STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMUNITY HOSPITAL OF THE PALM ) BEACHES, INC., d/b/a HUMANA )

HOSPITAL PALM BEACHES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2949

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES and )

GLENBEIGH HOSPITAL OF PALM )

BEACH, INC., )

)

Respondents, )

and )

) LAKE HOSPITAL AND CLINIC, INC., )

)

Intervenor. )

) FLORIDA RESIDENTIAL TREATMENT ) CENTERS, INC., d/b/a CHARTER ) HOSPITAL OF WEST PALM BEACH, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2950

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES and )

GLENBEIGH HOSPITAL OF PALM )

BEACH, INC., )

)

Respondents, )

and )

) LAKE HOSPITAL AND CLINIC, INC., )

)

Intervenor. )

) LAKE HOSPITAL AND CLINIC, INC., ) d/b/a LAKE HOSPITAL OF THE PALM ) BEACHES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2952

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

GLENBEIGH HOSPITAL OF PALM )

BEACH, INC., and BOCA RATON )

COMMUNITY HOSPITAL, INC., )

)

Respondents. )

) MARTIN H.M.A., INC., d/b/a )

SANDYPINES HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2953

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

GLENBEIGH HOSPITAL OF PALM )

BEACH, INC., and BOCA RATON )

COMMUNITY HOSPITAL, INC., )

)

Respondents, )

and )

) LAKE HOSPITAL AND CLINIC, INC., )

)

Intervenor. )

) WELLINGTON REGIONAL MEDICAL ) CENTER, INC., d/b/a WELLINGTON ) REGIONAL MEDICAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2955

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

GLENBEIGH HOSPITAL OF PALM )

BEACH, INC., and BOCA RATON )

COMMUNITY HOSPITAL, INC., )

)

Respondents, )

and )

) COMMUNITY HOSPITAL OF THE PALM ) BEACHES, INC., and LAKE HOSPITAL ) AND CLINIC, INC., )

)

Intervenors. )

) SAVANNAS HOSPITAL LIMITED )

PARTNERSHIP d/b/a SAVANNAS )

HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2956

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

) LAKE HOSPITAL AND CLINIC, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

These consolidated cases were heard by Eleanor M. Hunter, the Hearing Officer designated by the Division of Administrative Hearings, from November 4- 8, 12-15, 18-22, and 26-27, 1991, and on April 29, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner, James Hauser, Attorney-at-Law Community Foley & Lardner

Hospital of the 1050 Monroe Park Tower Palm Beaches: 101 North Monroe Street

Tallahassee, Florida 32301

For Petitioner, Michael J. Cherniga, Attorney-at-Law Florida David Ashburn, Attorney-at-Law Residential Roberts, Baggett, LaFace & Richard Treatment 101 East College Avenue

Centters, Inc., Tallahassee, Florida 32301 d/b/a Charter

Hospital of West Palm Beach:

For Petitioner, Robert Newell, Jr., Attorney-at-Law Wellington Newell & Stahl

Reginal Medical 817 North Gadsden Street Center: Tallahassee, Florida

For Petitioner, Charles David Hood, Attorney-at-Law Savannas Monaco, Smith, Hood, Perkins Hospital: Orfinger & Stout

444 Seabreeze Boulevard, Suite 900 Post Office Box 15200

Daytona Beach, Florida 32115

For Petitioner, Michael Glazer, Attorney-at-Law Lake Hospital of Ausley, McMullen, McGehee,

the Palm Carothers & Proctor Beaches: 227 South Calhoun Street

Tallahassee, Florida 32301

and

John Brennan, Attorney-at-Law Bonner, O'Connell

900 17th Street Northwest Suite 100

Washington, D.C. 20006

For Petitioner, Robert Cohen, Attorney-at-Law Martin H.M.A., John F. Gilroy, Attorney-at-Law Inc., d/b/a Haben, Culpepper & French Sandypines 306 North Monroe Street Hospital: Tallahassee, Florida 32301

For Respondent, Donna Stinson, Attorney-at-Law Glenbeigh Thomas Beason, Attorney-at-Law Hospital: Moyle, Flanigan, Katz,

Fitzgerald & Sheehan, P.A.

118 North Gadsden Street Tallahassee, Florida 32301

For Respondent, William Wiley, Attorney-at-Law Boca Raton Darrell White, Attorney-at-Law

Community McFarlain, Sternstein, Wiley & Cassedy Hospital: First Florida Bank Building Suite 600

Tallahassee, Florida 32301

and

Charles B. Koval, Attorney-at-Law

Counsel for Boca Raton Community Hospital

For Respondent, Thomas Cooper, Attorney-at-Law Department of Edward Labrador, Attorney-at-Law Health and 2727 Mahan Drive

Rehabilitative Tallahassee, Florida 32308 Services:

STATEMENT OF THE ISSUE

Which, if any, of the four certificate of need applications for short-term psychiatric beds in Department of Health and Rehabilitative Services District 9 should be approved.

PRELIMINARY STATEMENT

On August 10, 1990, the Department of Health and Rehabilitative Services ("HRS") published a fixed need for 67 additional short-term psychiatric beds in HRS District 9, which includes Palm Beach, Martin, St. Lucie, Indian River and Okeechobee Counties.

In response to the published need, HRS received, among others, the following Certificate of Need ("CON") applications from the following hospitals:

1. Glenbeigh Hospital of Palm Beach, Inc. ("Glenbeigh"), CON No. 6438, to convert 45 substance abuse beds to 45 short-term psychiatric beds, in components of 30 adolescent beds and 15 adult beds;

   
   

2. Boca Raton Community Hospital, Inc. ("Boca"), CON No. 6442, to convert

   15 acute care beds to 15 short-term adult psychiatric beds, and to delicense an additional 6 acute care beds;

   
   

3. Wellington Regional Medical Center, Inc., d/b/a Wellington Regional Medical Center ("Wellington"), CON No. 6441, to convert 15 acute medical/surgical beds to 15 short-term adult psychiatric beds;

   
   

4. Savannas Hospital Limited Partnership d/b/a Savannas Hospital ("Savannas"), CON No. 6444, to convert 20 short-term substance abuse beds to 20 adult psychiatric beds and to add 10 short-term adult psychiatric beds; and

   
   

5. Lake Hospital and Clinic, Inc., d/b/a Lake Hospital of the Palm Beaches ("Lake"), CON No. 6445, for the addition of 17 short-term child psychiatric beds.

On April 5, 1991, HRS published its intent to approve the applications of Glenbeigh and Boca, and its intent to deny the applications of Wellington, Savannas, and Lake, among other applicants. See, Vol. 17, No. 14, Florida Administrative Weekly, May 5, 1991. By timely filed petitions, the following challenges, and other subsequently dismissed challenges, were made to the preliminary action of HRS:

In Case No. 91-2949, Community Hospital of the Palm Beaches, Inc., d/b/a Humana Hospital Palm Beaches ("Humana"), challenged the preliminary approval of the Glenbeigh application;

In Case No. 91-2950, Florida Residential Treatment Centers, Inc., d/b/a Charter Hospital of West Palm Beaches, Inc., ("Charter") challenged the preliminary approval of the Glenbeigh application;

In Case No. 91-2952, Lake initially challenged the preliminary denial of its CON and the preliminary approvals of Glenbeigh and Boca. Although, at hearing, Lake took the position that it would not contest the denial of its CON and that there was no need for any additional short-term psychiatric beds in HRS District 9;

In Case No. 91-2953, Martin H.M.A., Inc., d/b/a SandyPines Hospital ("SandyPines") challenged the preliminary approvals of the applications of Glenbeigh and Boca, subsequently voluntarily dismissing its challenges to the Boca application.

In Case No. 91-2955, Wellington challenged the preliminary denial of its CON application and the preliminary approval of the applications of Glenbeigh and Boca; and

In Case No. 91-2956, Savannas challenged the preliminary denial of its application.

The cases were consolidated by Order of June 26, 1991, on Motion filed by Glenbeigh. On August 19, 1991, Glenbeigh, with the support of Humana, filed a Motion for Continuance pending the resolution in circuit court of a dispute between those two parties over the terms of Glenbeigh's lease with Humana, which

Humana asserts prohibits Glenbeigh from providing the services it proposed at the location specified in the CON application at issue in this proceeding. The Motion for Continuance was denied by Order dated September 4, 1991.

On October 14, 1991, Humana filed a Petition to challenge the validity of Florida Administrative Code, Rule 10-5.008(2)(a), D.O.A.H. Case No. 91-6546R, and moved to consolidate the rule challenge with these consolidated cases. The Motion to Consolidate was denied and, on December 11, 1991, Humana entered a voluntary dismissal of Case No. 91-6546R, which was closed.

Witnesses

At the formal hearing, Glenbeigh presented the testimony of the following individuals, who were accepted as experts in the areas noted: Sherwin James Sleeper (substance abuse facilities and program administration), Robert G. Chalmers (psychiatric and substance abuse hospital administration), Jay Wolfson (health care finance, health care policy and health planning), Irving S. Kolin,

M.D. (psychiatry), Judith Rehak (psychiatric nursing), James M. Tyler (health care finance and accounting), and Elizabeth Dudek (health planning and certificate of need review). Glenbeigh Exhibits 1-4, 6-10, and 12-16 were received in evidence. Glenbeigh Exhibits 5 and 17 were rejected. There was no Glenbeigh Exhibit 11, and official recognition was taken of Glenbeigh Exhibit A.

