criteria require a consideration of alternatives, including sharing arrangements, to the proposal under review. Except for existing facilities, there are no alternatives to open
heart surgery. In this regard, HRS determined that "less costly alternatives to the proposal would be greater utilization of the existing open heart surgery programs in District VI." As noted in finding of fact 27, the existing facilities have sufficient excess capacity to handle the projected growth in the district.
Although LRMC has offered to explore a cooperative, shared open heart surgery program with the applicant, WHH officials have so far declined. The Watson Clinic, from which the surgical team will be obtained, has also indicated a willingness to support such an arrangement. In light of WHH's unwillingness to consider this alternative, it is found that the statutory criteria have not been ftet.
Subsection 381.705(1)(i), F.S. - An applicant for a CON is required to demonstrate the short and long-term financial feasiblility of the project. In this case, the long-term financial feasibility of the project is dependent in large measure upon the reasonableness of WHH's projections.
The pro forma financial projections contained in the application are flawed and unreliable. This was borne out by WHH's own financial expert who rejected four of the five assumptions underlying the pro formas. To overcome these deficiencies, at hearing WHH's expert offered a new financial analysis which was substantially different than the pro formas submitted with the application and reviewed by HRS prior to deeming the application complete. As such, the new analysis constituted an impermissible amendment to the application. Even if it was not construed to be an amendment to the application, the projected utilization of 206 procedures by the second year of operation, and upon which the financial projections are premised, was not supported by the evidence. Because of this, it is found that applicant has not demonstrated that the project is financially feasible in the long term.
Subsection 381.705(1)(1), F. S. - This criterion requires HRS to consider the "probable impact of the proposed project on the costs of providing health services proposed by the applicant". The statute also speaks of competition and its effect on the ability of the applicant's competitors to promote quality assurance and cost-effectiveness.
Initially, it is noted that in recent years there has been increasing competition for open heart patients in district 6. This is because three new programs have recently become operational. In addition, a new program was just authorized in Pasco County which will reduce the inflow of Pasco County residents into district 6. Most of the Pasco County patients were utilizing the facility of TGH. The authorization of another program will inevitably draw patients from the existing facilities and the expected loss will serve to increase costs both to patients and hospitals.
Although WHH intends to charge lower fees for open heart patients than do LRMC and TGH, HRS concedes that this would not likely have the effect of causing those providers to decrease their charges. At the same time, the competition between LRMC and WHH for the skilled personnel necessary to operate an open heart surgery program would have the effect of driving up costs at both institutions.
If approved, the application would directly and adversely impact LRMC. This is because approximately 75% of LRMC's open heart patients are residents of Polk County. The historical overall hospital primary Service area of WHH, which is projected by WHH to mirror the primary service area of its open heart surgery
program, directly overlaps LRMC'S primary service area for open heart surgery. In addition, cardiologists and surgeons at LRMC currently receive referrals of surgical, angioplasty and diagnostic cardiac catherization cases from Winter Haven physicians, and those referrals will likely be reduced with the approval of a new program at WHH. This is supported by the fact that when WHH opened its cardiac catherization laboratory in August 1988, LRMC experienced a substantial drop in cases referred from Winter Haven physicians. Further, if WHH achieves its projected level of 206 cases by the second year of operation, LRMC would likely lose 133 open heart referrals and 128 angioplasty cases. This in turn would result in an annual financial loss of $1,652,640 for LRMC. If the number of procedures reached 350, LRMC could likely lose 226 cases per year, a number that WHH's own expert conceded was reasonable given the fact that some 200 patients per year come to LRMC from points outside of Lakeland but within Polk County. Given LRMC's declining operating margins in recent years, and a projected operating margin of only $300,000 in 1990, LRMC would be forced into a deficit position thereby adversely impacting its current level of services, quality of care and ability to provide indigent care.
