STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UHS OF MAITLAND, INC., d/b/a ) LA AMISTAD RESIDENTIAL TREATMENT ) CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5226H

)

STATE OF FLORIDA, HEALTH CARE )

COST CONTAINMENT BOARD, )

)

Respondent, )

)

and )

) CITIZENS OF THE STATE OF FLORIDA, )

)

Intervenor. )

)

)

PALMS RESIDENTIAL TREATMENT )

CENTER, d/b/a MANATEE PALMS ) ADOLESCENT SPECIALTY HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5227H

)

STATE OF FLORIDA, HEALTH CARE )

COST CONTAINMENT BOARD, )

)

Respondent, )

)

and )

) CITIZENS OF THE STATE OF FLORIDA, )

)

Intervenor. )

)

)

RESIDENTIAL TREATMENT CENTER )

OF THE PALM BEACHES, INC., )

d/b/a RESIDENTIAL TREATMENT )

CENTER OF THE PALM BEACHES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5228H

)

STATE OF FLORIDA, HEALTH CARE )

COST CONTAINMENT BOARD, )

)

Respondent, )

)

and )

) CITIZENS OF THE STATE OF FLORIDA, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 4 and 5, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioners: UHS of Maitland, Inc., d/b/a La

Amistad Residential Treatment Center:

Robert D. Newell, Jr., Esquire NEWELL & STAHL, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

Palms Residential Treatment Center Inc. and Residential Treatment Center of the Palm Beaches, Inc.:

Michael J. Glazer, Esquire Ausley, McMullen, McGehee,

Carothers and Proctor

227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

For Respondent: Health Care Cost Containment

Board:

Julia P. Forrester General Counsel

Health Care Cost Containment Board

301 The Atrium

325 John Knox Road Tallahassee, Florida 32303

For Intervenor: Citizens of the State of Florida:

Peter Schwarz

Associate Public Counsel Stephen Presnell Associate Public Counsel

Office of the Public Counsel c/o The Florida Legislature 801 Claude Pepper Building

111 West Madison Street Tallahassee, Florida 32399-1400

STATEMENT OF THE ISSUE

The ultimate issue in these cases is whether the Petitioners are subject to the regulatory jurisdiction of the Health Care Cost Containment Board pursuant to Chapter 407, Florida Statutes?

PRELIMINARY STATEMENT

UHS of Maitland, Inc., d/b/a La Amistad Residential Treatment Center (hereinafter referred to as "La Amistad"), sent a letter dated April 27, 1990, to the Respondent, the Health Care Cost Containment Board (hereinafter referred to as the "Board"), requesting a ruling from the Board that La Amistad was exempt from the reporting requirements of Chapter 407, Florida Statutes.

Palms Residential Treatment Center, Inc., d/b/a Manatee Palms Adolescent Specialty Hospital (hereinafter referred to as "Manatee Palms"), and Residential Treatment Center of the Palm Beaches, Inc., d/b/a Residential Treatment Center of the Palm Beaches (hereinafter referred to as "RTCPB"), sent a letter dated March 29, 1990, to the Board requesting a ruling that Manatee Palms and RTCPB were exempt from the reporting requirements of Chapter 407, Florida Statutes.

By letters dated July 25, 1990, the Board notified La Amistad, Manatee Palms and RTCPB that their requests for exemption from Chapter 407, Florida Statutes, were denied. The Board informed the Petitioners that they could request a formal administrative hearing pursuant to Section 120.57, Florida Statutes, if they disagreed with the Board's determination.

La Amistad filed a Petition for Formal Hearing dated August 15, 1990, challenging the Board's decision. Manatee Palms and RTCPB each filed a Petition for Formal Administrative Hearing dated August 15, 1990, challenging the Board's decision. On August 22, 1990, the three Petitions were filed with the Division of Administrative Hearings.

The Citizens of the State of Florida, by and through the Public Counsel, were allowed to the intervene in these cases.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. La Amistad.

   
   

   1. Standing.

      
      

      1. By letter dated April 27, 1990, to the Executive Director of the Board, the managing director of La Amistad requested "exemption from HCCCB reporting requirements due to its considerable likeness to Daniel Memorial Hospital, which was exempted in October, 1989."

         
         

      2. La Amistad's request for exemption was premised on the Board's Final Order in Daniel Memorial Hospital v. Health Care Cost Containment Board, DOAH Case No. 89-1839H, in which Daniel Memorial Hospital was determined by the Board to not be subject to the reporting requirements of Chapter 407, Florida Statutes.

         
         

      3. By letter dated July 25, 1990, the Executive Director of the Board informed La Amistad that La Amistad's "request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied." The Board informed La Amistad that it could request an administrative hearing pursuant to Section 120.57, Florida Statutes, if La Amistad wished to contest the Board's denial of its request.

         
         

      4. La Amistad filed a Petition for Formal Hearing dated August 15, 1990, challenging the Board's notice that La Amistad was subject to the requirements of Chapter 407, Florida Statutes.

         
         

      5. La Amistad's Petition for Formal Hearing alleged that there were disputed issues of material fact in this matter. Therefore, the Board filed La Amistad's Petition with the Division of Administrative Hearings on August 22, 1990, for a formal administrative hearing.

         
         

      6. There is no provision in Chapter 407, Florida Statutes, which allows persons to request an exemption from the requirements of Chapter 407, Florida Statutes, or authorizes the Board to declare any person to be "exempt" from the requirements of Chapter 407, Florida Statutes.

         
         

      7. The weight of the evidence failed to prove that the Board had taken or planned to take any immediate action against La Amistad prior to its request for exemption.

         
         

      8. La Amistad has failed to prove that it has standing to institute the instant proceeding.

         
         

   2. Certificate of Need.

      1. La Amistad Foundation, Inc., the predecessor of La Amistad, was issued by the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), certificate of need number 3064 to operate a 27-bed intensive residential treatment facility for children and adolescents in Maitland, Florida.

         
         

      2. In agreeing to issue certificate of need number 3064, the Department required La Amistad Foundation, Inc., to apply for licensure of its facility pursuant to the requirements of Rule 10D-28.100, et seq., Florida Administrative Code.

         
         

      3. A certificate of need is a prerequisite to licensure as a health care facility in Florida.

         
         

      4. The certificate of need issued to La Amistad and the stipulation upon which it was based do not expressly provide that the facility is a "specialty hospital" or otherwise state that it is a "hospital" under Section 395.002(6), Florida Statutes.

         
         

   3. Licensure.

      
      

      1. On August 17, 1988, La Amistad Foundation, Inc., d/b/a La Amistad Psychiatric Treatment Center, was issued a license by the Department to "operate a SPECIAL PSYCHIATRIC hospital with 27 beds." On September 30, 1988, the license issued on August 17, 1988, was replaced by a license to La Amistad to "operate a INTENSIVE RESIDENTIAL TREATMENT hospital with 27 beds." On August 17, 1990, the license issued on September 30, 1988, was replaced by a license to La Amistad to "operate a INTENSIVE RESIDENTIAL TREATMENT-SPECIALTY hospital with

         27 INTENSIVE RESIDENTIAL TREATMENT FACILITY beds."

         
         

      2. La Amistad operates and is surveyed by the Department, the agency responsible for licensing health care facilities in Florida, pursuant to Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

         
         

   4. La Amistad's Location and Facilities.

      
      

      1. La Amistad's facility is located in a residential neighborhood at 201 Alpine Drive, Maitland, Florida. The facility provides a noninstitutional, residential setting and environment.

         
         

      2. Residents at La Amistad live in one of three small single-story buildings in a family-style atmosphere. The grounds of the facility include a play area and a multipurpose building which is used for recreational activities and therapy.

