The Issue Whether Petitioner is entitled to change from individual to family coverage under the State of Florida Employees' Group Insurance Plan more that thirty-one calendar days after the birth of her son and outside the open enrollment period.
Findings Of Fact Petitioner was employed by Department of Health and Rehabilitative Services (HRS) District IV in 1986. For the past 18 months she has worked in her present position with HRS District IV in Deland, Florida. She presently resides with her husband in Deltona, Florida. HRS District IV personnel office is located at 5920 Arlington Expressway in Jacksonville, Florida. Linda Boutwell is employed as the Insurance Coordinator for HRS District IV. Petitioner gave birth to a son on January 6, 1990. On January 8, 1990, Petitioner called Linda Boutwell concerning the addition of her son to her State Health Insurance which would require a change from individual to family coverage. Mrs. Boutwell advised Petitioner that she could change from individual coverage to family coverage, but that the child would not be covered until the form was returned and approved. Boutwell indicated she would send her the necessary paperwork to add her son as a dependent. Mrs. Boutwell prepared and mailed the paperwork on January 8, 1990. It was received by Petitioner on January 10, 1990. Although Petitioner received the required enrollment papers on January 10, 1990, she did not return them to her personnel office. Petitioner states she did not return the papers to her personnel office because she understood from conversation with Linda Boutwell that her son's hospital bills would not be paid by the State Plan, since the child was not enrolled in the State Plan prior to that date. Instead, Petitioner elected to enroll in family coverage under her husband's employer's carrier. On March 15, 1990, Petitioner again called Linda Boutwell to request her son to be added to her insurance. Boutwell explained that Petitioner's request could not be honored since the request was beyond 31 days of the birth of the child. Therefore, Petitioner had to wait until the annual open enrollment period to obtain insurance coverage for the child. Petitioner's March 15, 1990 request was prompted by her discovery that the hospital bill related to the birth of her son was covered under the State Plan, even though she had not yet converted to the family coverage provision of the State Plan. Petitioner never asked Boutwell whether her individual hospital bill was covered or not. Petitioner's conclusion that her son's hospital birth would not be covered was based partly on the statement of a close friend who called Petitioner on January 7, 1990, to warn her to "expect problems" with her State Plan coverage. Petitioner has received a copy of the Amended State of Florida Employees Group Health Self Insurance Plan, Benefit Document, dated July 1, 1988. However, she did not examine it during the period January-March, 1990. Section II of the Employees Group Health Self Insurance Plan states in pertinent part: II. Covered Hospital and Other Facility Services: The following services shall be covered when ordered by a physician and are medically necessary for the treatment of an insured as a result of a covered accident or illness. Inpatient hospital services under Subsections A., B., and H., are in connection with the pregnancy of only the employee . . . shall also include nursery charges of the child during the hospital stay of the mother. Petitioner does not offer any credible explanation why she did not convert to family coverage prior to or at the time of the birth of her son or during the 1989 open enrollment period which occurred during Petitioner's seventh month of pregnancy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition be DENIED. DONE AND ENTERED this 26th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1 through 11. COPIES FURNISHED: Susan Millard, pro se 2391 Montano Street Deltona, FL 32725 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issues in the case are whether certain provisions of the Florida Medicaid Hospital Services Coverage and Limitations Handbook (Handbook) that exclude non-emergent services rendered in the emergency room from covered Medicaid outpatient services and require revenue Code 451 to be billed with CPT Code 99281 constitute an invalid exercise of delegated legislative authority within the meaning of Subsection 120.56(3), Florida Statutes (2010).1
Findings Of Fact AHCA is the Medicaid agency for the State of Florida as provided under federal law. § 409.901(2), Fla. Stat. “'Medicaid agency' . . . means the single state agency that administers or supervises the administration of the state Medicaid plan under federal law." § 409.901(15), Fla. Stat. AHCA must administer the Medicaid program pursuant to a state plan that is approved by the Center for Medicare and Medicaid Services (CMS). 42 U.S.C. §§ 1396 and 1396a(a). AHCA reimburses Medicaid providers in accordance with state and federal law, according to methodologies set forth in rules promulgated by AHCA and in policy manuals and handbooks incorporated by reference in the rules. AHCA has adopted Florida Administrative Code Rule 59G-6.030, which incorporates by reference the Florida Title XIX Outpatient Hospital Reimbursement Plan, Version XIX (the Outpatient Plan), with an effective date of July 1, 2009. Reimbursement to participating outpatient hospitals, such as Petitioners, is to be provided in accordance with the Outpatient Plan. AHCA has issued the Florida Medicaid Hospital Services Coverage and Limitations Handbook. The Handbook is incorporated by reference in Florida Administrative Code Rule 59G-4.160. The Outpatient Plan and the Handbook identify those outpatient hospital services that are covered by the Medicaid program by revenue code. Only those revenue codes listed in Appendix A of the Outpatient Plan (Appendix A) and Appendix B of the Handbook (Appendix B) are covered outpatient services. Petitioners have challenged the following provisions of the Handbook: Handbook at page 2-7: EMTALA Medical Screening Exam The federal Emergency Medical Treatment and Labor Act (EMTALA) requires emergency rooms to conduct a medical screening exam on any patient presenting to the emergency room for medical services . . . . If the medical screening exam determines that no emergency medical condition exists, Florida Medicaid reimburses only for the screening and the ancillary services required to make the determination (e.g., lab work or x-rays). Medicaid policy does not provide for reimbursement of non-emergency services beyond the medical screening exam required by EMTALA. Handbook at page 2-40: Non-Emergency Care in the Emergency Room Medicaid policy does not provide for reimbursement of non-emergency services beyond the medical screening exam required by Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires emergency rooms to conduct a medical screening exam on any patient presenting to the emergency room for medical services. The purpose of the medical screening exam is to determine if an emergency medical condition exists. If the screening determines that an emergency medical condition exists, the provider must either stabilize the condition or appropriately transfer the patient to a facility that can stabilize the condition. If the medical screening determines that no emergency medical condition exists, Florida Medicaid reimburses only for the screening and the ancillary services required to make the determination (e.g., lab work or x-rays). Recipients are responsible for a coinsurance on such claims. Handbook, Appendix B at pages B-6 and B-7: EMERGENCY ROOM 0450 General Classification Use General Classification code 0450 when recipients require emergency room care beyond the EMTALA emergency medical screening services. Code 0450 cannot be used in conjunction with 0451 (99281). All other appropriate and covered outpatient revenue codes can be billed with 0450 to reflect services rendered to the patient during the course of emergency room treatment. No MediPass authorization is required when billing 0450, if the type of admission in Form Locator 19 on the claims is "1" (Emergency). MediPass authorization is required when the condition of the patient is not an emergency. 0451(99281) EMTALA Emergency Medical Screening Services (Effective 7/1/96) Report the EMTALA Medical Screening code 0451 (99281) when, following the screening and exam, no further emergency room care or treatment is necessary. If ancillary services are not necessary to determine whether or not emergency or further treatment is required, report the ancillary charges using the appropriate revenue center codes in conjunction with code 0451 (99281). Note that 0451 (99281) cannot be used in conjunction with 0450. Effective 10/16/03, HCPCs code 99281 replaces code W1700, used prior to 10/16/03, when billing revenue code 0451. Florida Administrative Code Rule 59G-4.160 provides that the specific authority for the promulgation of the rule is Section 409.919, Florida Statutes, and the law implemented is Sections 409.905, 409.908, and 409.9081, Florida Statutes. Petitioners are acute care hospitals that are and were enrolled as Medicaid providers of outpatient service in Florida at all times material to this proceeding.
Findings Of Fact On March 25, 1991, Fred Huerkamp, who has served as Director of Health Planning Council of Northeast Florida for District IV for approximately eight years, received Mederi's CON application to establish a medicare certified home health agency in District III. Huerkamp telephoned Mederi's representative, Louise Jeroslow, and told her that Mederi's application had been received that morning in his District IV office in Jacksonville, although it should have been sent to the local health council for District III in Gainesville. Jeroslow then telephoned the office of the North Central Florida Health Planning Council, the local health council for HRS District III. A staff member, after consultation with and at the direction of Executive Director Carole Gormley, told Jeroslow that it would not matter if the CON application was mailed from Jacksonville to Gainesville and, therefore received late in District III. Gormley has served as Executive Director of the District III Council for approximately eight years. Prior to January 31, 1991, Gormley and Huerkamp, the Directors of local health councils for Districts III and IV respectively, were aware that HRS checked with their councils to determine the timeliness of filings of letters of intent, but did not check on the timeliness of filings of CON applications with the councils. On January 31, 1991, Rule 10-5.008(1), Florida Administrative Code was substantially amended, and included the following specific provisions: (k) Certificate of Need Application Submission. * * * The application must be actually received by the Office of Regulation and Health Facili- ties by 5 p.m. local time and a copy must actually be received by the local health council by 5 p.m. local time on or before the application due date. An application shall not be deemed complete by the department unless all information requested by the department and provided for in the application form has been submitted on the form by the applicant. An application submitted to the Office of Regulation and Health Facilities shall not be accepted by the department, and the application fee will be returned if a copy of the application is not received by the appropriate local health council as provided above. The Mederi CON application at issue in this proceeding was filed in the February batching cycle, the first cycle following the amendment of the rule. Although the specific language of the rule was clarified, the requirement for submission of CON applications by 5 p.m. on the due date with both HRS and the local health councils was essentially unchanged, having previously been included in an HRS Policy Manual. All potential applicants were informed of the amendment of the rule by notice in the Florida Administrative Weekly on February 1, 1991. All applicants who submitted letters of intent, including Mederi, also received a copy of the rule in their application packages, an HRS number to telephone for additional information, and notice of the requirement by form cover letter, one paragraph of which, stated: According to Section 381.709(2)(a), Florida Statutes, and Chapter 10-5.008(1)(k), Florida Administrative Code, you are advised that certificate of need applications submitted to this department must also be sent concurrently to the local health council that serves the district of your proposed project. At the time Mederi's application was filed, neither Gormley of District III nor Huerkamp of District IV was aware of the specific change in the rule or, more importantly, of the new HRS policy of verifying that CON applications were timely filed with the local health councils. If either had been aware of the new policy or in doubt about the practices of HRS, they would have referred Mederi to HRS, as they routinely do when receiving inquiries from applicants and the public. By letter dated March 29, 1991, HRS rejected Mederi's CON application as untimely for having been received by the local health council for District III on March 26, 1991, one day late. HRS waived enforcement of the rule and accepted an untimely CON application in the same batching cycle in another district because the zip code provided by HRS in the CON application package was incorrect, causing a delay in delivery by Federal Express. The North Central Florida Health Planning Council is a private non- profit corporation established pursuant to Subsection 381.703(1), Florida Statutes, as the local health council for HRS District III. Pursuant to Subsection 381.703(1)(d), local health council personnel "shall not be deemed to be state employees." Pursuant to Subsection 381.703(1), Florida Statutes, certain responsibilities in the CON process are delegated to local health councils. Among others local health councils develop the district health plan, advise HRS on district health resources and needs, conduct public hearings on some CON projects, and monitor construction projects. In addition to the provisions of the statute, HRS used a Standard Contract to establish its relationship with private local health councils, including the councils for District III and District IV. The contract requires the councils to use State Career Service position classifications and compensation, and to have the prior approval of the HRS to reclassify positions. Council employees are also required to comply with the provisions of Chapter 112, Florida Statutes, which governs the conduct of state employees and officers.