Boca presented the testimony of the following individuals, who were accepted as experts in the areas noted: Douglas Nathaniel West, Jr. (hospital administration), John Paul Schosheim, M.D. (psychiatry), Todd C. Herrmann (health care planning), Rafael E. Cornelio, M.D. (psychiatry), and Lawrence Marcus, M.D. (psychiatry). Boca Exhibits 1-12 were received in evidence.

Wellington presented the testimony of the following individuals, who were accepted as experts in the areas noted: Michael S. Marquez (hospital administration), Cheryl Mendelsohn (marketing), Pamela Kean (administration of psychiatric and substance abuse programs jointly), Donald Pyskacek (design and construction of general and psychiatric hospitals), and Rick McCampbell (hospital financial management). Wellington Exhibits 1-7, 9, 13-15 and 20-28,

31 and 32 were received in evidence. Official recognition was taken of Wellington Exhibits 8, 29 and 30. Wellington's 10, 11, 12 were not received in evidence, 16 and 17 were proffered, and 18 and 19 were withdrawn.

Savannas presented the testimony of the following individuals who were accepted as experts in the areas noted: John Harding (psychiatric hospital administration), Michael M. Tuchman, M.D. (neuropsychiatry), Kenneth J. Gold, M.D., William J. Romanos, Jr., M.D. (psychiatric medicine), William Robert Drury (architecture and construction cost estimating), and Armand E. Balsano (health care planning and finance). Savannas Exhibits 1-11 were received in evidence.

Lake presented the testimony of the following individuals, who were accepted as experts in the areas noted: Thomas Luthringer (mental health care facility and administration), Irl Lawrence Extein, M.D. (psychiatry), John Levin (social work, counseling and residential treatment center administration), Nancy Carter (psychiatric social work), Elizabeth Dudek (health planning and certificate of need review), Thomas Corder (hospital administration), and presented jointly with Humana, Daniel J. Sullivan (health care planning and health care finance including financial feasibility). Lake Exhibits 1-15, 17, 18, and 21-24 were received in evidence, except that official recognition was taken of Lake Exhibit 16.

Humana presented the testimony of the following individuals, who were accepted as experts in the areas noted: Michael J. Stenger (hospital administration), Neville Sidney Marks, M.D. (psychiatry) and Michael Terrell (financial operations). Humana Exhibits 1-44, except Exhibits 1, 3, 8, 10-17,

22-27, 31-34, 37 and 39 were received in evidence.

SandyPines presented the testimony of Michael Brad Gittelman, who was accepted as an expert in mental health facilities administration. SandyPines Exhibit 1 was received in evidence.

Charter presented the testimony of the following individuals, who were accepted as experts in the areas noted: Marjorie Silberman (hospital administration), Mark Richardson (health planning), and Rick Knapp (health care facility financial analysis and reimbursement). Charter Exhibits 1 and 2 were received in evidence.

HRS presented the testimony of the following individuals, who were accepted as experts in the areas noted: Elizabeth Dudek (health care planning and certificate of need review), C. Edwin Carter, Jr. (health care planning and certificate of need review) and Robert Garland, Jr. (architecture, health care facility design and cost construction estimating). HRS Exhibits 1-8 were received in evidence.

The transcript of the formal hearing was filed with the Division of Administrative Hearings on January 15, 1992. Proposed Recommended Orders were filed on February 11, 12 and 13, 1992.

Motions Subsequent to Final Hearing

1. Glenbeigh's Letter of Intent

   
   

   On February 25, 1992, Glenbeigh filed a Response to Humana's Proposed Recommended Order and Request for Attorney's Fees, asserting that Humana had challenged improperly, for the first time in its proposed recommended order, the attachment to Glenbeigh's letter of intent of the corporate resolution of an affiliated, but different corporation from the Glenbeigh applicant. Glenbeigh attached what it asserted to be the correct resolution to its Response. On March 4, 1992, Humana and Lake filed a Joint Reply to Glenbeigh's Response, asserting that Glenbeigh could not reopen or supplement the record by attaching a different corporate resolution to its Response.

   
   

   On April 29, 1992, a hearing was held to determine if a clerical error necessitated the substitution of the correct Glenbeigh corporate resolution for that included in the record, as Glenbeigh Exhibit 2. At the hearing, the parties agreed that the record should be corrected and that the corporate resolution attached to Glenbeigh's February response should be substituted for that attached to Glenbeigh Exhibit 2. Glenbeigh withdrew its request for attorney's fees.

   
   

   At the request of the parties, a briefing schedule was established to allow the filing of memoranda challenging Glenbeigh's Substitute Exhibit 2 by May 5, 1992, and to allow Glenbeigh's response to any challenges by May 8, 1992.

   Memoranda were received from Humana and Lake on May 4, 1992, and a Response from Glenbeigh was filed on May 7, 1992. These issues have become moot as a result of Glenbeigh's Notice of Withdrawal filed on April 6, 1993.

2. Lake's Standing

   
   

   On May 19, 1992, Glenbeigh and Boca filed a Motion to Dismiss the petition filed by Lake, due to notice that Lake Hospital would close on May 31, 1992. On May 27, 1992, Humana filed a Response in Opposition to the Motion to Dismiss Lake's Petition Or In the Alternative, Motion to Reopen Record. On May 29, 1992, Charter filed a Response to the Motion to Dismiss in support of Humana's Response in Opposition to the Motion to Dismiss. Charter argued that since Lake took the lead in presenting evidence on behalf of the opponents to the agency's preliminary action, it would be unfair to exclude evidence presented by Lake.

   In a June 1, 1992, Response In Support of Motion to Dismiss, HRS confirmed having received official notice of Lake's closing and cited Florida Administrative Code Rule 10-5.008(2)(a), in support of its contention that Lake's closing cannot have an effect on the bed inventory determination applicable to this proceeding. HRS also took the position that Lake, by closing its facility, lost its standing as an existing provider. On June 5, 1992, Lake filed a Response, arguing that Lake's standing at the time of the hearing was determinative, and was, in fact, accepted by all parties in the prehearing stipulations. On June 9, 1992, Boca filed a Motion to Reopen the Record for the limited purpose of determining if Lake Hospital has lost its standing, under the substantial injury test of Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1982). On June 17, 1992, Humana filed a response in opposition to Boca's Motion to Reopen the Record or, In the Alternative, Motion to Reopen the Record For Additional Purposes, based on the need for finality, the determination of standing at the time of hearing, and the inappropriateness of reopening the record for limited purposes. HRS and Boca also filed a Joint Suggestion of Mootness, Renewed Motion to Dismiss, and Request for Judicial Notice seeking dismissal of Case No. 91-2952, in which Lake challenged the preliminary approvals of Glenbeigh and Boca. Lake filed a Response Opposing the Boca Motion to Reopen the Record, on June 19, 1992, asserting that events subsequent to the hearing are irrelevant. Humana's proposed recommended order also adopted and incorporated that of Lake, in substantial portion. The motions to dismiss the Petition of Lake and motions to reopen the record are denied.

   
   

   FINDINGS OF FACT

   
   

   Description of the Parties

   
   

   1. The Department of Health and Rehabilitative Services ("HRS") is the agency charged under Chapter 381, Florida Statutes (1991), to make decisions regarding certificate of need ("CON") applications. HRS issued its intent to approve the CON applications of Glenbeigh Hospital of Palm Beach, Inc. ("Glenbeigh"), for 45 beds, and Boca Raton Community Hospital, Inc. ("Boca"), for 15 beds, pursuant to a published fixed need for 67 beds for HRS District IX. HRS also issued its intent to deny the CON applications of Wellington Regional Medical Center, Incorporation ("Wellington") to convert 15 acute care beds to 15 short term adult psychiatric beds, and Savannas Hospital Limited Partnership ("Savannas") to convert 20 substance abuse beds to 20 short term adult psychiatric beds and to add 10 new short term adult beds. District IX includes Palm Beach, Martin, St. Lucie, Okeechobee and Indian River Counties.

      
      

   2. As a result of Glenbeigh's Notice of Withdrawal filed on April 6, 1993, CON No. 6438 is no longer under consideration in this case.

      
      

   3. Boca is an existing 394-bed acute care hospital, located one mile north of the Broward County line, and is the applicant for CON No. 6442, to convert 15

      medical/surgical beds to 15 adult psychiatric beds, and to delicense an additional 6 medical/surgical beds.

      
      

   4. Wellington is an existing acute care hospital in Palm Beach County, with 104 acute care medical/surgical beds and 16 substance abuse beds, and is the applicant for CON No. 6441 to convert 15 acute care beds to 15 short term adult psychiatric beds.

      
      

   5. Savannas is an existing 70 bed child/adolescent and adult psychiatric and substance abuse hospital in St. Lucie County, about 40 miles north of Palm Beach, and is the applicant for CON No. 6444, to convert its 20 substance abuse beds to 20 adult short-term psychiatric beds, and to add 10 new adult short-term psychiatric beds.

      
      

   6. Lake Hospital and Clinic, Inc., d/b/a Lake Hospital of the Palm Beaches ("Lake"), at the time of hearing, was a 98-bed psychiatric and substance abuse hospital, with 46 adult psychiatric beds, 36 child/adolescent psychiatric beds and 16 substance abuse beds, located in Lake Worth, Palm Beach County, between Boca Raton and West Palm Beach. The parties stipulated that Lake had standing to challenge the Boca application.

