STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOUNT SINAI MEDICAL CENTER OF ) GREATER MIAMI, INC., d/b/a ) MOUNT SINAI MEDICAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4755

)

AGENCY FOR HEALTH CARE ) ADMINISTRATION, and MIAMI BEACH ) HEALTHCARE GROUP, LTD., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 13-15, 1994, in Tallahassee, Florida.

APPEARANCES

For Mount Sinai: R. Terry Rigsby

Geoffrey D. Smith

Blank, Rigsby & Meenan, P.A.

204 South Monroe Street Tallahassee, Florida 32302

For AHCA: Lesley Mendelson Senior Attorney

Agency for Health Care Administration

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

For MBHG: Stephen Ecenia

Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A.

215 South Monroe Street, Suite 420 Tallahassee, Florida 32302-0551

STATEMENT OF THE ISSUES

Whether the Agency for Health Care Administration (AHCA or the Agency) should approve the application for certificate of need (CON) 7700 filed by Miami Beach Healthcare Group, LTD. d/b/a Miami Heart Institute (Miami Heart or MH).

PRELIMINARY STATEMENT

On March 23, 1994, Miami Heart submitted an application for a CON to add to the south campus of its facility up to twenty adult psychiatric beds that were

delicensed from its north campus. In effect, MH proposed to transfer the beds from one facility owned by Miami Heart to another of its facilities. This project was identified as CON 7700 by AHCA. The delicensure request was also reviewed and approved as a separate proposal (CON 7474), and that decision has not been challenged.

The State Agency Action Report (SAAR) for CON 7700 was issued on June 28, 1994, and recommended that final agency action be the approval of CON 7700 with the conditions that for each of the first two years of operation Miami Heart would provide 13.6 percent of total projected inpatient adult psychiatric patient days for Medicaid and 2.0 percent of psychiatric patient days for charity care. The Agency incorporated this conditional approval by proposed final order entered July 6, 1994, and notice of that action was published in the Florida Administrative Weekly on July 22, 1994.

Thereafter, Petitioner, Mount Sinai Medical Center of Greater Miami, Inc. d/b/a Mount Sinai Medical Center (Mount Sinai or MS), an existing health care facility doing business in the same service district, timely challenged the Agency's proposed action by filing a petition for formal administrative hearing on July 25, 1994. That petition alleged that Mount Sinai's substantial interests will be affected by the decision to approve CON 7700 and that issues of fact remain as to whether Miami Heart's application is entitled to approval.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 30, 1994. By notice entered on September 27, 1994, the hearing was scheduled for December 12 through 16, 1994. By agreement of the parties, the start of the hearing was delayed to December 13, 1994.

The parties filed a prehearing statement on November 23, 1994. Where pertinent, stipulated findings of fact from that document are incorporated below. The prehearing statement set forth the following as the remaining issues for final hearing:

1. Whether approval of Miami Heart's CON application is precluded by the principles of batched comparative review as set forth in Gulf Court Nursing Center, Inc. v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986) and incorporated in the statutes and rules governing CON review?

   
   

2. Whether the CON application contains "not normal circumstances" which justify approval of the application where the published fixed need pool is zero?

   
   

3. Whether a determination of a numeric need for beds is applicable or relevant to an evaluation of Miami Heart's CON application.

On December 8, 1994, Mount Sinai filed an emergency motion to consolidate and request for expedited hearing followed by a motion for continuance. Such motions related to a challenge to an unpromulgated rule. Petitioner claimed the Agency was relying on an unpromulgated rule in connection with factual matters derived from this case. The motions to consolidate and expedite, as well as to continue were denied.

At the hearing, the Agency presented the testimony of Elizabeth Dudek, chief of the Agency's certificate of need and budget review sections responsible for the oversight of both the CON and budget review programs. Its exhibits numbered 1 through 6 were admitted into evidence.

Dr. Ronald T. Luke, a consultant accepted as an expert in health planning and health care economics testified on behalf of Miami Heart. Its exhibits numbered 1 through 7 were received into evidence. Miami Heart requested, and official recognition was taken, of case law cited in the record.