Recommendation Based on the foregoing, it is hereby recommended that HRS enter a final order rejecting Mederi's application for a CON to establish a medicare certified home health agency in District III. RECOMMENDED this 31st day of July, 1991, at Tallahassee, Florida. ELEANOR M. HUNTER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2924 The following specific rulings are made pursuant to Subsection 120.59(2), Florida Statutes, submitted by the parties in this case: Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 3. Adopted in Finding of Fact 1. Adopted in Findings of Fact 14, 16 and 17. Covered in Finding of Fact 11. Adopted in Finding of Fact 11. Covered in Finding of Fact 11. Adopted in Finding of Fact 4. First sentence is adopted in Findings of Fact 3 and 4. Second and third sentences are not material or relevant. Adopted in Finding of Fact 7. Adopted in Finding of Fact 10. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8 and 12. Adopted in Finding of Fact 11. Not material or relevant. Adopted in Finding of Fact 13. First three lines are adopted, the last line is not material or relevant. First sentence is adopted in Finding of Fact 13. Second sentence is not material or relevant. Not material or relevant. Covered in Finding of Fact 13 and Conclusion of Law 4. Covered in Conclusion of Law 4. - 25. Not material or relevant. Included in Preliminary Statement. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. and 30. Adopted in Finding of Fact 3. Adopted in Finding of Fact 11. Adopted in Findings of Fact 1 and 12. Not material or relevant. Rulings on Proposed Findings of Fact Submitted by Respondent Included in Preliminary Statement. and 3. Adopted in Finding of Fact 12. Not material or relevant. Covered in Finding of Fact 10. Included in Preliminary Statement. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Findings of Fact 1-3 and 12. Adopted in Findings of Fact 1-3. and 12. Adopted in Finding of Fact 11. Not material or relevant. First sentence is adopted in Finding of Fact 17. Second sentence is not material or relevant. Rulings on Proposed Findings of Fact Submitted by Intervenor, Adventist Health System/Sunbelt, Inc. d/b/a Florida Hospital Included in Preliminary Statement. and 3. Adopted in Finding of Fact 10. First three lines are not material or relevant. Last line is adopted in Finding of Fact 5. and 6. Adopted in Findings of Fact 5, 9 and 10. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. and 10. Adopted in Finding of Fact 3. Covered in Finding of Fact 12. Adopted in Findings of Fact 14 and 15. Adopted in Finding of Fact 17. Adopted in Finding of Fact 11. Adopted in Finding of Fact 6. Covered in Conclusion of Law 6. Covered in Finding of Fact 10. Covered in Finding of Fact 13. and 20. Covered in Conclusions of Law 4 and 5. 21. and 22. Not material or relevant. 23. and 24. Unnecessary. COPIES FURNISHED: Louise T. Jeroslow, Esquire KOSNITZKY, TRUXTON, DE LA GUARDIA & SPRATT, P.A. 3225 Aviation Avenue Penthouse Miami, Florida 33131 Richard Patterson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 C. Alan Lawson, Esquire Steel Hector & Davis 215 South Monroe Street Suite 601 Tallahassee, Florida 32301 Robert T. Klingbeil, Esquire 1001 Avenida del Circo Post Office Box 1596 Venice, Florida 34284 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should issue certification to Florida Power & Light Company ("FPL") to construct and operate a new 1,100 megawatt (MW) combined-cycle electrical generating unit to be located at FPL's existing Manatee Plant site in Manatee County, Florida, in accordance with the Florida Electrical Power Plant Siting Act, Section 403.501, et seq., Florida Statutes.
Findings Of Fact Background Florida Power & Light Company is the largest electric utility in Florida, currently serving approximately seven million customers in its 34-county service area. That service area extends south from the northern Florida border along the east coast of the State, and includes all of the southern portion of the Florida peninsula up to and including Manatee County. FPL currently operates 34 generating units at 14 locations in Florida, including FPL's Manatee Plant. FPL has been supplying electricity in Florida for over 75 years. FPL’s Manatee Plant is located in the north central portion of Manatee County, Florida, approximately five miles east of the community of Parrish, Florida. The Manatee Plant is located in the unincorporated area of Manatee County. Access is by State Road 62, which runs east/west at the southern edge of the Plant site. S.R. 62 connects with U.S. 301 west of the Plant site in Parrish, Florida. The FPL Manatee Plant site contains approximately 9,500 acres. The existing FPL Manatee Plant includes two 800-megawatt steam-electric generating units known as Units 1 and 2. FPL applied for permits for Manatee Units 1 and 2 in June of 1972. Units 1 and 2 began commercial operation in 1976 and 1977, respectively. The Florida DEP issued a "Title V" air operation permit (No. 0810016-001-AV) for the Manatee Plant on May 29, 1998, pursuant to Chapter 403, Florida Statutes, and Rules 62-4, 62-210, 62-213 and 62-214, Florida Administrative Code. The Title V permit authorizes Units 1 and 2 to operate up to 8,760 hours per year, subject to comprehensive and detailed conditions pertaining to their air emissions, including but not limited to: emission limitations and standards; testing, monitoring, reporting, and record-keeping requirements; information on permitted fuels; and description of the two emission units and their maximum heat input rates. Existing Units 1 and 2 will remain in operation and will not be affected by the Project. The Manatee Plant site contains a 4,000 acre cooling pond, which provides cooling water to the two existing steam electric generating units at the site. Makeup water for the cooling pond is withdrawn from the Little Manatee River, pursuant to diversion schedules established under a Permit Agreement between FPL and SWFWMD, entered into in April 1973. Withdrawals from the Little Manatee River have occurred for over 25 years. Other facilities on the site include oil storage facilities, wastewater treatment facilities, an onsite system substation and transmission lines, construction and maintenance warehouses, and administration and ancillary facilities. The balance of the Manatee site is undeveloped or utilized for agricultural operations such as citrus groves, row crops, and cattle. Surrounding land uses are agricultural or undeveloped, with scattered residential development to the north and west of the Plant site. The nearest residence is approximately one-half mile away from the proposed Manatee Unit 3 site, within an outparcel contained within the larger FPL Manatee Plant site. Project Overview Manatee Unit 3 will consist of a natural gas-fired combined cycle power plant capable of generating 1100 MW (nominal) of electricity. Manatee Unit 3 will be located entirely within the existing boundaries of the FPL Manatee Plant site. Manatee Unit 3 will be located west of existing Units 1 and 2 in the Project Area comprising approximately 73 acres. The Unit 3 power block will be located in an area that has already been affected by existing uses at the Manatee Plant. Unit 3 will require approximately 26 acres for permanent facilities. The balance of the Project Area contains construction activities, existing warehouses, and stormwater facilities. The portion of the Manatee Plant site on which Unit 3 is proposed to be located, and for which FPL has sought site certification in this proceeding, does not include the existing Manatee Units 1 and 2. Neither FPL, nor any agency party, has invoked, or sought to invoke, the jurisdiction of the PPSA with respect to Manatee Units 1 and 2 or the air emissions from those existing generating units. All parties stipulated that Units 1 and 2 are not at issue in this proceeding. FPL undertook a community outreach program in connection with Manatee Unit 3. This effort included one-on-one discussions, group meetings and presentations, plant tours, and other opportunities. An open house was held at the Manatee Plant in May 2002. This ongoing communication program has contacted more than 1,800 people. FPL is continuing to update the community on the Project through presentations and mailings. Need for Manatee Unit 3 On December 10, 2002, the Florida Public Service Commission ("PSC") issued its Final Order determining the need for the FPL Manatee Unit 3 Project (as well as FPL's proposed Unit 8 at its Martin Plant). The PSC determined that FPL has a need for additional capacity to maintain the reliability of FPL's electrical system. FPL was found to have a need for Manatee Unit 3 taking into account the need for adequate electricity at a reasonable cost. The PSC found that FPL chose a proven technology and has the necessary experience in the construction and operation of combined cycle units. Further, the costs for both units were found to be reasonable. The PSC concluded there were no further energy conservation measures available to FPL that could offset the need for Manatee Unit 3. FPL was found to have implemented a considerable amount of cost effective energy conservation and demand side management. Based upon FPL's evaluation of other alternatives submitted in response to a request for proposals, the PSC found that Manatee Unit 3 and the separately-proposed Martin Unit 8, are the most cost effective alternative available to meet FPL's need for additional generating capacity beginning in 2005. The PSC concluded that FPL had met the statutory requirements under Section 403.519, Florida Statutes, for the determination of need for Manatee Unit 3. Project Schedule and Construction FPL expects to begin construction of Manatee Unit 3 in June 2003, or upon receiving final approvals for the Project. The new Unit is expected to be complete in June 2005, in order to meet FPL's customers' summer needs in that year. The simple cycle portions of Unit 3 are scheduled for completion beginning in August 2004, to allow operation in simple cycle mode while construction of the combined cycle unit is ongoing. Peak construction employment will be approximately 750 construction workers, management, and staff. Construction employment is expected to average about 275 workers. There will be no new construction of temporary or permanent roads that connect offsite as the existing plant entrance at S.R. 62 will be used for Project construction. Fugitive dust produced by traffic and excavation will be minimized through paving or the use of water sprinkling. Major pieces of equipment will be delivered by truck over existing road ways, or by rail over a rail line that already serves that site. The Unit 3 Project Area has been previously cleared for the existing units or will require minimal clearing. Impacts from creating material laydown areas will be minimal, temporary and mainly associated with grubbing and grading to create proper drainage. Soils will need to be excavated to provide support for the plant foundation and other facilities. Foundations for heavy loads will be supported by spread foundations or pilings. Subsurface excavations may require temporary dewatering by localized pumping of the shallow aquifer to lower the water table. The effluent from dewatering will be routed to the cooling pond. No offsite impacts to groundwater from dewatering activities are expected. The entire Project Area is outside the 100-year flood zone. Construction activities will alter runoff in parts of the site, but no adverse effects are expected from these activities. Construction period surface water runoff will be conveyed to stormwater ponds that can provide detention for all runoff from these areas. Impacts to offsite surface waters from construction- related runoff are expected to be negligible. Onsite construction activities will not cause adverse ecological effects as the Project Area is already highly altered, and maintained as either grassy or cultivated areas. These areas do not contain unique wildlife species and are not considered important wildlife habitats because of their disturbed nature. (No wetlands are located within the Project Area.) Construction noise will comply with the Manatee County Noise Control Ordinance. Construction noise will not affect wildlife in the vicinity of the site. The Manatee Plant site already has noise associated with operation of the existing facility and wildlife in the area is acclimated to such activities. Control measures will be implemented during construction to minimize fugitive air emissions and its potential impacts. Clearing will be kept to a minimum, thereby reducing air emissions from exposed surfaces. Watering will be used to control fugitive dust on highly traveled areas. During construction, portable chemical toilets and bottled water will be utilized. Solid and hazardous wastes generated during construction will be handled and disposed offsite by individual contractors. Project Description Manatee Unit 3 will consist of four advanced combustion