The Issue Whether HRS should revoke respondent Sprayberry's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?
Findings Of Fact The parties are in apparent agreement that respondent Wiley R. Sprayberry has held emergency medical technician certification No. JT 004523, at all pertinent times. Warranted Search It was freezing cold at about ten o'clock on the night of February 13, 1986, when Eric Adams, Kenneth Allen Tate, Jerry Eldridge and Jesse Joyner, all of the Holmes County Sheriff's Department, arrived to execute a search warrant at the "ambulance shack," the building that Holmes County emergency medical technicians occupied between ambulance runs. The warrant issued earlier the same day, on the strength of an affidavit Wilburn G. Baker had executed that morning at the state attorney's office. (T. 343-4). Mr. Baker's visit to the state attorney's office followed a stormy meeting of the Holmes County Ambulance Service emergency medical technicians. During one such meeting Mr. Baker told Messrs. Sprayberry and Cullifer "that he wished neither one of them had worked there . . . " (T. 195) Wilburn Baker had begun working for the Holmes County Ambulance Service sometime after he obtained his own certification as an emergency medical technician in 1978, and was already on board when Wiley R. Sprayberry began, in 1983. Mr. Baker took over as director of the Service when Mr. Cullifer "stepped down on his own" (T. 207) in 1985. Affidavit and warrant notwithstanding, a motion to suppress evidence obtained in the February 13, 1986 search was later granted in the criminal proceeding in which Messrs. Sprayberry and Cullifer were accused of marijuana possession on that night. The criminal prosecution was subsequently abandoned altogether. Apparently, however, on the night of the search, the authorities did not foresee these developments. They had, indeed, invited television crews and other media representatives to be on hand to witness them apprehend the respondents, whom Mr. Baker assured them they would find in possession of marijuana. Gunfire In Winter As law enforcement personnel, including a dog handler, gathered outside, Messrs. Cullifer and Sprayberry lay in beds inside the ambulance shack, covers drawn, watching a television news program. They had returned not long before from taking a Mr. Whitaker to Dothan. Among those outside the ambulance shack was Mr. Baker. Some hours before the fact (T. 349), the sheriff's office told him when the search was to take place, so that other ambulance attendants could fill in for the respondent and Mr. Sprayberry when they were arrested. After knocking and announcing their intention to execute a search warrant, Officers Adams, Tate and Eldridge entered the ambulance shack. Mr. Sprayberry remained in bed during the reading of the search warrant, but Mr. Cullifer took the opportunity to get dressed. Mr. Cullifer followed Officer Adams outside. As they walked with Officer Tate toward Mr. Cullifer's black Jeep, Officer Adams asked for the keys to the vehicle. Mr. Cullifer answered that "it's not even locked, anybody could have put anything . . . in there." (T. 371) Although the Jeep, "a hunting type vehicle," (T. 263) was capable of being locked, "you could pick the door up and s[e]t it off" (T. 272) and Mr. Cullifer never locked it when he parked it outside the ambulance shack. Instead of giving Officer Adams the keys, respondent Cullifer opened the unlocked door of the Jeep, got inside, inserted a key in the ignition lock, and started the engine. Standing beside the driver's seat and facing him, Officer Adams reached for the keys with his left hand, but Cullifer drove forward, knocking Adams backward, although not down. When his orders to halt went, unheeded, Officer Adams fired three shots. A bullet lodged in the back of the driver's seat as the Jeep sped from sight. Bag Plus Partial Cigarette In reaching (unsuccessfully) for the car keys, Officer Adams spotted a large, transparent bag under the driver's seat containing a "[g]reen leafy substance" (T. 13) that resembled marijuana. It was on account of this that he felt justified in firing on Mr. Cullifer, whom he took to be a fleeing felon. Whether the bag was of the "Zip-Loc" type he could not determine. Perhaps five minutes after he left, Mr. Cullifer returned, to be greeted by Officer Tate who wrestled him to the ground and handcuffed him. In the ensuing search of the Jeep, Officers Tate and Joyner "found a roach and all sorts of residue of marijuana." (T. 15) Partial Cigarette Only Meanwhile, inside the ambulance shack, respondent Sprayberry had decided to get dressed after all. He had just buckled his belt when he heard gunshots outside. Curious, he started for the door, only to have Officer Eldridge slam him against the wall. He was leaning against the wall, arms outstretched, when the telephone rang. Somebody from the hospital wanted to know what was happening at the ambulance shack. Still inside the ambulance shack, Mr. Sprayberry was asked for the keys to his car. Saying they were not needed since he had left his car unlocked, Mr. Sprayberry nevertheless threw his keys to a sheriff's officer. In fact, however, the Sprayberry car was locked when Officer Adams had tried to gain access before going for the key. A search of Mr. Sprayberry's car yielded "cannabis traces," (T. 15) in the form of a partial marijuana cigarette or "roach." No Other Link To Sprayberry With the help of a specially trained dog, sheriff's officers also searched the ambulance shack. Officer Tate recalled the dog's signalling suspiciously while sniffing a certain filing cabinet drawer, but nobody even opened the drawer at the time. Except inside the vehicles, no marijuana was found. City police arrived in response to reports of gunfire. "[T]here w[ere] cameras everywhere and lights everywhere." (T. 311) Mr. Baker, among others, was interviewed by the press, but he was unable to say at hearing whether a newspaper had quoted him correctly to the effect that the arrests came as a surprise to him. (T. 350-354) During the years he had known them, Mr. Baker never saw either Mr. Cullifer or Mr. Sprayberry in possession of marijuana. (T. 158). He nevertheless came to believe that they used marijuana, or so he testified. This belief he claimed sprung from statements he attributed to Mr. Cullifer, who denied making them, and which did not pertain to Mr. Sprayberry, in any event; and from leafy matter and paraphernalia Mr. Baker said he found at the ambulance shack. But emergency medical technician Robert Mitchell Taylor, who has worked for the Holmes County Ambulance Service for nine years, testified that he never saw "any indication that anybody had possessed marijuana at the ambulance shack." (T. 197) Donnie Ray Brock, a paramedic who worked for the Holmes County Ambulance Service from '78 or '9, through '86 sometime" (T. 204) testified that, during his employment there, he never had reason to believe that Messrs. Cullifer or Sprayberry "possessed marijuana while at the ambulance shack." (T. 205-6) Judith Sharon Braxton, aside from Messrs. Baker, Cullifer and Sprayberry, the only other Holmes County Ambulance Service employee who testified, said she had never seen Mr. Cullifer or Mr. Sprayberry in possession of marijuana, although she conceded she probably would not recognize marijuana if she saw it. (T. 216) Attending a Patient On February 7, 1986, respondents transported a 79 year-old man from the hospital in Bonifay to Bay Memorial Medical Center in Panama City. As they left Doctors Memorial Hospital shortly after five o'clock in the afternoon, Mary Elizabeth "Libby" Streep Kolmetz, R.N., Director of Nurses, noticed that "down to the corner, they both remained in the front seat." (T. 73) Mr. Sprayberry was driving. She saw Mr. Cullifer in the other front seat for one or two minutes, including 30 to 60 seconds that elapsed before the ambulance began its journey. The ambulance is "basically a regular van with . . high-top roof . . . [t]wo bucket seats in the front and a sliding door in the middle for the EMT's to go back and forth through." (T. 231) Because the sliding door is routinely locked open, an attendant seated on the edge of the passenger's seat can see and hear the patient while he is on the radio. Not uncommonly the attendant remained in the front seat for a minute or two as the ambulance set out, in order to communicate by radio with Doctors Memorial or Holmes County Ambulance Service. A critical electrical cord attached to the only radio that worked was long enough that the attendant could have stood somewhat closer to the patient, but it was unsafe to stand. Although the driver might have operated the radio, this was not customary. The evidence did not show that Mr. Sprayberry's performance on February 7, 1986, departed from any standard of care or acceptable practice. Mr. Cullifer's testimony that he only left patients "to make a radio transmission" (T. 237) keeping an eye on them even then, and that he did not "stay away from a patient over two or three minutes," id., has been credited. The record made of the 79-year old passenger's vital signs on February 7, 1986, does not prove otherwise. While this record reflects minimal variation in blood pressure during the 50-minute trip, the reported pulse rates vary more, and the reported rates of respiration show still more variation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS dismiss the administrative complaint filed against Wiley R. Sprayberry. DONE and ENTERED this 11th day of August, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division Administrative Hearings this 11th day of August, 1988. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 4 is not supported by the record cited. Petitioner's proposed finding of fact No. 8 has been adopted, in substance, insofar as material, except for the characterization of the bag as "Ziplock." Petitioner's proposed finding of fact No. 10 has been adopted, in substance, except as regards where the shots were aimed and where the bullets lodged. The last sentence of petitioner's proposed finding of fact No. 17 has not been adopted, despite testimony to this effect, because using the radio could distract the driver. Petitioner's proposed findings of fact Nos. 18 and 19 are rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 20, no evidence supported the allegation that Cullifer had given marijuana to Sherri Pate. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 20, 21 and 22 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not clearly and convincingly rule out the possibility that Baker planted the marijuana cigarettes. Respondent's proposed finding of fact No. 7 is consistent with the evidence, but raises the question why he would be "frightened by the presence of police officers." With respect to respondent's finding of fact No. 9, nobody corroborated Baker's allegation of marijuana use or possession by respondent at any time other than February 13, 1986. Respondent's proposed finding of fact No. 15 is immaterial. With respect to respondent's proposed finding of fact No. 19, the cord would not reach far enough to allow the attendant to sit in the patient compartment. Respondent's proposed finding of fact No. 23 is rejected as unsupported by the evidence. COPIES FURNISHED: JOHN R. PERRY 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 BONNIE K. ROBERTS P. O. BOX 667 BONIFAY, FLORIDA 32425 GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700
The Issue Whether HRS should revoke respondent Cullifer's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?