         
         

      3. Residents live in individual rooms which do not contain standard hospital equipment.

         
         

      4. La Amistad's facility does not include any seclusion rooms, restraints, treatment or procedure rooms that are required of general acute care or specialty psychiatric hospitals. There are no locked doors at La Amistad but residents are prohibited from leaving the facility without permission.

         
         

      5. La Amistad's facility does not have designated areas for diagnostic x- ray, clinical laboratory, surgery or obstetrical services.

         
         

   5. La Amistad's Residents.

      1. Residents at La Amistad are six to eighteen years of age.

         
         

      2. Residents suffer from a full range of psychiatric illnesses and disorders.

         
         

      3. The average length of stay at La Amistad is 221 days to one year.

         
         

      4. Ninety-five percent of the residents of La Amistad are referred from acute care specialty psychiatric or general hospitals.

         
         

      5. The payer mix at La Amistad is approximately 55% CHAMPUS (a government payer program), 25% from the Department and 25% nongovernment or private insurance.

         
         

      6. CHAMPUS payments to La Amistad include payments for all services whether provided by La Amistad or by referral.

         
         

   6. La Amistad's Staff.

      
      

      1. The full-time staff of La Amistad consists of mental health workers or psychiatric assistants, mental health counselors, registered nurses, marriage and family therapists, occupational therapists and recreational therapists.

         
         

      2. There is no physician "directly" employed on La Amistad's payroll.

         
         

      3. La Amistad has four psychiatrists, including a medical director, on its staff. They are independent contractors.

         
         

   7. Services Provided Directly to Residents.

      
      

      1. La Amistad provides diagnosis and treatment of psychiatric illnesses and disorders to children and adolescents. Treatment of La Amistad residents is definitive psychiatric medical treatment. Psychiatry is a medical specialty and psychiatric treatment is a form of medical treatment. La Amistad is an intensive residential treatment program for children and adolescents.

         
         

      2. All residents at La Amistad are admitted only with a psychiatric evaluation and diagnosis of a psychiatric illness or disorder by a psychiatrist. Admitting diagnoses, which are determined by the admitting psychiatrists, run the full range of psychiatric illnesses and disorders. La Amistad does not treat "acutely or extremely suicidal" persons.

         
         

      3. Although direct psychiatric therapy is not regularly provided by a physician, psychiatric therapy is in fact provided by physicians and through a multi-disciplinary treatment team, which includes the psychiatrist. A psychiatrist is available to provide services twenty-four hours a day. A psychiatrist is ultimately responsible for each resident's care and treatment. Only a psychiatrist may admit or diagnose a resident, prescribe medication, monitor medication and determine when to discharge a resident.

         
         

      4. The only psychiatrists who can admit to La Amistad are the four independent contractor psychiatrists on La Amistad's staff.

         
         

      5. Psychiatrists regularly review medical and clinical records of residents at La Amistad to insure proper treatment.

      6. Treatment of residents may include the prescription of psychotropic medications, group therapy, recreational therapy and/or occupational therapy.

         
         

      7. Medications prescribed for residents are dispensed by a nurse, normally at the nurses' station.

         
         

      8. La Amistad complies with the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

         
         

      9. La Amistad residents attend public schools. The Orange County public school system provides a fully-accredited educational program on-site.

         
         

      10. La Amistad provides the services referenced in Section 395.002(6)(a), Florida Statutes (1990 Supp.).

          
          

   8. Other Services.

1. La Amistad does not provide clinical laboratory services on its premises. Although clinical laboratory services are not actually needed on a frequent basis, such services are ordered when necessary by an attending physician and are available through an agreement with an outside provider which provides such services pursuant to an agreement bid on a national basis by La Amistad's parent organization.

   
   

2. Samples for clinical laboratory analysis, including blood samples, are collected on the premises.

   
   

3. La Amistad does not provide x-ray services on its premises. Although x-ray services are not actually needed on a frequent basis, diagnostic x-ray services are available through a letter of agreement with Florida Hospital, an acute care hospital.

   
   

4. La Amistad does not provide treatment facilities for surgery or obstetrical care.

   
   

5. No person in need of obstetric services or in need of acute care services normally provided at a general or special acute care hospital, or having a primary diagnosis of drug or chemical dependency or suffering from an acute psychiatric disorder is eligible for residency at La Amistad.

   
   

6. La Amistad does not have a pharmacy on its premises or a license to fill prescriptions. La Amistad provides pharmacy services through a "working relationship" with a local pharmacy in Winter Park, Florida, to fill residents' prescriptions.

   
   

7. La Amistad provides dental treatment and routine and emergency medical treatment to residents through agreements with outside providers. Emergency medical services for residents are available pursuant to a letter agreement with Florida Hospital.

   
   

8. Ultimate responsibility for deciding where a resident of La Amistad receives clinical laboratory services, x-ray services or pharmacy services remains with the parents of residents. If a parent does not exercise his or her right and the services are necessary, La Amistad will insure that the services are provided. Payment for such services are made directly from parents or insurance companies for some residents.

9. The referral agreements between La Amistad and providers do not require that La Amistad make referrals exclusively to that provider.

   
   

10. Pediatric diagnostic and treatment services are not regularly made available by La Amistad. Referrals for such services are made by the residents' attending physicians or parents.

    
    

    1. Accreditation.

       
       

11. La Amistad is accredited by the Joint Commission for the Accreditation of Health Care Organizations (hereinafter referred to as "JCAHO").

    
    

12. La Amistad is accredited and surveyed under JCAHO's consolidated standards. JCAHO's consolidated standards are "designed for use by organizations that provide mental health services, alcohol and drug abuse services, and services to mentally retarded/developmentally disabled persons, and in a variety of settings, including forensic facilities and community mental health centers. "

    
    

13. Among the eligibility criteria for survey under the consolidation standards is the following: [t]he organization is not eligible for survey as a hospital under the Accreditation Manual for Hospitals. The weight of the evidence failed to prove, however, what constitutes a "hospital" for JCAHO purposes. Additionally, the eligibility criteria under the consolidated standards indicate that an entity which qualifies under the consolidation standards may still constitute a hospital even for JCAHO purposes. The standards provide, in pertinent part, that "the accreditation process is intended primarily for the following types of organizations . . . : . . .

    Hospitals not eligible for survey under the Accreditation Manual for Hospitals .

    . . ." [Emphasis added].

    
    

    1. Manatee Palms.

       
       

       1. Standing.

          
          

14. By letter dated March 29, 1990, to the Executive Director of the Board, counsel for Manatee Palms requested that a determination be made by the Board that Manatee Palms was "not subject to the regulatory jurisdiction of the HCCCB except for those reporting requirements found in Sections 407.07(1)(b) and 407.13, Florida Statutes, and therefore need not file any budget or actual reports from this point forwards."

    
    

15. Manatee Palms' request for exemption was premised on the Board's Final Order in Daniel Memorial.

    
    

16. By letter dated July 25, 1990, the Executive Director of the Board informed Manatee Palms that its "request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied." The Board informed Manatee Palms that it could request an administrative hearing pursuant to Section 120.57, Florida Statutes, if Manatee Palms wished to contest the Board's denial of its request.

    
    

17. Manatee Palms filed a Petition for Formal Administrative Hearing dated August 15, 1990, challenging the Board's notice that Manatee Palms was subject to the requirements of Chapter 407, Florida Statutes.

18. Manatee Palms' Petition for Formal Administrative Hearing alleged that there were disputed issues of material fact in this matter. Therefore, the Board filed Manatee Palms' Petition with the Division of Administrative Hearings on August 22, 1990, for assignment of a Hearing Officer to conduct a formal administrative hearing.