      
      

   7. Community Hospital of the Palm Beaches, Inc., d/b/a Humana Hospital Palm Beaches ("Humana") is an existing 250-bed acute care hospital, with 61 adult and 27 child/adolescent psychiatric beds, and is a Baker Act receiving facility, located directly across the street from Glenbeigh in Palm Beach.

      
      

   8. Florida Residential Treatment Centers, Inc., d/b/a Charter Hospital of West Palm Beach ("Charter") is an existing 60-bed psychiatric hospital with 20 beds for children and 40 beds for adolescents, located approximately 15 minutes travel time from Glenbeigh.

      
      

   9. Martin H.M.A., Inc., d/b/a SandyPines Hospital ("SandyPines") is an existing 60 bed child and adolescent psychiatric hospital, and a Baker Act receiving facility, located in Martin County, less than one mile north of the Palm Beach County line.

      
      

   10. By prehearing stipulation, the parties agreed that the statutory review criteria applicable to the CON application of Boca are those listed in Subsections 381.705(1)(a), (b), (d), (f), (i) - (l) and (n). If Rule 10- 5.011(1)(o) is applicable, the parties stipulated that the disputed criteria are those in Subsections 4.g. and 5.g.

       
       

       Background and Applicability of HRS Rules and Florida Statutes

       
       

   11. Rule 10-5.011(o) and (p), Florida Administrative Code, was in effect at the time HRS published the fixed need pool and received the applications at issue in this proceeding, the September 1990 batching cycle. The rule distinguished between inpatient psychiatric services based on whether the services were provided on a short-term or long-term basis. Similarly, Rule 10- 5.011(q), Florida Administrative Code, distinguished between short-term and long-term hospital inpatient substance abuse services.

       
       

   12. On August 10, 1990, HRS published a fixed need pool for 19 short-term psychiatric beds in HRS District IX, with notice of the right to seek an administrative hearing to challenge the correctness of the fixed need pool number. See, Vol. 16, No. 32, Florida Administrative Weekly. On August 17, 1990, HRS published a revised fixed need pool for a net need of 67 additional

       short-term hospital inpatient psychiatric beds in HRS District IX, based on the denial of a certificate of need application, subsequent to the deadline for submission of the August 10th publication. The local health plan formula, which has not been adopted by rule, allocates 62 of the additional 67 beds needed to the Palm Beach County subdistrict. The revised pool publication did not include notice of the right to an administrative hearing to challenge the revised pool number. See, Vol. 16, No. 33, Florida Administrative Weekly. There were no challenges filed to either the original or revised fixed need pool numbers.

       
       

   13. On December 23, 1990, HRS published new psychiatric and substance abuse rules, subsequently renumbered as Rule 10-5.040 and 10-5.041, Florida Administrative Code. These new rules abolished the distinction between short- term and long-term services, and instead distinguished psychiatric and substance abuse services by the age of the patient. Pursuant to Section 14 of the new psychiatric rule, that rule does not apply to applications pending final agency action on the effective date of the new rule. HRS will, however, license any applicant approved from the September 1990 batching cycle to provide services to adults or children and adolescents, using the categories in the new rule, not based on the distinction between short and long term services which existed at the time the application was filed. Approved providers will receive separate CONs for adult and child/adolescent services.

       
       

   14. Rule 10-5.008(2)(a), Florida Administrative Code, provides that the fixed need pool shall be published in the Florida Administrative Weekly at least

       15 days prior to the letter of intent deadline and

       
       

       . . . shall not be changed or adjusted in the future regardless of any future changes in need methodologies, population estimates, bed inventories, or other factors which would lead to different projections of need, if retroactively applied.

       
       

   15. Humana, Lake, Charter and SandyPines allege that HRS incorrectly determined need under the old rule, by failing to examine occupancy rates pursuant to that rule. The rule provided, in relevant part,

       
       

       1. No additional short term inpatient hospital adult psychiatric beds shall normally be approved unless the average annual occupancy rate for all existing adult short term inpatient psychiatric beds in a service district is at or exceeds 75 percent for the preceding 12 month period. No additional beds for adolescents and children under 18 years of age shall normally be approved unless the average annual occupancy rate for all existing adolescent and children short term hospital inpatient psychiatric beds in the Department district is at or exceeds 70 percent for the preceding 12 month period.

       2. Hospitals seeking additional short term inpatient psychiatric beds must show evidence that the occupancy standard defined in paragraph six is met and that the number of designated short term psychiatric beds have

          had an occupancy rate of 75 percent or greater for the preceding year. (Emphasis added.)

          
          

          Rule 10-5.011(o)4(e), Florida Administrative Code.

          
          

   16. HRS' expert witness, Elizabeth Dudek, testified that the fixed need pool for 67 additional short term inpatient psychiatric beds was calculated pursuant to the formula in Rule 10-5.011(l)(o), Florida Administrative Code. Ms. Dudek also testified that since calculation resulted in a positive number, according to HRS policy, the publication of the fixed need pool indicates that the occupancy prerequisites must have also been met.

       
       

   17. To the contrary, the State Agency Action Report and the deposition of Lloyd Tribley, the HRS Health Facilities consultant who collected the data to support the publication of the fixed need pool, indicate that he did not determine existing occupancy separately for adults and for children/adolescents, as required by subsection (e) of the old rule. Rather, he determined, pursuant to subsection (f), that overall occupancy rates for licensed short-term psychiatric beds exceeded 75 percent.

       
       

   18. With the August 10, 1990 publication of the need for 19 additional short-term inpatient psychiatric beds, HRS provided a point of entry to challenge the published need, including the agency's apparent failure to make a determination of existing occupancy rates for separate age categories. No challenge was filed.

       
       

   19. In the August 17, 1990 publication, HRS failed to provide a point of entry, when it added 48 more beds to the pool as a result of the issuance of a final order denying a prior CON application.

       
       

   20. The August 10th publication of numeric need, according to HRS' representative should have been based on an analysis of separate and combined occupancy rates. There was no challenge to that publication, therefore the number of beds in the fixed need pool is not at issue in this proceeding.

       
       

       Like and Existing Facilities

       
       

   21. Humana, Lake and Charter assert that, as a result of the new rule abolishing separate licensure categories for short-term and long-term beds, all psychiatric providers within an applicant's service district are like and existing facilities. These parties also assert that there was not, even under the old rule, any practical difference between these categories of providers, particularly for children/adolescents. In support of this position, the evidence demonstrated that the average lengths of stay in short-term and long- term adolescent psychiatric beds in 1989 were 48.1 days and 53.02 days, respectively. In 1990, the average lengths of stay in short and long-term beds were 41.8 days and 41.9 days, respectively.

       
       

   22. The parties asserting that the effect of the new rule is to create an additional group of like and existing providers point to HRS' response to the application of Indian River Memorial Hospital in Vero Beach, Florida ("Indian River"). According to the testimony of HRS expert witness Elizabeth Dudek, Indian River was another District 9 applicant in this same batching cycle. Indian River applied for a CON to convert long-term psychiatric beds to short- term psychiatric beds. HRS denied the CON application of Indian River because, under the new rule, which had taken effect before the decisions on the batch

       were made, Indian River would receive a new license permitting it to treat psychiatric patients regardless of their projected lengths of stay.

       
       

   23. Glenbeigh asserted that the numeric need for 67 additional short term psychiatric beds cannot be challenged in this proceeding based on the failure of any party timely to challenge the August 10, 1990, publication of need. Similarly, Glenbeigh asserted that the comparison of "like and existing" facilities must be limited to those used in the inventory to compute need. Glenbeigh relied generally on Florida Administrative Code Rule 10-5.011(o), the old rule governing short term hospital inpatient psychiatric services, for the proposition that "like and existing" in Subsection 381.705(1)(b), Florida Statutes, is equivalent to the inventory of licensed and approved beds for short term psychiatric services, which was used in the computation of need. However, the rule also provides, in a list of "other standards and criteria to be considered in determining approval of a certificate of need application for short term hospital inpatient psychiatric beds," the following,

       
       

       1. Applicants shall indicate the availability of other inpatient psychiatric services in the proposed service area, including the number of beds available in crisis stabilization units, short term residential treatment programs, and other inpatient beds whether licensed as a hospital facility or not.

          
          

   24. In light of the rule directive that the consideration of like and existing services is not limited to licensed provider hospitals, Glenbeigh's assertion that the statutory review criteria is more restrictive and limited to the licensed and approved beds that were used to compute numeric need is rejected.

       
       

   25. The like and existing facilities are the hospitals or freestanding facilities which are authorized to provide the same psychiatric services, as the applicants seek to provide as a result of this proceeding. It was established at hearing that the following list of District 9 facilities provide psychiatric services comparable to those which the three remaining applicants seek to provide in these consolidated cases:

       
       

       DISTRICT 9

       
       

       Hospital	PSYCHIATRIC BEDS	SUBSTANCE	ABUSE BEDS
       	Adult Child and	Adult	Child and
       	Adolescent		Adolescent
       	Lic. App. Lic. App.	Lic. App.	Lic. App.