Findings Of Fact At one time, James E. Cullifer had charge of the Holmes County Ambulance Service in Bonifay. The parties are in apparent agreement that he has held emergency medical technician certification No. JT 0003257, at all pertinent times. Search Warranted It was freezing cold at about ten o'clock on the night of February 13, 1986, when Eric Adams, Kenneth Allen Tate, Jerry Eldridge and Jesse Joyner, all of the Holmes County Sheriff's Department, arrived to execute a search warrant at the "ambulance shack," the building that Holmes County emergency medical technicians occupied between ambulance runs. The warrant issued earlier the same day, on the strength of an affidavit Wilburn G. Baker had executed that morning at the state attorney's office. (T. 343-4). Mr. Baker's visit to the state attorney's office followed a stormy meeting of the Holmes County Ambulance Service emergency medical technicians. During one such meeting Mr. Baker told Messrs. Sprayberry and Cullifer "that he wished neither one of them had worked there . . . " (T. 195) Wilburn Baker, who obtained his certification as an emergency medical technician in 1978, took over as director of the Holmes County Ambulance Service when Mr. Cullifer "stepped down on his own" (T. 207) in 1985. Mr. Baker was already on board when Wiley R. Sprayberry began, in 1983. Affidavit and warrant notwithstanding, a motion to suppress evidence obtained in the February 13, 1986 search was later granted in the criminal proceeding in which Messrs. Sprayberry and Cullifer were accused of marijuana possession on that night. The criminal prosecution was subsequently abandoned altogether. Apparently, however, on the night of the search, the authorities did not foresee these developments. They had, indeed, invited television crews and other media representatives to be on hand to witness them apprehend the respondents, whom Mr. Baker assured them they would find in possession of marijuana. Gunfire But No Bloodshed As law enforcement personnel, including a dog handler, gathered outside, Messrs. Cullifer and Sprayberry lay in beds inside the ambulance shack, covers drawn, watching a television news program. They had returned not long before from taking a Mr. Whitaker to Dothan. Among those outside the ambulance shack was Mr. Baker. Some hours before the fact (T. 349), the sheriff's office told him when the search was to take place, so that other ambulance attendants could fill in for the respondent and Mr. Sprayberry when they were arrested. After knocking and announcing their intention to execute a search warrant, Officers Adams, Tate and Eldridge entered the ambulance shack. Mr. Sprayberry remained in bed during the reading of the search warrant, but Mr. Cullifer took the opportunity to get dressed. Mr. Cullifer followed Officer Adams outside. As they walked with Officer Tate toward Mr. Cullifer's black Jeep, Officer Adams asked for the keys to the vehicle. Mr. Cullifer answered that "it's not even locked, anybody could have put anything . . . in there." (T. 371) Although the Jeep, "a hunting type vehicle," (T. 263) was capable of being locked, "you could pick the door up and s[e]t it off" (T. 272) and Mr. Cullifer never locked it when he parked it outside the ambulance shack. Instead of giving Officer Adams the keys, respondent Cullifer opened the unlocked door of the Jeep, got inside, inserted a key in the ignition lock, and started the engine. Standing beside the driver's seat and facing him, Officer Adams reached for the keys with his left hand, but Cullifer drove forward, knocking Adams backward, although not down. When his orders to halt went unheeded, Officer Adams fired three shots. A bullet lodged in the back of the driver's seat as the Jeep sped from sight. Cannabis Traces In reaching (unsuccessfully) for the car keys, Officer Adams spotted a large, transparent bag under the driver's seat containing a "[g]reen leafy substance" (T. 13) that resembled marijuana. It was on account of this that he felt justified in firing on Mr. Cullifer, whom he took to be a fleeing felon. Whether the bag was of the "Zip-Loc" type he could not determine. Perhaps five minutes after he left, Mr. Cullifer returned, to be greeted by Officer Tate who wrestled him to the ground and handcuffed him. In the ensuing search of the Jeep, Officers Tate and Joyner "found a roach and all sorts of residue of marijuana." (T. 15) Meanwhile, inside the ambulance shack, respondent Sprayberry had decided to get dressed after all. He had just buckled his belt when he heard gunshots outside. Curious, he started for the door, only to have Officer Eldridge slam him against the wall. He was leaning against the wall, arms outstretched, when the telephone rang. Somebody from the hospital wanted to know what was happening at the ambulance shack. Still inside the ambulance shack, Mr. Sprayberry was asked for the keys to his car. Saying they were not needed since he had left his car unlocked, Mr. Sprayberry nevertheless threw his keys to a sheriff's officer. In fact, however, the Sprayberry car was locked when Officer Adams tried to gain access before going for the key. A search of Mr. Sprayberry's car yielded "cannabis traces," (T. 15) in the form of a cigarette butt or roach. With the help of a specially trained dog, sheriff's officers also searched the ambulance shack. Officer Tate recalled the dog's signalling suspiciously while sniffing a certain filing cabinet drawer, but nobody even opened the drawer at the time. Except inside the vehicles, no marijuana was found. City police arrived in response to reports of gunfire. "[T]here w[ere] cameras everywhere and lights everywhere." (T.311) Mr. Baker, among others, was interviewed by the press, but he was unable to say at hearing whether a newspaper had quoted him correctly to the effect that the arrests came as a surprise to him. (T. 350-354) During the years he had known them, Mr. Baker never saw either Mr. Cullifer or Mr. Sprayberry in possession of marijuana. (T. 158). He nevertheless came to believe that they used marijuana, or so he testified. This belief he claimed sprung from statements he attributed to Mr. Cullifer, who denied making them, and from leafy matter and paraphernalia he said he found at the ambulance shack. But emergency medical technician Robert Mitchell Taylor, who has worked for the Holmes County Ambulance Service for nine years, testified that he never saw "any indication that anybody had possessed marijuana at the ambulance shack." (T. 197) Donnie Ray Brock, a paramedic who worked for the Holmes County Ambulance Service from `78 or `9, through `86 sometime (T. 204) testified that, during his employment there, he never had reason to believe that Messrs. Cullifer or Sprayberry "possessed marijuana while at the ambulance shack." (T. 205-6) Judith Sharon Braxton, aside from Messrs. Baker, Cullifer and Sprayberry, the only other Holmes County Ambulance Service employee who testified, said she had never seen Mr. Cullifer or Mr. Sprayberry in possession of marijuana, although she conceded she probably would not recognize marijuana if she saw it. (T. 216) Attending a Patient On February 7, 1986, respondents transported a 79 year- old man from the hospital in Bonifay to Bay Memorial Medical Center in Panama City. As they left Doctors Memorial Hospital shortly after five o'clock in the afternoon, Mary Elizabeth "Libby" Streep Kolmetz, R.N., Director of Nurses, noticed that "down to the corner, they both remained in the front seat." (T. 73) Mr. Sprayberry was driving. She saw Mr. Cullifer in the other front seat for one or two minutes, including 30 to 60 seconds that elapsed before the ambulance began its journey. The ambulance is "basically a regular van with . . high-top roof . . . [t]wo bucket seats in the front and a sliding door in the middle for the EMT's to go back and forth through." (T. 231) Because the sliding door is routinely locked open, an attendant seated on the edge of the passenger's seat can see and hear the patient while he is on the radio. Not uncommonly the attendant remained in the front seat for a minute or two as the ambulance set out, in order to communicate by radio with Doctors Memorial or Holmes County Ambulance Service. The cord of the only radio that worked was long enough that the attendant could have stood somewhat closer to the patient, but it was unsafe to stand. Although the driver might have operated the radio, this was not customary. The evidence did not show that Mr. Cullifer's performance on February 7, 1986, departed from any standard of care or acceptable practice. Mr. Cullifer's testimony that he only left patients "to make a radio transmission" (T. 237) keeping an eye on them even then, and that he did not "stay away from a patient over two or three minutes," id., has been credited. The record made of the 79-year old passenger's vital signs on February 7, 1986, does not prove otherwise. While this record reflects minimal variation in blood pressure during the 50-minute trip, the reported pulse rates vary more, and the reported rates of respiration show still more variation. Pate Deposition No evidence supports the allegation that respondent Cullifer gave Sherri Pate marijuana. Objection to the use of Ms. Pate's deposition, which was taken in the criminal case, was sustained, although a proffer was allowed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS suspend James E. Cullifer's certificate as an emergency medical technician for thirty (30) days. DONE and ENTERED this 11th day of August, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 11th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3943 Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 4 is not supported by the record cited. Petitioner's proposed finding of fact No. 8 has been adopted, in substance, insofar as material, except for the characterization of the bag as "Ziplock." Petitioner's proposed finding of fact No. 10 has been adopted, in substance, except as regards where the shots were aimed and where the bullets lodged. The last sentence of petitioner's proposed finding of fact No. 17 has not been adopted, despite testimony to this effect, because using the radio could distract the driver. Petitioner's proposed findings of fact Nos. 18 and 19 are rejected as unsupported by the weight of the evidence. Petitioner's proposed findings of fact Nos. 18 and 19 . are rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 20, no evidence supported the allegation that Cullifer had given marijuana to Sherri Pate. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 20, 21 and 22 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not clearly and convincingly rule out the possibility that Baker planted the marijuana cigarettes. Respondent's proposed finding of fact No. 7 is consistent with the evidence, but raises the question why he would be "frightened by the presence of police officers." With respect to respondent's finding of fact No .9, nobody corroborated Baker's allegation of marijuana use or possession by respondent at any time other than February 13, 1986. Respondent's proposed finding of fact No. 15 is immaterial. With respect to respondent's proposed, finding of fact No. 19, the cord would not reach far enough to allow the attendant to sit in the patient compartment. Respondent's proposed finding of fact No. 23 is rejected as unsupported by the evidence. COPIES FURNISHED: John R. Perry 2639 North Monroe Street Tallahassee, Florida 32303 Bonnie R. Roberts Post Office Box 667 Bonifay, Florida 32425 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact David Kelly, certified since 1973 as an emergency medical technician and as an ambulance driver, does business as Franklin Ambulance Service, under contract to the Franklin County Commission. Franklin Ambulance Service held ambulance service license No. 221 from February 2, 1982, through February 1, 1983. An application for renewal of this license, dated January 19, 1983, has been filed with petitioner Department of Health and Rehabilitative Services (HRS). Franklin County itself owns the two ambulances respondent operates. One ambulance had been driven 160,000 miles at the time of hearing; and the other had been driven more than 200,000 miles. They both require maintenance frequently. The ambulances are converted vans with no barrier between the driver and the back of the vehicle. Typically one ambulance is stationed in Apalachicola and the other in Carrabelle. Cases that Weems Memorial Hospital in Apalachicola is not prepared to handle are generally taken to Tallahassee Memorial Regional Medical Center from the eastern part of the county, and to Bay Memorial Regional Medical Center from the western part of the county. TELEPHONE ACCESS When the ambulance based in Apalachicola is not in use or being serviced, Mr. Kelly keeps it at his residence on 26th Street in Apalachicola. He has a telephone in his house. In addition, according to Mr. Kelly: The County has a volunteer phone system. That means that it is answered by volunteers in the community. There is four phones in Apalachicola, four phones in Carrabelle that are manned by volunteers. In the event that someone is not going to be at the phone and a call comes in, a recorder is put on the telephone to tell the people of Carrabelle, if they need an ambulance, to call the ambulance number in Apalachicola, and the recorder in Apalachicola is very rarely put on, but whenever it is put on, it tells them to call the Weems Memorial Hospital, and the Weems Memorial helps them secure an ambulance. (T. II. p. 77). The ambulances maintain direct radio contact with Weems Memorial Hospital when in service. This system has not always worked perfectly. About noon on September 23, 1982, calls were placed to the ambulance telephones in Apalachicola and in Carrabelle, in an effort to secure an ambulance, but to no avail. Both in Carrabelle and in Apalachicola, volunteers sometimes answered the telephone for Franklin Ambulance Service. Debra Johnson, when she had completed her training as an emergency medical technician but before being certified, was such a volunteer in October of 1982. At the time, Nelson Noble worked for Mr. Kelly and had responsibility for ambulance service in Carrabelle and the eastern part of the county generally, as well as being pastor of the Church of God in Apalachicola. On October 9, 1982, Mr. Noble asked Ms. Johnson to answer the telephone while he went to Apalachicola, leaving an oxygen tank, bandages, air splints and instructions to stabilize any patient who needed it, until he could get back from Apalachicola. On Sunday, October 10, 1982, Mr. Noble had the ambulance at his church. He was gone all day and did not return to relieve the volunteer manning the telephone until ten o'clock that night. At about half past noon on October 12, 1982, Mr. Noble asked Ms. Johnson to answer the telephone and to tell callers that the ambulance was on a run to Tallahassee. At 6:30 or 7:00 that evening, Ms. Johnson was told that Mr. Nelson and the ambulance were at Mr. Noble's house in Carrabelle. She called and complained that he had not kept her informed of his whereabouts. On one occasion, the ambulance went to Tallahassee with a patient and did not return for six hours. Mr. Noble "had been shopping, and had bought parts for his truck. . ." T. 1 p. 151. There was no showing that these particular incidents or other specific interruptions of continuous telephone access by the Carrabelle public were brought to Mr. Kelly's attention at the time. There was no showing that the Apalachicola ambulance was inaccessible to the public at any time, except for good reason. DRIVER ATTENDS WHILE EMT DRIVES On June 27, 1982, two cars travelling in opposite directions across Gorrie Bridge collided head on. Archie Brooks Holton, a Franklin County deputy sheriff, was the first law enforcement officer on the scene. He radioed his dispatcher asking that a fire truck and at least one ambulance be sent to the bridge. Twenty or thirty minutes later the Apalachicola ambulance driven by Mr. Kelly arrived. Seated next to him was James Clark Tomlin. After accident victims had been placed in the ambulance, Mr. Kelly drove off, with Mr. Tomlin attending the patient in the rear of the ambulance. En route to the hospital, one of the patients threw up and Mr. Tomlin cleared out vomitus with his fingers, then used a suction device. At all pertinent times, Mr. Tomlin was a certified ambulance driver, but was not certified as an emergency medical technician. Explaining why Mr. Tomlin, rather than he, attended the patient in the back of the ambulance as they left the Gorrie Bridge accident, Mr. Kelly testified: Whenever I started to leave the accident scene, Jim Tomlin told me that he had left his glasses. He did not have his glasses with him, and he is required on his driver's license, to drive with glasses, and he said that he could not see to back off that bridge and pass those cars and turn around without his glasses, that the glare was too much for him. (T. II. p. 68). Another traffic accident, on State Road 67 five miles north of Carrabelle, resulted in another accident victim's being transported by the Apalachicola ambulance on or about August 31, 1982. Again Mr. Kelly drove and Mr. Tomlin rode in back. Whether or not a physician's assistant was also in the back of the ambulance while it travelled to Dr. Sands' office, Mr. Tomlin and the patient were alone in the back of the ambulance while Mr. Kelly drove it from Dr. Sands' Franklin County office to Tallahassee Memorial Regional Medical Center. Mr. Kelly explained: On the way to the ambulance, Jim Tomlin told me that he had gotten nauseated and sick from working. It was a hot night and he said that he was nauseated and sick to his stomach, and he didn't think that he would be able to drive, and I told him that I would drive him on to the doctor's office, and we would see, when we got there, if he thought he'd be able to drive on to Tallahassee. . .Jim, at that time, informed me that he was not able. . .to drive on to Tallahassee, that he still felt too bad. I told him that, since the patient was stabilized, we had the splints on the patient, to watch him and inform me if anything went wrong, and I would drive on to Tallahassee. (T. II. pp. 61-62). According to Messrs. Kelly and Tomlin these two occasions were the only ones on which Mr. Tomlin rode in the back of the ambulance with a patient while Mr. Kelly drove the ambulance. The weight of the evidence was otherwise. At various times, including November 1, 1982, Vicki Lynn Holton, a nurse at Weems Memorial, saw the Apalachicola ambulance arrive at the hospital with Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance. Dr. Photis Nichols has on several occasions seen the ambulance leave Weems Memorial with Mr. Tomlin attending the patient in the back and Mr. Kelly driving. Some time in 1981 or 1982 Mr. Kelly drove an ambulance to Tallahassee Memorial Regional Medical Center with a mother and newborn infant in the back attended by Mr. Tomlin. On September 3, 1982, an ambulance left St. Teresa with a patient, his wife, and Mr. Tomlin in the back of the ambulance and Mr. Kelly driving. Dora Lee White, PBX operator at Weems Memorial, has seen Mr. Kelly driving an ambulance and Mr. Tomlin in the back attending a patient from time to time over the last three years. Ms. Julia Barber, another PBX operator at Weems Memorial, can see the ambulance arrive and depart from her work station. Over the last three years, Mr. Kelly has almost always driven and Mr. Tomlin has almost always attended the patient in the back of the ambulance, as far as she has observed. A former employee of the ambulance service, Nancy Cone, observed Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance, on ten or fifteen occasions. The evidence overwhelmingly established that Mr. Kelly routinely drove the ambulance, leaving Mr. Tomlin to take care of patients. Because of the van configuration, the two men could communicate. In a sense, the licensed driver, Mr. Tomlin, was in the presence of a certified emergency medical technician, Mr. Kelly, when he attended patients in the back of the ambulance Mr. Kelly was driving. When Mr. Noble was hired to take charge of ambulance operations in Carrabelle, he was certified as an ambulance driver, but not as an emergency medical technician. (He was nevertheless paid one third again as much as the two emergency medical technicians he replaced earned between them, perhaps because part of his duties was "public relations.") Mr. Noble had been previously certified as an emergency medical technician and was recertified on October 15, 1982. While working for Franklin Ambulance Service, but before his recertification as an emergency medical technician, Mr. Noble drove or rode in the Carrabelle ambulance numerous times when patients were being transported and without a duly certified emergency medical technician on the ambulance. Mr. Noble's testimony that this occurred only once has not been credited. RECORD KEEPING Whenever one of the ambulances makes a trip, an employee of the ambulance service filled out a "REMSMO Ambulance Report" form. Even though Mr. Kelly drove and Mr. Tomlin acted as ambulance attendant, the "run reports" indicated that Mr. Tomlin drove and Mr. Kelly acted as the attendant. False reporting of this kind occurred repeatedly, including the night of the accident on Gorrie Bridge.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner deny respondent's application for licensure, without prejudice to the filing of a new application 90 days after the effective date of the denial. DONE and ENTERED this 15th day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1983. COPIES FURNISHED: Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 406 Tallahassee, Florida 32301 Van P. Russell, Esquire 41 Commerce Street Apalachicola, Florida 32320 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue allegedly presented in this case is whether the Petitioner, Dennis A. Ryan, is eligible for recertification as a paramedic.