Tampa General Hospital's indigent load is substantial, and for the current fiscal year it anticipates providing $45 million worth of indigent care net of any reimbursement. Indeed, approximately 43% of TGH's patients are in the medically needy category, and it projects a deficit in 1990 of $4.3 million. To offset these losses, TGH relies on revenues from paying patients, of which the open heart surgery program is a major source. In 1988, this source provided 15% of its net patient services revenue. The approval of a program at WHH would further reduce the availability of open heart patients to TGH. If a new program caused only a 10% loss of open heart surgery patients, TGH's gross service revenue would decrease by over $4 million per year. Even the 5% to 6% loss that WHH predicts will occur would equate to a not insubstantial sixty-two patients per year. Accordingly, it is found that the introduction of a new program at WHH would have an adverse impact on TGH, although not as profound as on LRMC.
Subsection 381.705(1)(n), F. S. - This subsection requires HRS to consider the applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent.
Recent data indicates that only 2.7% of WHH's total patient days were Medicaid days. Also, its total charity uncompensated care was $410,176. When the Hill-Burton compulsory contribution is excluded, WHH's net voluntary indigent and uncompensated care was only $133,950, which was two-tenths of one percent of gross revenue for the year. This contrasts with TGH's total uncompensated care in 1987 of 4.5% of gross revenue. According to Health Care Cost Containment Board data for 1988, WHH's total uncompensated care was approximately one-tenth the amount incurred by LRMC during the same time period. Also, the applicant has had a policy of requiring major surgery patients to demonstrate financial capability before being admitted. Even so, WHH has represented to HRS that it intends to dedicate 2% of open heart services to Medicaid patients which is comparable to the level historically reported by existing providers in the district. Given this representation, which was not contradicted, it is found that the application is in compliance with this criterion.
The remaining statutory criteria - Petitioners have not seriously contested WHH's ability to satisfy the remaining statutory criteria. It is specifically found that the remaining relevant statutory criteria have been satisfied. To the extent the rule criteria, except rule 10-5.011(1)(f), apply,
they are also deemed to have been satisfied but only where the comparable statutory criteria have been met.
Rule 10-5.011(1)(f), F. A. C. - This rule sets forth additional criteria against which applications for open heart surgery programs are evaluated. Of some significance is the admonition in subparagraph 2. which states that "(t)he Department will not normally approve applications for open heart surgery programs in any service area unless the conditions of Sub- paragraphs 8. and 11., below, are met." Since WHH does not rely on "not normal" circumstances, a major controversy has arisen over the manner in which MRS has deemed subpart 11.a.(I) to have been satisfied.
To determine the numeric need for new programs within a service area, HRS utilized the formula embodied in subparagraph 8. of the rule. Under this formula, a use rate was calculated for the service district based upon the number of open heart surgery procedures per 100,000 population for the year ending June 30, 1988. The use rate was then applied to the projected population for the horizon year of 1990, the year the program is expected to begin. This calculation produced a projected number of 2,914 procedures for 1990. After dividing that number by 350, MRS determined that 8.3 programs were needed in the district by 1990. Since the district already has six existing or approved programs, which must be subtracted from the projected need, the formula produced a net need of two additional programs. According to MRS's expert, the formula calculation merely provides an opportunity, and not a requirement, for MRS to approve an additional program since the applicant's conformity with other rule and statutory criteria must also be considered. It should be noted that the rule projects a need on a district-wide basis and has no provision for projecting the number of cases within various geographic areas of the district such as the service area defined in WMM's application. In this regard, WHH made no claim that it would attact patients from anywhere in district 6 other than Polk, Mardee and Highlands Counties.
Subparagraph 11. of the rule reads in part as follows:
There shall be no additional open heart surgery programs unless:
the service volume of each existing and approved open heart surgery program within the service area is operating at and is expected to operate at a minimum of 350 adult open heart surgery cases per year .
the conditions specified in Sub- paragraph 5.4, above, will be met by the proposed program.
b. No additional open heart surgery programs shall be approved which would reduce the volume of existing open heart surgery facilities below 350 open heart surgery procedures annually for adults . . .
The above rule was adopted in substantially its present form in February 1983. Under the plain language in subparagraph 11.a., even if a numeric need is shown, a new program shall not be established unless each existing and approved program within the district is operating at and is expected to operate at a minimum of
350 procedures per year.