    
    

19. There is no provision in Chapter 407, Florida Statutes, which allows persons to request an exemption from the requirements of Chapter 407, Florida Statutes, or authorizes the Board to declare any person to be "exempt" from the requirements of Chapter 407, Florida Statutes.

    
    

20. The weight of the evidence failed to prove that the Board had taken or planned to take any immediate action against Manatee Palms prior to its request for exemption.

    
    

21. Manatee Palms has failed to prove that it has standing to institute the instant proceeding.

    
    

    1. Certificate of Need.

       
       

22. Manatee Palms was built in 1986. It opened on or about January 12, 1987, as a 60-bed residential treatment facility for children and adolescents.

    
    

23. Manatee Palms was built and opened without obtaining a certificate of need from the Department.

    
    

24. Subsequent to its opening, Manatee Palms filed an application for a certificate of need which was issued by the Department on November 29, 1988, for "licensure as a specialty hospital under Chapter 395, Florida Statutes, for a 60-bed intensive residential treatment center for children and adolescents, currently operating as Manatee Palms Residential Treatment Center "

    
    

    1. Licensure.

       
       

25. Manatee Palms was initially licensed by the Department as a "residential child caring" facility and by the Department's Alcohol, Drug Abuse and Mental Health Program office to provide services.

    
    

26. In January 1989, Manatee Palms filed an application for licensure with the Department. There was not a category for intensive residential treatment program under the column titled "hospital bed utilization" on the application. Therefore, the initials "IRTF" were hand written on the application with a notation that all 60 beds are used in an intensive residential treatment program.

    
    

27. On October 25, 1989, a license was issued by the Department to Manatee Palms "to operate a Intensive Residential Treatment Facility - Specialty hospital with 60 IRTF beds." Manatee Palms is currently operating under this license.

    
    

28. Manatee Palms operates and is surveyed by the Department pursuant to Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

    
    

    1. Manatee Palms' Location and Facilities.

       
       

29. Manatee Palms is located at 1324 37th Avenue, East, Bradenton, Manatee County, Florida.

30. The Manatee Palms facility consists of a single building.

    
    

31. Patients at Manatee Palms reside in semiprivate rooms.

    
    

32. Manatee Palms' facility is a locked facility. Patients at Manatee Palms cannot leave the facility without permission because of the locked doors.

    
    

33. Manatee Palms has seclusion and restraint capabilities because of the type of patients cared for at the facility: "some very, very severely emotionally disturbed children, some of which have come even from the state hospitals." Transcript page 181, lines 20-21.

    
    

34. Detoxification facilities for the treatment of substance abuse patients are available at the facility.

    
    

    1. Manatee Palms' Patients.

       
       

35. Patients are six to eighteen years of age.

    
    

36. Patients suffer from chemical dependencies and a wide range of psychiatric disorders. Some patients have failed at other facilities and are very aggressive.

    
    

37. The average length of stay at Manatee Palms is 97 days.

    
    

38. Most of Manatee Palms' patients are referred from other facilities: "[w]e get some kids from other hospitals, acute care hospitals. We get some from therapists in the communities . . . ." Transcript page 180, lines 5-6.

    
    

39. Manatee Palms' patients are physically healthy.

    
    

    1. Manatee Palms' Staff.

       
       

40. Manatee Palms' staff consists of psychiatrists, nurses, social workers, recreational therapists, psychologists and teachers.

    
    

41. There are six psychiatrists who provide treatment planning and care at Manatee Palms.

    
    

    1. Services Provided Directly to Patients.

       
       

42. Manatee Palms provides diagnosis and twenty-four hour a day treatment of psychiatric illnesses and disorders to children and adolescents. Manatee Palms is an intensive residential treatment program for children and adolescents.

    
    

43. A psychiatrist must approve every admission to Manatee Palms. Patients are admitted only upon an order of a medical doctor and upon a diagnosis of a psychiatric disorder. Although the facility administrator must ultimately decide whether a patient is admitted, the weight of the evidence failed to prove that the facility administrator may veto or modify the medical decision of a psychiatrist to admit a patient.

    
    

44. Within twenty-four hours of admission, a psychiatrist completes a psychiatric evaluation of each patient.

45. Psychiatric care is provided to patients through an interdisciplinary team composed of a psychiatrist, nurses, social workers, recreational therapists, psychologists and teachers. The team identifies each patient's problems and develops a treatment plan for each patient.

    
    

46. A psychiatrist meets with each patient for approximately one-half to one hour a week; more if required by a patient. The psychiatrist also meets with the treatment team once a week to evaluate a patient's progress and adjust treatment as needed.

    
    

47. The multi-disciplinary team provides care and nurturing in a group setting designed to enhance the patient's experiences in the areas in which he or she is not successful.

    
    

48. Treatment includes counseling, psychotropic medications, adjunctive therapies and schooling. Most patients attend school at the facility. School is conducted by teachers from the Manatee County School Board.

    
    

49. Patients at Manatee Palms are considered to be in treatment from the moment they wake up to the moment they go to bed at night.

    
    

50. A psychiatrist prescribes and monitors the use of psychotropic medications. Such medications are administered at the facility by a nurse.

    
    

51. Registered nurses are at the facility twenty-four hours a day, seven days a week.

    
    

52. A psychiatrist is always on call to deal with emergencies.

    
    

53. Manatee Palms is able to provide detoxification treatment for patients.

    
    

54. Manatee Palms complies with the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

    
    

55. Manatee Palms provides the services referenced in Section 395.002(6)(a), Florida Statutes (1990 Supp.).

    
    

    1. Other Services.

       
       

56. Manatee Palms does not provide clinical laboratory services on its premises.

    
    

57. Blood and urine samples are, however, taken by Manatee Palms personnel upon admission and from time to time after admission upon a physician's orders. Clinical laboratory services are available through an agreement with a non- affiliated laboratory.

    
    

58. Manatee Palms provides diagnostic x-ray services through an agreement with Quality X-Ray of Sarasota, Inc., a non-affiliated provider. X-ray services are typically provided off-site but are also provided at Manatee Palms' facility through portable equipment.

    
    

59. Manatee Palms does not provide treatment facilities for surgery or obstetrical care at its facility.

60. Manatee Palms has a contract with a pharmacist. The pharmacist fills prescriptions at the facility.

    
    

61. Emergency medical services are provided off-site to patients through Manatee Memorial Hospital, a non-affiliated hospital. Manatee Palms has a referral agreement with the hospital.

    
    

62. Manatee Palms has an agreement with a group of family practice physicians. These physicians conduct physicals upon admission of a patient and when medically indicated.

    
    

63. Manatee Palms projected in a 1990 budget filed with the Board that it would have the following approximate revenues: a. $108,000.00 from laboratory services; b. $350,000.00 from drug sales; and c. $17,000.00 from diagnostic radiology services. Manatee Palms also projected in the 1990 budget the following approximate expenditures: a. $50,000.00 for laboratory services; b.

    $61,000.00 for drug sales; and c. $16,000.00 from diagnostic radiology services.

    
    

    I. Accreditation.

    
    

64. Manatee Palms is accredited by JCAHO.

    
    

65. Manatee Palms is accredited and surveyed under JCAHO's consolidated standards.

    
    

    1. RTCPB.

       
       

       1. Standing.

          
          

66. By letter dated March 29, 1990, to the Executive Director of the Board, counsel for RTCPB requested that a determination be made by the Board that RTCPB was "not subject to the regulatory jurisdiction of the HCCCB except for those reporting requirements found in Sections 407.07(1)(b) and 407.13, Florida Statutes, and therefore need not file any budget or actual reports from this point forwards."