turbines ("CT") and four heat recovery steam generators ("HRSG") in a configuration referred to as a "4-on-1" combined cycle unit. Each combustion turbine will generate approximately 170 MWs. The CTs operate much like a jet engine, in which air and fuel, in this case natural gas, are combined in the CT and then combusted. The heated gases then rotate a shaft that drives an electrical generator. The exhaust gases from the combustion turbines produce steam in the heat recovery steam generators, which is used in turn to drive a separate steam turbine generator. By utilizing the waste heat from the CTs, the resulting combined cycle unit will be more efficient than the simple cycle CTs and traditional steam-electrical units. Manatee Unit 3 will be among the most efficient electric generators in Florida. Duct burners are proposed for each HRSG and are fired during peak demand periods to achieve the total nominal generating capacity of Unit 3. The four CTs will be equipped with inlet air evaporative cooling which creates a more moisture-laden air stream in the CT, allowing additional power to be produced more efficiently. The CTs will also be capable of power augmentation, in which steam from the HRSG is injected into the CT during periods of peak electrical demand to increase electrical output. Each CT will be capable of operation in "peak" mode in which the firing temperature of the combustion turbine is increased, resulting in increased power. Exhaust gases from Unit 3 will be emitted from a stack associated with each HRSG unit. Each combustion turbine will also be capable of operating in simple cycle mode in which exhaust gases will be emitted either from a bypass stack associated with each CT or by the HRSG stack. Natural gas heaters will be used if the CTs are operated in simple cycle mode. The height of the four HRSG stacks will be a maximum of 150 feet. Cooling water for the Manatee Unit 3 will be provided by the existing cooling pond. Wastewaters and stormwater from the power block will be treated onsite and recycled to the cooling pond. Other onsite facilities to be constructed as part of the Project will include interconnections with the existing onsite transmission facilities, along with storage facilities for ammonia, hydrogen, demineralized water, and condensate water. Manatee Unit 3 will connect to the existing onsite electrical system substation via a new tie line. That substation will be expanded to accommodate the interconnection to FPL’s existing electric transmission system. No new offsite transmission lines are required. The Unit 3 project will utilize a number of other existing facilities at the Manatee Plant site. Natural gas will be the only fuel used in the Manatee Unit 3. Gas will be delivered to the Plant by pipeline. The Manatee Plant site is already served by an existing natural gas pipeline that may supply gas to the Unit 3, or another gas pipeline may be installed and would be independently permitted and constructed. Natural gas will not be stored onsite. Manatee Unit 3 will generate only small quantities of solid wastes. These will be limited to municipal solid wastes and infrequent replacement of inlet air filters. The catalyst in the selective catalytic reduction (SCR) system will be replaced periodically and disposed of in accordance with applicable requirements. Hazardous wastes will be produced in limited quantities. These will be collected and disposed of offsite by a licensed hazardous waste contractor. Air Emissions Air emissions from Manatee Unit 3 will result from both the combustion process and impurities in the fuel itself. Nitrogen oxides are formed through the oxidation of a portion of the nitrogen that is naturally found in natural gas. Additional nitrogen oxides are formed through the oxidation of the nitrogen contained in the combustion air. Carbon monoxide and volatile organic compounds are formed by incomplete combustion of fuel. Sulfur dioxide and particulate matter emission rates are dictated by the amount of sulfur in the fuel. Under state and federal Prevention of Significant Deterioration ("PSD") review requirements, all major new or modified sources of regulated air pollutants that are located in areas attaining compliance with ambient air quality standards must be reviewed. Manatee Unit 3 is considered a major modification to the existing Manatee Plant site because the Project's emissions will exceed the significant emission increase thresholds for several regulated air pollutants. Based on expected emissions from Unit 3, PSD review was required for: particulate matter ("PM"), sulfur dioxide ("SO2"), nitrogen oxides ("NOx"), carbon monoxide ("CO"), volatile organic compounds ("VOC") and sulfuric acid mist. PSD review is used to ensure that significant air quality deterioration will not result from new facilities like Unit 3. These analyses include a review of the proposed emissions control technology, a source impact analysis, an air quality impact analysis, source information, and additional air quality impact analyses. Air Emissions Control Technology Air emissions from Manatee Unit 3 will be minimized through the inherent efficiency of the combined cycle design, and the use of: natural gas as the exclusive fuel, advanced combustion control technology, and post-combustion control technology. Natural gas, the cleanest of fossil fuels, has very low levels of impurities and can be burned very efficiently. The use of dry low NOx combustion design in the CTs, and low NOx burners in the duct burners, will also minimize air emissions by inhibiting formation of thermal NOx by premixing of fuel and air prior to combustion, and by reducing flame temperatures. Selective Catalytic Reduction ("SCR") will provide additional control of emissions of NOx from Unit 3 when operating in combined cycle mode. In the SCR system, located in the HRSGs, ammonia is injected into the CT exhaust where NOx in the gas stream reacts with the ammonia in the presence of a catalyst to form nitrogen and water. State and federal PSD regulations require that Manatee Unit 3 meet all applicable emission limiting standards and that Best Available Control Technology ("BACT") be applied in order to control emissions. BACT is defined in Chapter 62- 210.200(38), Florida Administrative Code, as: An emission limitation, including a visible emissions standard, based on the maximum degree of reduction of each pollutant emitted which the Department [of Environmental Protection], on a case by case basis, taking into account energy, environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. The BACT requirements are intended to insure that the air emission control systems for Unit 3 reflect the latest in control technologies used in the electric utility industry and take into consideration existing and future air quality in the vicinity of the Project. BACT review includes a cost-benefit analysis of alternative control technologies capable of achieving a higher degree of emission reduction than the proposed technology. FDEP's determination on what constitutes BACT for Manatee Unit 3 is to be based on a balancing of environmental benefits with environmental, energy, and economic impacts and other costs. In its PSD review, the Department preliminarily determined that the air emissions control technologies proposed for Manatee Unit 3 are consistent with BACT as required under federal and state PSD regulations. The exclusive use of natural gas, combined with advanced combustion control technology, will provide the maximum degree of emission reduction for sulfur dioxide, particulate matter, volatile organic compounds, carbon monoxide and sulfuric acid mist. The dry low NOx control technology for the CT combustors and the duct burners, along with SCR, reflect the latest available control technologies for reducing NOx emissions from combined cycle systems. The emission limits for Manatee Unit 3 in the Department's recommended Conditions of Certification are identical to the emission limits proposed as BACT by the Department. The recommended NOx emission limit of 2.5 parts per million for combined cycle operation is equal to or lower than BACT determinations for other combined cycle units in the State of Florida, and is lower than any project previously certified by the Siting Board under the PPSA. Air Quality Impact Analysis Ambient air quality standards have been established by the U.S. EPA and FDEP to protect public health and welfare. Air quality in the vicinity of the Manatee Plant, and in the Tampa Bay area, currently meets all federal and state ambient air quality standards. Manatee County is classified as an "attainment" area for all criteria pollutants. Air quality modeling demonstrates that Manatee Unit 3 will comply with all state and federal ambient air quality standards, as well as PSD Class I and II increments. The air quality modeling conducted for the Project followed EPA and FDEP modeling guidelines. Two air quality models were utilized to assess air quality impacts in the area surrounding the Manatee Plant site. The modeling also assessed impacts in the nearest PSD Class I area, which is the Chassahowitzka National Wilderness Area (NWA), located approximately 72 miles to the north-northwest from the Project site. Local meteorological data from the National Weather Service was used in the modeling. The modeling incorporated maximum air emissions from the Unit 3 under both combined and simple cycle configurations and at various operating modes, loads, and ambient air temperatures, which may affect the emission rates from the Unit. The air quality modeling results indicated the maximum air impacts from the Project will comply with all ambient air quality standards and PSD Class I and II increments. EPA has established "Significant Impact Levels" for the various pollutants that are subject to PSD review, and the Department has adopted these Significant Impact Levels at Rule 62-204.200(29), Florida Administrative Code. The comparison of a project's air quality impacts with the Significant Impact Levels represents an initial screening analysis to determine which pollutants require a more detailed modeling analysis. Impacts of the emissions of all air pollutants from Unit 3 would be below the PSD Class I and Class II Significant Impact Levels, except for coarse particulate matter (PM10) over the 24-hour averaging period in the Class II areas. Accordingly, air impacts from Unit 3 are considered insignificant based upon this screening analysis for all pollutants except for PM10 over the 24-hour averaging period. More refined modeling was conducted for PM10 over the 24-hour averaging period. This modeling demonstrated that PM10 emissions from Unit 3, when considered along with other existing sources, would be well below each of the relevant air quality standards. Nitrogen oxides and volatile organic compounds are precursors to the formation of ozone in the atmosphere. The emission of these air pollutants from Manatee Unit 3 will not interfere with the ongoing compliance with the ambient air quality standard for ozone in the Tampa Bay region, and will not interfere with the area-wide strategy for reducing ozone concentrations. There are expected to be no air quality impacts due to associated industrial, commercial, or residential growth due to the Project or its location. There should also be no adverse impacts to the "Air Quality Related Values," including visibility, soils, vegetation, or wildlife, in the closest PSD Class I area at the Chassahowitzka NWA. Unit 3's potential impacts on regional haze in this Class I area were below the screening level. Water Uses and Sources Water uses for Manatee Unit 3 will include circulating water for the condensers and other cooling, demineralized water for use in the power generation process, and general service water for washdowns and other uses. The existing cooling pond, with makeup water provided from the Little Manatee River, will be the source of cooling, service, and process water for Unit 3, as it is currently the source of water for the existing Manatee Plant. Potable water will be supplied from an existing permitted onsite potable well. The existing cooling pond is man-made and has earthen embankments. The 4,000-acre pond has a gross storage volume of approximately 52,000 acre-feet of water. The pond contains two splitter dikes to prevent short circuiting in the circulating water, thereby enhancing the cooling pond's heat dissipation efficiency. A spillway is located on the northern embankment of the cooling pond and is designed to safeguard against overtopping of the embankment. The only planned releases from the cooling pond are annual testing of the spillway gates. Seepage from the cooling pond through the embankments is captured in a system of toe drains around the perimeter of the pond. The seepage is collected in sumps and returned to the cooling pond. An average of approximately three million gallons per day of seepage is returned to the cooling pond. The Unit 3 circulating water system may require the