Mount Sinai presented the testimony of Howard Fagin, a consultant who provides business and financial consultation services to medical and health care professionals, and who was accepted as an expert in health planning and economics; and Elmo Elrod, an employee with the Agency's facility regulation section. Its exhibits numbered 1 through 8 were admitted.

At the conclusion of the hearing, the parties were granted leave to file specific objections to portions of depositions being offered in this cause.

Having considered the objections and responses filed, the deposition testimony of the following individuals has been admitted: Stephen Bernstein, Elizabeth Dudek, Arnold Lieber, Leslie Linevsky, and Douglas Webster. However, any proposed finding of fact submitted solely in reliance on deposition testimony which has been deemed irrelevant or immaterial to this case is so identified in the appendix to this order and has been rejected.

Mount Sinai filed a motion to reopen case or in the alternative motion to supplement the record on January 5, 1995. The request sought to reopen the record for the limited purpose of presenting additional evidence on a proposed rule change which was allegedly published after the conclusion of the final hearing. Having reviewed the motion and the response filed thereto, such motion is denied.

The transcript of the proceedings was filed on January 25, 1995.

Thereafter, the Petitioner, representing all parties had agreed, requested additional time to file proposed recommended orders. By order entered February 1, 1995, such time was extended to February 10, 1995. All parties timely submitted proposed recommended orders. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

Miami Heart's motion to strike Mount Sinai's closing argument and memorandum of law filed on February 13, 1995, is hereby denied.

FINDINGS OF FACT

1. The Agency is the state agency charged with the responsibility of reviewing and taking action on CON applications pursuant to Chapter 408, Florida Statutes.

   
   

2. The applicant, Miami Heart, operates a hospital facility known as Miami Heart Institute which, at the time of hearing, was comprised of a north campus (consisting of 273 licensed beds) and a south campus (consisting of 258 beds) in Miami, Florida.

   
   

3. The two campuses operate under a single license which consolidated the operation of the two facilities. The consolidation of the license was approved by CON 7399 which was issued by the Agency prior to the hearing of this case.

   
   

4. The Petitioner, Mount Sinai, is an existing health care facility doing business in the same service district.

5. On February 4, 1994, AHCA published a fixed need pool of zero adult inpatient psychiatric beds for the planning horizon applicable to this batching cycle. The fixed need pool was not challenged.

   
   

6. On February 18, 1994, Miami Heart submitted its letter of intent for the first hospital batching cycle of 1994, and sought to add twenty adult general inpatient psychiatric beds at the Miami Heart Institute south campus. Such facility is located in the Agency's district 11 and is approximately two

   (2) miles from the north campus.

   
   

7. Notice of that letter was published in the March 11, 1994, Florida Administrative Weekly.

   
   

8. Miami Heart's letter of intent provided, in pertinent part:

   
   

   1. By this letter, Miami Beach Healthcare Group, Ltd., d/b/a Miami Heart Institute announces its intent to file a Certificate of Need Application

      on or before March 23, 1994 for approval to establish 20 hospital inpatient general psychiatric beds for adults at Miami Heart Institute.

   2. Thus, the applicant seeks approval for this project pursuant to Sections 408.036(1)(h), Florida Statutes.

   3. The proposed capital expenditure for this project shall not exceed $1,000,000 and will include new construction and the renovation of existing space.

   4. Miami Heart Institute is located in Local Health Council District 11. There are no subsdistricts

      for Hospital Inpatient General Psychiatric Beds for Adults in District 11. The applicable need formula for Hospital General Psychiatric Beds for Adults is contained within Rule 59C-1.040(4)(c), F.A.C. The Agency published a fixed need of "0" for Hospital General Psychiatric Beds for Adults in District 11 for this batching cycle.

   5. However, "not normal" circumstances exist within District which justify approval of this project. These circumstances are that Miami Beach Community Hospital, which is also owned by Miami Beach Healthcare Group, Ltd., and which has an approved Certificate of Need Application to consol- idate its license with that of the Miami Heart Institute, has pending a Certificate of Need Application to delicense up to 20 hospital inpatient general psychiatric beds for adults. The effect

      of the application, which is the subject of this Letter of Intent, will be to relocate 20 of the delicensed adult psychiatric beds to the Miami Heart Institute.