The agency's expert acknowledged that the plain language of the rule requires that each existing and approved program be operating at the 350 threshold before a new program may be approved. She also acknowledged that if the words "and approved" were not in subpart 11.a.(I), the agency would interpret the provision in the manner suggested by petitioners. Nonetheless, HRS interprets the rule as requiring that each existing and approved program must in the future maintain an average of 350 procedures if a new program is approved. No determination is made as to whether the existing programs are currently averaging 350 procedures annually. According to HRS's expert, this interpretation is based upon a reading of the entire subparagraph 11. Applicant's expert, who was formerly in charge of HRS's CON program, also supported the agency's practice of "averaging" and concluded that subparagraph
authorized this interpretation. Even so, the word "averaging" is not found in any provision within subparagraph 11. In addition, the proponents of the averaging policy rely upon another portion of the rule to support their position. More specifically, they rely heavily upon subparagraph 7. of the same rule which provides that "(t)he provision of open heart surgery in the service area shall be consistent with the needs reflected in the local health plan and the Florida State Health Plan." One objective of the state health plan is to maintain an average of 350 procedures per program in the district through 1990. It is noted, however, that the state health plan applicable to this proceeding was adopted more than two years after the rule in question became effective, and thus could not have supported HRS's interpretation during the rule's first two years of operation. Moreover, that objective is directly at odds with the provisions in subpart 11.a.(I). Finally, the proponents argue that if the rule is interpreted in the manner suggested by LMRC and TGH, a new program could never be authorized if a district had an approved program since an approved program is not yet operational and obviously could not achieve the 350 threshold. They argue that such a construction would be illogical and absurd. However, it is noted that the rule provides that a new program can be authorized by HRS if not normal circumstances are shown even if the 350 threshold is not being satisfied. Indeed, HRS has granted at least three open heart CONs based on not normal circumstances.
In November 1982 HRS was in the process of considering changes to the rules pertaining to CON applications for both cardiac catherization laboratories and open heart surgery programs. In response to a staff suggestion, HRS amended its cardiac catherization laboratory rule by changing the existing utilization provisions to require that an average of 600 adult catherizations be used as a utilization threshold for the review of applications rather than a requirement that each laboratory in the district be performing 500 adult catherizations. This amendment was made because HRS recognized that by using the word "average", the authorization of new laboratories would "not be impeded by a few or even one laboratory which is operating below the required minimum". In contrast, however, HRS chose not to amend its open heart rule to make a corresponding change. This was perhaps due to the fact that HRS initially interpreted the open heart rule to mean what it literally says and early on denied at least one application because each existing program in the service district was not performing 350 or more procedures per year.
Expert testimony established good health planning reasons why the rule should be applied as written and why the incipient policy being used by HRS is improper. Given the undisputed relationship between the quality of an open heart surgery program and its volume, it is gold health planning to allow newly approved providers to become operational and reach the 350 procedure level as soon as possible and before new programs are authorized. If the 350 averaging procedure was used, new programs could be approved even though there were
existing programs in the area, as here, maintaining an annual volume substantially below 350 procedures. The inevitable result would be to drive down the utilization in most or all of the programs. Indeed, HRS undertook no formal analysis in this proceeding to determine if the approval of a new program would force the utilization rate of any existing provider below the 350 threshold. In the absence of not normal circumstances, it is found that the provisions of subpart 11.a.(I) have not been met.
Amendments or Updates?
At issue in this proceeding is the admissibility of certain information proffered by WHH at hearing which was not contained in the original application. This includes (a) certain pro forma financial projections and (b) proposed changes to the staffing and equipment. These are discussed in greater detail below. It should be noted here that any changes to facilities, beds or staffing outlined in the application would be a "significant" amendment to the proposal from a health planning perspective as it would change the projected costs of the operation in both the long-term and short-term. Moreover, HRS's expert agreed that WHH is bound by the projections in the application and omissions response.
