STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY BOARD OF COUNTY ) COMMISSIONERS d/b/a SHADY ) REST NURSING HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2411

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above case was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 24 and 25, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Ivan Wood, Jr., Esquire

Four Houston Center 1221 Lamar, Suite 1400

Houston, Texas 77010-3015

For Respondent: Richard A. Patterson, Esquire

2727 Mahan Drive, Room 103

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

The issue is whether petitioner's application for a certificate of need to add fifteen beds and construct a new one hundred-twenty bed community nursing home facility in Fort Myers, Florida should be granted.

PRELIMINARY STATEMENT

This matter began when petitioner, Lee County Board of County Commissioners d/b/a Shady Rest Nursing Home, filed an application for a certificate of need seeking to add seventy-five beds and make a capital expenditure for the construction of a one hundred-eighty bed community nursing home facility in Fort Myers, Florida. In the alternative, petitioner made a "partial award request" for the addition of fifteen beds and a capital expenditure for the construction of a one hundred-twenty bed community nursing home. By proposed agency action published on March 24, 1989 respondent, Department of Health and Rehabilitative Services (HRS), denied the application on the ground the application did not comport with various goals, criteria and standards. Thereafter, petitioner requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's decision. The request for hearing was transmitted by

the agency to the Division of Administrative Hearings on May 2, 1989. By notice of hearing issued on June 9, 1989, a final hearing was scheduled for August 24 and 25, 1989 in Tallahassee, Florida. Upon good cause being shown, venue was later transferred to Fort Myers, Florida, and the hearing was conducted on the same dates.

At final hearing, petitioner presented the testimony of Julio Avael, director of the Lee County, Department of Human Services, Pirkash Mirkar, administrator, Linda Smith, admissions coordinator, Karen Hawes, Lee County fiscal officer, Delores G. Dry, Doris Middleton, Bettie Willis, and Dennis Eskew, all HRS District VIII employees, Vicki King, director of nursing, Greg Steinback, a registered architect, and Dennis V. Burns, a certified public accountant and health planning consultant. It also offered petitioner's exhibits 1-11. All exhibits were received in evidence except exhibits 5, 9, and

10 which were conditionally received subject to a ruling on respondent's motion in limini. That motion sought to bar the applicant from introducing into evidence any testimony or documentary evidence pertaining to "special circumstances justification" not contained in the application. The motion is dealt with in the Conclusions of Law portion of this Recommended Order. HRS presented the testimony of Sharon M. Gordon-Girvin, administrator of community health services and facilities and accented as an expert in health planning and certificate of need administration. Also, it offered respondent's exhibits 1-

1. All exhibits were received in evidence.

   
   

   The transcript of hearing (three volumes) was filed on September 15, 1989. Proposed findings of fact and conclusions of law were originally due on October 16, 1989. At the request of respondent, this time was extended to October 23, 1989 and the same were timely filed by both parties. 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:

   
   

   1. Background

      
      

      1. On November 23, 1988 petitioner, Lee County Board of County Commissioners d/b/a Shady Rest Nursing Home (applicant, Shady Rest or County), filed its application with respondent, Department of Health and Rehabilitative Services (HRS), for a certificate of need (CON) seeking authorization to replace one hundred and five existing beds and to add seventy-five nursing home beds so as to create a one hundreds eighty bed community nursing home facility at 3922 Michigan Avenue, Fort Myers, Florida. In the alternative, the County requested a partial award of replacing its existing facility add adding fifteen beds so as to create a one hundred twenty bed facility. Under the alternative plan, the County projected an anticipated capital expenditure of $5,490,500. The County has agreed that, if the application is approved, the additional beds would be dedicated exclusively to Medicaid patients.

         
         

      2. After reviewing the application and certain additional information filed by the County through the omissions process, HRS deemed the application to be complete on January 9, 1989. Thereafter, on March 10, 1989 HRS issued proposed agency action advising the County that its application had been denied. As grounds, the agency generally stated that its evaluation of the application revealed the applicant had not satisfied certain statutory and rule criteria.

