STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PARACELSUS PENINSULA MEDICAL ) CENTER, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 92-5100
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent, )
and )
) MEMORIAL REGIONAL REHABILITATION ) CENTER, INC. d/b/a MEMORIAL ) REGIONAL REHABILITATION CENTER, )
)
Intervenor. )
)
RECOMMENDED ORDER
This case was heard by Eleanor M. Hunter, the Hearing Officer designated by the Division of Administrative Hearings, on March 29-31, and April 12-18, 1993, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Byron B. Mathews, Jr., Attorney Paracelsus Peninsula Phillip R. Greenberg, Attorney Medical Center, 22nd Floor Miami Center
Inc. 201 South Biscayne Boulevard Miami, Florida 33131
For Respondent: Richard Patterson, Attorney
Agency For Health Agency For Health Care Administration Care Administration 325 John Knox Road, Suite 301
Tallahassee, Florida 32303-4131
For Intervenor: Christopher C. Hazelip, Attorney Memorial Regional 1301 Gulf Life Drive, Suite 1500 Rehabilitation Jacksonville, Florida 32207 Center, Inc.
STATEMENT OF THE ISSUES
Whether the statutory and rule criteria are met by the certificate of need application of Paracelsus Peninsula Medical Center, Inc., which is proposing to convert ten or twenty medical/surgical beds to ten or twenty comprehensive medical rehabilitation beds at its hospital in Ormond Beach, Florida, in Agency For Health Care Administration District 4.
Whether Memorial Regional Rehabilitation Center, Inc., which operates a comprehensive medical rehabilitation hospital in Jacksonville, Florida, also in Agency For Health Care Administration District 4, has standing to intervene in this case.
PRELIMINARY STATEMENT
On or about March 23, 1992, Paracelsus Peninsula Medical Center, Inc., ("Peninsula"), filed a certificate of need ("CON") application to expand its existing 20 bed comprehensive medical rehabilitation unit by an additional 20, or alternatively 10 beds. On or about July 3, 1992, the Agency for Health Care Administration ("AHCA"), the successor agency to the Department of Health and Rehabilitation Services for administration of CON laws, preliminarily denied Peninsula's application. That action was challenged by Peninsula's timely filed petition of August 7, 1992.
On September 9, 1992, Memorial Regional Rehabilitation Center, Inc., d/b/a Memorial Regional Rehabilitation Center's ("Memorials") petition to intervene was granted, although its standing was challenged by Peninsula and was at issue in the final hearing.
At the final hearing, Peninsula presented the testimony of Elizabeth Dudek; Peter Marmerstein, an expert in hospital administration; Roger Bell; Laurence W. Schwartz, M.D.; David Gaughan, M.D.; Fred Huerkamp; Judith L. Horowitz, an expert in health planning and health care finance; Linda Gurney; Jeffrey D. Geyer, an expert in the administration of rehabilitation units; and, by deposition, Stephen Klein; John Ortolani, M.D.; and Sharon Shaw. Peninsula also presented initially exhibits 1 through 51, all of which were received by evidence, except that exhibit 26 was stricken, 48 was withdrawn, and 50 was not received in evidence. Ruling was reserved on the admissibility of Peninsula's Exhibits 3, 4, 7 through 15, 34 and 35, which are state agency action reports for other applicants for CMR services, approved by HRS or AHCA. Memorial and AHCA objected to the introduction of these documents, based on relevancy. In consideration of the requirement for agency consistency, these exhibits are received and considered. See, e.g. North Miami General Hospital, Inc. v. Office of Community Medical Facilities, 355 So.2d 1272 (Fla. 1st DCA 1978). Ruling was also reserved on exhibits 17, 20, 22, 23 and 25, to which Memorial objected as impermissible alternative methodologies to that set forth in Rule 10-5.039, Florida Administrative Code. A review of the cases decided under the applicable CMR rule indicates that the rule authorized and invited consideration of alternative methodologies, which have been accepted by the agency. For this reason, exhibits 17 and 20 are received based on the analysis of need in Healthsouth Rehabilitation of Florida, Inc. v. Agency For Health Care Administration, DOAH Case No. 92-5099 (F.O. 10/18/93). Exhibits 22, 23 and 25 are received based on the methodologies accepted in Capital Hospital Corporation
Agency For Health Care Administration, 15 FALR 167 (F.O. 12/11/92), and Baptist Hospital v. AHCA, DOAH Case No. 91-5705 (F.O. 10/4/92).
AHCA presented the testimony of Elizabeth Dudek, an expert in health planning. AHCA exhibits 1 through 4 were received into evidence.
