Findings Of Fact Petitioner is a nonprofit corporation located in Lehigh Acres, Lee County, Florida, with a membership of approximately 900 persons. The association's goals are to insure that quality health care services, including, but not limited to, long-term care services, are available to that community. The Community Health Association, Inc., was preceded by a non-profit corporation known as Lehigh Acres General Hospital, Inc. This corporation managed and operated the Lehigh Acres General Hospital, located in Lehigh Acres, Florida. In June, 1981, the corporation sold its license to operate this acute care hospital to Hospital Corporation of America (HCA). HCA took over management of the facility July 1, 1981. HCA is currently leasing the facility from Community Health Association, Inc. HCA applied for and received a Certificate of Need to construct a new hospital in Lehigh Acres, Florida. Construction of this hospital is underway and is to be completed on or about January 1, 1984, at which time HCA will turn the old hospital facility back to Community Health Association. At the time of the licensure sale by Community Health Association (Lehigh Acres General Hospital, Inc.) to HCA, the Lehigh Acres General Hospital operated an 88-bed acute care facility which had utilized, since 1970, 20 of the 88 beds as nursing home beds. In July, 1981, Community Health Association, Inc., filed a letter of intent with Respondent for a 60-bed nursing home to be operated in Lehigh Acres, Florida. Respondent advised Community Health Association, Inc., that its application for a CON was premature due to the pending CON issued to HCA to construct a hospital in Lehigh Acres. In early 1982, Community Health Association, Inc., employed Herman Smith & Associates, of Chicago, Illinois, health care consultants, to perform a long-term study concerning need for a nursing home or nursing home beds in the Lehigh Acres area. On the basis of its study, Herman Smith & Associates recommended that Petitioner seek authority to provide 110 nursing home beds in two phases. The first phase of the project would involve converting the 1970 wing of the previous hospital building for use as a 50-bed nursing unit at a cost of approximately $350,000. The second phase consisting of construction of a 60-bed addition, costing $1,380,000 for 15,527 square feet, would be completed in early 1985. The sale of the license to HCA brought Petitioner $1,000,000. These funds will cover the first phase and part of the second phase costs. Petitioner's prior experience in health care delivery and its community support, along with these financial resources, will enable it to construct and operate the proposed nursing facility. There are no existing or approved nursing homes or nursing home beds to be located in Lehigh Acres, Florida. Except as noted below, all existing and approved nursing home beds are located in western Lee County in Ft. Myers, Cape Coral or in other communities located approximately 30 minutes or more by automobile from Lehigh Acres. Upon completion of construction and abandonment of the old Lehigh Acres hospital building by HCA, the new hospital will discontinue the 20 nursing home beds currently operated. Approximately 75 percent of this hospital's patients are Lehigh Acres residents, with few if any patients from Ft. Myers or western Lee County. All the nursing home referrals from the new hospital will be required to leave Lehigh Acres unless Petitioner's proposed nursing home is constructed. Petitioner filed a letter of intent with Respondent, followed by an application for a CON on or about October 1, 1982, proposing the project as recommended by Herman Smith & Associates. Following the submission of the instant application, Respondent adopted Rule 10-5.11(21), Florida Administrative Code (F.A.C.), which became effective on November 9, 1982. That rule establishes the "Methodology to Determine and Calculate the Need for Community Nursing Home Beds" in a service district. About January 29, 1983, Respondent advised Petitioner that its application for a 110-bed nursing home in Lehigh Acres was denied as not consistent with the Section 10-5.11, F.A.C., nursing home bed need methodology. Respondent's State Agency Action Report stated that "A need does not exist to add nursing home beds in Lee County through 1985. There are 347 approved but not constructed beds in the county. The bed need methodology produces an excess of 494 nursing home beds in the county through 1985." The State Agency Action Report reflected 970 existing and approved nursing home beds in Lee County. The report also projected a need for 1,400 community nursing home beds for the year 1985 in Lee County. The testimony of its author established that the same portion of the rule applied to 1986 protected population figures would yield a need for 1,522 beds in Lee County in 1986. At the time Petitioner's application was evaluated by Respondent, nursing homes in Lee County had an average 95.8 percent occupancy rate. Based on the application of the current utilization formula contained in Chapter 10-5.11(21), F.A.C., Respondent calculated that 494 excess nursing home beds in Lee County are licensed or approved. Projected population of persons age 65 and over living in Lee County in 1985 is 60,463 and ir 1986 is 65,708. The application of these population figures to the formula contained in Ch. 10-5.11(21)(b), F.A.C., yields a nursing home bed need