The original application contained pro forma financial projections to justify the financial feasibility of the project. This is the same "detailed financial projection" that is statutorily required to be filed with the application. At hearing, WHH introduced into evidence, subject to petitioners' objections, new pro formas to demonstrate that the program would be financially feasible. This new analysis was substantially different than the pro formas submitted to HRS by WHH and was not reviewed by HRS prior to deeming the application complete.
In the application reviewed by HRS, WHH represented that it intended to hire five additional personnel, including two scrub technicians, two registered nurses, and one perfusionist for a single surgical team. At hearing, WHH presented several proposed changes in its staffing and equipment plans. First, WHH suggested that The Watson Clinic would supply the perfusionist and certain other personnel for its surgical team, although it projected no costs for those personnel. Secondly, WHH suggested it could equip and staff a back-up operating room and could train surgical and ICU nurses currently employed at WHH to become proficient in the care of open heart patients, rather than hiring additional nurses. Again, no additional costs were submitted with these new proposals. These changes were not reviewed by HRS prior to deeming the application complete.
The applicant was made aware that its proposal did not provide for adequate facilities, beds, or staffing prior to the filing of its application. This advice was conveyed to WHH by its own consultant in September 1988. For whatever reason, at that time WHH chose not to adopt the more costly recommendation of its consultant.
CONCLUSIONS OF LAW
The Division of Adminstrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
As the party seeking to establish entitlement to a CON, WHH bears the burden of proving by the preponderance of the evidence that the certificate should issue.
The parties have stipulated that TGH and LRMC have standing to challenge WHH's application.
Two preliminary matters require discussion. First, petitioners have challenged MRS's use in open heart surgery cases of an averaging policy to determine compliance with rule 10- 5.011(1)(f)11.a.(I). They also question whether certain information proffered by WMH at hearing constitutes an impermissible amendment to its application or is simply an update or revision of matters already contained in the application. These two issues are addressed below.
The first issue centers around subpart 11.a.(I) of the open heart surgery rule which reads as follows:
There shall be no additional open heart surgery programs established unless:
the service volume of each existing and approved open heart surgery program within the service area is opearating at and is expected to continue to operate at a minimum of 350 adult open heart surgery cases per year. . .
Petitioners argue that the "interpretation" placed on the above rule by HRS is illegal, contrary to the plain language in the rule, and constitutes an impermissible repeal or amendment of an existing rule. In response, the agency and WHH contend generally that the policy is a valid interpretation of the rule that is amply supported by the record. They contend further that the agency interpretation avoids an illogical and absurd result that would occur if LRMC's position was adopted. Finally, they cite, among others, the cases of Sarasota County Public Hospital Board, d/b/a Memorial Hospital, Sarasota et al v. DHRS and Venice Hospital, Inc., DOAH Case Nos. 89-1412 and 89-1413 (DHRS, November 17, 1989), where HRS's interpretation was determined to be a permissible one, and St. Mary's Hospital v. DHRS, 9 FALR 6159 (DOAH, November 13, 1987), where the validity of the rule was upheld. /2
A decision not cited by parties but which merits attention is Meridian, Inc. et al v. DHRS, 548 So.2d 1169 (Fla. 1st DCA 1989). In Meridian, HRS had concluded that, for purposes of determining the number of beds in the planning horizon fixed pool for nursing homes, rule 10-5.011(1)(k)2.h. meant the population estimates in effect at the time the application was filed rather that more recent estimates at the time of hearing. On appeal, the court approved the agency's characterization of this practice as "an interpretation of an existing rule, and not a statement of incipient policy that must be fully explicated and supported in each case." Id. at 1170. Under the rationale of that decision, an agency construction of a rule would require far less proof than incipient policy since the only factual predicate necessary to establish the validity of an interpretation would be for the agency to show that it was reasonable, logical and in accord with the organic law. In contrast, incipient policy requires a full agency explication at hearing including proof as to the accuracy of every factual premise in the policy as well as the rationality of every policy choice. While the parties have referred to the averaging policy as being an interpretation of rule 10-5.011(1)(f), the final order in Lakeland Regional
Medical Center et al v. Department of Health and Rehabilitative Services et al, Case No. 89-2157R (DOAH, November 15, 1989), concluded that the averaging policy was an unpromulgated rule and therefore by necessity it constituted incipient policy. 3/ Accordingly, the policy will be viewed in this light.