construction of new inlet and outfall structures within the cooling pond and installation of circulating water pumps and underground piping to move water to and from the new Unit 3. The existing inlet structure may be utilized and a new diffuser pipe may be installed as part of the circulating water system, which would eliminate the need to construct new facilities in the pond dike. The existing weir at the Little Manatee River intake will be upgraded to ensure minimum river flows are maintained. No other changes are needed to the cooling pond or the existing cooling water systems for Units 1 and 2 or to the cooling pond makeup system. An existing Permit Agreement between FPL and the Southwest Florida Water Management District, originally entered into in 1973, allows sufficient makeup water for the operation of the Manatee Plant cooling pond even with the addition of Unit Under the existing agreement, withdrawals may not exceed 190 cubic feet per second ("cfs") and are not allowed to lower river flow below 40 cfs. The existing agreement would allow FPL, under certain flows in the Little Manatee River, to withdraw up to 47 percent of the river flow. After Unit 3 begins operation, makeup water for the cooling pond will continue to be withdrawn from the Little Manatee River. FPL has proposed, and SWFWMD has recommended, a more restrictive schedule for diversions from the Little Manatee River beginning in October 2004. With the proposed diversion schedule, withdrawals will reduce the rate of river flow by no more than 10 percent. During emergency conditions, when the level of the cooling pond falls below 62 feet above mean sea level ("msl"), FPL will be allowed to revert to the existing diversion schedule for October through July, under the current Permit Agreement until the cooling pond reaches 63 feet msl. Under either schedule, diversions will neither reduce the river flow below 40 cfs nor exceed 190 cfs. A modeling analysis of the revised schedule indicates that the average monthly diversion or withdrawal for all three units from the Little Manatee River is estimated to be about 8.9 million gallons per day ("mgd") when Unit 3 becomes operational. Flow in the Little Manatee River averages 114 mgd near the FPL Manatee Plant. The modeling analysis showed that only three events in a 24-year period would qualify as "emergencies" in which the current diversion schedule would have been used. Under this analysis, withdrawals under the proposed diversion schedule would have exceeded 10 percent of the river flow only three percent of the time. Historical withdrawals for the FPL Manatee Plant have exceeded 10 percent of the river flow 18.5 percent of the time. The Little Manatee River is approximately 40 miles long from its origins to its mouth at Tampa Bay. The FPL Manatee Plant is about 18.5 miles above the mouth of the river. From its mouth up to about river mile 12, the vegetation in this part of the river is mangroves, salt marsh, and tidal marsh. At river mile 12 and above, the river is generally freshwater with freshwater bottom land stream swamp vegetation. Water flows and levels exhibit significant variability, with flows ranging between a low of four cubic feet per second and a high of 10,000 cubic feet per second at a location 3.5 miles downstream from the FPL Manatee Plant. At that location, water levels can vary between two feet and 12 feet above mean sea level. Withdrawals from the Little Manatee River have the effect of reducing flow in the river, which could affect water levels along the river, as well as the location of the saltwater interface in the river itself. The saltwater interface represents the point at which fresh and saltwater meet, and it may move up and down the river due to river flow and tidal forces. There has been no adverse effect on the ecology of the Little Manatee River or its estuary from the historical withdrawals for the FPL Manatee Plant. An evaluation of the hydrologic and ecological effects of the projected withdrawals under the revised diversion schedule indicate that the withdrawals after Manatee Unit 3 commences operation should not result in adverse impacts to the Little Manatee River. Hydrologic analyses indicate that the effects of withdrawals under the proposed diversion schedule on water levels, water flows, and salinity in the Little Manatee River will all be within the natural variability of the river and similar to the effects of the historical withdrawals for the Manatee Plant. No significant adverse effects on the ecological features of the Little Manatee River will result from the withdrawals under the new diversion schedule. Flora and fauna in the river are well adapted to fluctuating water levels and salinity. The new diversion schedule will more closely mimic natural rainfall patterns and the 40 cfs cutoff for diversions will protect critical low flow periods in the river. The new diversion schedule with Manatee Unit 3 will be more environmentally sensitive than the existing diversion schedule. These diversions will occur in a manner that better mimics the natural fluctuations in daily river flow by allowing more water to be diverted during high flow periods when the ecology of the river and its estuary is less sensitive to withdrawals. FPL has provided reasonable assurances that the proposed withdrawals after Unit 3 commences operation will have no adverse effects on the Little Manatee River and its estuary. SWFWMD has proposed that FPL undertake a hydrobiological monitoring program of the River. This program will map and monitor vegetation in the river and collect data on salinity and tides in the river. The monitoring program will require regular reports to SWFWMD on the effects of FPL’s withdrawals on the ecology of the Little Manatee River and its estuary. Surface Water Discharges from the Cooling Pond A mathematical model was also conducted of the thermal performance of the cooling pond to predict water quality in the pond over a 24-year period, based on historical weather data and expected plant water withdrawals. The model was used to estimate the dissolved solids level in the cooling pond so that water quality in the pond could be predicted for the future. The pond modeling indicates that water quality in the pond will not exceed surface water quality standards that apply to discharges from the pond. Currently, the only discharges from the pond occur during high-water controlled discharges during extreme rainfall events that exceed the 100-year, 24-hour storm, and during annual gate tests that are conducted to ensure reliability of the gates. When Unit 3 becomes operational, excess rainfall releases from the pond will become less frequent. The pond water level will be managed to provide sufficient storage to retain all direct rainfall and surface water runoff to the pond from a 100-year, 24-hour storm. The cooling pond modeling showed that, with Unit 3 operating, no high water discharges would have occurred over a modeled 24-year period. FPL will continue to analyze the pond water quality as required under an existing FDEP wastewater permit prior to any releases during gate tests. If the analysis shows water quality of a discharge would exceed applicable Class III surface water criteria, then the water in the stilling basin below the discharge gates is also analyzed for water quality criteria. If the combined discharge would violate Class III water quality standards, the gate test will not be performed. Plant Water and Wastewater Treatment The design and operation of Manatee Unit 3 will include a number of water conserving technologies or systems. The use of combined cycle generating technology reduces water use by 60 percent over the water use in a comparable traditional steam generating unit. Unit 3 will utilize only natural gas and thus will not require water to control air emissions of nitrogen oxides. Wastewaters and stormwater from the power block will be collected and recycled to the cooling pond. Process water for use in the plant will be treated in an existing permitted reverse osmosis ("RO") demineralizer system. Demineralized water is required to replace water lost in the steam cycle and to maintain water quality in the heat recovery steam generators, as well as for use in power augmentation and in inlet air fogging systems on the combustion turbines. Raw water will be taken from the Manatee Plant cooling pond for these purposes. The reject water from the RO system will be recycled to the cooling pond. The plant will also require general service water that will be provided by the service water system. The existing permitted domestic wastewater treatment system will handle any additional flows generated by Manatee Unit 3 and no new treatment facilities are planned. The proposed Manatee Unit 3 will utilize the existing Manatee Plant's process water treatment system and associated wastewater treatment systems. The only new wastewaters generated by Unit 3 will be blowdown required to maintain water quality in the HRSGs and equipment wash waters and stormwater from the power block. These wastewaters will be treated in the existing wastewater treatment systems, as necessary, and then recycled to the cooling pond. The cooling system for Manatee Unit 3 requires chlorination or use of biocides to prevent biofouling of the heat rejection system. The water in the steam cycle of the HRSG will be treated to prevent corrosion and scaling of the piping and boiler drums. The HRSG and its piping must also be chemically cleaned initially and then periodically during the life of the Plant. The chemicals required for this process will be delivered to the site by a contractor at the time of the scheduled cleanings. Chemical wastewaters resulting from drainage at chemical storage tanks or cleaning and maintenance operations will be contained and routed to the existing neutralization system for treatment or disposed offsite. Surface Water Management System The onsite drainage facilities for Manatee Unit 3 are to be constructed in accordance with applicable federal, state, regional, and local regulations for control of both stormwater quality and stormwater quantity. The new stormwater systems for Unit 3 will be designed to handle the rainfall from a 25-year, 24-hour storm. Runoff that does not contact industrial areas will be collected and routed to new detention ponds located in the western and southern portions of the Project Area or routed directly to the cooling pond. Stormwater in the CT/HRSG, switchyard, and the plant maintenance areas will be collected, treated for oil separation as needed, and recycled to the cooling pond. The perimeter roads surrounding the CT/HRSG area will contain the runoff from a 100-year, 24-hour storm. Drainage patterns at the existing units will be separated from the new Unit 3 areas. During construction, runoff will be routed to the stormwater ponds to prevent sediment transmission offsite and will be used while final construction of the Project stormwater system is completed. Temporary silt fences will be installed to prevent sediment from being displaced and carried offsite by construction runoff. Groundwater Impacts The only groundwater withdrawal associated with Manatee Unit 3 will be the withdrawal of approximately 1,000 gallons per day of additional groundwater for potable use. This would increase total potable groundwater withdrawals to 8,000 gallons per day. This is within the permitted withdrawal rates under the existing Manatee Plant's consumptive use permit for potable water. Thus, it is anticipated there will be no adverse impacts on groundwater supplies as a result of groundwater withdrawals for Unit 3. Groundwater will not be used in the cooling or other processes for the Project. The existing Manatee Plant cooling pond is the principal source of potential impacts to groundwater at the Plant. Because the cooling pond is generally above the surficial aquifer, seepage from the cooling pond may move laterally through the earthen embankments and vertically into the groundwater beneath the cooling pond. The cooling pond is surrounded by a toe drain system and sumps that are designed to collect horizontal seepage from the cooling pond. This system captures most, if not all, of the seepage and recycles it to the cooling pond, thereby minimizing potential groundwater quality impacts to the surficial aquifer. The Manatee Plant cooling pond was in existence in July 1982 and therefore it is an existing installation for purposes of groundwater discharges under Rule 62-522.200, Florida Administrative Code. Groundwater discharges from the cooling pond are required to meet the state's primary drinking water standards at the boundary of an existing zone of discharge. The groundwater zone of discharge extends to FPL's property boundaries and to the base of the surficial aquifer below the Manatee Plant site. An analysis of the groundwater discharges from the cooling pond indicates that the cooling pond discharges will comply with applicable groundwater standards at the edge of the existing zone of