Findings Of Fact Prior to November, 1980, the Petitioner was employed as a paramedic with Brevard County Emergency Medical Services, having been certified by HRS on August 31, 1979. The Department determined, and contended at the hearing, that this certification expired on August 31, 1980, and that a certificate holder has a 60 day grace period within which to renew a certificate after its expiration date. This grace period expired on October 30, 1980. HRS received the Petitioner's application for recertification together with the required fee on November 7, 1980. The recertification application and check having been received on a date which HRS contends is not within the prescribed grace period, HRS refused to recertify the Petitioner. Since November of 1980, therefore, he has worked in a clerical position with EMS of Brevard County, not as a paramedic. HRS further contends that under the rules in existence up to and including the date of the hearing in this matter, a paramedic whose certification lapses by more than 60 days is not eligible for recertification, but must meet anew all of the requirements for an initial certification. There was some evidence presented relative to a pending change in the existing rules, designed to relax the recertification requirements, but there is not sufficient evidence in the record to support a finding of fact on this issue. At best, the prospective rule change would reduce, not eliminate, the eligibility requirements for recertification of individuals whose certificates have lapsed. The Petitioner, Dennis A. Ryan, received his Emergency Medical Technician certification after a 156 hour college course and a State examination. This was a prerequisite for the 500 hour paramedic course which was completed at the Brevard County Community College. He also has completed adjunctive courses in life support under the standards of the American Heart Association. He is not certified as an associate instructor of Advanced Cardiac Life Support courses, and as instructor/trainer for CPR, advanced first aid, water safety and standard first aid. Under the evidence presented the Petitioner is highly qualified as a paramedic. The certificate which HRS issued to the Petitioner on August 31, 1979, does not on its face set forth an expiration date. Certificate holders are also issued a wallet-size card on which there does appear an expiration date. Between January 1 and August 1, 1980, HRS gave notice by memo directly to persons whose certificates it determined had expired or were about to expire, advising them of the recertification requirements. However, after August 1, 1980, this practice was discontinued. Instead, notices were placed in various newsletters disseminated among the licensed ambulance providers in the State, advanced life support providers, training centers, etc. But without direct notification, or timely reference to his wallet-size card, the Petitioner did not submit his recertification application within the alleged grace period. Further, until August 1, 1980, HRS engaged in the practice of making exceptions to the rigid paramedic recertification rules, allowing recertification when applied for after what it asserts to be the grace period. This practice was also discontinued after August 1, 1980. Consequently, as a result of the inadvertence of the Petitioner, and the cessation by HRS of its policy of flexibility, the Brevard County area has been deprived of the services of a skilled and experienced paramedic.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services advise the Petitioner, Dennis A. Ryan, that his paramedic certification is valid until August 31, 1982, and return to him the recertification application and fee submitted on November 7, 1980. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1981. COPIES FURNISHED: Kenneth C. Crooks, Esquire Post Office Box 37 Titusville, Florida 32780 Samuel P. Stafford, Esquire Assistant District Counsel HRS Disstrict VII, Suite 912 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DENNIS A. RYAN, Petitioner, vs. CASE NO. 81-218 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
The Issue Whether the application of Manatee Memorial Hospital, Inc. (CON 9170) to establish a 120-bed satellite hospital in eastern Manatee County should be granted?
Findings Of Fact The Parties Manatee Memorial Hospital, L.P. Manatee Memorial Hospital, L.P. ("Manatee Memorial") the applicant for Certificate of Need Number 9170, owns and operates Manatee Memorial Hospital. It acquired the hospital in 1995. Located at 206 Second Street East, Bradenton, Florida, Manatee Memorial is licensed at the site to operate 512 beds, 403 of which are for acute care. Of the remaining 109 beds, 24 are classified as adult psychiatric, 11 as adult substance abuse, 31 as child psychiatric, while 10 are in a skilled nursing unit, and 6 are NICU level 2 beds. Manatee Memorial is a wholly owned subsidiary of Universal Health Services, Inc. ("UHS"). UHS is a publicly traded company which currently owns 77 health care facilities, among them 28 acute care hospitals in various states, including Wellington Regional Medical Center, a 120-bed hospital in Palm Beach County, Florida. L. W. Blake Medical Center, Inc. Blake Medical Center is a 383-bed acute care hospital. With the exception of psychiatric care, Blake provides full care across the range of hospital services from obstetrics to open heart surgery. Opened in 1972, it is also located in Manatee County. Blake has provided acute care hospital services in Manatee County since 1972. Over the past 28 years, it has served the people of the county in other ways, too. The organization and its employees, for example, are actively engaged in community activities. Among many community activities, Blake supports the American Cancer Society, sports screening for local students, Legs for Life (a diabetes detection program), cardiac profiles, and Just for Girls, a mentoring program. The Agency for Health Care Administration The Agency for Health Care Administration is designated by statute as "the single state agency to issue . . . or deny certificates of need . . . in accordance with the district plans and present and future federal and state statutes." Section 408.034(1), Florida Statutes. Stipulated Facts Manatee Memorial and Blake entered a prehearing stipulation that contained "stipulated facts and law" stated below in findings 7 through 36. Manatee Memorial filed a timely and legally sufficient Letter of Intent for CON No. 9170 and subsequent Initial Application and Omissions response that were deemed complete by AHCA. Manatee Memorial filed a timely and legally sufficient Petition for Formal Hearing to challenge the initial denial of its application for CON No. 9170. Blake filed a timely and legally sufficient Petition to Intervene. Manatee Memorial is a disproportionate share Medicaid Provider. Manatee Memorial has demonstrated a history of providing quality of care and the ability to operate an acute care hospital. Manatee Memorial has the health care and administrative expertise to provide acceptable quality care. Manatee Memorial adequately demonstrated its history of serving persons who are HIV/AIDS infected. Manatee Memorial adequately demonstrated its intent to serve HIV/AIDS infected persons at the proposed Lakewood Ranch facility. Manatee Memorial and Blake are the only existing providers of acute care inpatient hospital services in Manatee County. Manatee Memorial is JCAHO accredited, with commendation, for all services, including home health care services. Manatee Memorial and Blake are currently Medicare and Medicaid certified. Manatee Memorial has demonstrated a history of providing quality of care. Manatee Memorial has the health care and administrative expertise to provide quality of care. The documents provided with the application indicate the ability to provide funding for the proposed Lakewood Ranch facility at the time of the application's filing. The proposed Lakewood Ranch project, at the schematic stage, conforms to Chapter 59A-3, Florida Administrative Code, and other applicable codes, including the Americans with Disabilities Act. The proposed construction cost of $133.74 per gross square foot compares favorably with the average cost of $138.45 for five new Florida hospitals completed since 1995. Construction time of twenty-four months is approximate although optimistic for the proposed facility. The approval of the proposed facility will reduce the bed count at Manatee Memorial's main campus. The reduction in bed count will allow the hospital to better organize its physical plant and free area to be demolished. The documents provided with the application indicate the ability to provide funding for the proposed Lakewood Ranch facility. During FY 1997, Manatee Memorial provided 12 percent of its total patient days to Medicaid patients and 3.5 percent of its total patient days to charity care and exceeded the district average for both Medicaid and charity care. Manatee Memorial is party to an agreement with the County of Manatee that requires it to provide a certain level of indigent care and provides some compensation for providing that care. Except for financing cost projections, the estimated project costs appearing on Schedule 1 are reasonable. The costs of equipping the proposed Lakewood Ranch facility are reasonable. Except for financing cost projections, the total project cost for the proposed Lakewood Ranch facility is reasonable. The letters of support contained in the application are authentic and accurate duplicate copies of letters. Manatee Memorial Hospital's past and proposed provision of services promotes a continuum of care in a multilevel health care system. Prior to filing its Petition in this case, Blake had not developed specific patient origin studies and demographic, financial, marketing, program feasibility and service feasibility studies or projects that discuss, analyze, or document a need for additional or relocated acute care beds in Manatee County. The Agency for Health Care Administration initially denied CON 9170. In the course of this litigation it filed a Notice of Change of Position. Blake Medical Center has a demonstrated history of providing quality of care. In 1995, 1997, 1998, and 1999, Blake Medical Center was named one of America's Top 100 Hospitals by AHCA. Blake Medical Center is Accredited with Commendation by the JCAHO. Manatee Memorial has satisfied the requirements of Section 408.039(2) and (3), Florida Statutes. The following statutory criteria are not at issue in this case: Sections 408.035(1)(c), 408.035(1)(f), 408.035(1)(g), 408.035(1)(j), and 408.035(1)(k), Florida Statutes (1997). The Subdistrict and Manatee Memorial's Primary Service Area Acute care health planning subdistrict 6-3 is comprised solely of Manatee County. Rule 59C-2.100, Florida Administrative Code. No zip codes in Manatee Memorial's existing primary service area are outside Manatee County. Accreditation and Quality of Care Manatee Memorial's JCAHO accreditation with commendation means it is rated in the top 15 percent or 16 percent of all JCAHO accredited hospitals. Manatee Memorial is also accredited and affiliated with the American College of Surgeons Commission on Cancer. Its Breast Cancer Center is accredited under the Mammography Quality Standards Act and by the American College of Radiology. Its laboratory is accredited by the Commission on Laboratory Accreditation of the College of American Pathologists. It has been designated by HCIA as one of the top 100 orthopedic hospitals in the country. Manatee Memorial has received the Bradenton Herald's Reader's Poll Best Hospital award for five consecutive years. Manatee Memorial is in partnership with Manatee County to deliver