    
    

67. RTCPB's request for exemption was premised on the Board's Final Order in Daniel Memorial.

    
    

68. By letter dated July 25, 1990, the Executive Director of the Board informed RTCPB that its "request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied." The Board informed RTCPB that it could request an administrative hearing pursuant to Section 120.57, Florida Statutes, if RTCPB wished to contest the Board's denial of its request.

    
    

69. RTCPB filed a Petition for Formal Administrative Hearing dated August 15, 1990, challenging the Board's notice that RTCPB was subject to the requirements of Chapter 407, Florida Statutes.

    
    

70. RTCPB's Petition for Formal Administrative Hearing alleged that there were disputed issues of material facts in this matter. Therefore, the Board filed RTCPB's Petition with the Division of Administrative Hearings on August 22, 1990, for assignment of a Hearing Officer to conduct a formal administrative hearing.

71. There is no provision in Chapter 407, Florida Statutes, which allows persons to request an exemption from the requirements of Chapter 407, Florida Statutes, or authorizes the Board to declare any person to be "exempt" from the requirements of Chapter 407, Florida Statutes.

    
    

72. The weight of the evidence failed to prove that the Board had taken or planned to take any immediate action against RTCPB prior to its request for exemption.

1. RTCPB has failed to prove that it has standing to institute the instant proceeding.

   
   

   1. Certificate of Need.

      
      

      1. RTCPB was built in 1986-1987. It opened on or about June 1, 1987, as a 40-bed residential treatment facility for adolescents.

         
         

      2. RTCPB was built and opened without obtaining a certificate of need from the Department.

         
         

      3. Subsequent to its opening, RTCPB filed an application for a certificate of need which was issued by the Department on November 29, 1988, for "establishment of a licensed 40-bed intensive residential treatment facility in Palm Beach County . . . .

         
         

   2. Licensure.

      
      

      1. RTCPB was initially licensed by the Department as a "residential child care agency" and by the Department's Alcohol, Drug Abuse and Mental Health Program office to provide services.

         
         

      2. In May 1989, RTCPB filed an application for licensure with the Department. There was not a category for intensive residential treatment program under the column titled "hospital bed utilization" on the application. Therefore, the initials "IRTF" were hand written on the application with a notation that all 40 beds are used in an intensive residential treatment program.

         
         

      3. On May 29, 1990, a license was issued by the Department to RTCPB "to operate a Specialty Intensive Residential Treatment Facility hospital with 40 Intensive Residential Treatment Facility beds." RTCPB is currently operating under this license.

         
         

      4. RTCPB operates and is surveyed by the Department pursuant to Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

         
         

   3. RTCPB's Location and Facilities.

      
      

      1. RTCPB is located at 1720 Fourth Avenue, North, Lake Worth, Palm Beach County, Florida.

         
         

      2. The RTCPB facility consists of a single building.

         
         

      3. The facility is divided into two 20-bed wings. Boys reside on one wing and girls reside on the other wing.

         
         

      4. Patients at RTCPB reside in semiprivate rooms. There are no private rooms.

      5. RTCPB is a locked facility. Patients are not allowed to leave the facility without permission.

         
         

      6. RTCPB has seclusion and restraint capabilities because of the type of patients cared for at the facility.

         
         

      7. Detoxification facilities for the treatment of substance abuse patients are available at the facility.

         
         

   4. RTCPB's Patients.

      
      

      1. Patients are six to eighteen years of age.

         
         

      2. RTCPB patients suffer from chemical dependencies and a wide range or psychiatric disorders, including schizophrenia, conduct disorders and attention deficit disorders.

         
         

      3. For the fiscal year ending May 31, 1990, the average length of stay at RTCPB was 218 days.

         
         

      4. RTCPB routinely treats patients referred by the Department. For the fiscal year ending May 31, 1990, 24% of total patient days were provided to patients referred by the Department.

         
         

      5. Ninety-five percent of all patients admitted to RTCPB are patients who were previously treated in an acute psychiatric care setting.

         
         

      6. RTCPB patients are physically healthy.

         
         

   5. RTCPB's Staff.

      
      

      1. RTCPB's staff consists of psychiatrists, nurses, social workers, recreational therapists, psychologists and teachers.

         
         

   6. Services Provided Directly to Patients.

      
      

      1. RTCPB provides diagnosis and twenty-four hour a day treatment of psychiatric illnesses and disorders to children and adolescents. RTCPB is an intensive residential treatment program for children and adolescents.

         
         

      2. Patients are admitted to the facility by a director of admissions and an admissions committee. A psychiatrist provides a diagnosis justifying admission.

         
         

      3. Psychiatric care is provided to patients through an interdisciplinary team composed of a psychiatrist, nurses, social workers, recreational therapists, psychologists and teachers. The team reviews the background, psychiatric and psychological assessment, and social history of each patient and develops a treatment plan for each patient.

         
         

      4. A psychiatrist meets with each patient for a few minutes each day, five days a week. The psychiatrist also meets with the treatment team for approximately one and one-half hours a day, four days a week.

         
         

      5. The multi-disciplinary treatment team provides care and nurturing in a variety of therapies provided in a highly structured setting.

      6. Treatment includes counseling, psychotropic medications, adjunctive therapies and schooling. School is conducted at the facility by teachers from the Palm Beach County School Board.

         
         

      7. A psychiatrist prescribes and monitors the use of psychotropic medications. Such medications are administered at the facility by a nurse.

         
         

      8. Registered nurses are at the facility twenty-four hours a day, seven days a week.

         
         

      9. A psychiatrist is always on call to deal with emergencies.

         
         

      10. Detoxification treatment is available at the facility.

          
          

      11. RTCPB complies with the requirements of Rules 10D-28.100 through 10D- 28.111, Florida Administrative Code.

          
          

      12. RTCPB provides the services referenced in Section 395.002(6)(a), Florida Statutes (1990 Supp.).

          
          

   7. Other Services.

      
      

      1. RTCPB does not provide clinical laboratory services on its premises.

         
         

      2. Blood and urine samples are, however, taken by RTCPB personnel upon admission and from time to time after admission upon a physician's orders. Clinical laboratory services are available through an agreement with a non- affiliated laboratory.

         
         

      3. RTCPB provides diagnostic x-ray services and dental services by referring the patient to an off-site provider.

         
         

      4. RTCPB does not provide treatment facilities for surgery or obstetrical care at its facility.

         
         

      5. Emergency medical services are provided off-site to patients through non-affiliated hospitals. RTCPB has a referral agreement with Bethesda Memorial Hospital.

         
         

      6. RTCPB has an agreement with a group of family practice physicians. These physicians conduct physicals upon admission of a patient and when medically indicated.

         
         

      7. RTCPB projected in a 1990 budget filed with the Board that it would have the following approximate revenues: a. $131,000.00 from laboratory services; b. $176,000.00 from drug sales; c. $6,000.00 from diagnostic radiology services; d. $11,000.00 for CT scanner services; and e. $3,600.00 for electrocardiography services. RTCPB also projected in the 1990 budget the following approximate expenditures: a. $46,000.00 for laboratory services; b.

         $22,000.00 for drug sales; c. $2,500.00 for diagnostic radiology services; d.

         $400.00 for CT scanner services; and e. $1,600.00 for electrocardiography services.