in Lee County for 1985 of 1,400 and for 1986 of 1,522. As noted above, there are currently 970 licensed and approved nursing home beds in Lee County. The "Nursing Home Plan Component" of the Local Health Plan of the District Eight Health Council of Sarasota, Florida, of which Lee County is a portion, adopted June 29, 1983, indicates a need for 501 additional beds in Lee County for the year 1986. In applying Rule 10-5.11(21), F.A.C., Respondent's determination was subject to two errors. The first, a mathematical error, caused a miscalculation of beds which could be added in Lee County using current patient count data and avoid falling below the desired 80 percent occupancy rate. The formula, properly applied, indicates there would be 239 excess beds rather than the 494 shown in the State Agency Action Report. The second error concerns Respondent's failure to reconcile and compare the determinations made under the need methodology contained in paragraph (b) of the rule and other portions of the rule, particularly the current utilization sections contained in subparagraphs (d) and (f). Section 10-5.11(21)(f), F.A.C., stated that "consideration of applications for additional nursing home beds will be premised on both the projected need for new bed capacity and current utilization." (emphasis added) The requirement for additional nursing home beds based on the projected need for new bed capacity, as well as current utilization, establishes a need for the 110 beds proposed by Petitioner. Further, the proposed location is consistent with the goal of accessibility and community need in Lehigh Acres.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's application. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983. COPIES FURNISHED: Ronald A. Labasky, Esquire Robert S. Cohen, Esquire 318 N. Monroe Street Tallahassee, Florida 32302 James M. Barclay, Esquire DeparLment of Health and Rehabilitative Services 1317 Winewood Blvd., Suite 256 Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent’s license to operate a nursing home should be disciplined because of the matters alleged in the Administrative Complaint filed herein, and whether the license issued to Respondent on October 1, 1995 should be conditional or standard.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), was the governmental agency responsible for licensing and regulating the operation of nursing homes in Florida. Respondent operated a licensed nursing home known as Manhattan Convalescent Center, in Tampa. Consistent with its responsibility to conduct surveys (inspections) of nursing homes in this state, on June 16, 1995, the Agency conducted a complaint survey of the Respondent’s facility during which it noted a deficiency in staffing. This related to the surveyor’s determination that on May 22, 27, and 28, and on June 2, 3 and 6, 1995, there was “an underage of the state minimum CNA staffing requirements”. No citation was given for any violation of a state rule in this regard, nor was there any reference to a violation of state regulation. In addition, the matter was not noted as a “class” deficiency for state purposes under the provisions of Section 400.23, Florida Statutes. CNA’s, Certified Nursing Assistants, are answerable to nurses. Registered nurses, (RN’s), licensed practical nurses, (LPNs), and CNAs together constitute the nursing staff, which is responsible for direct resident care in a facility such as operated here by Respondent. All members of the nursing staff, regardless of classification, are responsible for hands-on resident care, such as bathing and feeding, and these duties are a part of the job description of not only CNAs but LPNs and RNs as well. The difference is that LPNs and RNs, depending on certification, are trained and authorized to provide additional, skilled care which a CNA is neither trained nor authorized to do. In other words, though a CNA can perform those functions which she or he is trained and licensed to do, a nurse, LPN or RN, can do and does those things within her or his training and certification which includes those things done by nurses lower on the scale. Nurses, either RNs or LPNs, employed at Manhattan are advised and understand that they are to perform CNA duties and cover for CNAs if a CNA does not come to work. If a nurse refuses or resists doing CNA work for any reason, the nurse is asked to leave the building. The Agency by rule has set a minimum level of CNAs per patient in nursing homes. The total number of CNAs required is figured by using a formula which multiplies the patient census for the day times 1.7 and divides the result by 7.5, the number of hours per shift worked by a CNA at Manhattan. The result is the number of CNAs required to be on duty on any given day. On July 31 and August 1, 1995, Elke Johnson, an RN specialist surveyor for the Agency, visited Manhattan for the purpose of following up on the complaint survey conducted in June, 1995. One of the allegations in the complaint was that patients were not being cared for. Ms. Johnson found this allegation to be unconfirmed. Nevertheless, as a part of the inspection, Ms. Johnson looked at the personnel records regarding CNA staffing for the two week period from June 16 through June 29, 1995 and did the calculation according to the cited formula for four days out of the 14. On all four days, she noted a shortage of CNAs. On July 15, 1995, there were 32 CNAs versus 38 required by patient