Memorial presented the testimony of Thomas Davidson, an expert in health care finance; Grace White (by deposition); Ann Molitor, an expert in rehabilitation program management; Linda Gurney (by deposition); Jeffrey D. Geyer; Sharon Gordon-Girvin, an expert in health care planning and the application of statutes, regulations, policies and procedures to CON
applications; Bonnie Dunn (by deposition); and Ronald Dennie, M.D. (by deposition). Memorial also presented its exhibits 1 through 6, 10, 12 through
15, 17 through 19, 22, 24 and 29 through 32, all of which were received into evidence, except for two pages of exhibit 10.
The transcript of the hearing was received on May 14, 1993. Proposed findings of fact were filed, as agreed by the parties at the close of the hearing, on June 15, 1993.
FINDINGS OF FACT
Paracelsus Peninsula Medical Center, Inc. ("Peninsula") is a 119-bed hospital located in Ormond Beach, Volusia County, Florida. At Peninsula, 20 beds comprise a comprehensive medical rehabilitation ("CMR") unit, which became operational in March 1991.
The fixed need pool published in Volume 18, number 7 of the Florida Administrative Weekly on February 7, 1992, for the January 1997 planning horizon showed no numerical need for additional CMR beds in District 4, in which Ormond Beach is located.
On or about March 23, 1992, Peninsula filed its certificate of need ("CON") application to increase its CMR unit to 30 or 40 beds by converting 20, or alternatively, 10 acute care beds to CMR beds, and to construct a 7,000- square-foot addition to its existing CMR unit for expanded therapy space and a dedicated dining area for rehabilitation patients.
The Agency For Health Care Administration ("AHCA"), is the state agency to which responsibility for the administration of CON laws was transferred in July 1992, from the Department of Health and Rehabilitative Services ("HRS").
On or about July 3, 1992, AHCA published a State Agency Action Report ("SAAR") preliminarily denying Peninsula's CON application. That action was timely challenged by Peninsula.
Based on the pre-hearing stipulation of the parties, Peninsula has met the statutory requirements for the filing and publication of its letter of intent, and timely filed its CON application. Peninsula has the financial resources to fund either the 20-bed or 10-bed expansion proposed, and it is financially feasible in the short term. Anticipated interest rates, square footage, cost per square foot, and space requirements set forth in Tables 16, 17 and 18 of Peninsula's CON application are accurate and reasonable for the alternative proposals. The project completion forecast described in Table 26 of its application, the architectural plans, and the schematic diagrams are reasonable and appropriate. The list of equipment costs and total depreciable costs set forth in Table 3 of the application are reasonable and appropriate, except AHCA and Memorial questioned the adequacy of funds allocated for the purchase of wheelchairs. Peninsula's total project costs are reasonable, with the exception that the CON filing fee and CON review fee are not listed in the estimated construction costs section of Table 25d. The parties also agree that manpower requirements set forth in Table 11 are reasonable and appropriate except for the proposal to provide speech therapy services by contract, and the ability to recruit full-time physical therapists or occupational therapists in the one-year period at the projected annual salary are at issue. Finally, as stipulated by the parties, the present and projected charge rates set forth in Table 8 of Peninsula's CON application are reasonable.
Peninsula is located in Ormond Beach, Volusia County, Florida. Other than Peninsula's existing 20 CMR beds, the closest CMR beds in the district are
90 miles north in Jacksonville, and the closest CMR beds not in the district are
65 miles west in Orlando. Ormond Beach is located in AHCA District 4, which is composed of Nassau, Baker, Duval, Clay, St. Johns, Flagler and Volusia Counties. Peninsula's service area includes Flagler and Volusia Counties.
In 1990, Peninsula was issued a CON to establish a 20-bed CMR unit to serve the southern portion of District 4. The unit opened in 1991. For the first year, occupancy rates averaged 72.6 percent, and increased to 89.5 percent in the second year, exceeding 100 percent in the months of August and September 1992. None of Peninsula CMR patients came from Duval County and 93 percent came from Volusia and Flagler Counties.
Occupancy levels in Peninsula's acute care beds averaged 50 percent for 1992, indicating an excess capacity of acute care beds.
Peninsula's inpatient CMR services were accredited by the Commission on Accreditation of Rehabilitation Facilities ("CARF") in 1993. Peninsula's out-patient CMR services began in mid-January 1993 on a separate campus, and have not been in operation a sufficient time to be eligible for CARF accreditation.
The only other provider of CMR services in AHCA District 4 is Memorial Regional Rehabilitation Center, Inc., d/b/a Memorial Regional Rehabilitation Center ("Memorial"), in Jacksonville. Memorial is a 110-bed licensed CMR hospital, one of six state vocational rehabilitation designated spinal cord injury rehabilitation centers. Memorial's primary service area is within a 50 mile radius of Jacksonville.
Memorial has been unable to operate all 110 licensed beds due to space constraints, which are scheduled to be overcome by the March 1994 opening of a CON-approved replacement building, costing approximately $21.7 million. Memorial's original building and its CMR program pre-date CON regulation.