      
      

   6. Because of the "not normal" circumstances alleged in the Miami Heart letter of intent, the Agency extended a grace period to allow competing letters of intent to be filed. No additional letters of intent were submitted during the grace period.

   7. On March 23, 1994, Miami Heart timely submitted its CON application for the project at issue, CON no. 7700. Notice of the application was published in the April 8, 1994, Florida Administrative Weekly. Such application was deemed complete by the Agency and was considered to be a companion to the delicensure of the north campus beds.

      
      

   8. On July 22, 1994, the Agency published in the Florida Administrative Weekly its preliminary decision to approve CON no. 7700.

      
      

   9. In the same batch as the instant case, Cedars Healthcare Group (Cedars), also in district 11, applied to add adult psychiatric beds to Cedars Medical Center through the delicensure of an equal number of adult psychiatric beds at Victoria Pavilion. Cedars holds a single license for the operation of both Cedars Medical Center and Victoria Pavilion. As in this case, the Agency gave notice of its intent to grant the CON application. Although this "transfer" was initially challenged, it was subsequently dismissed.

      
      

   10. Although filed at the same time (and, therefore, theoretically within the same batch), the Cedars CON application and the Miami Heart CON application were not comparatively reviewed by the Agency. The Agency determined the applicants were merely seeking to relocate their own licensed beds.

       
       

   11. Based upon that determination, MH's application was evaluated in the context of the statutory criteria, the adult psychiatric beds and services rule (Rule 59C-1.040, Florida Administrative Code), the district 11 local health plan, and the 1993 state health plan. Ms. Dudek also considered the utilization data for district 11 facilities.

       
       

   12. Mount Sinai timely filed a petition challenging the proposed approval of CON 7700 and, for purposes of this proceeding only, the parties stipulated that MS has standing to raise the issues remaining in this cause.

       
       

   13. Mount Sinai's existing psychiatric unit utilization is presently at or near full capacity, and MS' existing unit would not provide an adequate, available, or accessible alternative to Miami Heart's proposal, unless additional bed capacity were available to MS in the future through approval of additional beds or changes in existing utilization.

       
       

   14. Miami Heart's proposal to establish twenty adult general inpatient psychiatric beds at its Miami Heart Institute south campus was made in connection with its application to delicense twenty adult general inpatient psychiatric beds at its north campus.

       
       

   15. The Agency advised MH to submit two CON applications: one for the delicensure (CON no. 7474) and one for the establishment of the twenty beds at the south campus (CON no. 7700). The application to delicense the north campus beds was expeditiously approved and has not been challenged.

       
       

   16. As to the application to establish the twenty beds at the south campus, the following statutory criteria are not at issue: Section 408.035(1)(c), (e), (f), (g), (h), (i), (j), (k), (m), (n), (o) and (2)(b) and (e), Florida Statutes. The parties have stipulated that Miami Heart meets, at least minimally, those criteria.

       
       

   17. During 1993, Miami Heart made the business decision to cease operations at its north campus and to seek the Agency's approval to relocate

       beds and services from that facility to other facilities owned by MH, including the south campus.

       
       

   18. Miami Heart does not intend to delicense the twenty beds at the north campus until the twenty beds are licensed at the south campus.

       
       

   19. The goal is merely to transfer the existing program with its services to the south campus. Miami Heart did not seek beds from a fixed need pool.

       
       

   20. Since approximately April, 1993, the Miami Heart north campus has operated with the twenty bed adult psychiatric unit and with a limited number of obstetrical beds.

       
       

   21. The approval of CON no. 7700 will not change the overall total number of adult general inpatient psychiatric beds within the district.

       
       

   22. The adult psychiatric program at MH experiences the highest utilization of any program in district 11, with an average length of stay that is consistent with other adult programs around the state.

       
       

   23. Miami Heart's existing psychiatric program was instituted in 1978. Since 1984, there has been little change in nursing and other staff. The program provides a full continuum of care, with outpatient programs, aftercare, and support programs. Nearly ninety-nine percent of the program's inpatient patient days are attributable to patients diagnosed with serious mental disorders.