census; 35 versus 38 on July 17, 1995; 35 versus 37 on July 22, 1995; and 25 versus 36 on July 23, 1995. When Ms. Johnson spoke about this finding with Manhattan’s director of nursing or assistant director of nursing, she was told that Manhattan was using licensed nurses, RNs or LPNs, to fill in for CNAs. The Agency claims that the director of nursing, Ms. Buble, stated that if licensed nurses were scheduled to do CNA work, that individual would be listed on the daily assignment sheet as a CNA so that the licensed nurse could receive assignments as a CNA. According to Ms. Johnson, however, even with the substitutions, there was still a shortage which Ms. Johnson classified as a deficiency. The Agency’s rule does not specifically provide for the use of RNs or LPNs in place of CNAs, but Ms. Johnson considered such a substitution to be appropriate. Accepting that, however, as was noted previously, Ms. Johnson still noted a deficiency in numbers. Though Ms. Johnson did not participate in the December 1995 follow-up inspection, on her visit to the facility in April 1996, she found the staffing deficiency had been cleared and no violations existed at that time. Two complaints involving staffing in September and November 1995 caused a reinspection of the facility by Susanne Emond of the Agency on December 5, 1995. Ms. Emond worked with the director of nursing, Ms. Buble, the entire day and went over the patient census sheets with her as well as the assignment sheets. At that time the documents provided by Manhattan reflected that it was required to have 37 CNAs on duty each day between September 12 through September 16, 1995, but in reality had only 32.5 CNAs on duty on September 12; 32 on September 13; 32 on September 14; 34 on September 15 and 32 on September 16, 1995. In addition, Manhattan was required to have more than 35 CNAs on duty each day between November 9 through 12, 1995 but had only 27.5, 28, 30 and 32.5 on November 9, 10, 11 and 12, 1995, respectively. As was previously stated, the determination of a CNA shortage was based upon a consideration of numbers generated by the surveyor in consultation with the then director of nursing, Ms. Buble. The compilation by Ms. Buble was made utilizing only the assignment sheets, and did not consider any extra hours which were worked by on-duty personnel which was reflected on the sign- in sheets, rather than the assignment sheets. Respondent claims, therefore, that the documentation provided to the surveyor by Ms. Buble was not accurate. Gary Janovsky is a RN specialist with the Agency who inspected Manhattan on June 16, 1995. During the course of his visit he checked the staffing levels relating to CNAs for May 22,27 and 28, and June 2,3 and 6, 1995, and using the appropriate formula as applied to the sign-in sheets provided by the Respondent, concluded there was a shortage on all six days whether one considered an 8 hour shift or a 7.5 hours shift. Jerry Alfieri has been the director of nursing at Manhattan since March 23, 1996 and was in place there during the follow-up inspections. He has worked as a director of nursing in a nursing home for 4 years. Before he got to Manhattan it was Respondent’s policy to heavily overstaff with licensed nurses to make up for shortages of CNAs, of which there is a shortage in the area. When he took over as director of nursing, he reviewed all staffing records from January 1995 up to date and found an adequate number of CNAs were hired and assigned, but from time to time, there was an attendance problem with that category of employee. It got so bad that at times, up to 10 CNAs per day would call in to be absent, and when this would happen, he would assign LPNs or RNs to CNA duties. He contends this was not made clear to the surveyors. Mr. Alfieri believes this is now clear to the Agency and his office is following the same procedure now, without problem, and was being followed at the time of the surveys which resulted in the filing of deficiencies. Mr. Alfieri reviews his staffing figures on a daily basis looking at hours worked, not bodies. When that procedure is followed, one sees that on May 22, 1995, Manhattan was 139.1 hours over requirement and, he believes, a review of every day in issue but one, July 23, 1995, will show an overage of hours for the facility. On that day, Manhattan was 21 hours low, a shortage of 3%. Mr. Alfieri takes the position not that the number of CNAs on duty was up to the Agency’s standard, but that adequate nursing hours were provided to meet the requirement, and there was no complaint sustained regarding a lack of patient care. In September 1995, for example a listing by date of nursing hours over standard shows: 9/12 103 9/13 36 9/14 77 9/15 15 11/9 93 11/10 201 11/11 4.7 11/12 27.92 It should be noted that on November 11, 1996, though 6 CNAs called in absent, Manhattan still had 4.7 hours of nursing care over standard. According to Mr. Alfieri, licensed nurses at Manhattan are assigned a certain set of patients and they are to insure that those patients get whatever care is necessary. If a CNA can do a procedure, its done by a CNA, or by a licensed nurse if a CNA is not available. That statement is confirmed by Robin Grab, nurse manager of station 1 (the Medicare unit of 42 beds) at Manhattan for 6 years. She has been an LPN for more than 19 years. According to Ms. Grab, from time to time CNAs call in absent, and when this happens, the licensed nurses do rounds