Initially, it is noted that subpart 11.a.(I) is a duly promulgated agency rule whose terms are clear and unambiguous. If the averaging policy was sustained, it would clearly constitute a deviation from that rule since the policy is so at odds with the plain language of the rule. This is because the rule requires that HRS determine the actual utilization at each existing and approved program before authorizing a new CON, yet the practice of the agency is to make that determination by an averaging technique. Thus, the averaging technique constitutes a departure or deviation from the agency rule, a practice specifically forbidden by the legislature in 1984 when it amended section 120.68(12). 4/ The similarities between this case and the factual situation presented in Boca Raton Artificial Kidney Center, Inc. v. DHRS, 493 So.2d 1055 (Fla. 1st DCA 1986) bear repeating. In Boca Raton, the agency discarded a rule on the ground the rule requirement was "inconsistent with HRS practice and common sense" and opted instead to utilize a policy contrary to the terms of the rule. In reversing the agency, the court held that "(i)f, as HRS contends, the rule as it reads has proved impractical in operation, it can ice amended pursuant to established rulemaking procedures." Id. at 1057. In the instant case, HRS vigorously argues that it has not discarded the rule in question. However, its practice of using an averaging technique belies this contention. Indeed, as in Boca Raton, the departure has occurred because of HRS's concern that the rule, if applied as written, would prove to be impractical in operation. 5/ The effect of the averaging policy is to render meaningless the entirety of the language reflected in subparagraph 11.a.(I). As such, the incipient policy constitutes an impermissible deviation from the terms of an existing rule and cannot be used in this proceeding. In view of this conclusion, it is unnecessary to determine whether an adequate record foundation exists to support that policy choice.
A second issue involves the question of whether certain evidence proffered by WHH constituted impermissible amendments to its application or were simply updates or clarification of matters already submitted with the application. In this case, petitioners object to WHH offering any proposed changes to staffing, beds, facilities and pro forma financial projections. Rule 10-5.008(3), Florida Administrative Code (1987) governs this subject and provides that "subsequent to an application being deemed complete by the Office of Health Planning and Development, no further information or amendment will be accepted by the Department." In addition, a final agency order and recent judicial decision bear on this issue. In Manor Care, Inc. and Health Quest Corp. v. DHRS, 14 FLW 2414, 2417 (Fla. 1st DCA, October 3, 1989), the court held that as to matters within an applicant's control significant changes to a completed application are not permitted. The case of Charter Medical-Orange County, Inc. et al v. DHRS and Florida Hospital, 11 FALR 1087, 1149 (DHRS, February 2, 1989) is also pertinent. In that case the prohibition against amendments, as contained in rule 10-5.008(3), was construed in the following manner:
The concept of "control" of the applicant over the information that goes into the original application is the only phrase that gives applicants any guidance. The word "control" probably is intended as a "knew or should reasonably have known" standard. *If
the applicant reasonably should have known about the information and should have provided the Department with the information as a part of its application, then the new information cannot be considered during the formal administrative hearing.* (Emphasis added between *)
Therefore, HRS's prevailing practice, as codified in its rule, is if the information constitutes a material change to an application, or if an applicant knew or should have known about such matters when the application was filed, they cannot be considered during the formal administrative hearing. Applying these principles to the contested items, it is concluded that the proposed changes to the staffing, equipment and beds are material in nature and were matters known to the applicant prior to the application being filed. Therefore, they shou1d be excluded. As to the changes in the pro forma financial projections, they are also material in nature and thus are likewise inadmissible. Parenthetically, it is noted that even if the information was admitted, it would not change the ultimate conclusion reached in the following paragraph.