       
       

   24. The Miami Heart program specializes in a biological approach to psychiatric cases in the diagnosis and treatment of affective disorders, including a variety of mood disorders and related conditions.

       
       

   25. The Miami Heart program is distinctive from other psychiatric programs in the district. If the MH program were discontinued, the patients would have limited alternatives for access to the same diagnostic and treatment services in the district.

       
       

   26. There are no statutes or rules promulgated which specifically address the transfer of psychiatric beds or services from one facility owned by a health care entity to another facility also owned by the same entity.

       
       

   27. In reviewing the instant CON application, the Agency determined it has the discretion to evaluate each transfer case based upon the review criteria and to consider the appropriate weight factors should be given. Factors which may affect the review include the change of location, the utilization of the existing services, the quality of the existing programs and services, the financial feasibility, architectural issues, and any other factor critical to the review process.

       
       

   28. In this case, the weight given to the numeric need criteria was not significant. The Agency determined that because the transfer would not result in a change to the overall bed inventory, the calculated fixed need pool did not apply to the instant application. In effect, because the calculation of numeric need was inapplicable, this case must be considered "not normal" pursuant to Rule 59C-1.040(4)(a), Florida Administrative Code.

       
       

   29. The Agency determined that other criteria were to be given greater consideration. Such factors were the reasonableness of the proposal, the

       ability to afford access, the applicant's ability to provide a quality program, and the project's financial feasibility.

       
       

   30. The Agency determined that, on balance, this application should be approved as the statutory and other review criteria were met.

       
       

   31. Although put on notice of the other CON applications, Mount Sinai did not file an application for psychiatric beds at the same time as Miami Heart or Cedars. Mount Sinai did not claim that the proposed delicensures and transfers made beds available for competitive review.

       
       

   32. The Agency has interpreted Rule 59C-1.040, Florida Administrative Code, to mean that it will not normally approve an application for beds or services unless the statutory and rule criteria are met, including the need determination criteria.

       
       

   33. There is no list of circumstances which are routinely considered "not normal" by the Agency. In this case, the proposed transfer of beds was, in itself, considered "not normal."

       
       

   34. The approval of Miami Heart's application would allow an existing program to continue. As a result, the overhead to maintain two campuses would be reduced.

       
       

   35. Further, the relocation would allow the program to continue to provide access, both geographically and financially, to the same patient service area. And, since the program has the highest utilization rate of any adult program in the district, its continuation would be beneficial to the area.

       
       

   36. The program has an established referral base for admissions to the facility.

       
       

   37. The transfer is reasonable for providing access to the medically under-served.

       
       

   38. The quality of care, while not in issue, would be expected to continue at its existing level or improve. The transfer would allow better access to ancillary hospital departments and consulting specialists who may be needed even though the primary diagnosis is psychiatric.

       
       

   39. The cost of the transfer when compared to the costs to be incurred if the transfer is not approved make the approval a benefit to the service area.

       
       

   40. If the program is not relocated, Medicaid access could change if the hospital is reclassified from a general facility to a specialty facility.

       
       

   41. The proposed cost for the project does not exceed one million dollars. If the north campus must be renovated, a greater capital expenditure would be expected.

       
       

   42. The expected impact on competition for other providers is limited due to the high utilization for all programs in the vicinity.

       
       

   43. The subject proposal is consistent with the district and state health care plans and the need for health care facilities and services. The services being transferred is an existing program which is highly utilized and which is

       not creating "new beds." As such, the proposal complies with Section 408.035(1)(a), Florida Statutes.

       
       

   44. The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing services in the district will not be adversely affected by the approval of the subject application. The proposed transfer is consistent with, and appropriate, in light of these criteria. Therefore, the proposal complies with Section 408.035(1)(b), Florida Statutes.

       
       

   45. The subject application demonstrates a full continuum of care with safeguards to assure that alternatives to inpatient care are fully utilized when appropriate. Therefore, the availability and adequacy of other services, such as outpatient care, has been demonstrated and would deter unnecessary utilization. Thus, Miami Heart has shown its application complies with Section 408.035(1)(d), Florida Statutes.