and assist in doing whatever is needed to provide patient care. It is a part of their job duties and if a licensed nurse refuses to do anything asked, that individual is asked to leave. As a result, RNs and LPNs regularly assist and are involved in activities of daily living, (ADL), and answering call lights. If a licensed nurse has to do CNA work, the nurse is so told. When a shortage of CNAs appears imminent, an attempt is made to call in more CNAs, but, if necessary, RNs and LPNs are called in to fill vacancies of CNAs. When William Scheller, Manhattan’s administrator, first came to the facility he was made aware of the inadequate number of CNAs. To correct this, he started the practice of using licensed nurses to make up the shortage. He also hired additional licensed staff to make up for call-outs, paid bonuses and recruited staff from other facilities. Manhattan pays its nurses and CNAs competitive wages. At no time has it ever intentionally understaffed with CNAs. To do so does not make sense because it costs more for licensed nurses than for CNAs. He insures that licensed personnel perform CNA duties when required by personal checks by him and his staff. Unit managers are responsible to insure that patients get adequate care and if staff is insufficient, they try to bring in additional people. The documentation used to record nursing staffing was changed in early 1996 to conform to Agency direction as to how it should be done. These documentation changes did not change coverage practices, however, as those practices were, he contends, up to standard all along.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Respondent did not fail to meet staffing requirements sufficient to ensure each resident maintained his or her highest practicable level of well- being, but that it did fail to have an average of 1.7 hours of certified nursing assistant time for each resident during at least eight 24 hour periods, and assessing an administrative fine of $250.00. It is further recommended that the Agency correct its records to reflect Respondent’s entitlement to a standard license rating effective October 1, 1995. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire Broad and Cassel 215 S. Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact Petitioner became a Registered Nurse in 1965 and has been engaged in the nursing profession since that time. She was awarded a Bachelor of Science in nursing in 1975 from Florida International University and is presently enrolled in the masters of nursing degree program at the University of Miami. In 1973 Petitioner enrolled in the Primary Care Nurse Practitioner program at the University of Miami and successfully completed the six months program in December 1973. During this program she received 1,000 hours training. Upon completion of this training, Petitioner was eligible for licensure as an Advanced Nurse Practitioner but did not apply for registration at that time although she worked as a Nurse Practitioner immediately upon completion of the training. From January 1974 to March 1977 Petitioner worked at Jackson Memorial Hospital at Miami as an Advanced Family Nurse Practitioner. During this period she received actual instruction of approximately one hour per day for a total of some 710 hours in duties of Nurse Practitioner in addition to the daily experience gained working as a Nurse Practitioner. In 1977 Petitioner moved to Colorado where she worked as a Nurse Practitioner from October 1977 until April 1978 for the Rocky Mountain Planned Parenthood organization and the Mountain Community Medical Clinic. In the latter position she manned a clinic that was some 30 to 40 miles from the nearest doctor and communicated with the doctor by telephone in diagnosing and treating patients. She worked some 348 hours in this position. Additionally, Petitioner taught in the Nurse Practitioner program at the University of Colorado one to three days per week from January until May 1978. Upon Petitioner's return to Florida in May 1978 she applied for licensure as an Advanced Nurse Practitioner and was denied licensure because the regulations were changed effective March 31, 1978, to require a one-year educational training program in lieu of the six months program completed by Petitioner. The current approved program at the University of Miami provides some 1,105 hours of training similar to the training Petitioner obtained at the earlier course.
The Issue Whether the Agency for Health Care Administration has a policy regarding the determination of the need for long term care beds which constitutes a rule and, if so, whether rulemaking is feasible and practicable.