       
       

       Bethesda Hospital 20 0 0 0 0 0 0 0

       Charter Palm (IRTF)	0	0	60	0	0	0	0	0
       Fair Oaks	36	0	49	0	14	0	3	0
       Forty Fifth Street	44	0	0	0	0	0	0	0
       Glenbeigh Palm Beach 0		0	0	0	30	0	30	0
       Humana Palm Beach 61		0	27	15	0	0	0	0
       Humana Sebastian 0		0	0	0	16	0	0	0
       Indian River Mem. 16		0	38	0	0	0	0	0
       J.F. Kennedy Mem. 14		0	0	0	22	0	0	0
       Lake Hospital 46		0	36	0	16	0	0	0
       Lawnwood Regional 36 Res. Treat. Palm		0	24	0	0	0	0	0

       (IRTF)	0	0	40	0	0	0	0	0
       Sandy Pines	0	0	60	0	0	0	0	0
       Savannas	35	0	15	0	20	0	0	0
       St. Mary Hospital	0	40	0	0	0	0	0	0
       Wellington Regional	0	0	0	0	16	0	0	0

       
       

       Vol. 16, No. 52, Florida Administrative Weekly, (December 28, 1990) (Humana

       Exhibit 26).

       
       

       Need For Additional Beds

       
       

   26. An analysis of need beyond that of the numeric need, requires an analysis of the availability and accessibility of the like and existing facilties. One reliable indicator of need is the occupancy levels in the like and existing facilities. In addition to providing guidelines for the publication of need, Rule 10-5.011(o)(4)(e) also mandates a consideration of occupancy levels to determine if applicants are or are not required to demonstrate "not normal circumstances" necessitating the issuance of a CON.

       
       

   27. For all child/adolescent psychiatric programs in District 9, the expert for Lake and Humana calculated total average occupancy rates at 57.6 percent in 1988, 64.2 percent in 1989, and 53.2 percent in 1990. In support of the accuracy of the expert's calculations, the District 9 Annual Report for 1990 (Lake Exhibit 4) shows occupancy at 46.80 percent in general hospitals, 88.22 percent in specialty hospitals then categorized as short term and 38.22 percent in specialty hospitals then categorized as long term. In addition, during this same period of time, average lengths of stay in District 9 child/adolescent beds also declined by approximately 10 percent.

       
       

   28. Using the guidelines of the old rule, new short term psychiatric beds should not normally be approved when the child/adolescent rate is below 70 percent. In the new rule, child/adolescent beds should not normally be approved if occupancy is below 75 percent. Therefore, under either rule, applicants who will be licensed for child/adolescent beds, must demonstrate not normal circumstances for their CON applications to be approved.

       
       

   29. The expert for Lake and Humana, also computed the adult occupancy rates for 1988-1990 in District 9 as follows: 1988- 66.5 percent; 1989 - 73.1 percent; 1990 - 68.5 percent. The occupancy rates for adult beds for the 12- month period ending March, 1990 was 70.6 percent and 69.2 percent for the twelve months ending June, 1990.

       
       

   30. In evaluating the accuracy of the expert's calculations of occupancy rates for adult beds, a comparison can be made to the District 9 Annual Report for 1990 (Lake Exhibit 4). Occupancy rates were 57.75 percent in general hospitals and 79.45 percent in specialty hospitals. This data does not include Indian River Memorial or Lawnwood Regional which were also listed on the December 1990 inventory of licensed adult beds, nor St. Mary's Hospital which was listed as having 40 approved adult beds. The comparison indicates the accuracy of concluding that the highest occupancy level for District 9 adult psychiatric beds during the period 1988 to 1990 was approximately 70 percent.

       
       

   31. Using the guidelines of the old rule, 75 percent occupancy is required before new adult beds can be approved unless there is a not normal circumstance.

       Boca's Proposal

       
       

   32. Boca Raton Community Hospital ("Boca") is a 394-bed not-for-profit acute care hospital, accredited by the Joint Commission for the Accreditation of Hospitals and Health Organizations, which proposes to convert 21 of its medical/surgical to 15 adult psychiatric beds and to delicense an additional 6 acute care beds. Boca's CON would be conditioned on the provision of 10.8 percent total annual patient days to Medicaid patients and a minimum of 5 percent gross revenues generated, or 2 percent total annual patient days to medically indigent patients. Boca has proposed this alternative so that, if it fails to provide direct care to indigents, it may donate the revenues to further the objectives of the state and district mental health councils.

       
       

   33. Boca Raton Community Hospital Corporation has control and manages the Boca's property, policies and funds. The Boca Raton Community Hospital Foundation raises funds for Boca and has the funds necessary to accomplish the proposed project at a cost of $932,531.

       
       

   34. Boca's application asserts that a not normal circumstance exists in the need to serve Medicaid patients in the district, and that a need exists to serve geriatric psychiatric patients in an acute care hospital, due to their general medical condition. Medicaid reimbursement for psychiatric care is only available in acute care hospitals. Boca Historically serves in excess of 70 percent Medicare (geriatric) patients.

       
       

   35. In 1990, 72 percent of Medicaid psychiatric patients residing in Boca's service area sought psychiatric services outside District 9, as compared to the outmigration of 14.7 percent Medicare patients, and 11 percent commercial insurance patients.

       
       

   36. Boca supported its proposed 10.8 percent Medicaid CON condition, with evidence that 10.8 percent of all psychiatric discharges in its market area were for Medicaid patients.

       
       

   37. Boca's opponents dispute the claim that a disproportionate outmigration of District 9 Medicaid patients is, in and of itself, a not normal circumstance. Using the travel time standard for inpatient psychiatric services of 45 minutes under average driving conditions, the opponents argue that District 10 facilities should be considered as available alternatives to additional psychiatric beds in District 9. In fact, the parties stipulated that there are no geographic access problems in District 9.

       
       

   38. In contrast to the opponents position, Subsections 381.705(a), (b)(, (d), (f) and (h), Florida Statutes (1991), indicate that need, available alternatives and accessibility are evaluated within a district, as defined by Subsection 381.702(5). Therefore, using the statutory criteria as indicative of the situation which is normal, the disproportionate outmigration of medicaid patients can be considered a not normal circumstance with a showing of access hardships for this payor group.

       
       

   39. Boca's opponents also assert general acute care adult beds are adequate. In August 1991, the occupancy rate was 56.9 percent in the 171 licensed adult psychiatric beds in District 9 general acute care hospitals which are eligible for Medicaid reimbursement.

       
       

   40. Finally, Boca's opponents argue that Boca historically has not, and will not serve Medicaid patients in sufficient number to alter the outmigration.

       In 1990, Boca reported 671 Medicaid inpatient days from a total of 99,955. That is equivalent to 92 of the 16,170 admissions. Because Boca has a closed medical staff, only the psychiatrists on staff would be able to admit patients to a psychiatric unit.

       
       

   41. From the testimony and depositions received in evidence, Boca's psychiatrists who discussed their service to Medicaid patients treated less than

       12 Medicaid patients a year. One psychiatrist, who had previously treated Medicaid patients at a mental health center, has been in private practice since 1983-84, but was not sure he had treated a Medicaid patient in his private practice and has received a new Medicaid provider number a few weeks prior to hearing. One Boca psychiatrist does not treat Medicaid patients on an inpatient basis. Two other Boca psychiatrists reported seeing 10 and "a couple" of Medicaid patients a year, respectively. The latter of these described the Medicaid billing procedure as cumbersome.

       
       

   42. Given the unavailability of Medicaid eligible beds in the District and the nature of the practices of its closed staff of psychiatrists, Boca has failed to establish that its CON application will alleviate the outmigration for psychiatric services of District 9 Medicaid patients.

       
       

   43. This conclusion is not altered by the subsequent closure of Lake's 46 adult psychiatric beds, because Medicaid reimbursement would not have been available at Lake which was not an acute care hospital. In fact, HRS takes the position that there are no not normal circumstances in this case.

       
       

       Wellington's Proposal

       
       

   44. Wellington, a 120 bed hospital in West Palm Beach, Florida, proposed to convert 15 acute care beds to 15 short term adult psychiatric beds which, if approved, will be licensed as adult psychiatric beds. Wellington's acute care beds are only 28 percent occupied. Wellington is located in the western portion of Palm Beach County, where no other inpatient psychiatric facilities are located.

       
       

   45. Wellington is a wholly owned subsidiary of Universal Health Services, Inc. ("UHS"), accredited by the Joint Commission for the Accreditation of Hospitals and Health Organizations (JCAHO) and the American Osteopathic Association (AOA), and offers clinical experience for students of the Southeastern College of Osteopathic Medicine (SECOM). Internships and externships for osteopathic students are also provided at Humana's psychiatric pavilion.

       
       

   46. Wellington proposes to fund the total project cost of $920,000 from funds available to UHS and intends to become a Baker Act receiving facility. Wellington is not a disproportionate share hospital, and projects 1 percent Medicaid service in its payor mix.

       
       

   47. Wellington proposes to serve adult psychiatric patients in 15 beds, and projects 53.3 percent and 70 percent occupancy in those beds in years one and two, but does not make a third year projection of at least 80 percent occupancy as required by Paragraph 4(d) of Rule 10-5.011(o). Because the average annual adult occupancy rate in the district is less than 75 percent, any applicant proposing to serve adults must demonstrate that a not normal circumstance exists for approval of its CON application. In addition, there appears to be no shortage of psychiatric beds in acute care hospitals in District 9. See Finding of Fact 39, supra.

       Not Normal Circumstance

       
       

   48. Wellington has not alleged nor demonstrated that any of the factors related to its current operations, location or proposed services are not normal circumstances in support of its CON application.