Occupancy levels for District 4 have been as shown below:
Average Occupancy
Average Beds Available
For Use in District-
District Wide Percentages Memorial Peninsula
1990 | 80 | 54.9 | 54.99 | ----- |
1991 | 100 | 60.79 | 59.33 | 70.38* |
1992 | 110 | 62.15 | 57.42 | 88.16 |
* Beginning March 1991
Memorial averaged 80 beds available in 1991, and 90 in 1992. Of the
90 available beds, Memorial designated 20 beds to a spinal cord and orthopedic unit, 25 beds to a head injury and pediatric unit (which can use up to 6 of the
25 beds), 25 beds to a stroke unit, and 10 beds to a chronic pain and functional skills unit. Memorial has assigned specific staff to each of these units except
for the chronic pain unit, and tries to admit patients to the appropriate unit for the patient's problem.
Memorial's spinal cord unit has received State Division of Vocational Rehabilitation designation, which requires CARF accreditation in the sub- specialty of spinal cord rehabilitation and that the unit treat a minimum of 40 new qualified spinal cord injury patients each calendar year. In 1992, Memorial treated 44 patients who qualified it for state designation.
In 1990, 5 of 920 patients treated at Memorial were residents of Volusia and Flagler Counties. In 1991, 8 of a total 919 Memorial patients came from Flagler and Volusia Counties. For the first ten months of 1992, 7 of 747 inpatients at Memorial were residents of Flagler or Volusia County. Taking into account lengths of stay, as well as the number of patients, Memorial's patients from Volusia and Flagler Counties constituted .6 percent of total patient days in 1991, and less than 1.5 percent in 1992.
In terms of total occupancy levels and percentages of patient days attributable to residents of Volusia and Flagler Counties, no impact on Memorial was documented as a result of the 1991 opening of the 20-bed CMR unit at Peninsula. In its 1991 CON for construction of a replacement facility, Memorial referenced little interaction between northern and southern health delivery systems within the district. Peninsula has never had a patient from Duval County.
Memorial's average daily census has increased since the opening of Peninsula, although it has experienced declining average lengths of stay, as have other CMR providers. Peninsula has not recruited or hired staff from Memorial.
Based on the testimony of Peninsula's medical director and CMR admissions assessment specialist, Peninsula would like to initiate a 10-bed spinal cord injury unit, and would seek CARF accreditation of the unit. If that happened and the State Vocational Rehabilitation Division designated Peninsula a spinal cord regional center, Memorial would be substantially, adversely affected if it loses State designation because the number of eligible patients declines below the required minimum of 40. Not all spinal cord rehabilitation patients qualify for treatment at the six Vocational Rehabilitation centers. There was no evidence that a qualified patient from Flagler or Volusia Counties was among the 44 treated at Memorial's unit in 1992.
Peninsula projects patient days allocated among payer groups at approximately 75 percent Medicare, 19 percent commercial insurance, 3 percent Medicaid, 2 percent charity and 1 percent private pay.
Peninsula's proposed 20-bed expansion would cost $998,000, the 10-bed expansion would cost $965,000.
Rule 10-5.039, Florida Administrative Code, was used to calculate need for the batching cycle in which Peninsula applied, but has historically been a poor indicator of need. The rule methodology has always resulted in a numeric need of zero, since it was adopted in 1987, while the utilization of CMR beds has increased. The formula was based on the erroneous assumption of a direct correlation between acute care discharges and CMR admissions.
In recognition of the inadequacies of the numeric need methodology, AHCA has adopted a new rule, but that rule is not applicable to the review of
Peninsula's application. Even if it were, Peninsula concedes that it would not demonstrate numeric need or alter the burden on Peninsula of establishing not normal circumstances for approval of its application.
Consideration of factors other than numeric need is authorized under the applicable rule, including historic incidences of disabling conditions and illnesses by age or sex in the district, trends in utilization by third party payers, existing and projected patients needing CMR services, and the availability of specialized staff.
In addition, Peninsula is required to establish not normal circumstances because its average annual occupancy was below 85 percent for the most recent 12 months available three weeks prior to the date of the publication of need. In fact, for that base period, Peninsula's occupancy level was 72 to
73 percent.
Utilization of CMR services in District 4 is affected by the location of the population 65 years of age and older. In 1990, 72 percent of all rehabilitation discharges from short-stay non-federal hospitals were patients 65 years of age and over.
In District 4, the percentage of persons over 65 was 14.8 percent in January 1992, and projected to increase to 15.7 percent in January 1997, as compared to 18.4 percent and 18.8 percent, respectively, statewide. For Volusia and Flagler Counties, average percentages were 24 percent for 1992 and 27 percent projected for 1997, in contrast to 11 percent and 12 percent, respectively, for Duval County.