The review criteria for certificate of need determinations are set forth in Section 381 705, Florida Statutes (Supp. 1988). By their joint prehearing stipulation, the parties have agreed that all criteria, except those in subsections 381.705(1)(g) and (j) and (2)(e), are applicable and must be satisfied. In addition, compliance with the requirements of Rule 10-5.011(1) is necessary. In determining whether these criteria have been met, a balanced consideration of all relevant criteria must be made. DHRS v. Johnson and Johnson Home Health Care, Inc., 447 So.2d 361, 363 (Fla. 1st DCA 1984). That is to say, the appropriate weight to be given each individual criterion is not fixed but must vary on a case-by-case basis, depending on the facts of each case. Collier Medical Center, Inc. v. DHRS, 462 So.2d 83, 84 (Fla. 1st DCA 1985). The evidence reflects that WHH has failed to satisfy the criteria in subsections 381.705(1)(a) - (c),(h),(i), and (1), (2)(a) - (d), and subpart 11.a.(I) of rule 10-5.011(1)(f). Given the importance of these criteria in relation to the others, it is concluded that the application should be denied. This same conclusion would be reached even if the challenged incipient policy was construed to be an interpretation of the rule and subpart 11.a.(I) was accordingly deemed to have been satisfied.
The rulings on various discovery disputes made prior to hearing are reaffirmed. The subpoenas and notices of depositions that were quashed were either untimely, burdensome, oppressive or otherwise not in compliance with the rules of civil procedure.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Winter Haven Hospital, Inc. for a
certificate of need to authorize the establishment of an open heart surgery program be DENIED.
DONE and ORDERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989.
ENDNOTES
1/ In its proposed recommended order, TGH did not submit proposed findings as to subsections 381.705(1)(d),(e),(f),(k) and (m). Similarly, LRMC failed to submit proposed findings as to subsections 381.705(1)(e),(f),(k),(m), and (2)(a)-(d). This suggests, but does not conclusively establish, that petitioners do not seriously dispute WHH's satisfaction of these criteria.
2/ The St. Mary's Hospital case involved a challenge to the validity of the open heart rule itself, and not the averaging policy, and therefore does not apply.
3/ In Sarasota County Hospital Board, the agency adopted in toto the recommended order of the hearing officer. However, the recommended order was entered prior to the decision in the rule challenge and was based on the premise that the averaging policy was an interpretation of the rule. In light of the conclusion reached in Case NO. 89-2157R, this decision is not deemed to be controlling. The same is true as to a similar result reached in St. Joseph's Hospital v. DHRS and Humhosco, Inc. d/b/a Humana Hospital Brandon, 11 FALR 5793 (DHRS, June 23, 1989).
4/ The legislative history to the amendment, which supports this conclusion, is found in LRMC's motion for summary adjudication made a part of this record.
5/ This concern is not well-founded since, even where subpart 11.a.(I) is not satisfied, the rule allows the issuance of a new CON if not normal circumstances are shown. In any event, HRS is free to amend the rule to bring it in conformity with its existing, albeit illegal, practice.
APPENDIX
Petitioner Tampa General Hospital:
1-2. Substantially adopted in finding of fact 1.
Substantially adopted in finding of fact 2.
Adopted in preliminary statement.
Substantially adopted in finding of fact 7.
Substantially adopted in finding of fact 9.
Substantially adopted in finding of fact 2.
Substantially adopted in finding of fact 8.
Substantially adopted in finding of fact 2. 10-11.Substantially adopted in finding of fact 8.
Substantially adopted in finding of fact 6.
Substantially adopted in finding of fact 18.
Substantially adopted in finding of fact 10.
Substantially adopted in findings of fact 10 and 11.
Substantially adopted in finding of fact 12.
Substantially adopted in finding offact 11. 18-19.Substantially adopted in finding of fact 13.
Substantially adopted in finding of fact 14.
Substantially adopted in finding of fact 15.
Substantially adopted in finding of fact 16.
Substantially adopted in finding of fact 15. 24-25.Substantially adopted in finding of fact 17.
Substantially adopted in finding of fact 7.
Substantially adopted in finding of fact 32. 28-31.Substantially adopted in finding of fact 41. 32-40.Substantially adopted in finding of fact 46.