         
         

         I. Accreditation.

         
         

      8. RTCPB is accredited by JCAHO.

      9. RTCPB is accredited and surveyed under JCAHO's consolidated standards.

         
         

   1. Daniel Memorial.

      
      

      1. On October 26, 1989, a Recommended Order was issued in Daniel Memorial. In the Conclusions of Law in Daniel Memorial, the Hearing Officer concluded that a medical facility is subject to most of the requirements of Chapter 407, Florida Statutes, only if it is a "hospital" as defined in Section 407.002(13), Florida Statutes, which in turn incorporates the definition of "hospital" contained in Section 395.002(6), Florida Statutes. The Hearing Officer also concluded that Daniel Memorial Hospital was not a "hospital" as defined in Section 395.002(6), Florida Statutes, and, therefore, was not subject to most of the requirements of Chapter 407, Florida Statutes.

         
         

      2. The Hearing Officer in Daniel Memorial made the following conclusion of law:

         
         

         To meet the provisions of Subsection 396.002(6) [sic], supra, Daniel Memorial would have to provide the services set forth in both Subparagraphs (a) and (b), above.

         Because Daniel Memorial does not regularly provide the services defined in Subparagraph (b), above, it is not a hospital with[in] the scope of Subsection 396.002(6) [sic], supra. However, Subsection 395.002(8), supra, defines Intensive Residential Treatment Programs (IRTP's) as specialty hospitals without reference to the provisions of Subsection 395.002(6), supra. It is under Subsection 395.002(8), supra, that Daniel Memorial specifically is licensed. Its beds are excluded specifically from consideration under Subsections (6) and (14) of Section 395.002, supra. It is concluded that IRTP's are not specialty hospitals defined by Subsection 395.002(14), supra.

         
         

      3. The staff of the Board filed exceptions to the Recommended Order in Daniel Memorial.

         
         

      4. The exceptions filed by the staff of the Board were rejected by the Board in a Final Order issued on March 1, 1990. In the Final Order issued in Daniel Memorial, the Board adopted the Recommended Order issued by the Hearing Officer in its entirety.

         
         

      5. The Final Order issued in Daniel Memorial has not been appealed or overturned.

         
         

      6. All of the Petitioners in these cases requested that the Board declare them exempt from most of the requirements of Chapter 407, Florida Statutes, because of their similarity to Daniel Memorial Hospital. Counsel for Manatee Palms and RTCPB also suggested that those facilities were exempt under the holding in Daniel Memorial simply because they are "intensive residential treatment programs."

      7. In a memorandum to the Board dated July 11, 1990, the Executive Director of the Board informed the Board of his action with regard to requests from entities like the Petitioners which had suggested that they were similarly situated to Daniel Memorial Hospital. In pertinent part, the Executive Director stated that "we are responding negatively to requests for exemption from these facilities for the reasons outlined." The reasons referred to by the Executive Director were set out in a memorandum dated June 25, 1990, from the Senior Attorney of the Board to the Executive Director. In essence, the Senior Attorney concluded that the "operation and licensure" of each entity seeking treatment similar to the treatment afforded Daniel Memorial Hospital should be reviewed to determine whether that entity constituted a "hospital" under Chapter 407, Florida Statutes. The Senior Attorney recommended the following:

         
         

         Accordingly, I recommend that this agency deny any specialty hospital IRTP's request to be relieved of Chapter 407 requirements and recommend that administrative complaints be filed against those which fail to comply with Chapter 407, Florida Statutes.

         
         

         The Board has not, however, taken any action against the Petitioners.

         
         

      8. In denying the Petitioners' request for exemption, the Executive Director of the Board indicated the following:

         
         

         The information you have provided is insufficient to establish that your facility falls within the narrow exception from reporting requirements afforded Daniel Memorial Hospital. Accordingly, your facility's request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied.

         
         

      9. The Board has failed to enunciate how, if at all, the Petitioners differ in their operation from Daniel Memorial Hospital.

         
         

      10. The Board did not take any action against the Petitioners inconsistently applying its Final Order in Daniel Memorial.

          
          

      11. The Board took the position during these proceedings that any medical facility which is licensed by the Department pursuant to Chapter 395, Florida Statutes, is a "hospital" under Section 407.002(13), Florida Statutes.

          
          

   2. The Board's Position.

      
      

      1. The Department's Interpretation of Relevant Sections of Chapter 395, Florida Statutes.

         
         

         1. The Department is charged with the responsibility of licensing "hospitals" pursuant to Chapter 395, Florida Statutes.

            
            

         2. The term "hospital" is defined by Section 395.002(6), Florida Statutes (1990 Supp.).

         3. The terms "specialty hospital" are defined by Section 395.002(14), Florida Statutes (1990 Supp.). This definition incorporates by reference the definition of "hospital" contained in Section 395.002(6), Florida Statutes (1990 Supp.).

            
            

         4. The terms "intensive residential treatment program" are defined by Section 395.002(8), Florida Statutes (1990 Supp.).

            
            

         5. The Department interprets the terms "specialty hospital" as used in Section 395.002(8), Florida Statutes (1990 Supp.), to mean "specialty hospital" as used in Section 395.002(14), Florida Statutes (1990 Supp.).

            
            

         6. The Department interprets Chapter 395, Florida Statutes, to allow an intensive residential treatment program to be licensed as a "specialty hospital" if it meets the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

            
            

         7. It is the Department's position that Rules 10D-28.100 through 10D- 28.111, Florida Administrative Code, require as a condition of licensure that intensive residential treatment programs provide services consistent with the services required to be provided by a "hospital" pursuant to Section 395.002(6), Florida Statutes (1990 Supp.).

            
            

         8. It is the Department's position that all intensive residential treatment programs licensed pursuant to Chapter 395, Florida Statutes, are "hospital's" as defined in Section 395.002(6), Florida Statutes (1990 Supp.).

            
            

         9. It is the Department's position that the Petitioners must continue to meet the definition of a "hospital" pursuant to Section 395.002(6), Florida Statutes (1990 Supp.), to be entitled to continued licensure by the Department.

            
            

      2. The Board's Reliance on the Department's Licensure of a Facility.

   
   

   1. It has been the position of the Board that the fact that a facility is licensed by the Department pursuant to Chapter 395, Florida Statutes, constitutes the best evidence of whether the facility constitutes a "hospital" as defined in Section 407.002(13), Florida Statutes.

      
      

   2. The Board did not adequately explicate its policy of relying upon the Department's licensure action under Chapter 395, Florida Statutes.

      
      

      CONCLUSIONS OF LAW

      
      

      1. Jurisdiction and Standing.

         
         

   3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

      
      

   4. This proceeding has been instituted by the Petitioners pursuant to Section 120.57(1), Florida Statutes. Section 120.57(1), Florida Statutes, applies only to "proceedings in which the substantial interests of a party are

      determined by an agency . . . ." Before it can be found that a person has been substantially affected in a proceeding with an agency, it must be proved that the following standard has been met:

      
      

      We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury

      is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury.

      The second deals with the nature of the injury. . . .

      
      

      Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478, 482 (Fla. 2nd DCA 1981).

      
      

   5. In these cases, the only action taken by the Board was to respond to a question asked by the Petitioners. The Board issued a gratuitous response to the Petitioners' question. The Board's response, in and of itself, is not binding upon the Petitioners in any way and, therefore, has no immediate impact on the Petitioners. The Board has no authority under Chapter 407, Florida Statutes, to render legal opinions concerning the application of Chapter 407, Florida Statutes. Nor has the Board been granted any authority to issue determinations that a person is "exempt" from the requirements of Chapter 407, Florida Statutes. Without such authority, the Board's response to a request for exemption, such as the request of the Petitioners, is of no legal affect and, therefore, the Petitioners cannot prove that they will suffer any injury in fact which is of sufficient immediacy.

      
      

   6. The only authority for the Board to render a binding legal opinion is provided in Section 120.565, Florida Statutes. Section 120.565, Florida Statutes, provides, in pertinent part:

      
      

      Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in

      his particular set of circumstances

      only. . . . Agency disposition of petitions shall be final agency action.