The number of residents within Peninsula's market area who are 65 or over, when multiplied by the statewide use rate of 29.3 CMR patient days per 1,000 population gives a reasonable and conservative projection of utilization for Peninsula. A lower use rate of 25.8 days per 1,000 population is required for Peninsula to achieve the optional occupancy of 85 percent in 40 beds. Other calculations of need and projected utilization, including methodologies accepted by AHCA or its predecessor in support of other CMR applications in the absence of numeric need, produced similar results. The same assumptions and calculations were used to support Peninsula's original CON application and resulted in projected occupancy levels of 65 percent in year one and 85 percent in year two, while actual percentages were 72.6 percent in year one and 89.5 percent in year two.
Peninsula established that some areas within Volusia County exceed the two hour average travel time standard to Memorial, which was one basis for the approval of Peninsula's 1991 application.
Peninsula is an osteopathic hospital with training programs, but is not a teaching hospital.
Need is also determined by reference to the applicable state and local health plans.
Peninsula's application meets state health plan preferences for proposing to convert excess acute care beds, for serving as a training site for American Osteopathic Association interns and residents, and for operating an existing comprehensive out-patient rehabilitation program.
Peninsula's proposal does not meet state health plan preferences for applicants proposing services which are not currently offered in the district, and for serving a disproportionate share of charity and Medicaid patients. Peninsula has, however, exceeded its CON conditions for the provision of 3 percent total patient days to Medicaid and 2 percent to charity care. In its first full year of operation, actual Medicaid days were 4.01 percent and charity days were 2.56 percent of total patient days.
Local health plan allocation factors supporting Peninsula's application relate to meeting identified needs in the least costly manner, alleviating current or potential geographic access problems, proposing to convert unused beds, documenting referral agreements, and being willing to comply with CON conditions. Peninsula also partially meets the factor for serving a wide spectrum of the population, including medically indigent and aged, since its proposal is primarily focused on the needs of persons 65 years or older.
Peninsula did not demonstrate that it will provide the most complete range of support services for the least additional cost, nor that it is making a strong commitment to HIV-infected or other hard-to-place patients. Peninsula's proposal is not in compliance with the factor, adopted prior to the approval of its initial application, favoring the establishment of CMR services in Volusia County, if no licensed or approved program exists in the County.
The cost of wheelchairs was estimated at $350 each in Peninsula's list of equipment costs, while Memorial's Director of Therapy Services estimated the cost at $600 each. However, the testimony of the person who makes equipment purchases for Peninsula is more persuasive. An existing arrangement with a local company permits Peninsula to acquire standard chairs at $350, a slight percentage over the wholesale price. If necessary, the company provides special wheelchairs through a consignment arrangement and bills patients directly for their costs.
For patients needing inpatient CMR services, no adequate outpatient alternatives exist which provide the intensity and benefits of required therapies. There was no evidence that the services provided by Peninsula, including speech therapy were not adequate. The expansion proposed at Peninsula will allow salaries, overhead and additional equipment, acquired at costs comparable to current expenses, to be used by a larger pool of patients. Services will be enhanced by allowing more grouping of patients based on their disabilities and needs.
Peninsula's pro forma adequately and resonably projects salaries, expenses, and revenues. Peninsula submitted revenue and expense projections for the construction period, for the first two years of operation of the 20 additional beds, and for the first two years of operation of the entire facility. No adverse impact on the provision of other services at Peninsula is expected.
On balance, Peninsula has demonstrated not normal circumstances for approval of an additional 20 CRM beds, including the disproportionate concentration of a population over 65 within its service district, travel and medical referral patterns in the southern portion of District 4, and utilization rates at Peninsula.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding, pursuant to subsections 120.57(1) and 408.039(5)(b), Florida Statutes.
Standing, pursuant to Section 408.039(5)(b), is restricted to: (i) applicants in the same batching cycle; or (ii) existing health care facilities that have an established program that will be substantially affected, and are located within the same district. The intervenor has to demonstrate that it will suffer an economic injury if the CON is granted. Because Peninsula never treated patients from the Memorial service area, Memorial has not shown that Peninsula has or could affect its overall operations. Memorial has also failed to demonstrate that the loss of the few patients it has served from Peninsula's service area will cause it to suffer substantial adverse effect. Memorial is concerned that its State Division of Vocational Rehabilitation spinal cord injury unit could be substantially adversely affected if Peninsula establishes a spinal cord unit, receives CARF accredition, State designation, and treats 40 or more patients a year with qualifying injuries. There is, however, no evidence that either State designation or the ability to attract 40 qualifying spinal cord patients a year could ever be achieved by Peninsula. Vocational Rehabilitation designation of only six spinal cord units in the state indicates that Peninsula will not gain that designation solely by establishing a CARF accredited unit. In addition, other units are appropriately utilized for treating the spinal cord injuries which do not qualify for a Vocational Rehabilitation unit. Memorial also failed to show that any of its qualifying patients were among its few patients from Peninsula's service area. Because its fears of an adverse impact are based on the occurance of events at Peninsula which are speculative, Memorial has no standing to intervene in this proceeding.