immunization, breast cancer screening and cancer screening in the workplace. As a result, the hospital and the county have been recognized by the National Association of Counties. Manatee Memorial is the only hospital that belongs to the West Coast Health Care Coalition. The Coalition is a group of employers in Southwest Florida whose mission is to evaluate hospital charges, assess outcomes and provide education to employers and employees on healthy lifestyles. Consistent with UHS' philosophical belief that hospitals are fundamentally community and local organizations, Manatee Memorial uses a citizen advisory board that directly participates in oversight of the medical staff organization, quality assurance and performance improvement plans. Manatee Memorial provides and has documented its ability to provide continuing education to its staff and physicians. The Proposed Project Manatee Memorial proposes to relocate 120 beds from downtown Bradenton to a new site within the planning subdistrict. Known as Lakewood Ranch, the site is approximately 17 miles southeast of Manatee Memorial, along the I-75 corridor in Manatee County. The proposal does more than relocate 120 beds. It also entails the delicensing of an additional 73 beds on the existing campus. The proposal, therefore, will not add any new beds to the subdistrict but will, in fact, result in a net loss of 73 beds in the subdistrict. The goal of the project is twofold. First, it is to provide easily accessible, affordable health care to a rapidly growing population in eastern Manatee County. Second, the goal of the project is to "decompress" Manatee Memorial's existing campus in order to modernize it and make it safer and more efficient. Decompression Notwithstanding the awards and accreditation for its operational excellence, Manatee Memorial has serious problems in the physical infrastructure of its existing campus. The main campus is bounded by major roadways and the Manatee River. Further expansion is precluded by the lack of available land on or near the site. The absence of space on the campus currently requires Manatee Memorial to lease space off campus for various non-clinical support functions, such as accounting and bookkeeping. The site is "in close proximity to . . . hurricane surge inundation zones." (Tr. 872). The entire hospital site is only 7 feet above sea level. All of the central plant operations (electrical switching gear, chillers, boilers, air handlers, and emergency generators) and parking lots are flood prone. In the event of a hurricane, the entire hospital would have to be evacuated. When the project was under consideration, "rebuilding 500 beds on [the] location . . . [never came up] as a viable alternative in . . . discussions with the architects" (Id.) because it would be so difficult to comply with rules governing hurricane surge zones. The "main building," the "annex," and three "radial" wings are older multi-story buildings where the acute care beds and patient rooms are currently located. The oldest of these areas, the main building, was built approximately in 1953. For a hospital building, "it is a very old building." (Tr. 104). The annex was built in the late 1950's. Two of the three radials were built around 1961 and the third, the one closest to the river, around 1967. None of these buildings meet minimum applicable requirements specified in the National Fire Protection Association's Life Safety Code, NFPA 101, 1994 Edition, Chapter 13. These fire safety issues at Manatee Memorial are substantial and serious. There is not only a lack of fireproofing of the facility structure but also a lack of fire- smoke compartmentation and deficiencies in vertical chases and the fire alarm system. Deficiencies in the shut-down mechanisms of the air-conditioning system pose the danger of rapid conflagration in case of even a small fire. After acquiring the hospital in 1995, Manatee Memorial undertook a renovation of the substance abuse area. During the course of final inspection by AHCA, it was discovered that the prior owner had undertaken structural work in the hospital but did not submit the work to AHCA for review. The unapproved work substantially compromised the fire integrity in many areas of the hospital. There is no question that a reduction in bed count will allow Manatee Memorial to better organize its physical plant and free more areas to be demolished. Relocation of the 120 beds out of the facility and demolition of the north radial, "one of the poorly constructed areas in the facility" (Tr. 872) was well received by James R. Gregory, the Bureau Chief of AHCA's Office of Plans and Construction, because "it certainly solved the problem at hand . . . how to bring this very large and antiquated building into minimum standards with the Life Safety Code as soon as possible." (Id.) Accordingly, the Office of Plans and Construction has approved a Fire Safety Evaluation System ("FSES") plan for Manatee Memorial's main campus. The plan is contingent upon the removal, whether by relocation or elimination, of the 120 beds Manatee Memorial proposes to relocate to the Lakewood facility and the de-licensure of additional beds. As Blake astutely points out, elimination of the 120 beds is just as effective as relocation of the beds for commencement of the solution to the fire safety problems posed by Manatee Memorial's main campus. At the same time, relocation of the 120 beds rather than elimination is consistent with the current trend in hospital design and planning, the result of changes in health care in the country not the least of which is due to technological advances: to decentralize beds by moving some existing beds in central urban facilities to smaller campuses in suburban areas. These new-style smaller, suburban facilities are oftentimes referred to as health centers and "almost replac[e] . . . the civic centers or courthouses in these areas." (Tr. 873.) As Bureau Chief Gregory summed up, I would say generally the days of going downtown to the great white giant are over except for . . . large teaching institutions. . . . [T]he trend has . . . been to decentralize and to bring health care . . . out towards where the population centers are growing. (Tr. 874). Examples of these facilities in Florida include Florida Hospital at Lake Placid or Heartland of Florida near Haines City or Columbia Hospital of Lake City, all newly- constructed replacement facilities the size of the proposed facility in this case. The Radials The radial wings at Manatee Memorial are called radials because they radiate out from the nursing station. The second floor of the radials consist of three or four-bed "wards." (Wards contain more than two beds.) Although common thirty or forty years ago, wards are no longer recommended in any national hospital construction or operational standards because of the higher average intensity of acuity of patients hospitalized today. Patients with higher acuity are at greater risk of infection. Recognition of an inpatient's right to privacy also comes into play. Patients more often than not (much as airline passengers in the coach compartment with three seats on one side of an aisle would choose to be on the window or the aisle) will choose not to be a patient in a bed in the middle of a ward. For hospital patients, lack of direct access to a window, door, or bathroom facilities typically creates a high level of dissatisfaction with wards regardless of a hospital's quality of care. The four bed wards at Manatee Memorial have no space for modern equipment, no windows to the outside, no bathrooms and no washing facilities. Although the three-bed wards are somewhat more accommodating than the four-bed wards, their bathing and sink facilities are not compliant with the Americans with Disabilities Act ("ADA"). Manatee Memorial considered modifying the wards to create semi-private rooms. All spaces, however, would have to be brought to current Life Safety and ancillary support standards, a requirement that would be impractical to meet. Creation of semi-private rooms, moreover, would result in an inefficient 20-bed floor. Modern hospital needs for efficiency make the design of a nursing station and associated acute care patient wing with less than 36 beds impractical and uncommon. Because of the age of many of the inpatient areas only about 320 of Manatee Memorial's beds are accessible on a daily, operational basis. In the past, these 320 beds for the most part have been enough to serve the hospital's population. In 1999, for example, its average daily census was 196, and not once did the hospital need to resort to emergency bypass status because of a lack of beds. But at other times, the hospital has been perilously close to 100 percent occupancy. And on one occasion in the year 2000, Manatee Memorial was required to institute emergency bypass because it did not have enough beds in adequately designed spaces to receive patients. The wards would be eliminated if Manatee Memorial's CON is approved. Main Building Existing nursing stations on the third floor of the main building are located in exit corridors. Such a location would not be allowed under current standards. The stations were designed more than forty years ago, before the existence of information systems and high-tech monitoring equipment now regarded as essential. The Agency will not permit Manatee Memorial to "grandfather" the various Life Safety and code deficiencies resulting from the age of Manatee Memorial's older patient care floors. Nor will the completion of a Facility Safety Assessment System ("FSES"), now underway at Manatee Memorial, address any of the remaining Life Safety, structural, and ADA code deficiencies that AHCA requires to be remedied if any single renovation is made. For example, installation by the hospital of a window into a patient room that is presently windowless would involve bringing an entire area of the hospital into compliance with applicable codes. As Noel Barrick, Manatee Memorial's architect, explained at hearing, "[the window installation] would be connected to other things. Once you get into any area, AHCA is going to say [']you are playing with that area, you upgrade to meet new standards."