      
      

      The Petitioners have proved that they have a legitimate concern about the application of Chapter 407, Florida Statutes, to their facilities. That concern can be disposed of, however, by seeking a declaratory statement pursuant to Section 120.565, Florida Statutes. By exercising their rights under Section 120.565, Florida Statutes, the Petitioners could have properly raised the question of the application of Chapter 407, Florida Statutes, to them. If a declaratory statement were sought by the Petitioners, the Petitioners could determine what potential injury they may suffer in the future.

   7. Manatee Palms and RTCPB have cited Dairy Service Corp. v. Department of Citrus, 340 So.2d 1223 (Fla. 4th DCA 1976), in support of their argument that the Petitioners have standing. The facts and the issues in that case are, however, distinguishable from the facts in these cases. The decision in Dairy Service was also rendered before the decision in Agrico Chemical. Therefore, the court in Dairy Service did not consider the test enunciated in Agrico Chemical for determining whether a person is substantially affected.

      
      

   8. Based upon the foregoing, it is concluded that the Petitioners have failed to prove that they have been substantially affected by any action of the Board. The Petitioners have failed to prove that the standard enunciated in Agrico Chemical has been met in these proceedings. Therefore, these cases should be dismissed because of the lack of standing of the Petitioners.

      
      

   9. In case it is ultimately determined by the Board that the foregoing conclusions of law should be rejected because the parties have been substantially affected by the Board's actions in these cases, the following conclusions of law have been made.

      
      

      1. Pertinent Statutory Provisions.

         
         

   10. The provisions of Chapter 407, Florida Statutes, apply, in general, to any entity which constitutes a "hospital." The term "hospital" for purposes of Chapter 407, Florida Statutes, is defined in Section 407.002(13), Florida Statutes, as follows:

       
       

       (13) "Hospital" means a health care institution as defined in s. 395.002(6).

       
       

       It is noteworthy that the definition of what constitutes a "hospital" for purposes of Chapter 407, Florida Statutes, does not refer to those entities which are "licensed" pursuant to the Chapter 395, Florida Statutes, or that are "licensed" by the Department. Instead, the definition references only the "definition" of the term "hospital" contained in Section 395.002(6), Florida Statutes.

       
       

   11. Section 395.002(6), Florida Statutes (1990 Supp.), defines "hospital", in pertinent part, as follows:

       
       

       1. "Hospital" means any establishment that:

          1. Offers services more intensive than those required for room, board, personal services, and general nursing care, and offers facilities and beds for use beyond 24 hours by individuals requiring diagnosis, treatment, or care for illness, injury, deformity, infirmity, abnormality, disease, or pregnancy; and

          2. Regularly makes available at least clinical laboratory services, diagnostic

             X-ray services, and treatment facilities for surgery or obstetrical care, or other definitive medical treatment of similar extent.

             . . . .

   12. Chapter 395, Florida Statutes, divides "hospitals" into two general categories: (1) general hospitals; and (2) specialty hospitals. A "general hospital" is defined in Section 395.002(4), Florida Statutes (1990 Supp.), as follows:

       
       

       (4) "General hospital" means any facility which meets the provisions of subsection (6) and which regularly makes its facilities and services available to the general population.

       
       

       Pursuant to this definition of a "general hospital" no facility can be a general hospital without also meeting the definition of a "hospital" pursuant to Section 395.002(6), Florida Statutes.

       
       

   13. A "specialty hospital" is defined in Section 395.002(14), Florida Statutes (1990 Supp.), as follows:

       
       

       (14) "Specialty hospital" means any facility which meets the provisions of subsection (6) and which regularly makes available either:

       1. The range of medical services offered by general hospitals, but restricted to a defined age or gender group of the population; or

       2. A restricted range of services appropriate to the diagnosis, care, and treatment of patients with specific categories of medical or psychiatric illnesses or disorders.

       
       

       The definition of a "specialty hospital", like the definition of a "general hospital", provides that only those facilities which meet the definition of a "hospital" pursuant to Section 395.002(6), Florida Statutes, can be a specialty hospital.

       
       

   14. The final pertinent definition in this matter is the definition contained in Section 395.002(8), Florida Statutes (1990 Supp.), which defines an "intensive residential treatment programs for children and adolescents" as follows:

       
       

       (8) "Intensive residential treatment programs for children and adolescents" means a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore

       such patients to an optimal level of functioning.

       
       

       1. Can an Intensive Residential Program for Children and Adolescents be a "Hospital"?

   15. There is no dispute that the Petitioners in these cases are intensive residential treatment programs for children and adolescents as defined in Section 395.002(8), Florida Statutes. Manatee Palms and RTCPB have argued that, because they are licensed by the Department as intensive residential treatment programs instead of as a specialty hospital or a general hospital, they cannot, as a matter of law be a "hospital" under the definition of Section 395.002(6), Florida Statutes. In support of this argument it has been pointed out that the definition of "intensive residential treatment programs for children and adolescents" of Section 395.002(8), Florida Statutes, unlike the definitions of a "general hospital" and a "specialty hospital", does not specifically refer to the definition of "hospital" contained in Section 395.002(6), Florida Statutes. This argument is rejected. The lack of a direct reference to Section 395.002(6), Florida Statutes, in Section 395.002(8), Florida Statutes, does not preclude an intensive residential treatment program from providing the services which, pursuant to Section 395.002(6), Florida Statues, would constitute the services of a "hospital."

       
       

   16. It has also been argued that an intensive residential treatment program, unlike a "hospital" under Section 395.002(6), Florida Statutes, is not required to be licensed under Chapter 395, Florida Statutes. Again, although generally correct, this conclusion does not preclude an intensive residential treatment program from providing the services which would bring the facility within the definition of a "hospital."

       
       

   17. The fact that the Petitioners all operated without obtaining a license pursuant to Chapter 395, Florida Statutes, or a certificate of need, when they initially opened also does not preclude a conclusion that they come within the definition of a "hospital" now. Whether the Petitioners obtained a certificate of need or a license when they opened is not the issue. What is relevant is whether they are currently providing the services specified in Section 395.002(6), Florida Statutes. Also of relevance is whether the Board determines that the Petitioners come within the definition of a "hospital" under Section 395.002(6), Florida Statutes, and not whether the Department has made such a determination by issuing a license or a certificate of need.

       
       

   18. Finally, Manatee Palms and RTCPB have argued that Rule 10D- 28.110(5)(a)1., Florida Administrative Code, supports a conclusion that an intensive residential treatment program cannot be a "hospital" under Section 395.002(6), Florida Statutes. This argument is also rejected. Rule 10D- 28.110(5)(a)1., Florida Administrative Code, merely exempts intensive residential treatment programs from maintaining medical buildings and equipment required of general and specialty hospitals. This exemption merely supports a conclusion that an intensive residential treatment program need not operate in the same manner as a general or specialty hospital. As previously stated, it does not, however, prevent an intensive residential treatment program from providing services which would bring it within the definition of a "hospital" under Section 395.002(6), Florida Statutes.

       
       

       1. Daniel Memorial.

          
          

   19. Throughout this proceeding the Petitioners have argued that they are entitled to exemption for the provisions of Chapter 407, Florida Statutes, because of their similarity to Daniel Memorial Hospital and the Board's treatment of Daniel Memorial Hospital in the Board's Final Order in Daniel Memorial.

   20. It is the position of the Petitioners that they had the initial burden of proving that they were similar to Daniel Memorial Hospital. Once that burden of proof was met, the Petitioners argue that the burden shifted to the Board to provide a reasonable explanation for treating the Petitioners differently from Daniel Memorial Hospital. Since the Board did not provide such an explanation, the Petitioners argue they must be afforded the same treatment as Daniel Memorial Hospital.