Substantially adopted in finding of fact 45.
Substantially adopted in finding of fact 46. 43-47.Substantially adopted in finding of fact 48. 48-49.Substantially adopted in finding of fact 31.
Substantially adopted in finding of fact 53.
Substantially adopted in finding of fact 55.
Substantially adopted in finding of fact 43.
Substantially adopted in finding of fact 32. 54-55.Rejected as being unnecessary.
Substantially adopted in finding of fact 43.
Substantially adopted in finding of fact 25.
Substantially adopted in finding of fact 27.
Substantially adopted in finding of fact 45. 60-62.Substantially adopted in finding of fact 26.
Substantially adopted in finding of fact 27.
Substantially adopted in finding of fact 38.
Substantially adopted in finding of fact 32.
66-72.Substantially adopted in findings of fact 33-37.
Substantially adopted in findings of fact 43-46.
Substantially adopted in finding of fact 44. 75-76.Substantially adopted in finding of fact 50.
77. Substantially adopted in finding of fact 51. 78-81.Substantially adopted in finding of fact 53.
82. Substantially adopted in finding of fact 54. 83-85.Substantially adopted in finding of fact 55. 86-87.Rejected as being cumulative.
88. Substantially adopted in finding of fact 55.
Petitioner Lakeland Regional Medical Center:
Substantially adopted in finding of fact 2.
Rejected as being unnecessary.
Substantially adopted in finding of fact 1.
Substantially adopted in findings of fact 3 and 4. 5-7. Substantially adopted in finding of fact 1.
Substantially adopted in finding of fact 50.
Substantially adopted in finding of fact 7.
Substantially adopted in finding of fact 9.
Substantially adopted in finding of fact 9.
Substantially adopted in findings of fact 21-23.
Substantially adopted in findings of fact 20 and 21.
Partially adopted in findings of fact 20 and 21.
Substantially adopted in finding of fact 21. 16-17.Substantially adopted in finding of fact 23.
18-21.Substantially adopted in findings of fact 24-27.
22. Partially adopted in finding of fact 48.
23-26.Substantially adopted in findings of fact 31-37.
27. Substantially adopted in finding of fact 16. 28-30.Substantially adopted in finding of fact 32.
31. Substantially adopted in findings of fact 15 and 16. 32-34.Substantially adopted in findings of fact 32.
Substantially adopted in finding of fact 43.
Rejected as unnecessary.
37-38.Substantially adopted in finding of fact 32. 39-40.Substantially adopted in finding of fact 31.
41. Rejected as being cumulative.
42-43.Substantially adopted in finding of fact 38. 44-45.Substantially adopted in finding of fact 33.
46. Substantially adopted in finding of fact 30.
47-49.Substantially adopted in findings of fact 34 and 35.
Substantially adopted in findings of fact 56-58.
Substantially adopted in finding of fact 59.
Substantially adopted in findings of fact 35 and 36.
Substantially adopted in finding of fact 44. 54-55.Substantially adopted in finding of fact 41.
Substantially adopted in finding of fact 45.
Substantially adopted in findings of fact 38 and 44. 58-61.Rejected as being unnecessary.
62-63.Substantially adopted in finding of fact 51.
Substantially adopted in finding of fact 52.
Substantially adopted in finding of fact 55.
Substantially adopted in findings of fact 43-46. 67-75.Substantially adopted in finding of fact 45.
Rejected as being unnecessary.
Substantially adopted in finding of fact 35.
Rejected as being unnecessary.
Respondent DHRS:
Substantially adopted in finding of fact 7.
Partially adopted in finding of fact 16.
Substantially adopted in finding of fact 1.
Substantially adopted in findings of fact 8 and 46.
Substantially adopted in finding of fact 5. 6-7. Partially adopted in findings of fact 20-23.
Substantially adopted in finding of fact 11.
Rejected as being unnecessary.
Substantially adopted in findings of fact 12 and 51.
Substantially adopted in findings of fact 51 and 53.
Partially adopted in finding of fact 53.
Partially adopted in finding of fact 51.
Partially adopted in finding of fact 29.