['] (Tr. 129). In some instances, bringing into compliance areas adjacent to a simple renovation would not be possible. The patient rooms have 10-foot ceilings. (See Finding of Fact Nos. 69 to 79, below.) Patient bed areas with floor-to-floor heights greater than 10 feet are necessary in order to retrofit all of the required mechanical systems. As for some of the systems, it would be impossible to "get some of that ductwork in a 10 foot floor-to- floor height to meet those standards." (Tr. 130). Because simple renovations would entail upgrading much greater areas of the hospital to meet standards, Mr. Barrick's architecture firm, hired by UHS as part of the due diligence inquiry conducted prior to UHS purchase of the hospital, recommended that Manatee Memorial be decompressed in the interests of cost effectiveness. Floor-to-floor (i.e., height from finished first floor to finished second floor) must have at least twelve-foot, six- inch floor-to-floor height in order to accommodate ductwork, lights, sprinklers, electrical conduit, data lines, and medical gases necessary to meet the basic Life Safety and operational requirements for patient care areas. The floor-to-floor heights in the main building as well as other of the hospital's oldest buildings are only ten feet. Without adequate floor-to-floor space, to accommodate those Life Safety and mechanical items needed and required by AHCA for patient areas, those floors cannot be renovated and used for patient care or brought into compliance with current Life Safety and mechanical standards. The lack of floor-to-floor space has also necessitated construction of ramps between the various older buildings containing patient beds, and the surgical building and radials. These ramps must be and are routinely used by visitors and by staff to transport patients. None of these ramps meet ADA standards. Manatee Memorial's architects considered demolishing the main building and radials entirely. The consulting architect's assessment goal was, however, to reclaim as much space as was available on Manatee Memorial's existing campus before considering the possibility of de-licensure or relocation of beds. Additionally, total demolition would require closing the entire hospital for one to three years, since buildings with patient care areas also contain functional and ancillary areas necessary for operation of the entire hospital. Manatee Memorial's consulting architects have recommended that, on balance, it would be more cost effective and achieve a better result to decompress the main campus by relocating some beds and their ancillaries to a different site. This would create sufficient space on the main campus for modernizing and using, to the maximum extent possible, the main campus. AHCA must review and approve, prior to construction, all new construction and renovation to healthcare facilities in Florida. Rule 59A-3.080(1), Florida Administrative Code. AHCA's Chief of Plans and Construction Review is a registered Florida architect. He does not favor renovation of all 512 beds on Manatee Memorial's existing site because of its location in a hurricane zone as discussed, above. If 120 beds can be relocated to Lakewood Ranch, and 73 beds de-licensed, then Manatee Memorial can eliminate: 71 beds from the north and south radials which were built in the 1960's; 56 beds from the annex, which was built in 1958; and 28 beds from the third floor main building which was built in 1953, leaving 319 beds on a decompressed campus for renovation. One of the benefits of choosing to decompress by relocating beds is that all the renovations can be sequenced so the hospital is not closed during renovation. The total cost for a three phase, 8-year plan which leaves 319 renovated acute care beds and all the tertiary services on the main campus is $43 million. Since Lakewood Ranch will cost $40 million to construct and open, the total cost for Lakewood Ranch's 120 beds and the 3 phase plan to renovate for 319 beds on the main campus is $83 million. Assuming that taking the entire hospital out of service for a sufficient period of time to renovate 512 beds is desirable, and that such renovations are otherwise possible, the cost would be at least $97 million, or $14 million more than the alternative proposed by Manatee Memorial's architects. Manatee Memorial has opted for a plan that will enable it to keep some of its beds in its inventory that would otherwise be casualties of much-needed modernization. Its decision is justified. There is not enough real estate on the main campus to accomplish work necessary to solve the fire safety issues, locate 512 beds and the support services for those beds such as emergency room, laboratory, surgery, and X- ray so that the beds and ancillary areas are designed to meet prevailing community standards for the delivery of health care. Decompression will allow more efficient renovation and use of the outdated radials and annex for business occupancy, to accommodate these non-clinical functions, instead of using them for institutional occupancy. At the same time, decompression by relocating some patient beds and ancillary support for the beds elsewhere will allow the highest and best, if not only, use of salvageable areas on the existing campus without interruption of service. Health Planning Relocation Need Criteria Although AHCA has a rule to determine the need for new or additional beds, it does not have a rule specifying a methodology for evaluating a proposal to relocate existing licensed beds within the subdistrict. The acute care bed need calculation methodology in Rule 59C-1.0384(4) and (5), Florida Administrative Code, therefore, is not applicable to these proceedings. Rule 59C- 1.038(6)(a), Florida Administrative Code, does contain a preference for applicants proposing a capital expenditure on acute care beds that have documented a history of providing services to medically indigent patients. The Agency interprets subpart (6)(a) to be applicable to acute care bed relocations. Manatee Memorial's proposal earns the preference. District and sub-district out-migration Acute care district and sub-district boundaries are used by AHCA and health planners to define the geographic boundaries for inventory and bed need projections. Consistency in providing sufficient access within a subdistrict to accommodate the needs of patients originating within the subdistrict is a desirable health planning goal. For purposes of reviewing the health planning aspects of the application, the relevant geographic health planning area is Manatee County, sub-district 6-3. It is becoming more common for hospitals that have patient care areas that have aged (as in this case, by more than 40 years) to relocate new beds to areas of new and rapid growth within the health planning subdistrict. The Agency has approved these efforts on at least four occasions in the relatively recent past. In some instances the entire hospital was relocated, as in the relocation of Sarasota Doctors Hospital in Sarasota County; in others, as in the proposal in this case, only some of the beds were relocated while the existing campus underwent renovation. The existing acute care beds in Manatee County are not well distributed in relation to population growth in the sub- district. This poor distribution has resulted in considerable out-migration of acute care patients to Sarasota County for services, and, in turn, is a significant factor in the under- utilization of Manatee County hospitals. Until Sarasota Doctors relocated, out-migration was significant back and forth between Sarasota and Manatee Counties, that is, for both the sub-districts represented by the two counties. After Sarasota Doctors' relocation from near Sarasota to eastern Sarasota County approximately 15 miles south of the Manatee County/Sarasota County line, however, the out- migration became primarily one way: from Manatee County to Sarasota County. In 1997, alone, while 312 Sarasota County District 8 residents sought acute care in Manatee County, approximately 5,000 Manatee County District 6 residents sought acute care in Sarasota County. Between 1995 and 1997, Manatee County hospitals experienced an overall increase of 9.5 percent in admissions. For the same period, out-migration from Manatee County for acute care services increased 26.5 percent. Currently, for every one person that comes from Sarasota County to be hospitalized in Manatee County, sixteen are leaving Manatee County to be admitted to a bed in Sarasota County. Out-migration patterns between Manatee County and Sarasota County contribute to the under-utilization of Manatee County hospitals. This disproportionate level of out-migration from Manatee County is inconsistent with typical out-migration between planning areas. It is the result of a poor distribution of Manatee County acute care beds in relation to Manatee County population growth combined with the unappealing and deficient four bed wards and the problems with Manatee Memorial's aged buildings. Geographic Access Manatee Memorial's existing campus is located at the junction of Routes 41 and 301 and the Manatee River. Blake is located about four miles west. Both Blake and Manatee Memorial are located in the Bradenton City limits. Lakewood Ranch is outside the city limits. Approximately one-quarter mile north of University Parkway and just east of the Interstate 75 interchange, it is in south central Manatee County near the Manatee and Sarasota County boundary line. Lakewood Ranch is a master planned community of approximately 5500 acres and involving 3 Developments of Regional Impact ("DRI"). Master planned communities are favored by the State of Florida because all aspects of daily living are included in the multi-use planning: homes, workplaces, shopping facilities, recreation facilities, worship, and medical facilities. State DRI and master planned community requirements have made growth somewhat more predictable. Using periodic aerial photography and subdivision maps to conduct an inventory by actually counting rooftops over time, it is evident that in the last two decades there has been substantial residential, commercial, and office growth in the eastern part of the county along and to the east of the I-75 corridor. This growth commenced with the opening of the corridor 20 years ago. The pattern of substantial growth east of I-75 and much less growth west of the I-75 corridor in Manatee County is expected to continue. As one witness expressed, [T]he most substantial majority of new growth will happen along the I-75 corridor and east of 75, as it's currently doing, and I believe from the activity that we see, that it'll continue. One of the reasons for that is that if you look at a map or a similar aerial photo, to the west of I-75 you will see that it's substantially all built out and there's really very little land available. (Tr. 172). The population located along and east of the I-75 corridor is expected to increase by 28,000 persons between 1999 and 2004. The County, itself, has projected that the population in the area of the county in and around Lakewood Ranch has projected growth at a rate of 600 percent over the thirty years from 1990 to 2020. Manatee County has created infrastructure to support residential development in eastern Manatee County, including 2 elementary, 3 middle and 1 high school. The area is served by many major roads. They include University Parkway which runs east and west. It is six lanes running west of I-75 to the airport and four lanes to Lakewood Ranch Boulevard with plans to six-lane it. A time travel study conducted in accordance with DOT's Manual of Uniform Traffic Studies demonstrates that currently, during the peak hour traffic, the congestion on roads leading from large portions of Lakewood Ranch's primary service area east of I-75 to Manatee Memorial and Blake results in travel times in excess of 30 minutes to reach Blake and between 20 and 30 minutes to reach Manatee Memorial. All the road improvements presently planned by Manatee County are east of I-75 and will not relieve any of the congestion west of I-75. In the absence of planned road improvements west of I-75, the congestion west of I-75 will increase as the result of development along the interstate's corridor and to its east. The road system is one of the reasons out-migration from Manatee County to Sarasota County has increased and one of the reasons Manatee Memorial is feeling the impact of competition with Sarasota hospitals. At present, four hospitals offer more than adequate access to hospital services to the residents of eastern Manatee County: Manatee Memorial and Blake in Manatee County and two Sarasota County hospitals: Sarasota Memorial and Sarasota Doctors. All four compete to and do serve the patients in Lakewood Ranch's proposed service area. There is no evidence of capacity constraints at any of these hospitals. Increasingly, physicians in Sarasota County serve patients in Manatee County and market their services to them. For instance, open heart surgeons practicing in Sarasota also have offices in Manatee County. The yellow pages for the Bradenton telephone directory reveal at least 183 physicians with Sarasota addresses. This does not include the many listings for groups or clinics. These physicians view eastern Manatee County as a market they serve