Findings Of Fact Vencor Hospitals South, Inc. (Vencor), applied for a certificate of need (CON No. 8614) to establish a 60-bed long term care hospital in Agency for Health Care Administration (AHCA) District 8, for Fort Myers, Lee County, Florida. AHCA is the state agency authorized to administer the CON program for health care services and facilities in Florida. AHCA reviewed and preliminarily denied Vencor's application for CON No. 8614. The reasons for AHCA's actions on this or any other CON application are memorialized in documents called State Agency Action Reports (SAARs). Vencor alleges that the following statement generally describes AHCA's policy in regard to the review of CON applications for long term care hospitals: Long term care is not a separate category of health service, but is instead merely an allowable form of reimbursement pursuant to Medicare regulations. The care provided in acute care hospitals, hospital based skilled nursing beds, "subacute" care in nursing homes, and care at rehabilitation facilities, are all equivalent to the care provided at long term care hospitals. Therefore, in evaluating the need for long term care hospital beds, AHCA will assess the availability of other categories of beds and services to meet the need for the services proposed by the applicant for long term care hospital beds. Need for long term care beds is determined on a regional basis. Prior to 1994, long term care hospitals were not regulated separately and were considered comparable to general acute care hospitals. In 1994, AHCA amended the CON rules to establish long term care beds and hospitals as separate categories of health care providers. In 1994, AHCA defined and continues to the present to define long term care hospital as follows: "Long term care hospital" means a hospital licensed under Chapter 395, Part I, F.S., which meets the requirements of Part 412, subpart B, paragraph 412.23(e), [C]ode of Federal Regulations (1994), and seeks exclusion from the Medicare prospective payment system for inpatient hospital services. Rule 59C-1.002(29), Florida Administrative Code. In the federal regulations referenced by the AHCA rule, long term care hospital is more specifically defined as a hospital with an independent governing structure, an average length of stay greater than 25 days, referral of at least 75 percent of total patients from separate hospitals, and which meets the requirements for Medicare participation. 42 CFR Ch. IV, Subch. B, Pt. 412, Subpt. B, s. 412.23. AHCA also distinguishes long term care in its rules governing the conversions from one type of health care provider to another. The applicable conversion rules provide: "Conversion from one type of health care facility to another" means the reclassification of one licensed facility type to another licensed facility type, including reclassification from a general acute care hospital to a long term care hospital or specialty hospital or from a long term care hospital or specialty hospital to a general acute care hospital. Rule 59C-1.002(14), Florida Administrative Code (emphasis added); and "Conversion of beds" means the reclassification of licensed beds from one category to another including, for facilities licensed under Chapter 395, F.S., conversion to or from acute care beds, neonatal intensive care beds, hospital inpatient psychiatric beds, comprehensive medical rehabilitation beds, hospital inpatient substance abuse beds, distinct part skilled nursing facility beds, or beds in a long term care hospital; and, for facilities licensed under Chapter 400, Part I, F.S., conversion to or from skilled beds and intermediate care beds in a facility that is not certified for both skilled and intermediate nursing care if such conversion effects a change in the level of care of 10 beds or 10 percent of the total bed capacity of the facility within a 2-year period, or conversion to or from sheltered beds and community beds. Rule 59C-1.002 (15), Florida Administrative Code (emphasis added). AHCA also defined "substantial change in health services" to include: The conversion of a general acute care or specialty hospital licensed under Chapter 395, Part I, F.S., to a long term care hospital. Rule 59C-1.002(41)(c), Florida Administrative Code. Taken together AHCA's rules recognize long term care hospitals or beds as a separate and distinct category. Elfie Stamm was responsible for the development of the rules and is currently the chief of the CON and Budget Review Office at AHCA. Ms. Stamm testified in a 1994 rule challenge case, when AHCA was drafting a rule with a numeric need methodology for long term care beds, that: long term care hospitals serve patients who cannot be cost effectively treated in an acute care hospital, who do not have the same needs for the same types of service; it would not be fair for an applicant for the new construction of a long term care hospital to be compared to an acute care hospital; comprehensive medical rehabilitation (CMR) services are different than services in a long term care hospital; a long term care hospital with an average length of stay of 25 days or more is different from an acute care hospital that generally has a length of stay of 5 to 6 days but provides a full range of services; the patient populations in long term care hospitals are different from those in an acute care hospital in terms of overall patient characteristics, including older than average age, higher percentage of patients with particular diagnoses, such as ventilator dependency, higher overall mortality rates than acute care hospitals, and a much higher percentage of admissions by referrals from acute care hospitals. [T. 262-283]. See also Tarpon Springs Hospital Foundation, etc. v. AHCA, et al., DOAH Case No. 94-0958RU (R.O. 8/2/94). On behalf of AHCA, Ms. Stamm testified in this proceeding that: AHCA has changed its mind on whether or not it is appropriate to leave a patient in an acute care setting rather than transfer to long term care, specifically with regard to cost-effectiveness. [T. 373]. AHCA has not changed its mind and still says acute care hospitals and long term care hospitals should be reviewed separately, because if they would be reviewed comparatively, . . . there