       
       

   49. Absent the showing of a not normal circumstance, Wellington's proposal cannot be approved, pursuant to Paragraph 4(e) and Rule 10-5.011(o), Florida Administrative Code.

       
       

       Savannas Proposal

       
       

   50. Savannas Hospital Limited partnership d/b/a Savannas Hospital ("Savannas") is a JCAHO accredited 70 bed psychiatric and substance abuse hospital located in Port St. Lucie, St. Lucie County, Florida, approximately 40 miles north of Palm Beach.

       
       

   51. Savannas, a Baker Act facility, proposes to convert all 20 of its licensed substance abuse beds to psychiatric beds and to add 10 new psychiatric beds, at a total project cost of $1,444,818.

       
       

   52. Savannas also proposes to commit to providing 7 percent indigent care.

       
       

   53. While not specifically describing its circumstances as not normal, Savannas does indicate that it is (1) the only applicant in the northern sub- district of District 9, and (2) could readmit to a segregated unit low functioning neurogeriatric patients of the type it previously served. Savannas also indicated that Medicare reimbursement is not available for patients who have substance abuse, rather than psychiatric primary diagnoses. As a freestanding provider, Savannas is not eligible for Medicaid reimbursement.

       
       

   54. Savannas demonstrates what services it would provide, if its CON is approved, but fails to identify a need for the services by District 9 psychiatric patients.

       
       

   55. Within the northern sub-district, the only other facility in St. Lucie County, Lawnwood, reported an occupancy rate of 65 percent in 1989.

       
       

   56. AHCA also argued that the substance abuse beds at Savannas are needed and should not be converted to psychiatric beds. That position is supported by the fact that Savannas substance abuse beds had a higher occupancy level than its psychiatric beds in 1989.

       
       

   57. Savannas' application and the evidence presented do not support the need for the services proposed by Savannas, nor does Savannas assert that any not normal circumstances exist.

       
       

       CONCLUSIONS OF LAW

       
       

   58. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to these proceedings, pursuant to Subsections 381.709(5) and 120.57(1), Florida Statutes (1991).

       
       

   59. By stipulation of the parties, the existing District 9 providers of psychiatric services had standing at the time of the hearing. This includes

       Lake Hospital and Clinic, Inc., although for purposes of evaluating the need for the proposed services, the effect after Lake's closure is also considered.

       
       

   60. Each applicant has the burden of demonstrating its entitlement to certificates of need. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985). Criteria are to be weighed and balanced to determine if an application should be approved. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986). Section 381.705, Florida Statutes (1991), and Rule

       10-5.011(1)(o) Florida Administrative Code, establish the criteria which must be considered in evaluating an application for a certificate of need to establish short-term psychiatric beds. See, generally, Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986), and Department of Health and Rehabilitative Services v. Johnson & Johnson Home Health Care, Inc., 447 So.2d 361 (Fla. 1st DCA 1984).

       
       

   61. No timely challenge was made to the fixed need pool projection of 19 psychiatric beds needed in District 9, despite the notice giving a clear point of entry.. The August 17, 1990, Florida Administrative Weekly, Volume 16, No. 33, in which HRS published a revised fixed bed need pool of 67 beds but failed to provide a point of entry was not the result of calculation of numeric need pursuant to the rule methodology in Rule 10-5.011(1)(o), of which Lake, Humana, Charter, and Savannas complain. The Rule in effect when all applicants submitted their CON applications in September 1990, is applicable to the review of these applications.

       
       

   62. Subsequent to the filing of the CON applications, but prior to the issuance of the SAAR on March 18, 1991, Florida Administrative Code, Rule 10-

       1. was implemented. Rule 5.040 is not applicable in this case for the following reasons:

          
          

          1. The "savings clause" specifically states that the "amended rule shall not be applied to applications that are pending final Agency action as of the effective date of the rule." "When a savings clause is appended to any act which by express declaration or by necessary implication repeals another enactment, the law repealed is continued in force as to existing rights and pending actions in accordance with the terms of the savings clause." Dade County v. Wiseheart, 198 So.2d 94, 97 (Fla. 2d DCA 1967).

             
             

          2. The savings clause ensures the rational, predictable and consistent application of the health care planning process intended by the fixed bed need rule, as required by the courts. In Central Florida Regional Hospital, Inc. v. Department of Health and Rehabilitative Services, 582 So.2d 1193 (Fla. 5th DCA 1991), the court stated:

       
       

       It is axiomatic that administrative due process requires agency consistency among like petitioners or respondents. Further- more, needs must be fixed by HRS as of the application filing date and as such, HRS is precluded from changing the needs standards for a review cycle once the applications are filed. Id. at 1196.

       
       

       Further, in Meridian, Inc. v. Department of Health and Rehabilitative Services,

       548 So.2d 1169 (Fla. 1st DCA 1989), the court stated:

       If the number of beds in the pool could be altered by new information developed after the initial application were filed, there would be no basis for ever filing the number in the pool and the evils in the system addressed in Gulf Court would be perpetuated. Indeed, this court has already approved, without opinion, this construction of the rule by HRS. Id. at 1171. (Citation omitted.)

       
       

   63. Therefore, the fixed bed need pool applicable in this case is that which was noticed, as revised, by HRS on August 17, 1991, and the only applicable rule in this case is former Rule 10-5.011(1)(o), Florida Administrative Code (1991).

       
       

   64. However, fixed need, by itself, cannot provide the sole justification for finding need. In Health Management Association, Inc. v. HRS, 10 F.A.L.R. 4577 (1988), HRS treated the numeric need methodology as separate and distinct from minimum occupancy levels for short term psychiatric beds. Considering all of the factors in the local and state health plans, and statutory factors related to need, in conjunction with the failure to achieve rule occupancy standards, the agency concluded that additional short term psychiatric beds were not needed.

       
       

   65. Other factors that affect a determination of the need for additional services in this case, include whether other provisions of the Rule are met, and whether the applicant proposes to meet psychiatric inpatients' access problems. Applying the provisions of paragraph 4(e) of Rule 10-5.011(1)(o), not normal circumstances must be demonstrated because District 9 minimum occupancy levels for adults and children/adolescent groups were not reached in 1989. In addition, paragraph 4(d) of the Rule requires third year projection for proposed adult beds, which Wellington failed to provide.

       
       

   66. Boca Raton Community Hospital asserted that a need for geriatric psychiatric services exists in District 9 and that 70 percent of its patients are geriatric patients. In addition, Boca Raton noted that such patients due to frequently accompanying medical conditions are best served in an acute care hospital. Boca Raton does not however allege or demonstrate that this is a not normal circumstance. In addition, the evidence is that occupancy rates in District 9 psychiatric beds in acute care hospitals is 56.9 percent. Therefore, pursuant to paragraph 4(e) of Rule 10-5.011(1)(o), no basis exists for the approval of adult psychiatric beds at Boca Raton to serve Medicare patients.

       
       

   67. Boca Raton does allege and the evidence demonstrates that a not normal circumstance exists in the substantial outmigration of psychiatric Medicaid patients from District 9. Given the statutory criteria related to the provision of such services within the District, the disproportionate outmigration of Medicaid patients is a not normal circumstance. Boca Raton fails, however, to demonstrate that the outmigration creates either geographic or economic access problems. Using the travel standard of 45 minutes under average travel conditions, or the acceptance of Medicaid in underutilized district facilities, Boca Raton has failed to show that access problems exist due to this not normal circumstance or that its proposal will alter this circumstance. Therefore, Boca Raton has failed to demonstrate that its application meets an unmet need in a not normal circumstance.

   68. The occupancy requirements of paragraph 4(e) also necessitates a showing of not normal circumstances by Wellington and Savannas. Although Wellington alleges its location is unique, in the extreme western portion of Palm Beach County, it does not assert that this is a not normal circumstance which can meet the needs of inpatient psychiatric patients whose access to such services is otherwise denied within the agency established travel time standard.

       
       

   69. Savannas also indicated that its location in the northern portion of District 9 and the need of a segregated unit for low functioning neurogeriatric patients justified the approval of its application. Savannas does not allege or demonstrate that these are not normal circumstances. In fact, the evidence demonstrated that there is unused capacity to serve psychiatric patients in the other St. Lucie County facility which was 65 percent occupied in 1989, and which is licensed for 36 adult and 24 child/adolescent beds.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Certificate of Need

Number 6438 to Glenbeigh Hospital of Palm Beach, Inc.; Certificate of Need Number 6442 to Boca Raton Community Hospital, Inc.; Certificate of Need Number 6441 to Wellington Regional Medical Center, Inc.; and Certificate of Need Number 6444 to Savannas Hospital Limited Partnership.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of June 1993.

ELEANOR M. HUNTER

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 18th day of June 1993.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Humana

1. Adopted in Finding of Fact 1.

2. Subordinate to Finding of Fact 2. 3-6. Issues not addressed.

7-8. Adopted in Findings of Fact 3 and 4.

1. Subordinate to Findings of Fact 44 and 46.

2. Subordinate to Finding of Fact 10. 11-12. Adopted in Findings of Fact 6 and 7. 13-15. Subordinate to Finding of Fact 7.

1. Adopted in Finding of Fact 7.

2. Adopted in Finding of Fact 45.

3. Subordinate to Findings of Fact 27 & 29.

4. Issue not addressed.

20-21. Subordinate to Finding of Fact 25.

22. Issue not addressed.

23-24. Adopted in Findings of Fact 8 and 9.