         In addition, HRS concluded that the County had failed to provide adequate

         documentation prior to the January 9, 1989 "completeness" date to support its request. This action prompted the County to request a formal hearing to contest the agency's preliminary decision. However, the appeal is limited to the partial award request to add fifteen beds and establish a one hundred twenty bed facility. It is noted that there were no other applicants in the November 1988 batching cycle and no existing providers have intervened in this proceeding.

         
         

   2. The Applicant

      
      

      1. The County's facility is located in subdistrict 5 (Lee County) of HRS District 8. The County has owned and operated Shady Rest Nursing Home for approximately twenty-eight years. Now licensed for one hundred five beds, the facility is categorized by HRS as a community nursing home. This means that it serves the population at large and has not received a certificate of need designating the beds as sheltered beds in accordance with Chapter 656, Florida Statutes (1987).

         
         

      2. As a publicly owned facility, the nursing home provides service to the public regardless of profit. Although the facility received annual subsidies from the County until as recent as four years ago, the facility now operates on a fiscally sound basis. The most typical patient at Shady Rest is Medicaid eligible.

         
         

      3. Because the plant is around thirty-one years old, the County desires to construct a new, more efficient and less costly to operate facility. In this regard, it is noted that HRS supports the construction of a new facilites for the existing one hundred five beds but opposes the authorization for any new beds. Since by law a facility can have no more than sixty beds for each nursing station, it was more logical and efficient for the applicant to design a facility having one hundred twenty beds, or one that required two nursing stations. Thus, besides need, the additional fifteen beds are predicated on economic and planning considerations.

         
         

   3. Motion in Limini

      
      

      1. There is no specific methodology that is prescribed by HRS to inform applicants of what is needed to meet the burden of proof regarding not normal circumstances. Rather, applicants must rely on the language in Rule 10- 5.11(1)(k)2.j., Florida Administrative Code (1987). As noted in finding of fact 8, HRS has just begun using a new CON application form for nursing homes. The County's application was submitted in the first batching cycle in which the new CON application form was used.

         
         

      2. In its application, the County stated it was applying for more beds than were contained in the published fixed need pool pursuant to the special circumstances contained in subsections (1)(b) and (1)(k)2.j. of Rule 10-5.011, Florida Administrative Code (1987). Also attached to the application was what the County describes as "detailed evidence" of need for Medicaid-eligible nursing home beds in Lee County and the then current number of Lee County residents were located in out-of-county nursing homes. The detailed evidence is found on page one of two of Appendix 1 (1B2 - Optional) of the application and consists of the statement that "approximately 750-775 Lee County residents are reported in this (Medicaid) program as being in nursing care facilities. Approximately 130-150 of these residents are located in nursing homes outside of Lee County. Shady Rest Nursing Home experiences a waiting list of approximately

         8 to 15 Lee County residents per month." Aside from this, no other information or documentation concerning special circumstances was included with the

         application. Although the County had at least three corroborating patient lists in its possession at the time the application was filed, it chose not to include them with the initial application or through the omissions process. At hearing, the County proffered into evidence the waiting lists and a more recently prepared letter of support and quality assurance manual on the theory they merely supplemented the statement set forth in Appendix 1 of the application.

         However, HRS did not consider these to be matters within the general scope of the application, deemed them to be impermissible amendments and objected to their admission by a motion in limini.

         
         

   4. The Review Process

   
   

   1. As an aid in evaluating applications for nursing home facilities, HRS recently instituted a somewhat complicated scoring system which involves an analysis of the responses provided by the applicant in its application. The scoring system is not codified in rule or statute form but is utilized on an ad hoc, case by case basis. The evaluation process rates an applicant's compliance with eight objectives which are designed to track the CON review criteria. The objectives are described in detail in HRS exhibits 3 and 4 received in evidence. Each objective has been assigned a certain number of points in the scoring process ranging from thirty to five hundred, or a total possible score of 1,398 points. The responses are measured by two HRS in-house consultants against this established point system, and numerical scores are assigned by them to each of eight categories of objectives. The two scores are averaged, and the overall score is then evaluated as a percentage of total points attained. Since a maximum of 1,398 points may be attained by an applicant, the overall average score is applied to that number to attain the applicable percentage. According to HRS, if a sufficient proportion of the total available points is achieved, the achievement indicates that the proposal is in conformance with the statutory and rule review criteria. The agency points out, however, that there is no passing score per se but rather the goal is to attain the highest score possible. In addition, the successful applicant will achieve a consistently high number in each of the eight rated objectives. This is because HRS equates consistency with capability to implement a successful project.