discharge. Noise Impacts of Construction and Operation A noise impact assessment was conducted for the Project, both during construction and operation. Baseline or ambient noise data was collected using sound monitoring equipment at five different locations within and near the Project Area. Using the ambient noise data and expected project noise levels for construction and operation, a noise impact evaluation was performed using an accepted noise propagation computer program. This assessment demonstrated that the construction and operation of Manatee Unit 3 will comply with the Manatee County Noise Ordinance. Socioeconomic Impacts and Benefits The Project Area is an appropriate site for the proposed new Unit 3. The Project consists of the installation of a new combined cycle unit at an existing power plant site that has been in use for that purpose since 1976. Surrounding properties are zoned for agricultural use and residential properties are some distance from Unit 3. The closest residential area is approximately two miles from the Unit 3 Project Area. The Project will also comply with the noise standards of Manatee County. The Manatee Unit 3 Project will benefit the economies of Manatee County and surrounding communities. Direct benefits will include employment opportunities during construction and operation of the Project. It is expected that most of the construction employees will be drawn from the Tampa Bay area and commute daily to the job site. Employment opportunities will result from construction job opportunities, as well as jobs indirectly generated through the purchase of goods and services in the area. Construction employment will average 275 jobs over a 24-month period with an estimated payroll of $95 million. In addition, approximately $20 to $25 million is expected to be spent within the state for materials and equipment during construction. Construction spending will have a multiplier effect in the economy, producing indirect jobs in sectors that support the construction industry. The number of indirect jobs expected to be created will average 175 jobs over the 24-month period. The principal impact from construction of Unit 3 will be short-term traffic impacts due to construction employees, equipment, and materials entering and leaving the site. A transportation analysis of the Project indicated that there could be undesirable delays at the existing Plant's driveway connection to S.R. 62 and at the intersection of S.R. 62 and U.S. 301 in Parrish, with the current stop signs that exist. Therefore, during peak construction periods, an off-duty officer would control the traffic at those intersections during those peak hours. This is the preferred means for traffic maintenance. Operation of Manatee Unit 3 will add approximately 12 new employees at the FPL Manatee Plant. Increases in employee traffic and deliveries to the Plant during operation will be de minimus compared to Manatee County's threshold for traffic impacts. No traffic improvements are needed for Unit 3's operation. Thus, the Project-related traffic during operation of Unit 3 will meet Manatee County's transportation concurrency standards. The additional annual payroll for these 12 new employees is estimated to be $600,000. The increased economic activity from this payroll is expected to generate an additional 18 indirect jobs in the local economy and generate about $310,000 in annual earnings, primarily in construction, retail trade, real estate, business service and health service. Estimated Manatee County property taxes from Unit 3 during operation are $8.2 million in 2006. Over the first five years of operation, tax payments to Manatee County and the State of Florida are expected to be $1 million in sales taxes and almost $38 million in property taxes. The power plant will require very little in the way of additional public services and thus, there should be little or no increase in demand for public services and facilities from Unit 3. Manatee Unit 3 will be consistent with the Manatee County Comprehensive Plan, the State Comprehensive Plan, and the Strategic Regional Policy Plan of the Tampa Bay Regional Planning Council. The Project will also comply with the applicable development standards in the Manatee County Land Development Code. Construction and operation of Manatee Unit 3 will not adversely affect any landmarks, sensitive areas, or archaeological or historical sites. The closest landmarks and sensitive areas within the five-mile radius of the Project will not experience any changes in air quality, noise level, water quality, or visual impacts. There will be no impacts to known archaeological resources. If archaeological materials are discovered, they will be evaluated by professional archaeologists and state historical preservation officials, if necessary. Public Comment Nine members of the public provided testimony during the certification hearing, and two exhibits were admitted as public comment. Several of the persons who provided public comment expressed concerns regarding the air emissions from Manatee Units 1 and 2. Several others expressed appreciation for the manner in which FPL has interacted with the community. No competent, substantial evidence that would alter the findings of fact set forth herein was received from members of the public at the certification hearing. Agency Positions and Stipulations The FDEP, the Florida Department of Community Affairs, the Florida Department of Transportation, the Florida Fish and Wildlife Conservation Commission, the Southwest Florida Water Management District, the Tampa Bay Regional Planning Council, and Manatee County each prepared written reports on the Project. Each of these agencies recommended approval of Manatee Unit 3, or otherwise did not object to certification of the proposed power plant. FDEP has proposed a series of Conditions of Certification for the Project that incorporate the recommendations of the various reviewing agencies. FPL states that it is prepared to accept and can comply with these Conditions of Certification in the design, construction, and operation of Manatee Unit 3. The Florida Department of Community Affairs stipulated that the Project would not conflict with the State Comprehensive Plan. The Tampa Bay Regional Planning Council stated in its agency report that the Project would not conflict with the Strategic Regional Policy Plan for Southwest Florida. Manatee County reported that the Project would be consistent with the County's comprehensive plan and land development code. No state, regional, or local agency has recommended denial of certification of the Project or has otherwise objected to certification of the Project.
Conclusions For Florida Power & Light Company: Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 For the Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 For the Southwest Florida Water Management District: Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 For Manatee County: Jeffrey N. Steinsnyder, Esquire Jamie L. Althouse, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206-1000 For Tampa Bay Regional Planning Council: Roger Tucker, Esquire 9455 Koger Boulevard, Suite 219 St. Petersburg, Florida 33702-2491 For ManaSota-88, Inc.: Glenn Compton, Chairman 419 Rubens Drive Nokomis, Florida 34275
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board grant full and final certification to Florida Power & Light Company, under Section 403, Part II, Florida Statutes, for the location, construction, and operation of Manatee Unit 3, representing a 1,100 MW combined cycle unit, as described in the Site Certification Application and the evidence presented at the certification hearing, and subject to the Conditions of Certification contained in FDEP Exhibit 2 and as appended hereto. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 19th day of February, 2003. COPIES FURNISHED: Ross Stafford Burnaman, Esquire James V. Antista, Esquire Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Colin Roopnarine, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Roger Tucker, Esquire Tampa Bay Regional Planning Council 9455 Koger Boulevard, Suite 219 St. Petersburg, Florida 33702-2491 Jeffrey N. Steinsnyder, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Green & Sams Post Office Box 6526 Tallahassee, Florida 32314-6526 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Robert V. Elias, Esquire Martha Carter Brown, Esquire Florida Public Service Commission Gerald Gunter Building 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 ManaSota-88, Inc. c/o Glenn Compton, Chairman 419 Rubens Drive Nokomis, Florida 34275 David B. Struhs, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner, Janice Lynn Heller, mailed an application for licensure as a midwife to respondent, Department of Health and Rehabilitative Services (HRS), on June 12, 1982. The application was received by HRS on June 22 and forwarded to its Public Health Nursing Office on June 23. Heller resides at 1042 Tyler Street in Hollywood, Florida. She has resided in that city for 24 years. She is 32, years old, married, and holds an Associates Degree from Miami-Dade Community College; Her background includes working in her father's medical office, a suicide prevention hotline, and in the Department of Pharmacology at the University of Miami. She has acquired skills in cardiopulmonary resuscitation, has attended seminars and clinics in prenatal care, instructing couples in prepared home births, infancy and bonding, has read extensively on the subject of child births, and has attended several hundred births as an assistant to other midwives. She has also trained as a birth coach to the Association of Child Birth at Home International. In addition, she has attended and been primarily responsible for the delivery of twenty-seven newborns at home under the supervision of a physician. At the time the application was filed, Rule 10D-36.22, Florida Administrative Code, prescribed the requirements for licensure as a midwife. As is pertinent here, they included a requirement that the application be accompanied by evidence of the applicant having "attended within a one year period under the supervision of a duly licensed and registered physician not less than fifteen cases of labor including the care of not less than fifteen mothers and newborn infants during the lying-in period." Heller submitted proof of having attended sixteen births under the supervision of a duly licensed and registered physician. Fifteen such births were supervised by Dr. Marcus, a Sunrise, Florida pediatrician, and one by Dr. A. E. Gillig, all during a one year period. Therefore, Heller met this requirement. Although respondent contended Dr. Marcus did not verify the actions of Heller, this contention is rejected in view of Marcus having testified that Heller is reasonably competent and skilled to practice midwifery based upon his observations of Heller at fifteen births, and his having discussed with her the principle of sterilization, her knowledge of sterile technique, her knowledge of what complications to look out for in child birth, and other matters relating to prenatal care. Rule 10D-36.22 also required that the applicant obtain "(a) written recommendation for licensure by the county medical director attesting to the applicant's ability to complete standard birth certificate forms and that the applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary." In June, 1982 Heller resided in Broward County. The assistant county medical director at that time was Dr. George Trodella. Because Trodella had publicly stated he would never recommend licensure of a lay midwife in Broward County under any circumstances, and because Heller believed the requirement for Trodella's recommendation to be illegal, she suggested in her transmittal letter that HRS find an alternative method for carrying out this requirement. Accordingly, this portion of the application was incomplete. After reviewing the application, the Department's Public Health Nursing Office did not contact Heller about the incomplete item in her application, but instead sent the application to Dr. Trodella on June 26 for his review and recommendation as to Heller's qualifications. Trodella responded by letter dated July 22, 1982, and attached certain correspondence he had received about Heller from the City of Hollywood Fire Department while responding to an emergency call involving Heller and a client named Farese. The letter reflected adversely upon Heller, and Trodella concluded Heller was "not qualified at this time for licensure." On September 24, 1982, HRS wrote Heller and advised her that it intended to deny her application on the following grounds: You have not provided a record of having attended 15 births within one year as required by FAC 10D-36.22. In the case of Susan Farese, you failed to summon a physician immediately when a serious complication developed as required by FAC 10D-36.26(3), or failed to competently diagnose her condition. In the case of Susan Farese, there is evidence that you