1. Accepted in relevant part in Finding of Fact 11.

2. Accepted in relevant part in Finding of Fact 10.

3. Subordinate to Finding of Fact 12 and Conclusions of Law 4.

4. Subordinate to Finding of Fact 1.

5. Adopted in Finding of Fact 22.

6. Rejected in Finding of Fact 20.

7. Rejected in Findings of Fact 12 and 18.

8. Adopted in Findings of Fact 15 and 17.

9. Rejected in Finding of Fact 38.

10. Adopted in Findings of Fact 16 and 17.

11. Adopted in Finding of Fact 26.

12. Issue not addressed.

13. Adopted in Finding of Fact 47. 38-47. Issues not addressed.

1. Adopted in Findings of Fact 44 and 47.

2. Issue not addressed.

3. Rejected in Finding of Fact 46.

4. Issue not addressed.

52-54. Adopted in Findings of Fact 46 and 47. 55-57. Issues not addressed.

1. Adopted in Finding of Fact

2. Issue not addressed.

3. Adopted in Finding of Fact 46.

4. Issue not addressed.

5. Accepted in relevant part in Finding of Fact 21.

6. Accepted in relevant part in Finding of Fact 22.

7. Accepted in relevant part in Finding of Fact 21.

8. Subordinate to Finding of Fact 25.

9. Accepted in relevant part in Finding of Fact 25.

10. Subordinate to Finding of Fact 25.

11. Accepted in relevant part in Finding of Fact 25.

12. Accepted in relevant part in Finding of Fact 54

13. Accepted in relevant part in Findings of Fact 26, 38, 39, 42, 43, 47, 48, 54, 55 and 57.

14. Accepted in relevant part in Finding of Fact 26.

15. Rejected in Findings of Fact 21 and 22.

16. Accepted in relevant part in Finding of Fact 26. 74-75. Accepted in relevant part in Finding of Fact 27. 76-77. Subordinate to Finding of Fact 27.

1. Subordinate to Finding of Fact 30.

2. Subordinate to Findings of Fact 27 and 30.

3. Subordinate to Finding of Fact 28.

4. Subordinate to Finding of Fact 31.

5. Accepted in relevant part in Finding of Fact 82.

6. Subordinate to Finding of Fact 82.

7. Accepted in relevant part in Finding of Fact 37.

8. Accepted in relevant part in Finding of Fact 39.

9. Issue not addressed.

10. Subordinate to Finding of Fact 27 and 30.

11. Accepted in relevant part in Findings of Fact 27, 29 and 30.

12. Subordinate to Findings of Fact 27 and 30.

13. Accepted in relevant part in Finding of Fact 31.

14. Accepted in relevant part in Finding of Fact 42.

15. Issue not addressed.

16. Addressed in Preliminary Statement.

17. Accepted in relevant part in Finding of Fact 1. 95-99. Issues not addressed

1. Accepted in relevant part in Finding of Fact 10.

2. Accepted in relevant part in Finding of Fact 25. 102-114. Issues not addressed

1. Accepted in relevant part in Findings of Fact 27 and 30.

2. Issue not addressed.

3. Subordinate to Finding of Fact 25.

4. Accepted in relevant part in Finding of Fact 37.

5. Issue not addressed.

6. Accepted in relevant part in Finding of Fact 10. 121-122. Issues not addressed.

1. Accepted in relevant part in Findings of Fact 4 and 47.

2. Issue not addressed.

3. Irrlevant.

4. Issue not addressed.

5. Accepted in relevant part in Finding of Fact 10

6. Accepted in relevant part in Findings of Fact 10, 25,

   47 and 48.

7. Subordinate to Finding of Fact 11.

8. Issue not addressed.

9. Accepted in relevant part in Findings of Fact 47, 48 and 49.

10. Accepted in relevant part in Finding of Fact 45.

11. Accepted in relevant part in Finding of Fact 46.

12. Issue not addressed.

13. Accepted in relevant part in Findings of Fact 47 and 48.

14. Issue not addressed.

15. Accepted in relevant part in Findings of Fact 47 and 48.

16. Accepted in relevant part in Finding of Fact 15.

17. Accepted in relevant part in Findings of Fact 47, 48 and 49.

18. Accepted in relevant part in Finding of Fact 11.

Lake

1. Adopted in Finding of Fact 1.

2. Subordinate to Finding of Fact 1. 3-4. Adopted in Finding of Fact 3.

1. Adopted in Finding of Fact 4.

2. Adopted in Finding of Fact 5.

3. Adopted in Finding of Fact 7.

4. Adopted in Finding of Fact 8.

5. Adopted in Finding of Fact 9.

6. Adopted in Findings of Fact 6 and 43. 11-12. Issues not addressed.

13-19. Subordinate to Findings of Fact 27-43.

45. Subordinate to Findings of Fact 27 and 30. 46-47. Issues not addressed.

48. Accepted in relevant part in Findings of Fact 27 and 30.

49-52. Issues not addressed.

53. Subordinate to Finding of Fact 42. 54-56. Issues not addressed.

57. Accepted in relevant part in Conclusions of Law 4.

58-59. Accepted in relevant part in Finding of Fact 26 and in Conclusions of Law 4.

1. Accepted in relevant part in Finding of Fact 20.

2. Adopted in Finding of Fact 20.

3. Adopted in Finding of Fact 15.

4. Subordinate to Finding of Fact 1.

5. Subordinate to Finding of Fact 17. 65-66. Adopted in Finding of Fact 17.

1. Adopted in Findings of Fact 18, 27 and 30.

2. Adopted in Finding of Fact 17.

3. Adopted in Findings of Fact 27 and 29.

4. Adopted in Finding of Fact 30.

5. Adopted in Finding of Fact 29.

6. Adopted in Finding of Fact 31.

7. Adopted in Findings of Fact 28 and 31.

8. Adopted in Finding of Fact 38.

9. Adopted in Findings of Fact 27, 39 and 42.

10. Adopted in Finding of Fact 43.

11. Adopted in Finding of Fact 38.

12. Adopted in Finding of Fact 35.

13. Adopted in Findings of Fact 37, 39 and 42.

14. Adopted in Finding of Fact 42.

15. Adopted in Findings of Fact 47, 48, 49, 53 and 57.

16. Adopted in Finding of Fact 47.

17. Adopted in Finding of Fact 1. 84-89. Issues not addressed.

1. Adopted in Findings of Fact 27 and 30.

2. Subordinate to Findings of Fact 27 and 30. 92-97. Issues not addressed.

1. Subordinate to Finding of Fact 41.

2. Subordinate to Finding of Fact 37. 100-102. Issues not addressed.

1. Adopted in Findings of Fact 47 and 48.

2. Adopted in Finding of Fact 26.

3. Adopted in Finding of Fact 25.

4. Subordinate to Finding of Fact 25.

5. Adopted in Finding of Fact 30.

6. Adopted in Finding of Fact 27.

7. Subordinate to Finding of Fact 27.

8. Adopted in Finding of Fact 27.

111-113. Subordinate to Finding of Fact 27.

1. Subordinate to Finding of Fact 30.

2. Adopted in Finding of Fact 29.

3. Issue not addressed.

4. Accepted in relevant part in Findings of Fact 27 and 30.

5. Adopted.

6. Adopted.

7. Accepted in relevant part.

8. Issue not addressed.

9. Accepted in relevant part in Findings of Fact 3 and 32.

10. Subordinate to Finding of Fact 3.

11. Accepted in relevant part in Finding of Fact 41.

12. Adopted in Finding of Fact 42.

13. Subordinate to Finding of Fact 41.

14. Issue not addressed.

128-132. Subordinate to Finding of Fact 32. 133-135. Issues not addressed.

1. Adopted in Findings of Fact 32 and 41.

2. Adopted in Finding of Fact 32.

3. Subordinate to Finding of Fact 32.

4. Issue not addressed.

5. Adopted in Finding of Fact 10.

6. Adopted in Finding of Fact 6.

7. Adopted in Finding of Fact 10.

8. Adopted in Finding of Fact 30.

9. Adopted in Finding of Fact 44.

10. Subordinate to Finding of Fact 45.

11. Subordinate to Finding of Fact 47.

12. Adopted in Finding of Fact 46.

13. Subordinate to Finding of Fact 47.

14. Adopted in Finding of Fact 44. 150-151. Adopted in Finding of Fact 46. 152-156. Issues not addressed.

157-158. Adopted in Finding of Fact 10.

1. Accepted in relevant part in Finding of Fact 1. 2-3. Adopted.

4-10. Accepted in Preliminary Statement.

21-25. Subordinate to Finding of Fact 8. 26-38. Issues not addressed

39-40. Adopted in Finding of Fact 10.

1. Subordinate to Finding of Fact 13.

2. Adopted in Finding of Fact 13. 43-44. Adopted in Finding of Fact 22.

1. Adopted in Finding of Fact 13.

2. Adoped in Conclusion of Law 3.

3. Adopted in Finding of Fact 13.

4. Subordinate to Finding of Fact 25.

5. Adopted in Findings of Fact 25 and 26.

6. Adopted in Finding of Fact 23.

7. Issue not addressed.

52-53. Adopted in Finding of Fact 25. 54-55. Issues not addressed.