Despite the absence of numeric need under the rule methodology CMR beds have been approved under such not normal circumstances as distinct intra- district medical referral and travel patterns, a concentrated population of persons over age 65, the high utilization of a facility's CMR unit, travel barriers for the elderly and osteopathic licensure. See, e.g. Healthsouth Rehabilitation of Florida, Inc., v. AHCA, et al., DOAH Case NO. 92-5099 (F.O. 10/18/93).
No CMR services are tertiary services, defined as complex, specialized, and costly, which further supports the denial of CON applications absent evidence of not normal circumstances resulting in a lack of access to the service.
Peninsula's application, meets the criteria in subsection 408.035(1)(a), Florida Statutes, by having demonstrated, on balance, a need in relation to state and local health plans.
Based on its showing of the age and use rates of residents of its service area, Peninsula has demonstrated the need for access to CMR beds in the southern portion of District 4, in compliance with subsection 408.035(1)(b), Florida Statutes. Traditional travel and referral patterns have been recognized by AHCA as creating valid concerns for patient access in South Broward Hospital District v. HRS, 14 FALR 3163 (F.O. 6/25/92), and Healthsouth Rehabilitation of Florida, Inc. v. AHCA, et al., supra. There are also no alternatives to the proposed inpatient CMR services, as described by subsection 408.035(1)(d), Florida Statutes.
Peninsula has a history of providing quality care, and the ability to continue to do so, as required by subsection 408.035(1)(c), Florida Statutes.
Peninsula's application does not meet the statutory criteria for a joint or shared proposal, nor will it introduce special equipment to the district. See, subsection 408.035(1)(e) and (f), Florida Statutes.
Peninsula is a training site for doctors of osteopathy, as were the approved CMR applicants, Sun Coast Hospital, Inc. and Healthsouth Rehabilitation, supra. See, also, subsection 408.035(1)(g), Florida Statutes.
Peninsula, by stipulation of the parties, has the funds and personnel to offer the proposed services, as required by subsection 408.035(1)(h), Florida Statutes.
The parties stipulated that Peninsula's proposal is financially feasible in the short term. Peninsula has demonstrated, using the same methodology which was accurate, and conservative in the past, that it can achieve the occupancy levels and provide services as projected in a program which is financially feasible in the long term, in accordance with subsection 408.035(1)(i), Florida Statutes.
There are no advantages for health maintenance organizations, or service to residents in adjacent districts as a result of the Peninsula CON application. See, subsection 408.035(1)(j) and (k), Florida Statutes.
Proposed charges, costs, schematic plans and the time required for construction at Peninsula are reasonable, complying with subsections 408.035(1)(l), and (m), Florida Statutes.
Peninsula has demonstrated that its past service to Medicaid and charity patients exceeded its CON condition, justifying a reliance on its proposed service to medically indigent patients, which meets the criterion of subsection 408.035(1)(n), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Memorial as a party
for failure to establish standing in this proceeding, and approving Peninsula's CON application for the conversion of 20 acute care beds to 20 CMR beds.
DONE AND ENTERED this 21st day of April, 1994, at Tallahassee, Florida.
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 21st day of April, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5100
To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:
Memorial's Proposed Findings of Fact.
1,2,3,4,7. Accepted in Findings of Fact 1,3,7,8 and 10.
5,6,7,8. Accepted in Findings of Fact 11,12, and 14. 6,9. Accepted in Finding of Fact 15.
Accepted in Findings of Fact 2, 22 and 23.
Conclusions rejected in Findings of Fact 22 and 23.
Accepted in Finding of Fact 13.
Accepted in Finding of Fact 23.
Subordinate to Finding of Fact 23.
Rejected in Findings of Fact 26, 27 and 28. 16,17,18,19,20. Rejected in or subordinate to Findings of
Fact 28.
Accepted in Findings of Fact 29, 33 and 35.
Conclusion subordinate to Finding of Fact 28.
Accepted in Finding of Fact 29.
Subordinate to Finding of Fact 28.
Subordinate to Finding of Fact 9.
Subordinate to Finding of Fact 37.
Accepted in Findings of Fact 33 and 35.
Conclusion rejected in Finding of Fact 36.
Accepted in Findings of Fact 20 and 33 except last sentence in Finding of Fact 33.
Conclusion rejected in Conclusion of Law.
Accepted in Findings of Fact 6, 11 and 12.