attempted to remove an adherent placenta, in violation of Florida Statutes 485.081. In the case of Susan Farese, there is evidence that you incompetently administered oxygen to a patient (one-half to one-third the recommended flow rate) Administration of any substance for therapeutic purposes, except 1 percent fresh solution of silver nitrate, is specifically prohibited by 10D-36.27 FAC. In the case of your patient Mrs. Pinkdon, you failed to refer her to a physician and attempted to attend her delivery, despite the fact she could not be expected to have a normal uncomplicated labor and delivery as required by Florida Statutes 485.081 and FAC 10D-36.25. You have not received a written recommendation for licensure by the county medical director as required by 10D-36.22 FAC. You have generally failed to show qualifications and fitness to practice lay midwifery as required by FAC 10D-3.22(3) and failed to comply with the public health laws of the State of Florida as required by F.S. 485.071. The letter of denial promoted the instant proceeding. Heller requested an administrative hearing to contest the denial of her application on October 26, 1982. Thereafter, on January 21, 1983 Heller filed a petition to determine invalidity of rules wherein she challenged the validity of Rules 10D-36.22(1)(a), 10D-36.22(1)(d) and 10D-36.27, Florida Administrative Code. These rules were ultimately declared to be invalid, Petty-Eiffert and Heller v. DHRS, DOAH Case No. 83-204R, Final Order entered May 5, 1983, and the final order was affirmed by the First District Court of Appeal in DHRS v. Petty- Eiffert and Heller, 445 So. 2d 266 (Fla. 1st DCA 1983). The result of that proceeding was to eliminate grounds 1, 5 and 6 In HRS's letter of September 24 as a basis for denying Heller's application. HRS accordingly now relies upon grounds 2, 3, 4 and 7 for denying her application. The gravamen of the Department's letter of September 24 centers around a client of Heller named Susan Farese. Heller and Sarah Pinkman, a licensed midwife, attended and assisted in the labor and delivery, of Farese's child on March 22, 1982 at Farese's home in Broward County. Prior to the birth, the midwives ascertained that there was a hospital some five to ten minutes away, should complications arise. The child was delivered at 3:45 a.m. on the morning of March 22 without complications and received a perfect Apgar score of ten. However, during the third stage of labor, which involves the delivery of the placenta, a problem arose. Normally, the placenta separates within a few minutes after birth and is accompanied by a gush of blood. In Farese's case, the first gush of blood occurred around 4:15 a.m., or thirty minutes after delivery of the child, but the placenta did not separate and deliver. When the placenta did not separate within the next few minutes and a steady trickle of blood continued, they immediately assessed the problem as a partial separation and, contrary to the allegations in the letter of September 24, Pinkman, not Heller, began administering oxygen to Farese at a rate of between four and six liters per minute. At the same time, Pinkman called both Dr. Marcus and a fire rescue unit at the Broward County Fire Department. It is unclear as to the specific time the fire rescue call was made, but the call was eventually relayed to a fire rescue unit at 4:28 a.m. It arrived at Farese's house at 4:34 a.m. The mother and child were later transported to a local hospital where the placenta was removed by a doctor. Mother and baby are now doing fine. Both Heller and Pinkman were well aware that it was dangerous and improper to attempt to manually remove Farese's placenta. Based upon the testimony and evidence, it is found that Heller did not "attempt to remove an adherent placenta" as charged in the letter of denial. 1/ Although the total amount of fluids passed by Farese was between 500 and 1000 cubic centimeters, not all of this amount was blood. It was also customary for midwives to wait 30 minutes after delivery for the placenta to detach. Indeed, although the Department had no rule governing this time period, it has since adopted a rule which allows a midwife to wait 30 minutes for delivery of the placenta before consulting a physician. Therefore, it was not inappropriate to wait for thirty minutes in Farese's case, to thereafter assess the situation, and to call a physician and a fire rescue unit within the next two to three minutes. Heller is aware of the basic clinical techniques involved in being a lay midwife, including taking pulse and blood pressure, listening to fetal heart tones, external palpitations, checking for dilation, checking urine, insuring that the birth setting is appropriate, sterilizing instruments, and recognizing how labor is progressing. She is also aware of the importance of sterile techniques, and in this vein, has never had infection arise in either mother or baby in any births she has been involved with. Heller is skilled in recognizing complications that could arise during labor, and is able to legibly fill out birth certificates. Two other licensed midwives, Carol Nelson and Sara Pinkman, both considered Heller to be well qualified to be licensed as a midwife. This opinion is based upon their knowledge, familiarity and personal observations of Heller while she assisted and otherwise aided expectant mothers in labor and delivery. The Department has licensed at least four other applicants as midwives prior to Heller who did not obtain the recommendation of the county medical director in the county in which they resided. They include Cheryl McGhan, Doreen Virginiak, Heather Blanchard and Sara Pinkman. HRS did not explain this deviation from its rules.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Janice Heller for licensure as a lay midwife be GRANTED. DONE and ENTERED this 4th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of June, 1984.
Findings Of Fact The Parties Manatee Palms is an existing 60 bed residential treatment center located in Bradenton, Manatee County, Florida, which opened on January 12, 1987. It is a wholly owned subsidiary of PIA Psychiatric Hospitals, Inc., which owns or operates 51 psychiatric hospitals and three residential treatment centers throughout the United States. The Department is the state agency with the authority and responsibility to consider CON applications. MMH is an existing acute care hospital with a 25 bed short-term psychiatric unit which consists of approximately ten adolescent beds. It is the Manatee County contract provider of in-patient psychiatric services to the medically indigent, and provides approximately 91% of the indigent care in manatee County. MMH does not have, and has never sought, a CON as an IRTP, but does have earlier batched applications pending for additional short an d long term psychiatric beds. Its average length of stay is 35-40 days, and its utilization rate is approaching 100%. MMH provides services similar or identical to those offered or proposed by Manatee Palms and FRTC, and its program also utilizes a "Levels System", as does the program at Manatee Palms and the one to be offered at FRTC. FRTC is a wholly owned subsidiary of Charter Medical Corporation, which received a CON through Final Order of the Department on February 15, 1988, for a 60 bed intensive residential treatment facility located in Bradenton, Manatee County, Florida. The facility is currently under construction, and is projected to begin operations in March, 1990. The Application and the Project Manatee Palms is licensed as a child caring facility and holds a license entitling it to various services relating to alcohol and substance abuse to adolescents between the ages of 8 and 18. The facility is JCAH accredited as a residential treatment center. In April, 1987, Manatee Palms filed CON application number 5148 with the Department. It seeks to obtain specialty hospital licensure as an IRTP for its existing facility, and must receive a CON before it can be so licensed. The Department reviewed Manatee Palms' application and preliminarily denied CON 5148. Manatee Palms timely sought review of the Department's preliminary decision, and requested this formal hearing. By Order entered on May 3, 1988. leave to intervene was granted to MMH and FRTC. At hearing, relevant information that updates a CON application, and is the result of extrinsic circumstances beyond the applicant's control, is admissible, according to the Department's expert in CON review, Liz Dudek. The existing facility which is the subject of these proceedings is divided into two 30-bed wings based upon two separate clinical programs provided at the facility. One 30-bed unit is the psychiatric unit where a program for patients suffering only from psychiatric illnesses reside and are treated. The other unit is for dual diagnosis patients suffering from both psychiatric and substance abuse disorders. The primary service area for Manatee Palms includes Manatee, Sarasota, Pinellas, Hillsborough, Pasco, Polk, Hardee, Highlands, Charlotte, Lee, Collier and Orange Counties, with the secondary service area covering all eleven service districts of the Department, as well as out-of-state. Approximately 25% of the patients at Manatee Palms are from District VI. The facility encompasses 23,500 gross square feet, and contains classrooms, bedrooms, activity rooms, a dining facility and fully equipped kitchen, pharmacy, offices, a medical examining room, timeout rooms, and a service wing. The outside area covers 15 acres and consists of a swimming pool, ball field and a ROPES course, which is also available for non-residents in the community. A fully accredited school is operated at the facility, and some of the residents also attend a public high school which is located across the street. Classes are taught by EH and SED instructors provided by the Manatee County School Board. The facility supplies an aide for each class. The treatment program at Manatee Palms includes: comprehensive and individualized treatment; individualized, group and family therapy; the fully accredited school program; psychological testing and evaluation; creative and expressive arts; occupational and recreational therapy; alcohol and substance abuse education and counseling; vocational counseling; language, speech and hearing therapy; and structured after care. Therapy is provided in both a group and individualized setting, in accordance with an individual treatment plan for the resident which is developed by his treatment team. Additional services are provided to residents through contracts with outside physicians. A Levels System is followed which allows each resident to move up the Levels and gain increased privileges as the resident improves his behavior. Manatee Palms is extensively involved with the community through clinical workshops, the District VI Severely Emotionally Disturbed Network, Advisory Councils, counseling sessions for adolescents who are not in need of psychiatric care but are in need of counseling, and drug screening services which are provided at no charge. The facility's stated goal is to provide services that will enable program participants to return to their communities under less restrictive treatment requirements as soon as possible. The average length of stay is approximately 61 days in the dual diagnosis unit, and approximately 147 days in the psychiatric unit. Combining both units, the average length of stay at the facility is approximately 120 days. Admissions are accepted from mental health and social service agencies, schools, hospitals, and private practitioners. Patients are admitted upon the order of a psychiatrist/physician. Manatee Palms has three psychiatrists on staff and other non-psychiatric physicians providing services at the facility, include family physicians, a podiatrist, gynecologist, optometrist, podiatrist, as well as several dentists. The clinical staff to patient ration is approximately 1.25 to 1.0, and the overall staff to patient ratio is 1.8 to 1.0. The facility experienced an 86.8% occupancy from its opening in January, 1987, through April 30, 1988. At the time of its omissions response in June, 1987, its occupancy was 85.5%. Occupancy for 1989 is projected to be 89- 90%. Approximately 25% of the patients treated at Manatee Palms reside within District VI, while the rest reside in other Districts, or out of state. Manatee Palms has a contract with the Department to treat "chronically disturbed" adolescents, who have long term problems and have been treated in multiple settings before their admission to Manatee Palms. These patients generally require a longer average length of stay, and although they comprises half of all admissions in 1987, they now represent about 35% of the patients at Manatee Palms. The facility is committed to serving the same number of patients under its contract with the Department for the next two year, even with a CON. The gross charge per patient day at Manatee Palms is $255.00, which includes room, board and nursing, and ancillary