       
       

   46. Miami Heart has also demonstrated that the probable impact of its proposal is in compliance with Section 408.035(1)(l), Florida Statutes. The proposed transfer will not adversely impact the costs of providing services, the competition on the supply of services, or the improvements or innovations in the financing and delivery of services which foster competition, promote quality assurance, and cost-effectiveness.

       
       

   47. Miami Heart has taken an innovative approach to promote quality assurance and cost effectiveness. Its purpose, to close a facility and relocate beds (removing unnecessary acute care beds in the process), represents a departure from the traditional approach to providing health care services. By approving Miami Heart's application, overhead costs associated with the unnecessary facility will be eliminated.

       
       

   48. There is no less costly, more efficient alternative which would allow the continuation of the services and program Miami Heart has established at the north campus than the approval of transfer to the south campus. The MH proposal is most practical and readily available solution which will allow the north campus to close and the beds and services to remain available and accessible.

       
       

   49. The renovation of the medical surgical space at the south campus to afford a location for the psychiatric unit is the most practical and readily available solution which will allow the north campus to close and the beds and services to remain available and accessible.

       
       

   50. In totality, the circumstances of this case make the approval of Miami Heart's application for CON no. 7700 the most reasonable and practical solution given the "not normal" conditions of this application.

       
       

       CONCLUSIONS OF LAW

       
       

   51. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

       
       

   52. The applicant has the burden of proof to establish its entitlement to the requested CON. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985).

   53. It is well settled that approval of a CON must be based upon a balanced consideration of relevant statutory and rule criteria, with no single criterion being necessarily determinative. See St. Joseph's Hospital v. Department of Health and Rehabilitative Services, 536 So.2d 346 (Fla. 1st DCA 1988) and Department of Health and Rehabilitative Services v. Johnson & Johnson Home Health Care, Inc., 447 So.2d 361 (Fla. 1st DCA 1984).

       
       

   54. The appropriate weight to be given each individual criterion is not fixed, but is reviewed on a case-by-case basis, with the facts in each case being considered. North Ridge General Hospital, Inc. v. NME Hospitals, Inc.,

       478 So.2d 1138 (Fla. 1st DCA 1985) and Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985).

       
       

   55. The parties, by stipulation, have limited the review criteria at issue in this proceeding.

       
       

   56. As pertinent to the remaining issues of this case, Section 408.035, Florida Statutes, provides:

       
       

       Review criteria.

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

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

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

             * * *

             (d) The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant, such as outpatient care and ambulatory or home care services, which may serve as alternatives for

             the health care facilities and services to be provided by the applicant.

             * * *

             (l) The probable impact of the proposed project on the costs of providing health services proposed by the applicant, upon consideration of factors including, but not limited to, the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost-effectiveness.

             * * *

       2. In cases of capital expenditure proposals for the provision of new health services to inpatients, the department shall also reference each of the following in its findings of fact:

          1. That less costly, more efficient, or more appropriate alternatives to such inpatient services are not available and the development of such alternatives has been studied and found not practicable.

             * * *

             1. In the case of new construction, that alternatives to new construction, for example, modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable.

             2. That patients will experience serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service.

             
             

   57. With regard to the criteria found in Section 408.035(1), Florida Statutes, the applicant has established it complies with such provisions. The existing program at MH's north campus is successful. The proposed relocation of that program is consistent with the district and state health care plans and the need for health care facilities and services.

       
       

   58. The program to be relocated is highly utilized. No "new" beds will be created by the approval of this relocation. [See Section 408.035(1)(a), Florida Statutes.]

       
       

   59. The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing services in the district will not be adversely affected by the approval of the subject application. Again, the relocation of the existing program will not adversely impact the utilization currently experienced by the applicant or other providers. The program will remain available, its quality of care will remain at its high level (or improve because of the availability of ancillary services), and existing services will not be adversely impacted (there is no evidence that they are currently damaged by this program). [See Section 408.035(1)(b), Florida Statutes.]

       
       

   60. The subject application demonstrates a full continuum of care with safeguards to assure that alternatives to inpatient care are fully utilized when appropriate. In fact, the inpatient utilization (length of stay, for example) is consistent with other programs in the state. Therefore, the availability and adequacy of other services, such as outpatient care, have been demonstrated.