and from which they seek to draw patients to their Sarasota offices. Indigent Care Manatee Memorial is a disproportionate share Medicaid provider. During fiscal year 1997, Manatee Memorial provided 12 percent of its total patient days to Medicaid patients and 3.5 percent of its total patient days to charity care, exceeding the district averages for both Medicaid and charity care. Compared to Blake, Manatee Memorial has consistently provided significantly more Medicaid and charity days. In 1996, for example, Manatee Memorial shouldered a fraction above 87 percent, compared to Blake's 12.96 percent of the Medicaid patient days in the subdistrict. In that same year, Manatee Memorial provided over $10 million in charity care, while Blake provided less than $600,000. While Blake and Manatee Memorial have the same kind of patients, their patient mixes are different. Blake takes many less Medicaid and charity care patients. This is due, in part, to location; Manatee Memorial's location (albeit only four miles from Blake's) attracts such patients. It is also due, in part, to the obligation Manatee Memorial has incurred by agreement with Manatee County to provide care to indigent Manatee County residents, an obligation which has as its source the hospital's former status as the county hospital. Blake is not a party to a similar agreement. Under the terms of Manatee Memorial's agreement with the county there are three different ways for the hospital to be reimbursed for indigent care: reimbursement of 50 percent of the annual interest earned on a fund that's used for general health care purposes within the community, reimbursement at the prevailing Medicaid rate, or reimbursement under a special indigent care calculation. The hospital receives the lowest amount yielded by the three methods. At the time of hearing, at least since September of 1995, when its chief executive officer assumed his position, Manatee Memorial has only been reimbursed on the basis of the first of the three possibilities: 50 percent of the annual interest earned on the county's general health care fund. The shortfall has been substantial. In 1999, inpatient and outpatient charges for care to indigents under Manatee Memorial's agreement with the County amounted to approximately $7.4 million. But Manatee Memorial was only reimbursed $1.5 million, resulting in a deficit of about $5.8 million. The inpatient shortfall alone was about $3.5 million. Over the past ten years, through August of 1999, the shortfall has totaled approximately $36 million worth of uncompensated care provided by Manatee Memorial. On a cost basis, for every dollar of cost incurred to provide services to a County funded indigent in 1999, Manatee Memorial recovered only 70 cents from the County. There is no question that Manatee Memorial's contribution to care of Medicaid patients and indigents is both substantial and costly. Blake's fear with regard to the impact on indigent care in Manatee County of granting the CON in this case and transferring 120 beds from their present location to eastern Manatee County was expressed by its Chief Executive Officer: [W]e'll do 120 now, then next year we will do another 120 until we have eventually moved the patient's right to have a hospital in that location [far to the] east and then we will have a shell of a hospital in a location [in which] there's a great need . . . for indigent care. (Tr. 524). But Blake conceded under cross-examination that simply granting the CON under consideration without more would leave a hospital adequate to handle the indigent care needs of the county at the location where the considerable bulk of those needs are presently met. Lakewood Ranch Design, Cost & Construction The proposed 120-bed Lakewood Ranch project, at the schematic stage, conforms to Chapter 59A-3, Florida Administrative Code, and other applicable codes, including the Americans with Disabilities Act. The proposed construction cost of $133.74 per gross square foot compares favorably with the average cost of $138.45 for five new Florida hospitals completed since 1995. The design, cost, and time necessary to construct and equip the Lakewood Ranch 120-bed facility are reasonable. Financial Feasibility: short-term and long-term Short-term financial feasibility for CON review refers to the ability of the applicant to provide or obtain sufficient capital to construct the project and to finance the project until it becomes financially self-sufficient. To determine at what point the proposed project would become financially self-sufficient, Manatee Memorial used actual recent revenue, fixed and variable cost data, and adjusted service volumes from Manatee Memorial to model Lakewood Ranch's projected financial performance. It is reflected in Schedules 7 and 8 of the application. Manatee Memorial has demonstrated that, if projected utilization is achieved, the proposed project will become profitable in the second year of operation and continue to be financially self-sufficient on an ongoing basis. UHS has provided a commitment letter in the application that states in pertinent part: This letter is to confirm the commitment of Universal Health Services, Inc. (UHS) to provide financing for the planned replacement and relocation of 120 acute care hospital beds for Manatee Memorial Hospital. UHS owns this hospital through a partnership, Manatee Memorial Hospital, L.P. (the applicant), which is comprised of partners which are wholly-owned subsidiaries of UHS. UHS anticipates that it will finance all future capital expenditures for Manatee Memorial Hospital, including this project, entirely from UHS's net cash flow from operations. Accordingly, UHS does not plan to assume any indebtedness to third parties to finance this project, or to pay interest on any such costs. Manatee Memorial has adequately evidenced UHS' commitment and ability to provide the necessary capital, using the ongoing net cash flow from UHS operations, until the proposed project becomes self-sufficient, even if it should take more than 3 years. UHS does not take loans to build hospitals, but always uses current operating funds. Since UHS will fund the project from its own cash flow, Manatee Memorial appropriately did not indicate any financing costs on Schedule 1. The Lakewood Ranch hospital only becomes a depreciable asset after it becomes operational. Accordingly, Manatee Memorial captured Lakewood Ranch's costs of capital as interest on Schedule 8A. AHCA does not require pro forma projections for the main campus. There have been no material changes in UHS' financial strength, or its commitment to the proposed project through the date of hearing. Manatee Memorial does not have any other capital projects planned or approved that would compromise its ability to undertake the proposed project. UHS continues to have ample cash flow, as well as access to credit facilities, sufficient to capitalize and fund start-up operations at Lakewood Ranch. Manatee Memorial has projected that the first year of operation, after construction and licensure, will be January 1, 2004. Manatee Memorial selected eight zip codes as the primary service area for the Lakewood Ranch project. These zip codes correspond to the sub-areas the Manatee County Planning Department uses to project growth for areas within 5-15 minutes driving time from Lakewood Ranch. The selection of these eight zip codes for the project's proposed service area is reasonable. Manatee Memorial assumed it would derive at least 70 percent of its admissions during the first three years of operation from this primary service area. The assumption is consistent with the recent, actual experience of four hospitals in Broward, Collier, Sarasota, and Marion Counties that relocated or developed a satellite by relocating beds to an area of high growth similar to Lakewood Ranch. Using the most currently available population projections provided by Claritas for the eight zip codes comprising Lakewood Ranch's primary service area, it appears the projected occupancy for the proposed facility in the third year of operation will be even greater than projected in the application. Based on reasonable assumptions and methodology, Manatee Memorial will admit 2,600 patients to the Lakewood Ranch facility from its primary service area in 2004, the first year of operation. That equals 11,961 patient days. The hospital projects 17,220 patient days in the second year of operation and 21,812 days in the third year of operation. Out of the 4,742 total admissions in year three of operations at Lakewood Ranch, approximately 3,500 would be due to the projected Manatee County population increase. In the first year of operation of the Lakewood facility, it is reasonable to project that the facility will lose slightly more than $900,000. In the second year of operation, it is reasonable to project a net profit of $3.1 million; and, at the end of the third year of operation, it is reasonable to project a profit of approximately $6.7 million. It is reasonable to expect utilization to increase beyond the third year of operation so "that the hospital [the Lakewood Ranch facility] should sustain profitability in the long run." (Tr. 475). The project is financially feasible in the long term. As an aside, it is reasonable to assume that Manatee Memorial's main campus will lose some patients to the Lakewood Ranch facility. The revenues for the campus will therefore be reduced if the project is approved. So will the main campus' expenses associated with those patients. It is reasonable to assume that the main campus' profit will be reduced if the project is approved. But, AHCA does not require pro formas to show projected financial impact on the main campus as part of the application for the Lakewood Ranch facility. That impact, therefore, whatever it may be, is not considered in this proceeding. On the other hand, the impact to Blake and to the hospitals in Sarasota County is to be considered. Impacts to Blake and hospitals in Sarasota County a. Sarasota Hospitals The two hospitals in Sarasota County that will feel the most impact from approval of CON 9170 are Sarasota Doctors and Sarasota Memorial, particularly Sarasota Doctors. If the proposed facility becomes operational, much of the disproportionate share of out-migration from Manatee County to Sarasota County will be reduced because of Manatee County patients, particularly those residing in the eastern part of the county, choosing the proposed facility over Sarasota Doctors or Sarasota Memorial. The migration patterns for Districts 6 and 8 will adjust to a normal pattern. Some of the loss of patients by the Sarasota hospitals will be mitigated by an increase in the population of Sarasota County. In any event, the continued success of Sarasota County hospitals is not dependent on the out-migration of Manatee County residents. In the case of Sarasota Doctors, the recapture of Manatee County patients by the proposed facility is appropriate in light of Sarasota Doctors' decision several years ago to relocate to the eastern part of Sarasota County near the Manatee County line. Manatee Memorial's proposal will enhance competition. There will be an impact if it is approved to other competitors. But it will not put any other hospital in Manatee County or Sarasota County out of business or compromise their operations with the possible exception of making it more difficult to staff the hospitals as explained in paragraphs 126 to 129, below. Blake calculated that the impact of approval of the application to Blake would be a loss of $1.6 million and $2.7 million in the first and third years of operation, respectively, of the Lakewood Ranch facility. The calculation did not consider that tertiary services that will not be provided at the new facility