would be no chance for any [long term] beds ever because we don't show any need for acute care beds anywhere in the state. [T. 376]. But in evaluating Vencor's application for long term care hospitals in District 8 that would be located in Lee County, the Agency viewed hospital-based skilled nursing units, community nursing home subacute beds and comprehensive medical rehab beds throughout the entire district as existing and like potential alternatives to the proposed project. [T. 389]. AHCA does not necessarily agree that CMR services are different from long term care hospital services. [T. 265]. AHCA does not have a clearly identified population group for whom long term care would be more cost-effective, or to determine a numeric need methodology. [TR. 324]. Although there is a population that does need services that exceed 25 days or prolonged ventilator service, AHCA is not sure what is the most appropriate setting for their care because of inadequate data on comparative costs and outcomes. [TR. 327-8]. AHCA attributes its change in position to the publication titled Subacute Care: Policy Synthesis And Market Area Analysis, submitted to the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, on November 1, 1995, by Lewin-VHI, Inc. The document is commonly referred to as the Lewin Report. The Lewin Report concludes that long term care hospitals serve patients who are also served in other subacute settings, including CMR beds and hospitals, acute care hospital skilled nursing units, and skilled nursing units in freestanding nursing homes. As a result of the conclusions in the Lewin Report, AHCA maintains that it is unable to develop a numeric need methodology without an identifiable patient population. AHCA has not, however, repealed the rules establishing long term care as a separate type of health care service. Rather, the agency intends to wait for additional studies, including one being conducted for Vencor. The Medicare prospective payment system (PPS) for acute care hospitals created the market for subacute and long term care. Under the PPS, acute care hospitals receive a fixed payment based on the patient's diagnosis or diagnostic related group (DRG). Upon discharge to a subacute or long term setting, the patient's care is no longer reimbursed on a fixed basis, but at actual, reasonable costs. AHCA maintains that financial pressures created the current system, but without cost/benefit or outcomes analyses to demonstrate the appropriateness of using long term care hospitals. Therefore, AHCA considered the occupancy levels of acute care hospitals and available nursing home beds in determining the need for Vencor's project. AHCA has no rule defining subacute care, no inventory of subacute care units in nursing homes, and no reporting requirements from which it can determine the level of care or services provided in hospital based skilled nursing units. AHCA has no reports on specific levels or types of services provided in CMR beds. AHCA, nevertheless, presumed that the services are like those provided in long term care beds based on the Lewin Report. In rejecting Vencor's attempts to distinguish itself from other types of health care providers, AHCA relied, in part, on its finding that 1995 District 8 acute care hospital occupancy averaged 47.69 percent and peaked at 60.26 percent. By not adopting rules for determining the numeric need for long term care, AHCA also failed to establish the appropriate service area for determining need. AHCA considers the need for long term care services on a regional basis. In support of AHCA's decision to deny a long term care hospital application in District 9, Ms. Stamm's predecessor, Elizabeth Dudek, testified that long term care is a regional service. As further evidence of AHCA's position, the SAARs issued by AHCA on long term care hospital applications, have examined available services beyond the limits of the district. AHCA contends that long term care is regional, but determines its need by comparison to available hospital based skilled nursing units and subacute beds in community nursing homes, which are evaluated on a subdistrict basis, and CMR services which are tertiary but evaluated on a district-wide basis. See Finding of Fact 22. Since November 1995, AHCA has preliminarily denied all CON applications for long term care hospitals. Its policy of comparing the need for long term care to available beds in nursing homes and other types of hospitals is consistently repeated in the portions of the SAARs which address need. In analyzing the need for long term care hospitals in AHCA District 1, the SAAR dated January 10, 1997, includes the following statements: Vencor Hospitals South, Inc. defines its patient population as those currently being treated in ICUs and belonging to roughly 10 DRGs (which account for approximately 83% of Vencor patients. . . .) However these DRGs could also [be] appropriate for acute care, hospital based freestanding skilled nursing care, skilled nursing facility care and comprehensive medical rehabilitation care and the applicant does not demonstrate that these services are not available to residents of District 1. and The applicant [Baptist Health Affiliates Inc.] also discusses the differences between its proposed patient population and that of an acute care hospital, nursing home and those treated at home. However, there is no documentation provided which demonstrates the applicant's