       The relocation of its program should deter unnecessary utilization. [See Section 408.035(1)(d), Florida Statutes.]

       
       

   61. The proposed transfer will not adversely impact the costs of providing services, the competition on the supply of services, or the improvements or innovations in the financing and delivery of services which foster competition, promote quality assurance, and cost-effectiveness. If anything, the relocation should result in lower costs of operation which may result in improved efficiency and expense. [See Section 408.035(1)(l), Florida Statutes.]

       
       

   62. With regard to the criteria found in Section 408.035(2), Florida Statutes, such provision applies to capital expenditure proposals for the

       provision of new health services to inpatients. In this case, the Agency has determined, and it is concluded, that no "new" beds or services will be granted by the approval of this CON.

   63. However, Section 408.032(1), Florida Statutes, provides, in part: "Capital expenditure" means an expenditure,

       including an expenditure for a construction

       project undertaken by a health care facility as its own contractor, which, . . . changes the bed capacity of the facility, . . . and

       which includes the cost of the studies, surveys, designs, plans, working drawings, specifications, initial financing costs, and other activities essential to acquisition, improvement, expansion, or replacement of the plant and equipment. [Emphasis added.]

       
       

   64. Accordingly, to the extent Section 408.035(2), Florida Statutes, may be deemed applicable, it is found that the subject proposal comports with the criteria of that provision. It is concluded that there is no less costly, more efficient, or more appropriate alternative to the applicant's proposal. Miami Heart has proposed an innovative approach to reducing overhead and unnecessary facilities by consolidating the twenty bed unit at the south campus. The patients utilizing the program and services should experience no serious problem in obtaining the continued services but could encounter difficulties if the program is not relocated.

       
       

   65. Rule 59C-1.040, Florida Administrative Code, addresses the creation of new beds. It does not speak to the relocation of beds as contemplated in this case nor does the applicant seek to convert one type of beds to create new psychiatric beds. Accordingly, it is concluded that since no "new" beds or services will be granted by the approval of this CON, such rule is not applicable.

       
       

   66. However, to the extent Rule 59C-1.040, Florida Administrative Code, may be deemed applicable, it is found that the subject proposal comports with the criteria of that provision.

       
       

   67. Rule 59C-1.040(3)(f), Florida Administrative Code, provides, in part:

       
       

       Conformance with the Criteria for Approval. A certificate of need for the establishment of new hospital inpatient general psychiatric services, or the expansion of existing services by addition of beds, shall not normally be approved unless the applicant meets the applicable review criteria in section 408.035, F.S., and the standards and need determination criteria set forth in this rule.

       
       

   68. The criteria referenced above are set forth in Rule 59C-1.040(4), Florida Administrative Code, and provide, in part:

       
       

       (a) Bed Need. A favorable need determination for proposed new or expanded hospital inpatient general psychiatric services shall not normally be made

       unless a bed need exists according to the numeric need methodology specified in paragraphs (4)(c) or (4)(f) of this rule.

       
       

   69. While the proposed relocation of beds does not fall within a calculated need, the applicant has established that the transfer does not create new beds, and that the transfer proposed is, in itself, a "not normal" situation.

       
       

   70. In this case, the applicant followed the recommendation of the Agency and proposed to relocate the subject beds by delicensing the north campus beds in conjunction with the proposed licensing at the south campus. No new beds are created by the transfer and no useful purpose would result from applying the need methodology to the instant case.

       
       

   71. The Petitioner argues that by failing to return the twenty beds to the fixed need pool, it has been denied the opportunity to seek and to be comparatively reviewed for such beds. Citing Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986), Mount Sinai maintains that the Agency erred in allowing the applicant to be reviewed against the criteria discussed above. Gulf Court does not apply to this case.

       
       

   72. First, in order for Gulf Court to apply, Mount Sinai would have to be an applicant for the beds at issue. In this case, Mount Sinai did not apply for the beds. Despite being aware of the applicant's claim and theory for making the application, Mount Sinai did not file an application for the beds to be relocated. A comparative review can only be made where two entities vie for the same beds. The Agency did not deny Mount Sinai the opportunity to apply for beds with this batch. In fact, the time to file a letter of intent was extended to allow applicants to respond to this applicant's proposal.