       
       

   21. It is true that the courts have held that affected parties have the right to locate precedent and have it apply to them, as well as the right to know the factual basis and policy reasons for an agency's action which departs from discoverable precedent. University Community Hospital v. Department of Health and Rehabilitative Services, 472 So.2d 756 (Fla. 2d DCA 1985), reh. denied, 482 So.2d 347 (1986); Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43 (Fla. 1st DCA 1984); and Department of General Services

       v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). Inconsistent agency actions based upon similar facts, without a reasonable explanation, violate Section 120.68(12), Florida Statutes, and the equal protection guarantees of the state and federal constitutions. St. Johns North Utility Corp. v. Public Service Commission, 549 So.2d 1066 (Fla. 1st DCA 1989); and North Miami General Hospital

       v. Department of Health and Rehabilitative Services, 355 So.2d 1272 (Fla. 1st DCA 1978).

       
       

   22. The Petitioners have correctly addressed court decisions concerning whether an agency policy should or must be followed. The Petitioners have not, however, cited any cases which apply the principles governing the application of agency policy to the application of the unambiguous language of statutory law or agency rules. None of the cases cited by the Petitioners required an agency to follow a prior position where that position was contrary to the unambiguous mandate of statutory law or agency rules. To the extent that the Board has established a policy in its Final Order in Daniel Memorial which is contrary to the explicit requirements of Chapters 395 or 407, Florida Statutes, neither the Board or the undersigned is required to follow such a policy.

       
       

   23. Even if the Petitioners were correct that the Board must follow Daniel Memorial even in the face of unambiguous statutory law or rules requiring a different result, there is an additional difficulty with their position. That difficulty is that the Board in Daniel Memorial appears to have concluded that Daniel Memorial Hospital does not constitute a "hospital" as defined in Section 395.002(6), Florida Statutes, without considering whether Daniel Memorial Hospital provided "other definitive medical treatment of similar extent." Therefore, the Board merely concluded that Daniel Memorial Hospital was not a "hospital" because the evidence failed to prove that it "[r]egularly makes available at least clinical laboratory services, diagnostic X-ray services, and treatment for surgery or obstetrical care "

       
       

   24. Section 395.002(6), Florida Statutes, by its unambiguous language, provides that an entity meeting the requirements of Section 395.002(6)(a), Florida Statutes, may be a "hospital" if it meets one of two alternative requirements of Section 395.002(6)(b), Florida Statutes: (1) regularly providing "clinical laboratory services, diagnostic X-ray services, and treatment facilities for surgery or obstetrical care"; or (2) regularly providing "other definitive medical treatment of similar extent." To the extent that the Board in Daniel Memorial considered and established policy concerning the first alternative requirement, it must adhere to that policy. Therefore, the conclusions of law concerning when a facility "regularly makes available" the services specified in the first alternative requirement should be followed

       in these cases since the Board has not offered any explanation of why the policy should not be followed. No policy, however, concerning the second alternative requirement was established in Daniel Memorial. The Board failed to consider whether Daniel Memorial Hospital also was not providing "other definitive medical treatment of similar extent." Therefore, there has been no policy established by the Board in Daniel Memorial concerning the issue of whether a person is providing "other definitive medical treatment of similar extent."

       
       

   25. Based upon the foregoing, it is concluded that Daniel Memorial does not prevent a conclusion that the Petitioners are not subject to the requirements of Chapter 407, Florida Statutes, because of their similarity to Daniel Memorial Hospital. The determination of whether any or all of the Petitioners are not subject to the requirements of Chapter 407, Florida Statutes, must be based upon a determination of whether the Petitioners come within the definition of a "hospital" contained in Section 395.002(6), Florida Statutes.

       
       

   26. It has also been argued that Daniel Memorial is stare decisis and should be followed in these cases. It is true that the doctrine of stare decisis applies in administrative proceedings. Couch v. State, 377 So.2d 32 (Fla. 1st DCA 1979). The doctrine of stare decisis does not, however, that an agency follow a decision which is contrary to the unambiguous requirements of statutory law or duly adopted rules.

       
       

       1. Is Licensure Alone Sufficient to Conclude that the Petitioners are "Hospitals" Subject to Chapter 407, Florida Statutes?

          
          

   27. The Board and the Intervenor have argued that the Department's construction of Section 395.002(6), Florida Statutes, controls the decision in these cases. Therefore, the Board and Intervenor have argued that the Petitioners are "hospitals" because the Department treats the Petitioners as coming within the definition of Section 395.002(6), Florida Statutes, because the Petitioners are licensed by the Department. The Board's and Intervenor's position is rejected.

       
       

   28. The question of whether an entity is a "hospital" for purposes of Chapter 407, Florida Statutes, under the definition of Section 407.002(13), Florida Statutes (1990 Supp.), must be based upon a determination by the Board of whether the entity is a hospital under the "definition" of a hospital under Section 395.002(6), Florida Statutes. The definition of Section 407.002(13), Florida Statutes, does not provide that the Board may declare an entity to be a hospital based upon any action of the Department with regard to licensure of the entity. Nor does Section 407.002(13), Florida Statutes, provide that the Department, rather than the Board, is to determine whether an entity is a "hospital" for purposes of Chapter 407, Florida Statutes. Although it may be proper for the Board to rely upon a decision of the Department that an entity is a hospital for purposes of Chapter 395, Florida Statutes, as some indication of whether the entity is a hospital for purposes of Chapter 407, Florida Statutes, the ultimate decision must be made by the Board. That decision must be based upon the Board's own independent determination of whether the entity comes within the definition of Section 395.002(6), Florida Statutes.

       
       

       1. Application of Section 395.002(6), Florida Statutes, to the Petitioners.

   29. The entitlement of the Petitioners in theses cases to a determination that they are not subject to the requirements of Chapter 407, Florida Statutes, depends upon whether they are not operating as "hospitals" under Section 395.002(6), Florida Statutes. The burden of proving that they are not "hospitals" was on the Petitioners. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The Petitioners have failed to meet their burden of proof.

       
       

   30. The Petitioners have not disputed that they come within that portion of the definition of a "hospital" contained in Section 395.002(6)(a), Florida Statutes. Nor did the evidence support a conclusion that any of the Petitioners' operations do not fit within that subsection.

       
       

   31. The Petitioners did sufficiently meet their burden of proving that they are sufficiently similar to Daniel Memorial Hospital in the manner in which they provide "clinical laboratory services, diagnostic X-ray services, and treatment of surgery or obstetrical care . . . " to require the Board to explicate a deviation from its treatment of Daniel Memorial Hospital. The Board has failed to meet that burden. Based upon the similarity of the Petitioners to Daniel Memorial Hospital, the Petitioners have proved that they do not regularly make available "clinical laboratory services, diagnostic X-ray services, and treatment of surgery or obstetrical care "

       
       

   32. The Petitioners have failed, however, to prove that they are not providing "other definitive medical treatment of similar extent." This conclusion is based upon the facts concerning the services provided by each of the Petitioners and the fact that all of the Petitioners admitted they operate consistent with the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That the Board issue a Final Order dismissing the Petitions in these cases because of the failure of the Petitioners to prove that they have been substantially affected by any action of the Board; or

   
   

2. That the Board, if it rejects recommendation number 1, issue a Final Order dismissing the Petitions in these cases because the Petitioners have failed to prove they are not "hospitals" under the definition of Section 407.002(13), Florida Statutes.

DONE and ENTERED this 10th day of April, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

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 10th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

La Amistad's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 I.B.1.