potential patients could not receive appropriate care in the District's existing rehabilitation facility, hospital based or nursing home skilled subacute nursing units. . . . Vencor Exhibit 12, pages 3-4 and 8. AHCA reviewed a CON application filed by Columbia of Pinellas County, Inc., to convert acute care beds to a long term care hospital in District 5, and concluded: The patient population represented by the DRGs listed above (by the applicant) are typical of freestanding nursing home with subacute units and hospital based SNUs in the state. There appear to be strong similarities between the subacute patient population of nursing homes/units and those of a long term care hospital. Vencor Exhibit 13, page 8. The SAAR issued on the Columbia of Pinellas County CON application continued with an extensive discussion of the Lewin Report. The SAAR reported AHCA's finding that CMR hospitals are alternatives since they admit patients who do not fit federal guidelines for CMR admissions (being able to tolerate three hours of therapy a day), and who might otherwise be in long term care hospitals. In the SAAR issued after the review of long term care applications for District 7, the same statement appears: The patient population represented by the DRGs listed above [by Orlando Regional Hospital] are typical of freestanding nursing home with subacute units and hospital based SNUs in the state. There appear to be strong similarities between the subacute patient population of nursing homes/units and those of a long term care hospital. Vencor Exhibit 14, page 11. Finally, in reviewing applications from Palm Beach County in District 9, AHCA concluded again: The applicant states that generally speaking the long term care hospital patients have respiratory complications, . . . tracheostomies, . . . chronic diseases, an infectious process requiring antibiotic therapy, . . . skin complications . . . need a combination of rehabilitation and complex medical treatment or are technology dependent individuals requiring high levels of nursing care. However, these patients could also [be] appropriate for acute care, hospital based skilled nursing care, skilled nursing facility care and comprehensive medical rehabilitation care and the applicant does not demonstrate that these services are not available to the residents of District IX. Vencor Exhibit 15, page 4. AHCA relies on the statutory review criteria in Subsection 408.035(1)(b), Florida Statutes, as authority for its consideration of all beds and facilities which may serve the same patients. That provision requires consideration of: (b) The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care facilities and health services in the service district of the applicant. The expert witness for AHCA, however, distinguished between "like and existing" services for purposes of determining numeric need and the statutory criteria. She noted that once numeric need is established and published for nursing beds or CMR beds, for example, that same category of beds outside the appropriate health service planning subdistrict or district is not considered "like and existing." Similarly, within the district or subdistrict, there is a factual issue in each case but no presumption that beds of a different category are "like and existing." AHCA contends that it has no policy related to long term care and any comparable services. Since 1995, long term care CON applicants, according to AHCA, have failed to meet the requirements of Rule 59C-1.008(e), which provides in pertinent part: If no agency policy exists, the applicant will be responsible for demonstrating need through a needs assessment methodology which must include, at a minimum, consideration of the following topics, except where they are inconsistent with the applicable statutory or rule criteria: Population demographics and dynamics; Availability, utilization and quality of like services in the district, subdistrict or both; Medical treatment trends; and Market conditions. (Emphasis added). AHCA's argument ignores the fact that its expert witness provided competent, substantial evidence that it has redefined and expanded the meaning of "like services" for purposes of demonstrating need through a needs assessment methodology. It also ignores the fact that AHCA has expanded the comparison of need beyond the geographical limits of the district. AHCA's argument that it is waiting for additional data before adopting a need methodology, including data from a Vencor study, is to no avail since AHCA has already changed its policy. After reviewing a total of eighteen CON applications for long term care hospitals, AHCA has issued two CONs, one as part of a settlement agreement and the other approving an application filed by St. Petersburg Health Care Management, Inc. (St. Petersburg), for CON 8213. The St. Petersburg application demonstrated need using an identical methodology prepared by the same health planner as Vencor in this case. Referring to CON 8213, AHCA's expert witness candidly admitted . . . "I want to make clear that particular application was actually submitted and approved prior to the Lewin study." (T. 393). Subsequent to the Lewin study, AHCA has consistently denied applications for long term care beds or hospitals.
The Issue Whether CON 8241, Palm Beach Regional's application to convert its 200 bed acute care hospital to a 60 bed long-term care hospital should be granted or denied?