charges are about $12.00 per day. The average gross patient charge per admission is $45,000. Rates for patients admitted under the contract for services with the Department are reduced to $185.00 per day, including ancillary charges, and this is below actual costs. Payor classes include insurance patients, private pay patients, and patients admitted under the contract with the Department. The number of insurance companies providing reimbursement for private pay patients has substantially increased since 1987, and there are approximately 40 insurance companies that have provided coverage for patients at Manatee Palms. Non-Rule Policy for IRTP The Department has no rule governing the approval of IRTP applications for a CON. Since February, 1987, the Department followed a non-rule policy which presumed there is a need for at least one licensed IRTP of reasonable size in each Departmental service district, and which did not consider the existence of unlicensed residential treatment beds in a district in determining if the presumed need had been met. Nothing in the record of this proceeding serves to explicate any rational basis for this non-rule policy based upon health planning concerns, considerations, or any other factors. The stated non-rule policy, therefore, provides no guidance for review of the application at issue in this case. FRTC received a Final Order of the Department in February, 1988, granting it a CON for a new IRTP to be located in Manatee County. Therefore, Manatee Palms is seeking licensure for the second IRTP in District VI. It is, however, an existing facility which does not seek to add new beds or provide new services at its facility, but seeks to change the status of its existing beds to "hospital" beds through licensure. In order to be licensed as a "specialty hospital", a facility must first receive a CON. The stated non-rule policy of the Department provides no guidance for review of the application at issue in this case, since even had it been explicated on the record of this proceeding, it does not apply to the review of a second IRTP application in a service district. Need and Consistency with State and Local Health Plans The Florida State Health Plan sets forth several relevant goals, including: encouraging the availability of the least restrictive treatment setting for all residents in need of mental health services; developing a continuum of services for mental health and substance abuse treatment, and a complete range of public mental health services in each service district; promoting third party reimbursement for non-hospital settings; and developing a network of residential treatment settings for severely emotionally disturbed children. The District VI Local Health Plan also encourages the use of the least restrictive and most cost effective treatment settings. No specific goals are identified in the Local Plan for residential treatment programs. The Manatee Palms application is consistent with these relevant portions of the State and Local Health Plans. It would increase access for patients with a dual diagnosis of both psychiatric and substance abuse problems, and would thereby encourage treatment in a facility with a shorter average length of stay than an acute inpatient hospital. It provides a less costly alternative to hospitalization. Manatee Palms accepts patients through a service contract with the Department, and thereby assists the development of a complete range of public mental health services. Insofar as approval of this application will increase the level of commercial insurance reimbursement for services at Manatee Palms, it will thereby improve the financial viability of the facility, and allow it to continue to serve patients under its contract with the Department, which currently does not allow for the recovery of actual costs associated with those services. Approval of this application will insure that Manatee Palms, which accepts publicly financed patients, will be able to compete on an equal basis with FRTC, which has made no commitment to serve patients under a service agreement with the Department. A numeric need methodology for IRTPs is not set forth by rule or incipient policy of the Department. For this reason, Manatee Palms presented three analyses to establish the need for this facility. First, competent substantial evidence was presented that referral sources and other knowledgeable individuals in the community believe that Manatee Palms does fill an existing gap in services by providing long-term psychiatric and substance abuse services locally to adolescents who require this level of treatment, and that the facility has a very good reputation in the community, with extensive involvement in the community. Second, a bed-to-population ratio analysis was performed, and established that if Manatee Palms' application is approved, the ratio of beds to population would be .32 beds per thousand for the 0-17 age group in District VI, even allowing for the already approved FRTC beds. This ratio analysis was adopted by the Department in its Final Order issued in February, 1988, granting FRTC a CON for an IRTP in Manatee County, and in that case 1991 population projections were used by the Department. Since this application was filed later than the FRTC application, 1992 population projections have been used to arrive at the .32 beds per population ratio. Thus, the same five year population projection has been used in this case, for purposes of this bed-to-population ratio analysis, as was applied by the Department in the FRTC case. This would be well within the range of bed-to-population ratios for areas with the existing IRTPs which is from .07 to 1.33 beds per thousand population for ages 0-17. This ratio analysis was adopted by the Department as a method to establish need in IRTP cases subsequent to the Manatee Palms application being deemed complete. The utilization and adoption of this methodology in the FRTC case was not within the control of Manatee Palms, and there was no way this could have been foreseen when it filed this application. It is, therefore, appropriate and necessary for Manatee Palms to address, and rely upon, this subsequently adopted methodology at hearing, although it was not addressed in its application. Third, the services which are offered at Manatee Palms were distinguished from those to be offered at FRTC to establish that a different type of patient would be treated FRTC than is currently treated at Manatee Palms, and that, therefore, existing occupancy rates would not be reduced at Manatee Palms due to the FRTC facility. Specifically, it was shown that the proposed average length of stay at FRTC would be three times longer than the actual average length of stay at Manatee Palms, and FRTC does not propose to serve substance abuse patients or provide services to publicly financed patients under a contract with the Department, both of which comprise a significant portion of Manatee Palms' patient census. Manatee Palms could not have addressed the FRTC facility when its application was filed since the FRTC CON was not issued until February, 1988. It is, therefore, appropriate for this to be addressed for the first time at hearing since it is a fact not under the control of Manatee Palms which has developed subsequent to this application being deemed complete. The need for this facility is also evidenced by the rapid increase in actual utilization rates since it opened in January, 1987, and by testimony from local support witnesses from the school system and local law enforcement. Since the primary and secondary service areas of Manatee Palms extend beyond District VI to include the entire state, as well as service to out-of- state residents, the fact that FRTC will serve primarily the residents of Manatee County will not substantially reduce the need which Manatee Palms is meeting in its existing services area. Accessibility to All Residents The clear purpose of this application is to enable Manatee Palms, an existing facility, to become licensed as a hospital under Section 395.002, Florida Statutes, and thereby enable it to be called a "hospital". If a facility is licensed as a hospital, it has a significant advantage for reimbursement from third parties who more readily reimburse for care in a licensed facility than in an unlicensed residential treatment center. Therefore, accessibility is increased for those children and adolescents in need of treatment whose families have insurance coverage, since it is more likely that payments under such third party coverage will be made at an IRTP licensed as a "hospital" than otherwise. Since it has already been in operation for a year and a half, and has developed an excellent reputation in the community and among insurance carriers, the number of insurance companies willing to reimburse for services at Manatee Palms has increased over that time to approximately 40, and by early 1988, almost 52% of Manatee Palms' patients had commercial insurance coverage. There is evidence, however, that additional carriers would be willing to reimburse for services at this facility if it were to be licensed. An increase in the number of third party carriers willing to reimburse for treatment at Manatee Palms will promote and improve the financial viability and stability of the facility, and result in an increased number of Florida residents receiving treatment at the facility, with a similar reduction in out- of-state patients being treated at Manatee Palms. This, in turn, will inure to the benefit of publicly financed patients served at this facility under its contract with the Department by assuring the continued operation of the facility. As a result, this application increases accessibility to treatment for such patients, particularly since the facility has committed to serve the same number of these patients for the next two years, even with a CON. Quality of Care The applicant has clearly demonstrated that it has been providing quality care in its existing facility, and that it will continue to do so if it receives the CON, and is licensed as a "specialty hospital". In fact, licensure will require the applicant to meet more stringent standards than those under which it is currently operating. Manatee Palms performs extensive pre-admission screenings, and develops treatment plans for each patient early in their course of treatment. The patient's treatment team continues to monitor progress under the treatment plan, and to make revisions in the plan, when necessary. Treatment is provided seven days a week, and includes an extensive educational component. Family involvement in treatment is maximized, and discharge planning begins upon admission. The goal of treatment is return of the resident to the community as quickly as possible. Availability and Adequacy of Alternatives The approval of this application would increase the availability and accessibility of residential treatment services to patients with dual diagnoses, publicly financed patients, and those who may be treated in a shorter period of time. Although a CON for FRTC has already been approved, that facility will not serve the same types of patients as are presently served at Manatee Palms, as previously noted above. The average length of stay at FRTC will be one year, while at Manatee Palms it is 120 days. Additionally, the service area of FRTC will comprise District VI, while Manatee Palms has a far broader service area. Manatee Palms is an existing facility serving patients in need of the treatment rendered. It is meeting an existing need which cannot be met through other existing or approved facilities. Availability of Resources Since Manatee Palms is an existing facility which has been in operation since January, 1987, and has achieved an excellent reputation in the community, as well as almost 87% occupancy, there is no question that it has sufficient available resources, including health manpower and management personnel, to continue its operation. The applicant proposes no additional beds or services with this application. Services Accessible In Adjoining Areas There are no licensed IRTPs in adjoining Districts V or VIII. Manatee Palms has served patients from these adjoining areas, as well as from throughout the state. There are no viable options in adjoining districts for District VI residents in need of the types of services Manatee Palms renders. The granting of this CON, and subsequent licensure, will improve Manatee Palms' ability to continue to render these services. Financial Feasibility David J. Rabb, an expert in the financial feasibility of medical facilities, prepared pro formas for 1989 and 1990 based upon the issuance of this CON, which show net revenues of $80,000 in 1989 and $106,000 in 1990. This represents a fair after tax profit each year, and establishes the financial feasibility of the project. These pro formas represent updates of pro formas contained in the application, and are admissible in this de novo hearing since they are based upon actual operating experience which