Accepted in first sentence in Finding of Fact 6 Rejected remainder as inconsistent with Memorial's proposed Findings of Fact 9, 26, and 28.
Rejected in Finding of Fact 38.
Rejected in Finding of Fact 28.
Accepted in part and rejected, in part, in Finding of Fact 11.
Accepted in Findings of Fact 11 and 15.
Accepted in Finding of Fact 15.
Rejected conclusion as not established in Finding of Fact 15.
Accepted in Finding of Fact 17.
Accepted, except conclusion, in Findings of Fact 15,16,
17 and 18.
Rejected in Findings of Fact 15, 16, 17, 18 and Conclusion of Law 2.
Rejected conclusion in Findings of Fact 6 and 37.
Accepted in Finding of Fact 28 and Conclusion of Law 3. 44,45. Accepted, in part, and rejected in part, in
Conclusion of Law 3.
AHCA's Proposed Findings of Fact.
Accepted in Finding of Fact 4.
Accepted in Finding of Fact 5.
Subordinate to Finding of Fact 5.
Subordinate to Preliminary Statement and Finding of Fact 6.
Accepted in Finding of Fact 2 and except last sentence rejected in Conclusion of Law 3.
Accepted in Finding of Fact 7.
Accepted in Conclusions of Law 4.
Accepted in Findings of Fact 2 and 25.
Rejected conclusions in Findings of Fact 23, 24,
27 and 28.
Accepted, in part, and rejected, in part, in Findings of Fact 31, 34 and 35.
Accepted, in part, and rejected, in part, in Findings of Fact 31, 32 and 33.
Rejected in Findings of Fact 26, 27 and 28.
Rejected in Finding of Fact 11.
Accepted in Finding of Fact 32.
Accepted in Conclusions of Law 45.
Rejected in Finding of Fact 39. Paracelsus' Proposed Findings of Fact.
Accepted in Finding of Fact 2.
Accepted in Finding of Fact 3.
Accepted in Finding of Fact 6.
Subordinate to Finding of Fact 6.
Subordinate to Finding of Fact 6.
Accepted in Finding of Fact 5.
Accepted in Findings of Fact 1 and 7.
Subordinate to Finding of Fact 1.
Subordinate to Finding of Fact 10.
Accepted in Findings of Fact 1 and 7.
Subordinate to Finding of Fact 1.
Accepted in Findings of Fact 8 and 17.
Subordinate to Findings of Fact 8 and 10.
14-17. Accepted in or Subordinate to Findings of Fact 8 an 13.
18. Accepted in Finding of Fact 9.
19-20. Accepted in Findings of Fact 7, 11, 16 and 17.
Accepted, in part, and rejected, in part, in Findings of Fact 20 and 35.
Accepted in Finding of Fact 11.
Accepted in Finding of Fact 12 and subordinate to Finding of Fact 14.
Subordinate to Finding of Fact 13.
Accepted in Findings of Fact 11 and 16.
Accepted in Findings of Fact 8 and 28.
Subordinate to Finding of Fact 19.
Accepted in Finding of Fact 18.
29-31. Accepted in Findings of Fact 22 and 23.
Accepted in Finding of Fact 25.
Accepted in Finding of Fact 13.
Accepted in Finding of Fact 24.
35-36. Accepted in Findings of Fact 26 and 27.
37. Accepted in Finding of Fact 17.
38-41. Subordinate to Conclusion of Law 43.
42. Accepted in Finding of Fact 17.
43-49. Accepted in or Subordinate to Findings of Fact 24-28.
Accepted in Findings of Fact 11, and 16-19.
Accepted in Finding of Fact 25.
Accepted in Finding of Fact 17.
Accepted in Finding of Fact 28.
54-55. Accepted in Findings of Fact 10 and 19. 56-58. Accepted in Finding of Fact 37.
Accepted in Finding of Fact 39 and Conclusion of Law 48.
Accepted in Finding of Fact 32 and Conclusion of Law 49.
61-62. Accepted in Finding of Fact 6.
63-64. Accepted in Findings of Fact 6 and 37.
65. Accepted in Finding of Fact 6, 16-19.
66-79. Accepted in Finding of Fact 6, 26-28, 36-38.
80-81. Accepted in Finding of Fact 28 and Conclusion of Law 51.
82. Accepted in Conclusion of Law 52.
83-86. Accepted in Finding of Fact 6 and Conclusion of Law 53.
87-89. Accepted in Finding of Fact 33 and Conclusion of Law 54.
90. Accepted, in relevant part, in Findings of Fact 31-33. 91-98. Accepted, in relevant part, in Findings of Fact 34-
35.