       
       

   73. Secondly, had Mount Sinai challenged the fixed need pool calculation, and asserted the Agency should have made the delicensed beds from the north campus available, the Petitioner would have had a second point of entry to dispute the Agency's action. In this case, no one challenged the fixed need pool.

       
       

   74. Finally, Mount Sinai does not have an application for beds in any batch. As no new beds were created or authorized, only the applicant's ability to comply with the criteria cited above need be considered.

       
       

   75. As the proposed relocation of beds is a not normal circumstance with no new beds, services or programs being created, the applicant has demonstrated it is entitled to the approval of CON 7700.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Agency for Health Care Administration enter a final order approving CON 7700 as recommended in the SAAR.

DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 5th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4755

Note: Proposed findings of fact are to contain one essential fact per numbered paragraph. Proposed findings of fact paragraphs containing multiple sentences with more than one statement of fact are difficult to review. In reviewing for this case, where all sentences were accurate and supported by the recorded cited, the paragraph has been accepted. If the paragraph contained mixed statements where one sentence was an accurate statement of fact but the others were not, the paragraph has been rejected. Similarly, if one sentence was editorial comment, argument, or an unsupported statement to a statement of fact, the paragraph has been rejected.

Proposed findings of fact should not include argument, editorial comments, or statements of fact mixed with such comments.

Rulings on the proposed findings of fact submitted by Petitioner, Mount Sinai:

Paragraphs 1 through 13 were cited as stipulated facts.

1. Paragraph 14 is rejected as irrelevant.

2. With regard to paragraph 15 it is accepted that Miami Heart made the business decision to move the psychiatric beds beds from the north campus to the south campus. Any inference created by the remainder of the paragraph is rejected as irrelevant.

3. Paragraph 16 is rejected as irrelevant.

4. Paragraph 17 is rejected as irrelevant.

5. Paragraph 18 is accepted.

6. Paragraph 19 is rejected as irrelevant.

7. Paragraph 20 is rejected as contrary to the weight of the credible evidence.

8. Paragraph 21 is rejected as contrary to the weight of the credible evidence.

9. Paragraph 22 is accepted.

10. Paragraph 23 is rejected as irrelevant.

11. Paragraph 24 is accepted.

12. Paragraph 25 is rejected as repetitive, or immaterial, unnecessary to the resolution of the issues.

13. Paragraph 26 is rejected as irrelevant or contrary to the weight of the credible evidence.

14. Paragraph 27 is rejected as comment or conclusion of law, not fact.

15. Paragraph 28 is accepted but not relevant.

16. Paragraphs 29 and 30 are accepted.

17. Paragraphs 31 through 33 are rejected as argument, comment or irrelevant.

18. Paragraph 34 is rejected as comment or conclusion of law, not fact.

19. Paragraph 35 is rejected as comment or conclusion of law, not fact, or irrelevant as the FNP was not in dispute.

20. Paragraph 36 is rejected as irrelevant.

21. Paragraph 37 is rejected as repetitive, or comment.

22. Paragraph 38 is rejected as repetitive, comment or conclusion of law, not fact, or irrelevant.

23. Paragraph 39 is rejected as argument or contrary to the weight of credible evidence.

24. Paragraph 40 is accepted.

25. Paragraph 41, 42, and 43 are rejected as contrary to the weight of the credible evidence and/or argument.

26. Paragraph 44 is rejected as argument and comment on the testimony.

27. Paragraph 45 is rejected as argument, irrelevant, and/or not supported by the weight of the credible evidence.

28. Paragraph 46 is rejected as argument.

29. Paragraph 47 is rejected as comment or conclusion of law, not fact.

30. Paragraph 48 is rejected as comment, argument or irrelevant.

31. Paragraph 49 is rejected as comment on testimony. It is accepted that the proposed relocation or transfer of beds is a "not normal" circumstance.