      
      

   2. In this case, HRS's review of the County's application resulted in the County achieving an overall average score of 710.81 points on its partial award request. This equated to a "score" of 50.84 percent of the 1,398 maximum assignable points. The agency then concluded that the applicant had "not demonstrated sufficient compliance with all relevant certificate of need review criteria for the approval of nursing home beds."

      
      

   3. The state agency action report received in evidence as petitioner's exhibit 2 indicated that the County's overall strengths were determined to be objectives 6 and 7 while its major weakness was noted in objective 1. The latter objective related to the identification of the nursing home fixed need bed pool and conformance with the local and state health plans.

      
      

      1. Compliance with Rule Criteria

         
         

   4. For purposes of determining the need for additional community nursing home beds in Lee County, HRS used a planning horizon of July 1991. In other words, through the use of a formula embodied in a rule, the agency calculated the number of new community nursing home beds projected to be needed in Lee County (the applicable subdistrict) at a relevant future period of time. The parties have agreed that under this formula no new beds are projected to be needed in Lee County during the planning horizon. As a general rule, additional

      beds would not normally be approved under these circumstances. However, the County contends that "not normal" circumstances are present that justify the need for an additional fifteen beds. Under this approach, an award of additional beds can be made even if no formula need exists if the applicant can show "special circumstances". One such special circumstance recognized by HRS is the inability of residents to obtain access to licensed and unoccupied beds in the area. The County has relied upon this exception and contends there is a demonstrated shortage of community nursing home beds in the subdistrict for Medicaid eligible patients.

      
      

   5. Underpinning the applicant's use of the exception are three waiting lists maintained by the facility over the past year and a half. They were proffered to show that persons with a need for nursing home care have been denied access to currently licensed but unfilled beds. One list (petitioner's exhibit 5) begun in 1987 contains the names of a large number of individuals who have filed applications with Shady Rest, of whom the County identifies twenty- one as being Medicaid-eligible and appropriate for immediate placement. A second list (petitioner's exhibit 6) contains the names of persons who made a phone inquiry with the home. Although there was no supporting documentation to show those individuals' demonstrated need for nursing home care as required by the rule, the facility's social service coordinator testified without contradiction that the above twenty-one persons were all determined to be Medicaid eligible and appropriate for placement in a nursing home. Even so, there was no independent or corroborative evidence that those twenty-one individuals had been denied placement in other Lee County nursing homes. This infirmity supports the claim of HRS that the list, in its present form, is not probative of the issue of need because clients often sign up on multiple lists or have a preference for a particular facility. This assertion was not contradicted by credible evidence. A third list (petitioner's exhibit 7) reflected that each month from August 1988 until July 1989 there were between one hundred fourteen and one hundred thirty-four Medicaid eligible Lee County residents in nursing homes outside of Lee County. This information was derived from monthly Medicaid billing summaries compiled by HRS. While it is probably true, as HRS suggests, that some of these patients by choice are residents of out-of-county facilities, it is just as likely that some patients did not voluntarily choose to be placed outside the county. This is because placement in an out-of-county home is inconvenient for a patient's family, particularly one at the poverty level. To the extent involuntary out-of-county placements have occurred, it is because some nursing homes may not always accept a Medicaid patient. For example, a nursing home may not be equipped to handle a particular client's medical condition. However, this type of client will always have a more difficult time being placed than others. Therefore, there are occasions when vacancies at nursing homes do not correspond with the ability to place a Medicaid-eligible patient in Lee County.