so that the calculation "is not exact but . . . is quite close." (Tr.698). Assuming the accuracy of Blake's calculation, the impacts do not weigh heavily in favor of denial of the application in the context of Blake's most recent net profit of approximately $18.5 million. Blake's concern about the impact to it from the new facility was much more than the loss in dollars it poses. Blake is much more concerned about the competition posed by the need of its patients to be served by physicians and, in particular, staff who would be given privileges or employed by the new facility. Staffing Staffing and operating three hospitals in Manatee County will require more staff than is presently required for Manatee Memorial and Blake because of the need for "core" staffing. Core staffing is the minimum number of people required to care for a hospital census. Any hospital must maintain a minimum level of core nursing staff regardless of the size of the census. For example, an emergency room must have two people on duty at all times as must a recovery room. In addition, the Lakewood Ranch facility, as a hospital, should be distinguished from an outpatient facility. In contrast to an outpatient facility, essentially an "episodic" facility, the patients at Lakewood Ranch will have a much higher intensity of acuity. In other word, they will be sicker demanding much more intense care. Existing facilities could absorb the Lakewood Ranch facility's patients incrementally without having to add many staff, whereas a brand new facility is required to fully staff its facility. The increased demand for staff, especially nursing staff, will substantially affect Blake. For one, it is likely that the facility will recruit current employees of Blake. To make staffing matters more difficult for Blake, there is a shortage in health care personnel in Manatee County. Indicative of the shortage is Blake's 12 percent vacancy in its nursing staff at the time of hearing. The vacancy existed despite a comprehensive effort on Blake's part to keep and recruit nurses. The effort includes offering nurses on-site child care that is less expensive than rates in the community at large, paid critical care and operating room courses, reimbursement of continuing education expenses and payment for time spent in continuing education, a service excellence program, free parking, and competitive wages. Blake also conducts extensive, ongoing recruitment of nurses. It includes international recruiting, advertising, targeting cities with high unemployment rates or recently closed facilities, recruitment at job fairs and local schools. Blake competes not only with Manatee Memorial for nurses but also Sarasota Memorial and, to some extent, Sarasota Doctors Hospital. It monitors the salaries of those institutions and tries to at least match them. Blake also routinely obtains and reviews regional salary surveys. Bonuses in the market range from $5,000 to $10,000 recently offered by Manatee Memorial. Despite all its extensive recruitment efforts, typically it takes Blake 90 days to fill a nursing position. Recruiting nurses is difficult and expensive. Recruiting an intensive care nurse, for example, costs upward of $60,000 in direct and indirect costs. Recruiting a surgical nurse costs $40,000. The nursing shortage in Manatee County reflects a nationwide crisis in health care personnel. It is more severe than the cyclic shortages previously experienced. But, in all likelihood, the current shortage is also cyclic. No nursing shortage, moreover, is forever. This is because the nursing labor market behaves like any free market. Ultimately, supply and demand are managed in a free market by offering higher wages and increasing the other benefits to address the profession. Eventually, the current shortage should be alleviated by an increase in wages. The current national shortage is expected to be at its worst in 2006. The Lakewood Ranch staffing projections underestimate nurse staff needs by 8 to 10 employees. The underestimation in the context of the whole project is insignificant. Still, approval of the application will make recruitment of nurses by Blake more difficult. It will not be easy for the Lakewood Ranch facility either although there will be many nurses in the area for whom the Lakewood Ranch facility will be the most convenient facility at which to work. Like Blake, Manatee Memorial has developed a variety of strategies for recruiting, training and retaining nurses. It plans to use these at the Lakewood Ranch facility. Strategies include local open houses at the hospital, emphasis on a regional and national market, using the internet, and targeting military trained nurses through job fairs and affiliations with the University of South Carolina and the University of South Texas that allow UHS first access to students in nursing there. While there are inefficiencies in staffing due to the need for core staff at both campuses should the application be granted, there are some counterbalancing efficiencies. For example, efficiencies flow from sharing the same governing board and some of the managerial staff, such as human resources director, risk managers, accounting functions and quality improvement functions. There is little doubt that approval of the application will make it more difficult for Blake to staff its facility and will affect Blake financially in a substantial way. Approval of the Lakewood Ranch facility, at the same time, may have a slight counterbalancing effect. One of the main reasons nurses leave nursing is to seek a less physically demanding profession; modernization of facilities to make them less physically demanding should help to keep some nurses in their profession. Granting the application will lead to two modernized facilities: a renovated Manatee Memorial campus and a brand-new Lakewood Ranch facility. Local Health Plan Preferences Local Health Plan Preference Number 1 affords a preference for applicants documenting that they provide or will provide a large percent of Medicaid and charity care in relation to other hospitals in the subdistrict. Manatee Memorial provides the most Medicaid and charity care in Manatee County, measured in both patient days and dollar volume, and has documented its willingness to do so at Lakewood Ranch. For example, in 1996, Manatee Memorial provided 87 percent of all the acute care inpatient Medicaid days in the subdistrict. Blake provided 12 percent. Manatee Memorial earns this preference. Local Health Plan Preference Number 2 affords a preference to an applicant who can document a commitment to provide care and assure access for the community regardless of ability to pay. Manatee Memorial's continued commitment to provide care, regardless of the ability to pay, is evidenced by a formal resolution of the Manatee County Commission unequivocally supporting relocation of 120 beds to Lakewood Ranch. Manatee Memorial has demonstrated a commitment to provide patient access, regardless of ability to pay. Local Health Plan Preference Number 3 relates exclusively to applicants seeking tertiary services, and is not applicable to this proceeding. Local Health Plan Preference Number 4 is not applicable to this proceeding because the application under consideration is not for additional beds in a fixed-need pool, nor are additional beds being sought under "not normal circumstances". Local Health Plan Preference Number 5A contemplates a preference when a transfer of beds will result in operating cost efficiencies. Manatee Memorial's sharing managerial staff, human resources, governance, administrative functions, and risk management will minimize operating costs achieving the economies contemplated by Local Health Plan Preference Number 5A. Local Health Plan Preference Number 5B affords a preference for an applicant who has documented growth with demographic studies for an area where beds will be transferred. Manatee Memorial has fully documented that the proposed site is in an area of Manatee County that is rapidly growing, relative to the county as a whole. Local Health Plan Preference Number 5C affords a preference for an applicant transferring beds and addresses the availability of professionals and medical personnel in the proposed area. The beds being relocated by Manatee Memorial are already licensed. Staffing them, however, will not be done without some difficulty. Local Health Plan Preference Number 5D contemplates preference for applicants providing patient origin studies related to campus and the proposed transfer site. Local Health Plan Preference Number 5D is satisfied. Local Health Plan Preference Number 6A contemplates a preference for applicants transferring beds and who have analyzed current occupancy and projected impact. Because of the mal-distribution of beds in relation to the population growth, and the inefficiency of Manatee Memorial's existing older patient areas, the occupancy rates at Manatee Memorial are not optimal. Relocation will improve utilization of Manatee Memorial by Manatee County residents. Manatee Memorial receives preference under this Local Health Plan Preference. Local Health Plan Preference Number 6B affords a preference for applicants providing a copy of the existing charge structure at its hospital. Manatee Memorial stated that it does not anticipate any material changes to its existing charge structure, because of constraints placed upon it by payors and competition in the local market. The preference in Local Health Plan Preference Number 7 is awarded to Manatee Memorial. The parties have stipulated that Manatee Memorial has demonstrated intent to serve HIV/AIDS infected persons. Local Health Plan Preference Number 8 affords a preference to applicants that analyze the need and impact of proposed project on existing providers when the need is not currently being met. Residents of District 6 and subdistrict 6- 3 are not going without needed hospital services. Local Health Plan Preference Number 9 affords a preference to applicants documenting a commitment to provide initial and continuing education of staff for patients receiving services. Manatee Memorial has earned this preference.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the application of Manatee Memorial Hospital, L.P. (CON 9170) be granted by the Agency for Health Care Administration. DONE AND ENTERED this 14th day of September, 2000, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2000. COPIES FURNISHED: John F. Gilroy, III, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Robert D. Newell, Jr., Esquire Newell & Terry, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 John D.C. Newton, II, Esquire Berger, Davis & Singerman, P.A. 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301-6313 Sam Power, Agency Clerk Agency for Health Care Administration Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached Stipulation and Agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED this 7D day of DcMen... I 2009, in Tallahassee, Leon County, Florida. I T&a . t:lo Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE 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 THE RENDITION OF THE ORDER TO BE REVIEWED. Filed November 2, 2009 1:20 PM Division of Administrative Hearings. Case No. 08-1995MPI ARCA vs. City of Jacksonville Fire Division Rescue Service Final Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by United States Mail and by facsimile transmission (904)630-1731 to Loree L. French, Esquire, Attorney for the Respondent; City of Jacksonville, 117 West Duval Street, t::5-_ Suite 480, Jacksonville, Florida 32202 this ...5.. 1) day of October, 2009. ?Sb RICHARD J. S::P, A:;y Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 (850) 922-5873 2
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