1. Adopted in Finding of Fact 26.

2. Adopted in Finding of Fact 24. 58-73. Issues not addressed.

1. Adopted in Finding of Fact 23.

2. Adopted in Finding of Fact 38.

3. Adopted in Finding of Fact 27.

4. Adopted in Findings of Fact 27 and 30.

78-79. Subordinate to Findings of Fact 27 and 30.

1. Subordinate to Finding of Fact 27.

2. Issue not addressed.

3. Adopted in Findings of Fact 27 and 30.

4. Adopted in Finding of Fact 37.

5. Adopted in Finding of Fact 39.

6. Adopted in Finding of Fact 25. 86-94. Issues not addressed.

1. Adopted in Finding of Fact 26.

2. Issue not addressed.

3. Adopted in Finding of Fact 15.

4. Adopted in Findings of Fact 37, 39 and 42. 99-101. Issues not addressed.

102. Adopted in Finding of Fact 1. 103-134. Issues not addressed.

135. Adopted in Finding of Fact 4. 136-140. Issues not addressed.

Boca

1. Adopted in Finding of Fact 12.

2. Adopted in Finding of Fact 11.

3. Subordinate to Finding of Fact 11.

4. Adopted in Finding of Fact 1.

5. Adopted in Preliminary Statement.

6. Adopted in Findings of Fact 3 and 32.

7. Adopted in Finding of Fact 33.

8. Subordinate to Finding of Fact 3.

9. Adopted in Finding of Fact 32.

1. Accepted in relevant part in Findings of Fact 27 and 30.

2. Issue not addressed.

53-54. Rejected in Finding of Fact 30. 55-56. Issues not addressed.

57. Adopted in Finding of Fact 12. 58-59. Issues not addressed.

1. Rejected in Findings of Fact 39 and 42.

2. Adopted in Finding of Fact 12.

3. Issue not addressed.

4. Adopted in Finding of Fact 32. 64-65. Issues not addressed.

1. Adopted in Findings of Fact 32, 35 and 38.

2. Adopted in Finding of Fact 36.

3. Adopted.

4. Issue not addressed.

5. Adopted in Finding of Fact 32.

6. Adopted in Finding of Fact 12.

7. Subordinate to Finding of Fact 32.

8. Issue not addressed.

9. Accepted in relevant part in Finding of Fact 34.

10. Issue not addressed.

11. Issue not addressed.

12. Adopted in Finding of Fact 15.

13. Issue not addressed.

14. Adopted.

15. Adopted in Finding of Fact 32. 81-82. Rejected in Finding of Fact 42.

1. Issue not addressed.

2. Adopted in Finding of Fact 32.

3. Adopted in Finding of Fact 37.

4. Rejected in Findings of Fact 25 and 42.

5. Issue not addressed.

6. Adopted in Finding of Fact 6. 89-97. Issues not addressed.

1. Subordinate to Finding of Fact 25.

2. Rejected in Finding of Fact 42.

3. Issue not addressed.

4. Adopted in Findings of Fact 25 and 26.

5. Adopted in Finding of Fact 6.

Sandy Pines

1. Adopted in Finding of Fact 25.

2. Adopted in Finding of Fact 27.

3. Adopted in Finding of Fact 25.

4. Adopted in Finding of Fact 27.

20-24. Subordinate to Finding of Fact 27.

25. Subordinate to Finding of Fact 9. 26-29. Issues not addressed.

30. Adopted.

31-33. Issues not addressed.

1. Adopted in Findings of Fact 42, 43, 48, 49 and 54.

2. Issue not addressed.

3. Accepted in relevant part in Findings of Fact 27 and 30.

4. Subordinate to Findings of Fact 28 and 31.

5. Issue not addressed.

39-40. Subordinate to Findings of Fact 27 and 30. 41-42. Issues not addressed.

1. Accepted in relevant part in Finding of Fact 12.

2. Accepted in relevant part in Findings of Fact 12 and 17.

3. Accepted in relevant part in Finding of Fact 17. 46-47. Accepted in relevant part in Finding of Fact 26.

48. Subordinate to Findings of Fact 25 and 26. 49-50. Issues not addressed.

1. Adopted.

2. Adopted.

3. Accepted in relevant part in Finding of Fact 7.

4. Accepted in relevant part in Finding of Fact 42. 55-56. Issues not addressed.

57. Adopted.

58-59. Issues not addressed.

1. Accepted in relevant part in Conclusion of Law 3.

2. Accepted in relevant part in Finding of Fact 26. 62-64. Accepted in relevant part in Finding of Fact 25.

1. Accepted in relevant part in Findings of Fact 27 and 30.

2. Subordinate to Findings of Fact 27 and 30.

Wellington

1-2. Adopted in Findings of Fact 4 and 44.

1. Adopted in Finding of Fact 45.

2. Adopted in Finding of Fact 44.

3. Subordinate to Findings of Fact 4 and 44.

4. Adopted in Finding of Fact 44.

5. Adopted in Finding of Fact 45.

8-10. Subordinate to Finding of Fact 45. 11-12. Adopted in Finding of Fact 45.

13-19. Subordinate to Findings of Fact 4 and 44.

20. Adopted in Findings of Fact 4 and 46. 21-22. Adopted in Findings of Fact 4 and 44.

1. Adopted in Finding of Fact 45.

2. Subordinate to Findings of Fact 44 and 46.

3. Subordinate to Findings of Fact 4 and 44.

4. Subordinate to Finding of Fact 46. 27-28. Adopted in Finding of Fact 46.

1. Adopted in Finding of Fact 30.

2. Adopted in Finding of Fact 46. 31-32. Issues not addressed.

1. Subordinate to Finding of Fact 25.

2. Adopted.

3. Issue not addressed.

36-37. Adopted in Finding of Fact 45. 38-42. Issues not addressed.

43. Adopted in Findings of Fact 34, 42 and 47. 44-63. Issues not addressed.

64-65. Subordinate to Finding of Fact 46. 66-67. Issues not addressed.

68. Adopted in Finding of Fact 10. 69-91. Issues not addressed.

1. Accepted in relevant part in Finding of Fact 47.

2. Accepted in relevant part in Finding of Fact 12. 94-103. Issues not addressed.

1. Accepted in relevant part in Findings of Fact 1 and 44.

2. Accepted in relevant part in Finding of Fact 45. 106-111. Issues not addressed

112. Rejected in Findings of Fact 25, 27 and 30.

113-115. Accepted in relevant part in Finding of Fact 45.

Savannas

1. Adopted in Finding of Fact 1.

2. Adopted in Findings of Fact 2 and 7.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 4.

5. Adopted in Finding of Fact 5.

6. Adopted in Finding of Fact 6.

7. Adopted in Finding of Fact 7.

8. Adopted in Finding of Fact 8.

9. Adopted in Finding of Fact 9.

10. Adopted in Findings of Fact 5 and 50.

11. Subordinate to Finding of Fact 5.

12. Adopted in Finding of Fact 53.

13. Subordinate to Finding of Fact 53.

14. Subordinate to Finding of Fact 56.

15. Subordinate to Findings of Fact 5 and 50.

16. Adopted.

17. Issue not addressed.

18. Adopted in Finding of Fact 56.

19. Issue not addressed.

20. Adopted in Finding of Fact 53.

21. Rejected in Finding of Fact 56.

22. Issue not addressed.

23. Adopted in Finding of Fact 51.

24. Adopted in Finding of Fact 50.

25. Issue not addressed.

26. Adopted in Findings of Fact 5 and 51.

27. Subordinate to Finding of Fact 51.

28. Adopted in Finding of Fact 53.

29. Subordinate to Finding of Fact 1. 30-33. Subordinate to Finding of Fact 12.

34. Adopted in Finding of Fact 12. 35-37. Issues not addressed.

1. Adopted in Finding of Fact 53.

2. Issue not addressed.

40-42. Rejected in Finding of Fact 54.

43. Adopted in Finding of Fact 50.

44-48. Subordinate to Finding of Fact 50.

49-51. Rejected in Findings of Fact 53 and 57.

1. Adopted in Finding of Fact 53.

2. Rejected in Findings of Fact 53 and 57.

3. Adopted.

4. Adopted.

56-57. Subordinate to Finding of Fact 50

1. Rejected in Findings of Fact 53 and 57.

2. Issue not addressed.

60-61. Rejected in Findings of Fact 53 and 57. 62-63. Issues not addressed.

64. Adopted in Finding of Fact 56. 65-66. Issues not addressed.

67. Rejected in Findings of Fact 53 and 57. 68-70. Issues not addressed.

71. Adopted in Finding of Fact 52. 72-77. Issues not addressed

78. Adopted in Finding of Fact 1. 79-100. Issues not addressed.

HRS

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 11.

3. Adopted in Finding of Fact 13.

4. Adopted in Finding of Fact 12.

5. Accepted in relevant part in Finding of Fact 16 and rejected in part in Finding of Fact 17.

6. Adopted in Finding of Fact 16.

7. Subordinate to Finding of Fact 16.

8. Adopted in Finding of Fact 8.

9. Adopted in Finding of Fact 9.

10-11. Subordinate to Finding of Fact 12.

1. Accepted in relevant part in Finding of Fact 12.

2. Issue not addressed.

3. Accepted in relevant part in Finding of Fact 12.

4. Subordinate to Finding of Fact 12. 16-17. Issues not addressed.

1. Adopted in Finding of Fact 1.

2. Subordinate to Findings of Fact 32, 46 and 52.

3. Adopted in Finding of Fact 20.

81-82. Subordinate to Finding of Fact 56. 83-89. Issues not addressed.