32. Paragraph 50 is rejected as argument or irrelevant.

33. Paragraph 51 is rejected as argument or contrary to the weight of credible evidence.

34. Paragraph 52 is rejected as argument or contrary to the weight of credible evidence.

35. Paragraph 53 is rejected as argument, comment or recitation of testimony, or contrary to the weight of credible evidence.

36. Paragraph 54 is rejected as irrelevant or contrary to the weight of credible evidence.

37. Paragraph 55 is rejected as irrelevant, comment, or contrary to the weight of credible evidence.

38. Paragraph 56 is rejected as irrelevant or argument.

39. Paragraph 57 is rejected as irrelevant or argument.

40. Paragraph 58 is rejected as contrary to the weight of credible evidence.

41. Paragraph 59 is rejected as irrelevant.

42. Paragraph 60 is rejected as contrary to the weight of credible evidence.

43. Paragraph 61 is rejected as argument or contrary to the weight of credible evidence.

44. Paragraph 62 is rejected as argument or contrary to the weight of credible evidence.

45. Paragraph 63 is accepted.

46. Paragraph 64 is rejected as irrelevant. Mount Sinai could have filed in this batch given the not normal circumstances disclosed in the Miami Heart notice.

47. Paragraph 65 is rejected as irrelevant.

48. Paragraph 66 is rejected as comment or irrelevant.

49. Paragraph 67 is rejected as argument or contrary to the weight of credible evidence.

50. Paragraph 68 is rejected as argument or irrelevant.

51. Paragraph 69 is rejected as argument, comment or irrelevant.

52. Paragraph 70 is rejected as argument or contrary to the weight of credible evidence.

Rulings on the proposed findings of fact submitted by the Respondent, Agency:

1. Paragraphs 1 through 6 are accepted.

2. With the deletion of the words "cardiac catheterization" and the inclusion of the word "psychiatric beds" in place, paragraph 7 is accepted. Cardiac catheterization is rejected as irrelevant.

3. Paragraph 8 is accepted.

4. The second sentence of paragraph 9 is rejected as contrary to the weight of credible evidence or an error of law, otherwise, the paragraph is accepted.

5. Paragraph 10 is accepted.

6. Paragraphs 11 through 17 are accepted.

7. Paragraph 18 is rejected as conclusion of law, not fact.

8. Paragraphs 19 and 20 are accepted.

9. The first two sentences of paragraph 21 are accepted; the remainder rejected as conclusion of law, not fact.

10. Paragraph 22 is rejected as comment or argument.

11. Paragraph 23 is accepted.

12. Paragraph 24 is rejected as argument, speculation, or irrelevant.

13. Paragraph 25 is accepted.

Rulings on the proposed findings of fact submitted by the Respondent, Miami Heart:

1. Paragraphs 1 through 13 are accepted.

2. The first sentence of paragraph 14 is accepted; the remainder is rejected as contrary to law or irrelevant since MS did not file in the batch when it could have.

3. Paragraph 15 is accepted.

4. Paragraph 16 is accepted as the Agency's statement of its authority or policy in this case, not fact.

5. Paragraphs 17 through 20 are accepted.

6. Paragraph 21 is rejected as irrelevant.

7. Paragraph 22 is rejected as irrelevant.

8. Paragraphs 23 through 35 are accepted.

9. Paragraph 36 is rejected as repetitive.

10. Paragraphs 37 through 40 are accepted.

11. Paragraph 41 is rejected as contrary to the weight of the credible evidence to the extent that it concludes the distance to be one mile; evidence deemed credible placed the distance at two miles.

12. Paragraphs 42 through 47 are accepted.

13. Paragraph 48 is rejected as comment.

14. Paragraphs 49 through 57 are accepted.

COPIES FURNISHED:

Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

R. Terry Rigsby Geoffrey D. Smith Wendy Delvecchio

Blank, Rigsby & Meenan, P.A.

204 S. Monroe Street Tallahassee, Florida 32302

Lesley Mendelson Senior Attorney

Agency for Health Care Administration

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

Stephen Ecenia

Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A.

215 South Monroe Street Suite 420

Tallahassee, Florida 32302-0551

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 94-004755CON

Orders for Case No: 94-004755CON