COPIES FURNISHED:
Byron B. Mathews, Jr., Attorney 22nd Floor Miami Center
201 South Biscayne Boulevard Miami, Florida 33131
Richard Patterson, Attorney
Agency For Health Care Administration
325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131
Christopher C. Hazelip, Attorney 1301 Gulf Life Drive, Suite 1500
Jacksonville, Florida 32207
R. S. Power, Agency Clerk
Agency for Health Care Administration Atrium Building, 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 ADMINISTRATION
PARACELSUS PENINSULA MEDICAL CENTER, INC.,
Petitioner, CASE NO: 92-5100 CON NO: 6923
vs. RENDITION NO: AHCA-94-85-FOF-CON
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent,
and
MEMORIAL REGIONAL REHABILITATION CENTER, INC. d/b/a MEMORIAL REGIONAL REHABILITATION CENTER,
Intervenor.
/
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 April 21, 1994, by Hearing Officer Eleanor M. Hunter is incorporated by reference.
RULING ON EXCEPTIONS FILED BY AHCA
Counsel notes an apparent typographical error in paragraph 43 in that comprehensive rehabilitation is by statute identified as a tertiary health service. See Section 408.032(19), Florida Statutes. Paragraph 43 is corrected to conform to the statute.
RULING ON EXCEPTIONS FILED BY MEMORIAL
Counsel notes an apparent typographical error in the second sentence of paragraph 28. The sentence is corrected by substituting the word "optimal" for "optional".
Counsel's second exception addresses paragraphs 19 and 41. First, counsel excepts to the implication in those paragraphs that the Petitioner (Peninsula) will seek designation by the state as a spinal cord regional center, a designation which requires a facility to treat at least 40 patients per year with spinal cord injuries. There is no evidentiary support in the record for such an implication; therefore, the implication is rejected. Counsel maintains that the record supports a conclusion that Memorial has standing to participate as a party in this proceeding. I concur. 1/ Memorial proved the following:
That it is an existing facility in the district offering the same services,
That it is under utilized, see paragraph 13,
That up to 1.5 percent of its patient days represent patients from Flagler and Volusia Counties, the Petitioner's service area. See paragraph 16, and
That it treats only marginally more the required minimum number of patients in its spinal cord regional center. See paragraph 44.
A facility seeking intervention is not required to show that its solvency is threatened by the proposed new service or facility. Because the participation of substantially affected persons assists the agency in its decision making role, the right to intervene should be liberally construed. See Humhosco vs. Department of Health and Rehabilitative Services, 561 So2d 388, 392 (Fla. 1st DCA 1990); Manasota vs. Department of Health and Rehabilitative Services, 523 So2d 710 (Fla. 1st DCA 1988). Standing has been established by Memorial.
FINDINGS OF FACT
The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where modified by the rulings on the exceptions.
CONCLUSIONS OF LAW
The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where modified by the rulings on the exceptions.
Based upon the foregoing, it is
ADJUDGED, that the application of Paracelsus Peninsula Medical Center, Incorporated for Certificate of Need 6923 for the conversion of 20 acute care beds to 20 CMR beds be APPROVED.
DONE and ORDERED this 6th day of June, 1994, in Tallahassee, Florida.
Douglas M. Cook, Director Agency for Health Care
Administration
ENDNOTE
1/ Memorial did participate as a party in the proceedings at the Division of Administrative Hearings; thus, the Hearing Officer's conclusion that Memorial failed to establish standing is a harmless error. First Hospital vs. Department of Health and Rehabilitative Services, 589 So2d 310 (Fla. 1st DCA 1991).
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.
Copies furnished to:
Byron B. Mathews, Jr., Esquire McDERMOTT, WILL & EMERY
201 South Biscayne Boulevard Suite 2200
Miami, FL 33131
Richard Patterson, Esquire Senior Attorney, Agency for Health Care Administration
325 John Knox Road
Atrium Building, Suite 301 Tallahassee, FL 32303-4131
Christopher C. Hazelip, Esquire 1301 Gulf Life Drive, Suite 1500
Jacksonville, FL 32207
Eleanor M. Hunter, Hearing Officer The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550 Elizabeth Dudek (AHCA/CON) Alberta Granger (AHCA/CON) Elfie Stamm (AHCA/CON)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail this 7th day of June, 1994.