was not available when this application was filed, and reflect economic conditions and rates of inflation not within the control of the applicant. Reasonable assumptions were used by Rabb in preparing his pro formas. He assumed 89.6% occupancy in 1989 and 90% in 1990. Patient revenues were reasonably projected at $286 in 1989 and $303 in 1990. Utilization by payor class was projected for 1989 to be: 52% commercial payor, 34% HRS patients, 7% Blue Cross, 4% Champus, 2% out-of-state, and 1% self pay. For 1990, it was assumed the facility would no longer serve out-of-state patients, and therefore the commercial pay patients were increased to 54% in 1990, out-of-state patients were eliminated, and all other payor classes remained the same. Rabb's expense projections for 1989 and 1990 were also reasonable. Based upon a study performed by Rabb of the impact of licensure upon the financial position of Manatee Palms, it is established that hospital licensure would improve the financial position of the facility. Jay Cushman, who was presented by MMH and was accepted as an expert in health planning and financial feasibility, concurred that licensure will enhance commercial pay patients beyond the level possible without licensure, and that this in turn will improve the financial viability of the facility. Liz Dudek, the Department's health facilities consultants' supervisor and an expert in health planning, confirmed that it is the Department's position that licensure as an IRTP increases accessibility to patients because of the increased likelihood of insurance reimbursement. Impact on Costs and Competition Competition among health care facilities serves to enhance quality of care and to assure cost effectiveness in the delivery of services. Since FRTC has already received a CON as the first IRTP to seek licensure in District VI, granting this application will allow Manatee Palms to compete equally with FRTC by also being able to obtain a licensure as a "specialty hospital". This should have a positive effect on the quality of care and cost effectiveness of both facilities. Since no new construction or services are to be offered at Manatee Palms as a result of this application, and since it has an established room rate structure which is already in place, and which was used for projections in the pro formas, the approval of this application will have a minimal, if any, impact on any increased costs for the delivery of health care. It was not established by competent substantial evidence that either MMH and FRTC would be injured or negatively impacted by the approval of this application. Actual patient days and average daily census at MMH's adolescent unit have gone up since Manatee Palms opened. MMH maintains, however, that since its patient mix has changed during this time to reflect a decrease in commercial pay patients and an increase in Medicaid patients, it is being adversely affected, despite the increase in gross patient numbers. However, the increase in Medicaid patients which MMH has experienced cannot be attributed to Manatee Palms. MMH is the only Medicaid approved hospital in the area, and Manatee Palms will not be able to accept Medicaid patients, with or without a CON and licensure. Therefore, approval of this CON will have no effect upon the level of Medicaid admissions experienced at MMH. There is evidence that the decrease in commercial pay patients at MMH is due to physician admitting practices, rather than the opening of Manatee Palms. Specifically, Dr. Howard Goldman, is on staff of both MMH and Sarasota Palms, but not Manatee Palms. Dr. Goldman has been admitting most of his commercial pay patients to Sarasota Palms and Medicaid patients to MMH. MMH presented the testimony of Jay Cushman, who was accepted as an expert in health planning and financial feasibility, concerning the impact which approval of this application would have on MMH. Cushman estimated that MMH will loose a total of ten patients, or 1.2 patients per day, if Manatee Palms receives a CON, and he further stated that other patients would not be available to fill this gap. At the same time, however, he testified that MMH is presently seeking a CON for additional psychiatric beds, even though it was fully aware of FRTC and Manatee Palms' applications when its application was filed. MMH's application is for six short term adolescent beds, ten long term, and eleven substance abuse beds. Despite being fully aware of FRTC and Manatee Palms, Cushman supported MMH's application for 27 new beds, and yet testified in this proceeding that no patients would be available to make up for patients MMH might lose to Manatee Palms. Due to this obvious and unexplained contradiction, Cushman's testimony is discredited, and his credibility impaired. Accordingly, this testimony has been given little weight. On the basis of Cushman's analysis, Eric Long, an expert in hospital finance, estimated the financial impact to MMH of this patient loss projected by Cushman. Since the Cushman testimony has been given little weight, Long's impact analysis is also discredited. Long simply took Cushman's figures of patient loss and translated them into a dollar impact, but made no independent analysis of patient loss. Since his starting point was faulty, his analysis is faulty. FRTC did not show any adverse impact on its facility as a result of CON approval and licensure of Manatee Palms. Because of the difference in the services to be provided, the average length of stay, and service areas of the two facilities, FRTC and Manatee Palms are not in direct competition for every patient. To the extent there is competition, however, this should have a positive effect on the delivery services in District VI. Services To Indigents Manatee Palms is not eligible to accept Medicaid patients, but it does serve the medically indigent through a service contract with the Department. Licensure will enhance the applicant's ability to continue to serve the medically indigent under this contract with the Department. Although the percentage of HRS patients at Manatee Palms has decreased in 1988, there is no evidence that Manatee Palms has every turned an HRS patient away in favor of a commercial pay patient. While occupancy has been almost 87%, there are still beds available at Manatee Palms, and therefore, there has been no need to turn any patients away since beds are available. The facility is dedicated to continue its current level of commitment to serve publicly financed patients under a service contract with the Department for the next two years if this CON is approved.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order approving Manatee Palms' application for CON 5148. DONE and ENTERED this 29th day of September, 1988, in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX (DOAH Case Number 87-4731) For purposes of this Appendix, the following abbreviations shall be used: "A" means Adopted, "R" means Rejected, and "fof" means finding of fact contained in this recommended order. Rulings 1. on R Manatee Palms' Proposed Findings of Fact: as a statement of position rather than a fof. 2. A fof 1. 3. A fof 2. 4. A fof 4. 5. A fof 3. 6. A fof 6,7. 7-8. R as unnecessary, and as simply a statement of position. 9. A fof 8. 10. A fof 9. 11. A fof 5. 12. A fof 10. 13. A fof 11. 14. R as irrelevant. 15-16. A fof 14. 17-18. A fof 15. 19. A fof 12. 20. A fof 13. 21. A fof 15. 22. A fof 17. 23. A fof 17, 29, 30. 24. A fof 18, 19. 25. A fof 28, 30, 39. 26-28. A fof 20. 29-30. A fof 21. 31. A fof 25. 32. R as a conclusion of law rather than a fof. 33. A fof 22, 23. 34. A fof 24. 35-39. A fof 22, 24. 40. A fof 23, 24. 41. A fof 24. 42. A fof 25. 43-44. A fof 28. 45-46. A fof 25. 47-48. A fof 26. 49. A fof 28, 29, 30. 50. R as simply a statement of position and argument on the evidence rather than a fof. 51. A fof 30, 39. 52-53. R as unnecessary. 54-56. A fof 33, 34. R as a conclusion of law and not a fof. A fof 31. R as not based upon competent substantial evidence. 60. A fof 31. 61. A fof 32. 62. A fof 31, 32. 63-64. A fof 31. 65-66. A fof 33, 34. 67-68. A fof 36. 69-70. A fof 35. 71-72. A fof 37. 73. A fof 38. 74. A fof 39. 75. A fof 28, 39. 76-77. A fof 9, 27, 33. 78-81. A fof 40, 41. 82-25. A fof 48-50. 86-88. R as irrelevant and unnecessary. 89. A fof 42. 90-92. A fof 43. 93. R as unnecessary. 94. A fof 44. 95-97. A fof 45. 98-100. A fof 46. 101. A fof 47. Rulings on the Department's Proposed Findings of Fact: 1. A fof 1. 2. A fof 6. 3. A fof 5. 4-6. A fof 17, 18. 7-8. R fof 38. 9. A fof 29. 10. A fof 17. 11. A fof 16. 12. A fof 30. 13. A fof 4. 14. A fof 3, but otherwise R as speculative. 15-18. R fof 25, 33, 34, and as irrelevant and not based upon competent substantial evidence. 19. A in part fof 20, but otherwise R as a conclusion of law rather than a fof. 20. R fof 24, 25, 30, 39, 48. A fof 20. R as unnecessary and irrelevant. R fof 25. R as unnecessary and irrelevant. 25. A fof 9, 16. A in part in fof 4, but otherwise R as irrelevant. R fof 7. A fof 7. R as a conclusion of law rather than a fof. Rulings on MMH's Proposed Findings of Fact: A fof 1. A fof 4. A fof 3. A fof 2. A fof 1. A fof 5. 7-8. A fof 6. A fof 16. R as unnecessary and irrelevant. A fof 7. R as unnecessary and irrelevant. A fof 7. A fof 8. A fof 10. 16. A fof 11, 12. 17. A fof 12. 18. A fof 15. 19. A fof 11. 20. A fof 14. 21. A fof 14, 16. 22-23. A fof 16. 24-26. A fof 17. 27. A fof 19. 28. A fof 18. 29. R fof 17, 30, 38. 30. A fof 17, but also R in part fof 17, 30, 50. 31. A fof 20. 32-34. R as a conclusion of law rather than a fof. 35. R as simply a statement of position and not a fof. 36-37. A fof 20. A and R in part fof 21. R fof 21. R fof 25. A in part fof 17, but otherwise R fof 17, 30, 50. R as simply a statement of position and not a fof. A fof 25. 44. R fof 25, 26. R fof 20. A fof 25. A fof 27. R as a conclusion of law and not a fof, and otherwise without citation to the record. R fof 25, and as argument on the evidence without citation to the record rather than a fof. R as simply an excerpt of testimony and not a fof. 51-52. A and R in part in fof 25. 53. R as argument on the evidence without citation to the record rather than a fof. 54-55. R fof 28, 29, and otherwise as irrelevant. 56. A fof 22, 24. A fof 22. R fof 22. 59-60. R fof 24. 61. R fof 23, 24. 62-63. A in part fof 16, but otherwise R fof 25, 26, 28, 29. 64. R fof 30, 48, 50. 65. R as simply a statement of position and not a fof. 66. R fofo 30, 50. R as irrelevant and not based on competent substantial evidence. A and R fof 27. R as simply a statement of position and not a fof. 70. R fof 30, 50. 71. A fof 18, 30, but R fof 30, 50. A and R fof 30, 48. R as a conclusion of law and not a fof. A fof 9, 16, but R fof 25-29. 75-80. R fof 31, 32, 35, and otherwise as irrelevant and not based on competent substantial evidence. A fof 37. R as simply a statement of procedural matters and not a fof. 83-85. A and R fof 37, and otherwise R as irrelevant. R fof 37. R as irrelevant. R as simply a statement of position and not a fof. A fof 3. R fof 45. R fof 44. R fof 46. 93-94. R as irrelevant and not based on competent substantial evidence. Rulings on FRTC's Proposed Findings of Fact: 1-4. R as unnecessary preliminary matters. 5. A fof 1, 5. 6. A fof 8. 7-9. A fof 9, 16. 10. A fof 17, 48. 11. R as irrelevant and unnecessary. 12. A fof 16. 13. A fof 14. 14. A fof 6. 15. A fof 28. 16. A fof 26, 28, but R fof 25. 17. A fof 7. 18. A fof 3, 7. 19. A fof 4, 7. 20-23. R as unnecessary and not a fof. 24. A fof 30. 25. R fof 28, 30, 48. 26. A fof 19, 29. 27-28. A fof 38. A fof 29. R as irrelevant and as argument on the evidence rather than a fof. R fof 49 and as not based on competent substantial evidence. A in part fof 29, but otherwise R fof 28, 39. R as irrelevant and unnecessary. R fof 28, 39, and otherwise as irrelevant and unnecessary. R fof 49. A fof 38. 37-38. R fof 33, 34. 39-40. R fof 25, 27, 33. 41. R fof 25, 27, 33, 34. A in part fof 20, but otherwise R as simply an argument on the evidence and not a fof. R fof 20, 21, and as not based on competent substantial evidence. 44-45. A in part fof 33, but R fof 34 and as irrelevant and unnecesasary. 46. A fof 25, 33. A in part fof 25, 33, but otherwise R as argument on the evidence and not a fof. R as speculative and not based on competent substantial evidence. A fof 17, 30, but otherwise R as unsupported argument on the evidence and not a fof. R as speculative and not based on competent substantial evidence. 51. R fof 40, 47. 52. R as unnecessary and cumulative. COPIES FURNISHED: Michael J. Cherniga, Esquire P. O. Drawer 1838 Tallahassee, Florida 32302 Michael J. Glazer, Esquire R. Stan Peeler, Esquire P. O. Box 391 Tallahassee, Florida 32302 John T. Brennan, Jr., Esquire 900-17th Street, N.W. Suite 600 Washington, D. C. 20006 Jean Laramore, Esquire P. O. Box 11068 Tallahassee, Florida 32301 Stephen M. Presnell, Esquire O. Box 82 Tallahassee, Florida 32302 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 =================================================================