      
      

   6. To corroborate the contention that it has been unable to accept all applicants, the County established that its September 30, 1988 utilization rate was 98% with the percentage of Medicaid patients at 88% of the 98%. It was also established that the rate has not decreased since that time. According to the County, this high utilization factor has contributed to the County's inability to provide service to all applicants. Even so, a high utilization rate alone is not dispositive of the accessibility issue. While County representatives contended they have had difficulty in placing Medicaid eligible patients not only in their facility but also in other Lee County nursing homes, the HRS District 8 administrator, who is responsible for assisting those individuals in securing placement, had no "hard data" to confirm this. Indeed, her subordinates, who also testified, indicated that the alleged difficulty in

      placement arose only "at times". Given these considerations, it is found that persons with a need for Medicaid services are reasonably able to access existing services in the subdistrict and that the required not normal circumstances within the meaning of the rule are absent.

      
      

      1. Compliance with Statutory Criteria

      
      

   7. Prior to hearing the parties stipulated that various statutory and rule criteria were not applicable in this proceeding. After the evidentiary hearing was held, the agency acknowledged in its post-hearing proposed order that only five statutory criteria in Subsection 381.705(1), Florida Statutes (1987) are still in issue and that only two paragraphs in rule 10-5.011(1) apply. The first three statutory criteria pertain generally to need and accessibility and require that HRS consider the need for the project in relation to the applicable district and state health plans, the adequacy of existing providers and whether the proposed services will be accessible to all residents. In addition to the findings in paragraph 12, it is noted that for purposes of planning and review of nursing home care in District 8, the local health plan, which has been received in evidence as petitioner's exhibit 6, recommends that "preference . . . be given to new and existing community home bed developments that dedicate a substantial percentage of their beds for Medicaid patients." In addition, it recommends that "expansion of existing facilities to 120 beds should be given prefernce over construction of new facilities in the same health service area." Applicant's proposal is in agreement with those objectives, and it is found that the proposal is consistent with the local health plan. As required by law, the application also mandates that the applicant demonstrate compliance with relevant portions of the state health plan, including justification for an award of beds in excess of the zero fixed need pool. Those portions of the plan have been received in evidence as petitioner's exhibit 7. In its application response, the County simply stated that it did not have a copy of the state plan and therefore could not furnish an answer to this inquiry. At hearing, the County relied upon the special circumstances proof to show compliance with the state health plan. Since special circumstances were not shown to be present, the applicant also failed to show that the project is in conformity with the state health plan. Finally, it was established that the project will be accessible to all residents in the district.

      
      

   8. In its proposed order, HRS appears to have conceded that the County will provide adequate quality of care to to its patients. Nonetheless, and in an abundance of caution, the following findings of fact are made on this issue. The issues of whether the County can provide quality of care as well as the applicant's past record of quality of care are relevant. In this regard, the parties offered into evidence the records of past inspections by HRS personnel to show the historical record of care on the part of the facility. These records reflect that HRS gave the facility a standard rating in 1986 and 1987. In 1988, an initial inspection resulted in the facility receiving a conditional rating. However, the facility appealed that decision and was successful in getting the conditional rating removed. Since May 16, 1988 the County has maintained a superior rating which is indicative of the high quality of care rendered to its patients. These findings were corroborated by local HRS employees who characterized Shady Rest's' quality of care as "high". Therefore, it is found that this criterion has been satisfied.

      
      

   9. The next criterion in issue relates to the long-term financial feasibility of the project. As noted earlier, the facility was subsidized by the County until four years ago. Since then, it has operated in the black. According to the County's consultant, if the project is approved, the County

      will provide subsidies of $900,000 and $250,000, respectively, during the first two years of operation and any other required funding thereafter. It should be recognized, however, that the first year is the start-up of operations, with relatively high costs due to inventories, working capital and the like. The witness further opined that he expected the facility to be financially sound in the future. This is true even though the facility projects a payor mix of decreasing Medicaid days in the future. Therefore, it is found that this criterion has been satisfied.