R. S. Power, Agency Clerk State of Florida, Agency for
Health Care Administration
325 John Knox Road
The Atrium Building, Suite 301 Tallahassee, FL 32303
(904)922-3808
| Issue Date | Proceedings |
|---|---|
| Jun. 07, 1994 | Final Order filed. |
| Apr. 21, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held March 29-31 and April 12-18, 1993. |
| Jan. 13, 1994 | (Petitioner) Second Notice of Supplemental Authority w/attached Final Order filed. |
| Jun. 30, 1993 | Notice of Supplemental Authority filed. (From Byron B. Mathews, Jr.) |
| Jun. 16, 1993 | Proposed Recommended Order filed. (From Byron B. Mathews, Jr.) |
| Jun. 15, 1993 | Respondent`s Proposed Recommended Order filed. |
| Jun. 15, 1993 | Intervenor`s Proposed Recommended Order filed. |
| May 17, 1993 | Transcript (Vols 1-10) filed. |
| Mar. 25, 1993 | Subpoena Ad Testificandum/Duces Tecum w/Affidavit of Service filed. (From Byron B. Mathews, Jr.) |
| Mar. 23, 1993 | Corrected Prefiled Direct Testimony of Expert Witness filed. |
| Mar. 22, 1993 | Joint Prehearing Stipulation filed. |
| Mar. 19, 1993 | Intervenor`s Notice of Filing Pre-Filed Testimony and Prepared Direct Testimony of Sharon M. Gordon-Girvin on Behalf of Memorial Regional Rehabilitation Center, Inc. Intervenor Direct Examination by Christopher C. Hazelip filed. |
| Mar. 19, 1993 | Respondent`s Prefiled Direct Testimony of Expert Witness filed. |
| Mar. 19, 1993 | (Petitioner) Notice of Filing Expert Testimony & Exhibits; Written Testimony of Judith L. Horowitz filed. |
| Mar. 11, 1993 | Notice of Intention to Take Corporation`s Deposition Duces Tecum and Demand for Designation of Representative Deponent: Notice of Taking Deposition Duces Tecum filed. (From Christopher C. Hazelip) |
| Mar. 08, 1993 | Notice of Intention to Take Corporation`s Deposition and Demand for Designation of Representative Deponent; Notice of Taking Deposition filed. |
| Mar. 04, 1993 | Re-Notice of Taking Deposition Duces Tecum filed. (From Byron B. Mathews, Jr.) |
| Feb. 25, 1993 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 23, 1993 | Order Granting Extension of Time to Pre-File Expert Testimony sent out. (motion granted) |
| Feb. 22, 1993 | Joint Motion for Extension of Time to Pre-File Expert Testimony filed. |
| Feb. 01, 1993 | Corrected Prehearing Order sent out. |
| Jan. 28, 1993 | (Petitioner) Motion for Clarification of the Pre-Hearing Order w/Exhibit-1 filed. |
| Jan. 12, 1993 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for March 29-31, 1993; 10:00am; Tallahassee) |
| Jan. 11, 1993 | Intervenor`s Motion for Continuance filed. |
| Jan. 08, 1993 | Respondent`s Notice of Service of Answers to First Set of Interrogatories filed. |
| Jan. 08, 1993 | Notice of Intention to Take Corporation`s Deposition and Demand for Designation of Representative Deponent; Notice of Intention to Take Corporation`s Expert Witnesses` Depositions and Demand for Designation of Representative Deponents filed. |
| Dec. 03, 1992 | Paracelus Peninsula Medical Center, Inc.`s Notice of Service of First Set of Interrogatories on Respondent Agency for Health Care Administration filed. |
| Nov. 30, 1992 | Intervenor`s Notice of Propounding First Set of Interrogatories to Petitioner; Intervenor`s Request for Production of Documents and Tangible Things From Petitioner filed. |
| Nov. 18, 1992 | Intervenor`s Response to Petitioner`s Request for Production; Petitioner`s First Set of Interrogatories to Intervenor Memorial Regional Rehabilitation Center, Inc. filed. |
| Oct. 13, 1992 | Parcelsus Peninsula Medical Center, Inc.`s Notice of Service of First Set of Interrogatories on Intervenor Memorial Regional Rehabilitation Center, Inc. filed. |
| Oct. 13, 1992 | Petitioner's First Request for Production of Documents to Intervenor Memorial Regional Rehabilitation Center, Inc., d/b/a Memorial Regionals Rehabilitation Center; Petitioner's First Set of Interrogatories to Intervenor Memorial Regional Rehabilitation Ce |
| Sep. 18, 1992 | Notice of Hearing sent out. (hearing set for February 17-19, 1992; 10:00am; Tall) |
| Sep. 16, 1992 | (Petitioner) Response to Prehearing Order filed. |
| Sep. 09, 1992 | Order Granting Intervention sent out. (petition to intervene granted) |
| Aug. 31, 1992 | Memorial Regional Rehabilitation Center`s Petition to Intervene filed. |
| Aug. 28, 1992 | Prehearing Order sent out. |
| Aug. 26, 1992 | Notification card sent out. |
| Aug. 25, 1992 | Notice; Petition for Formal Administrative Hearing w/Exhibit-A filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 06, 1994 | Agency Final Order | |
| Apr. 21, 1994 | Recommended Order | No standing if existing hospital in district has no adverse impact; popula- tion age, concentration, travel/medical referral patterns are not normal;CMR |