Partially adopted in findings of fact 35 and 36.
16-17.Rejected as being contrary to the more credible evidence.
Rejected as to open heart surgery care.
Partially adopted in finding of fact 38.
20-21.Substantially adopted in finding of fact 49.
Rejected as being unnecessary.
Substantially adopted in finding of fact 30.
Rejected as being unnecessary.
25-26.Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 7.
Substantially adopted in finding of fact 49. 29-30.Substantially adopted in finding of fact 44.
Substantially adopted in finding of fact 49.
Substantially adopted in finding of fact 32. 33-34.Substantially adopted in finding of fact 49.
Note - Where proposed findings have been orly partially adopted, the remainder has been rejected as being contrary to the more credible and persuasive evidence, unnecessary or irrelevant.
Respondent Winter Haven Hospital, Inc.:
1-2. Substantially adopted in finding of fact 7.
Substantially adopted in finding of fact 9.
Substantially adopted in finding of fact 8.
Substantially adopted in finding of fact 6. 6-8. Substantially adopted in finding of fact 51. 9-10. Rejected as being unnecessary.
Rejected as being contrary to the more credible evidence.
Rejected as being irrelevant or contrary to the evidence.
Rejected as being irrelevant.
Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 53.
Substantially adopted in finding of fact 23.
Partially adopted in finding of fact 25.
Rejected as being contrary to the more credible evidence.
Partially adopted in findings of fact 20-23.
Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 29.
Substantially adopted in finding of fact 30.
Rejected as being unnecessary.
24-25.Partially adopted in finding of fact 7.
Partially adopted in finding of fact 29.
Partially adopted in finding of fact 38.
Rejected as being unnecessary.
29-30.Partially adopted in finding of fact 44.
Partially adopted in findings of fact 44 and 51.
Partially adopted in finding of fact 26.
Substantially adopted in finding of fact 18.
Substantially adopted in finding of fact 1.
Partially adopted in finding of fact 30.
Rejected as being contrary to the more credible evidence.
Partially adopted in finding of fact 30.
Partially adopted in findings of fact 30 and 33.
Substantially adopted in finding of fact 48.
Substantially adopted in findings of fact 40 and 41.
41-43.Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 18.
Substantially adopted in finding of fact 49.
46-49.Rejected as being contrary to the more credible evidence.
50. Partially adopted in finding of fact 46.
51-57.Rejected as being unnecessary or irrelevant.
Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 49. 60-61.Partially adopted in findings of fact 29-37.
62. Partially adopted in findings of fact 38 and 39.
63-64.Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 49.
Rejected as being contrary to the more credible evidence.
Substantially adopted in finding of fact 18.
68-77.To the extent these findings have been utilized in the findings that discuss the comparable statutory criteria, they have been accepted. Otherwise, they are rejected.
Substantially adopted in finding of fact 51.
Substantially adopted in finding of fact 18.
Partially adopted in finding of fact 51.
81-82.Rejected as being contrary to the mcre credible evidence.
Note- Where proposed findings have been only partially adopted, the remainder has been rejected as being contrary to the more credible and persuasive evidence, unnecessary or irrelevant.
COPIES FURNISHED:
John A. Radey, Esquire
P.O. Drawer 11307 Tallahassee, FL 32302
John H. Parker, Jr., Esquire Jonathon A. Rue, Esquire
133 Carnegie Way
1200 Carnegie Building
Atlanta, GA 30303
Leslie F. Mendelson, Esquire 2727 Mahan Drive, Suite 103
Tallahassee, FL 32308
E.G. Boone, Esquire Stephen K. Boone, Esquire
P.O. Box 1586 Venice, FL 34284
R.S. Power, Agency Clerk
Department of Health and Rehabilitative Services Building One, Room 496
1321 Winewood Boulevard
Tallahassee, FL 32399-0700
| Issue Date | Proceedings |
|---|---|
| Dec. 07, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 23, 1990 | Agency Final Order | |
| Dec. 07, 1989 | Recommended Order | Application to establish new open-heart surgery program denied on ground no need shown. |