      
      

   10. The only remaining criterion in issue concerns the costs and methods of the proposed construction and whether there are less costly alternatives. The agency's principal objection concerns the failure of the County's architect to document on the plans whether the project would be in compliance with local, state and federal building codes. More specifically, HRS's objection is based upon contentions that the County (a) did not document local, state and federal code references on the schematics, (b) did not address the relationship of the replacement facility with the bed addition, and (c) did not sufficiently document the support functions on the schematics. In response to the first

       objection, the registered architect who drafted the plans established that there are some forty-five codes that the structure must meet in order to pass muster with HRS. He did not identify each of the codes on the drawings because (a) the pertinent rules do not call for such a representation at this phase of the project, (b) "it is obvious what codes it would be built under", and (c) the plans would be subject to three more reviews by HRS, and a more detailed analysis would be given during that part of the process. It is noted that the architect has constructed more than twenty nursing home projects in Florida and used the same plans here as are being currently used on four other facilities now under construction in the state. As to the agency's objection to the failure to show where the additional fifteen beds will be placed in the facility in relation to the other one hundred and five, the architect pointed out that the new facility will have one hundred twenty beds, all of which are "new" in a sense, and it is irrelevant where the fifteen "new" beds will be located from an architectural standpoint. Finally, the architect responded to the last criticism by explaining that the drawings are self-explanatory and show designated support areas with the associated square footage devoted to a particular function. The witness added that the drawings submitted by the app1icant are "a very basic schematic" and in an early preliminary stage. This testimony is accepted and it is found that this statutory criterion has been met.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

       
       

   12. As in other conventional regulatory proceedings, petitioner bears the burden of proving by the preponderance of the evidence that it is entitled to a certificate of need.

       
       

   13. A preliminary evidentiary matter requiring resolution is the motion in limini filed, by HRS just prior to final hearing. If granted, all testimony and documentary evidence pertaining to special circumstances justification for the CON not contained in the application would be striken. The agency posits that the applicant, in justifying its contention that special circumstances are is restricted to presenting only "those matters" contained in the application itself. Specifically, those matters are the brief statement in Appendix 1 that

       the facility has a waiting list of eight to fifteen persons and that each month one hundred thirty to one hundred fifty Lee County Medicaid eligible residents are patients in nursing homes outside the County because of the lack of beds in Lee County. By its motion, the agency objects to the following documents proffered into evidence at final hearing: two patient waiting lists (exhibits 5 and 6), a list of Lee County residents residing in out-of-county nursing homes (exhibit 7), a letter authored on May 30, 1989 which corroborates the County's assertion that there are too few Medicaid beds in Lee County (exhibit 9), and a compilation of quality assurance steps used by Shady Rest and prepared by the director of nursing one day prior to hearing (exhibit 10). As a ground for granting the motion, HRS cites rule 10-5.011(1)(k)2.j. which sets forth a requirement that an applicant "document" the special circumstances that it intends to rely upon. The agency contends that, under this rule, applicant was required to submit with its application all documentation and evidence to support its special circumstances request. It goes on to argue that the admission of any further evidence on the subject at this juncture would violate not only the cited rule, but also the following proscription contained in rule 10-5.010(2)(b):

       
       

       Subsequent to an application being

       deemed complete by the Office of Regulation and Health Facilities, no further application information or amendment will be accepted by the Department.

       
       

       Finally, the agency cites a number of final agency orders which stand for the proposition that "application information or amendments cannot be introduced at a Section 120.57(1) hearing if it was not submitted to the Department prior to the completeness hearing." In response, petitioner generally asserts that the proffered evidence does not amend the application but merely supports and amplifies on the information in Appendix 1.

       
       

   14. The issue of whether post-application information constitutes an amendment to an application or merely provides further amplification of matters already in the application is not only a time consuming issue but also a source of continuing controversy in CON proceedings. Initially, it is noted that rule 10-5.011(1)(k)2.j. offers little comfort to HRS's position since the rule does not expressly require that an applicant document its special circumstances request prior to the date on which the application is deemed complete. If HRS is to prevail, it must be under the dictates of rule 10-5.010(2)(b) which, by its terms, prohibits the introduction of any information or amendments after the application is deemed complete.

       
       

   15. It is well established that as to matters within an applicant's control significant changes to a completed application are not permitted. Manor Care, Inc. and Health Quest Corp. v. DHRS, 14 FLW 2414, 2417 (Fla. 1st DCA, October 3, 1989). Since the proffered documents do not constitute "significant changes" to the completed application, their admissibility or exclusion must rest on some other premise.