2 I.B.2.

3 I.B.1.

4 I.B.3.

5 I.B.4.

1. I.C.1. The Department's action was consistent with the stipulation between the Department and La Amistad.

2. Not relevant.

8 I.C.2.

9 I.A.1.

10 I.A.1-2.

1. Not relevant.

2. Not supported by the weight of the evidence or not relevant.

3. IV.7. and hereby accepted. The Executive Director's memorandum was sent in July instead of June.

14 I.A.3.

15 Not supported by the weight of the evidence or not relevant.

16 I.A.3.

17-18 Hereby accepted.

19 See V.B.1.

20-22 Hereby accepted.

23 Not supported by the weight of the evidence or not relevant.

24 I.G.1.

25 I.D.1.

26 I.D.2.

27 I.E.3.

28 I.D.4.

29 I.E.4.

1. See I.D.5.

2. See I.F.1.

3. See I.G.2. The last sentence is not supported by the weight of the evidence.

33 I.E.5.

34 Not relevant.

35 I.G.9.

36 I.H.10.

37 I.H.6.

38 I.H.4.

39 I.H.3.

1. Not relevant.

2. See I.H.1. The weight of the evidence failed to prove that La Amistad "does not regularly make available clinical laboratory services to its residents."

3. Hereby accepted.

43 I.H.8.

44 I.H.9. The last sentence is not relevant.

45 I.H.8.

46-47 I.H.5.

48 Not supported by the weight of the evidence.

49 I.I.2.

50-51 See I.I.3.

1. Hereby accepted.

2. Not supported by the weight of the evidence. See I.H.1-10.

3. Hereby accepted.

4. Conclusion of law.

5. Not relevant.

6. Conclusion of law.

7. La Amistad failed to prove exactly what the agreement with Florida Hospital was.

8. Not supported by the weight of the evidence.

9. Hereby accepted. The failure of the Board to provide such evidence does not preclude a proper application of unambiguous statutory law.

Manatee Palms' and RTCPB's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

15-16 III.G.6.

1. III.G.8.

2. III.H.6.

3. III.G.2. and 9. The second sentence is not supported by the weight of the evidence. The suggestion that "individual psychiatric treatment is not routinely provided" is not supported by the weight of the evidence.

20 III.H.1-2.

1. III.H.3. and 5.

2. III.H.3.

3. III.H.4. The suggestion that "other definitive medical treatment of similar extent" is not provided is not supported by the weight of the evidence.

4. Not relevant.

25-27 III.E.4.

28-30 Hereby accepted. The last sentence of 30 is not supported by the weight of the evidence.

1. III.A.1.

2. III.A.3.

3. Not supported by the weight of the evidence; too speculative.

4. II.B.1. and II.D.1.

35 II.B.1.

36 II.C.1.

37 II.B.2.

38-39 II.B.3.

40 II.C.2.

41 II.C.3.

42 II.G.1.

43 II.I.1. and I.I.2-3.

44 II.G.4.

45 II.E.4.

46 II.E.5.

47 II.G.6.

48-49 II.G.7.

50 II.G.10.

1. II.H.7. The last sentence is not relevant.

2. II.G.2. and 11. The second sentence is not supported by the weight of the evidence. The suggestion that "individual psychiatric treatment is not routinely provided" is not supported by the weight of the evidence.

53 II.H.1-2.

1. II.H.6. The first sentence is not supported by the weight of the evidence.

2. See II.H.3.

3. II.H.4. The suggestion that "other definitive medical treatment of similar extent" is not provided is not supported by the weight of the evidence.

4. Not relevant.

5. Hereby accepted.

59 II.E.3.

60-62 Hereby accepted.

63 Not relevant.

64 II.A.1.

65 II.A.3.

1. Not supported by the weight of the evidence; too speculative.

2. IV.1. See IV.2. The Hearing Officers' comment concerning whether all intensive residential treatment programs are not hospitals is dicta.

3. IV.3. The last sentence is not supported by the weight of the evidence.

69 IV.4.

70 IV.5.

71-72 Hereby accepted.

1. Not relevant.

2. Cumulative.

75-81 Hereby accepted.

82-83 Not supported by the weight of the evidence or not relevant.

84 V.A.3.

85 Not relevant.

86-87 Hereby accepted.

88 Not relevant.

The Board's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 I.C.1.

2 I.G.1.

3 I.G.2.

4-5 I.G.3.

6 I.E.3.

7 I.E.4.

8 I.G.1.

9 I.H.1-9.

10 I.G.7.

11 I.G.8.

12 I.I.1.

1. III.C.3.

2. III.G.1.

3. III.G.2.

4. III.E.2.

5. See III.D.5.

6. III.G.3.

7. III.G.4. and 7.

8. III.D.6-7. and III.G.6.

9. III.E.3.

10. III.E.5.

11. See III.H.1-5.

12. III.H.7.

25 III.H.11.

26 III.I.1.

27 II.C.3.

28 II.G.1.

29 II.G.2.

30 II.D.5. and II.E.2.

31 II.D.4-5.

32 II.D.6.

33 II.F.1. and II.G.2. and 4.

34 II.G.2. and 4-5.

35 II.G.9.

36 II.E.3.

37 See II.H.1-6.

38 II.H.8.

39 II.G.13.

40 II.I.1.

41 V.A.1. and 6.

42 V.A.5.

43 V.A.7.

44 V.B.1.

The Intervenor's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Not supported by the weight of the evidence or a correct conclusion of law.

2. Not relevant.

3 I.C.1., II.C.3. and III.C.3.

4 V.A.5.

5-6 Law.

7 I.A.1., II.A.1. and III.A.1.

8 IV.7-8.

9, 11, 16, 18, 30,

32-33, 41, 43,

46-47, 51 and 64 These proposed findings of fact are generally true. They are only relevant, however, as they relate to one or more of the Petitioners.

10-11 I.G.1.

13 I.G.3.

1. I.G.3, II.G.2. and III.G.3.

2. I.G.6, II.G.7. and III.G.6.

17 Hereby accepted.

19 I.D.2., II.D.2-3. and III.D.2-3.

1. Hereby accepted.

2. II.D.4. and III.D.5.

3. III.D.4.

4. III.D.3.

5. Hereby accepted.

25 I.D.4.

1. II.D.5. and III.D.6.

2. Hereby accepted.

3. II.D.6. and III.D.7.

29 I.C.2.

31 II.D.4. and III.D.5.

34 I.G.3.

35 II.G.8.

36 I.G.7.

37 I.G.7. and I.H.6.

38-39 I.F.3.

40 I.G.2., II.G.2. and III.G.2.

42 Law.

44 I.G.2-5.

45 I.G.1.

48-50 Law.

52 I.G.2-5.

53 Law.

54 I.E.5.

55 I.G.5.

56-61 Hereby accepted.

62-63 V.A.5.

65 Not relevant.

66 V.A.8.

67 V.A.1.

68 V.A.9.

1. See V.A.9.

2. Hereby accepted.

3. See V.A.9.

72 I.C.1., II.C.3. and III.C.3.

73 Not relevant.

74 I.A.4., II.A.4. and III.A.4.

75 Not relevant.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire 817 North Gadsden Street Tallahassee, Florida 32303-6313

Michael J. Glazer, Esquire Post Office Box 391 Tallahassee, Florida 32302

Julia P. Forrester General Counsel

Health Care Cost Containment Board

301 The Atrium

325 John Knox Road Tallahassee, Florida 32303

Jack Shreve Public Counsel

Stephen M. Presnell Associate Public Counsel Peter Schwarz

Associate Public Counsel c/o The Florida Legislature

111 West Madison Street Room 812

Tallahassee, Florida 32399-1400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005226

Orders for Case No: 90-005226