COPIES FURNISHED:

Thomas Cooper, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 2727 Mahan Drive

Fort Knox Executive Center Tallahassee, Florida 32308

William B. Wiley, Esquire McFARLAIN, STERNSTEIN, WILEY

& CASSEDY, P.A.

Post Office Box 2174 Tallahassee, Florida 32316-2174

James C. Hauser, Esquire Foley & Lardner

Post Office Box 508 Tallahassee, Florida 32302

Michael J. Cherniga, Esquire David C. Ashburn, Esquire Roberts, Baggett, LaFace & Richard Post Office Drawer 1838 Tallahassee, Florida 32301

Robert D. Newell, Jr., Esquire Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

Michael J. Glazer, Esquire

C. Gary Williams, Esquire Ausley, McMullen, McGehee,

Carothers & Proctor Post Office Box 391

Tallahassee, Florida 32302

Robert S. Cohen, Esquire John F. Gilroy, III, Esquire Haben, Culpepper, Dunbar

& French, P.A.

Post Office Box 10095 Tallahassee, Florida 32302

Charles H. Hood, Jr., Esquire MONACO, SMITH, HOOD, PERKINS,

ORFINGER & STOUT

444 Seabreeze Boulevard, #900 Post Office Box 15200 Daytona Beach, Florida 32115

R. S. Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 ten 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATOR

Petitioners,

vs. RENDITION NO.: AHCA-93-119-FOF-CON

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION, GLENBEIGH HOSPITAL OF PALM BEACH, INC.; LAKE HOSPITAL AND CLINIC, INC.; BOCA RATON COMMUNITY HOSPITAL, INC.; and COMMUNITY HOSPITAL OF THE PALM BEACHES, INC.,

Respondents.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered June 18, 1993, by Hearing Officer Eleanor M. Hunter is incorporated by reference.

RULING ON EXCEPTIONS FILED BY AHCA AND BOCA RATON COMMUNITY HOSPITAL, INC.

Counsel excepts to the denial of motions by Boca Raton Community Hospital (Boca) and the agency seeking the dismissal of the petition of Lake Hospital of the Palm Beaches (Lake) challenging the approval of Boca's application. At hearing the parties stipulated to Lakes standing, but subsequent to the hearing Lake closed its doors and the last effective date of its license was May 31, 1992. 1/

In their exceptions, Boca Raton and AHCA rely entirely on an argument challenging Lake Hospital's standing in this proceeding based on the closing of Lake's facility after the hearing. Irrespective of the standing issue the agency has jurisdiction to consider the evidence presented by Lake and the Hearing Officer's recommendations based on that evidence. Saddlebrook Resorts vs. Wiregrass Ranch, So2d , 18 FLW 1590 (Fla. 2nd DCA of July 9, 1993.

It must be remembered this case was a comparative hearing involving numerous competing CON applications. At the time of final hearing in this case, it was the agency's policy that if any portion of the decision contained in a State Agency Action Report was challenged, all applications in the batch remained at issue unless an application was severed from the batch by stipulation of all the parties. A proposed rule to this effect was published by the department on February 21, 1992. 2/ , 3/ Accordingly, under the policy in effect at the time of the administrative hearing held in this case.

The purpose of a Section 120.57 hearing is to protect both the public and private parties. "[A] hearing independently serves the public interest by providing a forum to expose, inform, and challenge agency policy and discretion." State ex rel. Dept. of General Services vs Willis, 344 So2d 580,

591 (Fla. 1st DCA 1977). Thus, a Section 120.57 hearing does more than simply determine the rights of the parties involved, it also protects the interest of the public.

One of the goals of Florida's "Health Facility and Services Development Act," Sections 381.701 - 381.715, Florida Statutes (1991) is to ensure that unnecessary and unneeded health care facilities are not approved. In this case, after an exhaustive four week administrative hearing, the Hearing Officer

concluded that there was no need for any of the psychiatric beds proposed by the applicants. It would be contrary to public policy to disregard the evidence and the Hearing Officer's findings. The exceptions are denied.

Counsel excepts to Findings of Fact 32 - 42 and Conclusions of Law 66 - 67 regarding Boca's application on the closing of the Lake facility. As noted previously, the initial approval of Boca's application is subject to comparative review. The exceptions are denied.

The agency notes that the Hearing Officer's discusses the need for the applicants in this case to show "not normal circumstance". Notwithstanding these findings, the Hearing Officer specifically concluded that the agency published fixed need pool, as revised on August 17, 1990, showing a net need for

67 beds additional short-term psychiatric beds in District IX was applicable in this case. See, Recommended Order at 32. The agency, therefore, views these findings and conclusions to be based upon the Hearing Officer's determination that the average annual occupancy rate for all existing adult psychiatric providers was not above the 75 percent threshold required under Florida Administrative Code Rule 10-5.011(1)(o)4.3 and the failure of Wellington and Savannas to comply with other statutory and rule criteria.

The agency excepts to Finding of Fact 28 on the grounds that the finding is irrelevant. None of the remaining applicants applied for adolescent beds. As noted by the Hearing Officer on page 6 of the Recommended Order, Glenbeigh, the only applicant seeking adolescent beds, had withdrawn its CON application before the Recommended Order was issued. The exception is granted.

RULING ON EXCEPTIONS FILED BY SAVANNAS HOSPITAL LIMITED PARTNERSHIP

Savannas' challenges the adverse findings of the Hearing Officer on the grounds that Lake now lacks standing; therefore, it contends the findings are legally irrelevant. Even if there were merit to Savannas argument regarding Lake's standing it would not help Savannas. Savannas' application was initially denied and as a party the agency supported its initial decision as late as the filing of exceptions. The Hearing Officer's findings regarding Savannas are supported by competent, substantial evidence; therefore, Savannas' exceptions are denied.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except for finding 28.

CONCLUSIONS OF LAW

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

Based upon the foregoing, it is

ADJUDGED, that the applications for certificate of need 6438 by Glenbeigh Hospital of Palm Beach, Inc.; for certificate of need 6442 by Boca Raton Community Hospital, Inc.; for certificate of need 6441 by Wellington Regional Center, Inc.; for certificate of need 6444 by Savannas Hospital Limited Partnership; and for certificate of need 6445 by Lake Hospital and Clinic, Inc. are DENIED.

DONE and ORDERED this 2nd day of September, 1993, in Tallahassee, Florida.

Douglas M. Cook, Director Agency for Health Care

Administration

ENDNOTES

1/ A petition for hearing must be filed within 21 days after publication of the notice of the preliminary decision in the Florida Administrative Weekly.

Section 381.709(5)(a), Florida Statutes (1991). Petitions for leave to intervene must be filed at least five days before a final administrative hearing. Rule 28-5.207, Florida Administrative Code. Taking these various provisions into account, it is clear that whether an entity has standing is determined at the Outset of the proceedings. The notion of standing focuses on whether or not an entity has the legal capacity to "initiate or intervene" in an administrative hearing.

2/ The rule was adopted on December 14, 1992, see Section 59C-1.012, Florida Administrative Code.

3/ In this regard, the first sentence of the statement of purpose and effect of the proposed rule published on February 21, 1992, stated: "The purpose of the proposed amendments . . . . is to clarify and revise the existing rule regarding the definitions and procedures relating to administrative hearing consistent with current agency policy." (Emphasis added). Florida Administrative Weekly, Volume 18, No. 8, February 21, 1992.

COPIES FURNISHED:

James C. Hauser, Esquire MESSER, VICKERS, CAPARELLO, MADSEN, LEWIS, GOLDMAN & METZ

Post Office Box 1876 Tallahassee, Florida 32302

Michael Cherniga, Esquire GREENBERG, TRAURIG, HOFFMAN et al

Post Office Drawer 1838 Tallahassee, Florida 32302

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

817 North Gadsden Street Tallahasee, Florida 32303-6313

Charles D. Hood, Esquire MONACO, SMITH, HOD, PERKINS, ORFINGER & STOUT

444 Seabreeze Boulevard, Suite 900 Daytona Beach, Florida 32115

Michael J. Glazer, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR

Post Office Box 391 Tallahassee, Florida 32302

John Brennan, Esquire BONNER, O'CONNELL

900 17th Street, Northwest Suite 100

Washington, DC 20006

Robert Cohen, Esquire PENNINGTON, HABEN, WILKINSON CULPEPPER, DUNLAP, DUNBAR, RICHMOND & FRENCH

Post Office Box 10095 Tallahassee, Florida 32302

Thomas Beason, Esquire MOYLE, FLANIGAN, KATZ, FITZGERALD & SHEEHAN, P..A

118 North Gadsden Street Tallahassee, Florida 32301

Darrell White, Esquire McFARLAIN, WILEY, CASSEDY & JONES, P. A.

600 First Florida Bank Tower

215 South Monroe Street Tallahassee, Florida 32301

Edward Labrador, Esquire Senior Attorney

Agency for Health Care Administration

325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131

FALR

Post Office Box 385 Gainesville, Florida 32602

Elizabeth Dudek (AHCA/CON) Elfie Stamm (AHCA/CON) Alberta Granger (AHCA/CON)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named people by U.S. Mail this 8th day of September, 1993.

R. S. Power, Agency Clerk State of Florida, Agency for Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301 Tallahassee, Florida 32303

(904) 922-3808

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-002949CON

Orders for Case No: 91-002949CON