       
       

   16. The Manor Care, Inc. case also expresses the view that "minor refinements to an application have been allowed" where they were recognized by HRS as being within the general scope of the application. Id. at 2417. Here, HRS obviously did not recognize the proffered documents as being within the general scope of the application. Even so, a helpful aid to a resolution of the issue is the fact that after an application is deemed to be complete, HRS has followed with some, but not rigid, consistency the practice of not permitting,

       the submission of any further material or information within the possession of an applicant at the time the application was filed. 1/ This practice finds its roots in rule 10-5.010(2)(b) and was best described in Charter Medical-Orange County, Inc. et al v. DHRS and Florida Hospital, 11 FALR 1087 (DHRS, February 2, 1989) as follows:

       
       

       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 reasonably should 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.* Id. at 1149 (emphasis added between *)

       
       

       In this case, the proffered waiting lists and list of patients in out-of-county nursing homes were within the applicant's possession and control at the time the application was filed and deemed to be complete. Likewise, the County knew or should have known that it would offer a letter corroborating the waiting list.

       Thus, under rule 10-5.011(2)(b), and the dictates of Charter Medical-Orange County, Inc., those documents are inadmissible in this proceeding. In addition to those reasons, Manor Care, Inc. provides that information may be allowed if it is a "minor refinement" and not significant. Put another way, to avoid the exclusionary rule, the matters would have to be deemed "insignificant". If they were, they would have little, if any, probative value on the merits of the application since the substantive evidence which the information supposedly refines is already a matter of record. Thus, the exclusion of insignificant material can hardly be considered prejudicial to applicant's case. 2/ Finally, if petitioner's argument was accepted, it would mean that an applicant would never be required to submit all pertinent documentation with its application or during the omissions process but could withhold the same until final hearing even though such documentation was in its possession at the time the application was filed. Such a result is directly contrary to the plain language in the applicable rule and would place an unfair burden on the agency and other parties. Therefore, it is concluded that the admission of petitioner's exhibits 5-7 and 9 was improper, and the motion should be granted as to those documents. As to petitioner's exhibit 10, which is a compendium of quality assurance procedures utilized by the facility and was prepared just prior to final hearing, HRS has effectively conceded that the quality of care issue should be resolved in favor of the applicant. Thus, under this narrow factual setting, the document will be admitted for the purpose of supplementing the testimony of witness King. Parenthetically, it is noted that even if exhibits 5-7 and 9 were admitted, it would not change the ultimate conclusion reached in paragraph 6.

       
       

   17. By prehearing stipulation, the parties agreed that the criteria in Subsection 381.705(1)(e), (g), (i) (immediate financial impact only), (j), (k),

       (l) and (n), Florida Statutes (1987) are not applicable. In its proposed order, HRS has further announced that the criteria in subsections 381.705(1)(c),(d) and

       1. are no longer in issue. That leaves remaining the following relevant statutory criteria found in section 381.705:

          
          

          1. The department shall determine the reviewability of applications and shall review applications for certificate-of-need determinations for health care facilities and services, hospices, and health maintenance organizations in context with the following criteria:

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

             2. The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the service district of the applicant.

       * * *

       1. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health professional training

          programs in the service district;, the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities; the availability of alternative uses of such resources for the provision of other health services; and the extent to which the proposed services will be accessible to all residents of the service district.

       2. The . . . long-term financial feasibility of the proposal.

       * * *

       (m) The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction.

       * * *

       
       

       As to subsection (h) above, HRS has limited its application to the "accessibility" issue. Finally, the parties have agreed that the criteria in Rule 10-5.011(1)(b) and (k)2.j., Florida Administrative Code (1987) require satisfaction. The relevant portions of those provisions read as follows:

       (1)(b)1. The need that the population served or to be served has for the health or hospice services proposed to be offered .

       1. 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.

       2. In determining the extent to which a proposed service will be accessible, the following will be considered:

          1. The extent to which medically underserved individuals currently use applicant's services .

          2. The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, . . .

          3. The extent to which Medicaid patients are served the applicant; and

          4. The extent to which the applicant offers a range of means by which a person will have access to the service.

          (1)(k)2.j. In the event the net bed allocation is zero, the applicant may demonstrate that circumstances exist to justify the approval of additional beds under the other relevant criteria specifically contained in Section 10-5.011. Specifically, the applicant may show that persons using existing and like services are in need of nursing home care but will be unable to access nursing home services currently licensed or approved within the subdistrict. Under this provision, the applicant must demonstrate that those persons with a documented need exceeds the number of licensed unoccupied beds or that the number of persons with a documented need exceeds the number of licensed unoccupied and currently approved nursing home beds. Existing and like services shall include the following as defined in statute or rule, adult congregate living facilities, adult foster homes, homes for special services, home health services, adult day health care, adult day care, community care for the elderly, and home care for the elderly. Patients' need for nursing home care must be documented by the attending physicians' plans of care or orders, assessments performed by staff of the Department of Health and Rehabilitative Services, or equivalent assessments performed by attending physicians indicating need for nursing home care.

   18. Several well-established judicial principles bear repeating at this juncture. First, a balanced consideration of the numerous statutory and rule criteria must be made. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So. 2d 889 (Fla. 1st DCA 1985). In balancing these criteria, there is no specified weight to be given to a particular criterion, but rather the weight varies depending on the facts of each case. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So. 2d 83 (Fla. 1st DCA 1985). After applying these criteria to the evidence of record, it is concluded that the County has failed to satisfy the requirements in subsections 381.705(1)(a) and (b), which pertain to need, and rule 10-5.011(1)(k)j.2., which requires the applicant to demonstrate that not normal circumstances are present. Given these shortcomings, and their relative importance in relation to the other criteria, it is concluded that the application should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the application of the

Lee County Board of County Commissioners d/b/a Shady Rest Nursing Home for a

certificate of need to add fifteen beds and construct a new one hundred twenty bed community nursing home facility in Fort Myers, Florida.

DONE AND ENTERED this 8th day of November, 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 8th day of November, 1989.

ENDNOTES

1/ The agency's periodic deviation from the practice has contributed to the difficulty in applying a hard and fast rule. This is because those advocating the admission of post-application information can easily cite an instance when the practice was not followed.

2/ The case of HCA West Florida Regional Medical Center v. DHRS, 11 FALW 3143 (DHRS, April 4, 1989) cited by both parties is not deemed to be controlling.

While it clearly represents an occasion when HRS deviated from its normal practice, the case does not reveal the type of information admitted after the application was deemed complete nor when such information came into applicant's possession.

APPENDIX Case NO. 89-2411

PETITIONER'S PROPOSED FINDINGS:

1. Substantially adopted in findings of fact 1 and 2. 2-3. Substantially adopted in finding of fact 2.

4-5. Substantially adopted in finding of fact 1.

6. Substantially adopted in finding of fact 2. 7-13. Substantially adopted in finding of fact 13. 14-17.Substantially adopted in finding oft fact 6. 18-19.Substantially adopted in finding of fact 11. 20-21.Substantially adopted in finding of fact 12.

22. Substantially adopted in finding of fact 13. 23-26.Substantially adopted in finding of fact 12.

27. Rejected as being contrary to the evidence. 28-29.Rejected as being irrelevant.

1. Substantially adopted in finding of fact 1.

2. Rejected as being irrelevant.

3. Substantially adopted in finding of fact 13.

4. Rejected as being unnecessary.

5. Substantially adopted in finding of fact 5.

6. Substantially adopted in finding of fact 14. 36-40.Substantially adopted in finding of fact 15. 41-45.Substantially adopted in finding of fact 17. 46-48.Substantially adopted in finding of fact 16.

1. Rejected as unnecessary.

2. Substantially adopted in finding of fact 8. 51-52.Rejected as being unnecessary.

RESPONDENT'S PROPOSED FINDINGS:

COPIES FURNISHED:

Ivan Wood, Esquire Four Houston Center 1221 Lamar, Suite 1400

Houston, TX 77010-3015

Richard A. Patterson, Esquire 2727 Mahan Drive, Room 103

Tallahassee, FL 32308

R. S. Power, Agency Clerk 1323 Winewood Boulevard Building One, Room 406 Tallahassee, FL 32399-0700

Docket for Case No: 89-002411

Orders for Case No: 89-002411