Findings Of Fact The Parties The applicant in this case is The Hospital Corporation of Lake Worth d/b/a Palm Beach Regional Hospital. A subsidiary of Columbia Hospital Corporation, ("Columbia,") Palm Beach Regional is a licensed general acute care hospital with 200 beds located in Palm Beach County, AHCA District 9. Palm Beach Regional's license is issued pursuant to Chapter 395, Florida Statutes, the chapter of the Florida Statutes entitled, "Hospital Licensing and Regulation." The agency is "designated as the single state agency to issue ... or deny certificates of need ... in accordance with the district plans, the statewide health plan, and present and future federal and state statutes." Section 408.034(1), F. S. Integrated is a licensed 120-bed skilled nursing facility, also known as a long-term care facility, located in Palm Beach County, AHCA District 9. Its license is issued pursuant to Chapter 400, Florida Statutes, the statute entitled "Nursing Homes and Related Health Care Facilities." Columbia Hospital Corporation The parent company of petitioner, Columbia has a stock market capitalization of between $15 and $20 billion and enjoys a profitability of over $1 billion per year. It owns approximately 340 hospitals, well over 100 ambulatory surgical centers, and an extensive number of home health agencies. As to be expected of a Fortune 500 company, Columbia generates substantial annual revenues. In 1994, for example, the annual revenues generated by Columbia exceeded $17 billion. Columbia also lays claim to being the largest hospital system in the state. It has five divisions with approximately 60 hospitals in its "Florida Group," the organizational title for its Florida operations. The net revenues of the Columbia Florida Group is approximately $4.5 billion. One of five divisions of Columbia's Florida Group, the South Florida Division is a $1.2 billion operation. The division encompasses Dade, Broward and Palm Beach Counties and consists of 15 hospitals, six surgery centers, and one dozen home health agencies. The South Florida Division, of course, includes Palm Beach Regional. Background to the Application Palm Beach Regional was purchased by Columbia shortly after Columbia had purchased JFK Hospital, a 300-bed tertiary hospital approximately three miles from Palm Beach Regional. In August of 1995, as a business decision, Columbia consolidated the operations of the two facilities. The consolidation resulted in a patient census drop at Palm Beach Regional. Shortly thereafter, with the permission of the agency, Palm Beach Regional ceased operations at its emergency room. The result of the consolidation and limitation of the services offered was that it cost only about $100,000 a month to keep Palm Beach Regional running with its small census. Even with the small census, and the relatively low monthly operational expense, the operational expense was more than $1 million per year. In June of 1996, Palm Beach Regional and the agency entered a stipulation which authorized the hospital to suspend the acute care operations in contemplation of this proceeding. Palm Beach Regional's hospital-based skilled nursing unit has since been transferred. Palm Beach Regional is now closed and empty. The reason Palm Beach Regional had been kept operating at all after the consolidation with JFK was to preserve the opportunity to convert the license as proposed in the application. The Application Certified for accuracy on September 18, 1995, under the signature of its authorized representative, Robert L. Newman, CEO of Columbia/HCA, South Florida Division, the application was submitted to the agency bearing a date of September 20, 1995. The application describes what it seeks in the section titled "Project Summary" as follows: Hospital Corporation of Lake Worth (Palm Beach Regional) proposes in this Certificate of Need Application to convert 60 acute care hospital beds to 60 long-term acute care hospital beds and to delicense 128 existing acute care beds. (At a later date the existing 12 skilled nursing beds will be located to another Columbia/HCA hospital in District IX.) Palm Beach Regional Exhibit No. 1, AHCA Form 1455A, Oct 92, AHCA 4600-0005 Aug 93. The transfer of the 12 skilled nursing beds has already occurred and therefore is not at issue in this proceeding. Nor is the delicensure of the 128 beds really at the heart of the agency's denial and Integrated's opposition. In contrast, what is contested is the conversion of the 60 acute care hospital beds to 60 long- term acute care hospital beds. Such a conversion would make Palm Beach Regional a long-term acute care hospital. Long-term Acute Care Hospitals Referring to a hospital as both "long-term" and "acute," is confusing. The two terms have divergent meanings both in terms of average length of stay and the traits of the illness suffered by the acute and the long-term patient. In the context of hospitals, "long-term" refers to a patient with an average length of stay of greater than 25 days. By comparison, the acute patient's stay is typically much less than 25 days, with the average length of stay being between 5 and 6 days. As is the patient in need of acute care, the typical long-term hospital patient is very ill. The difference in the type of illness suffered by the acute care patient as opposed to the long-term patient, however, lies in other characteristics. Unlike the acute care patient, the long-term patient is not in the urgent, emergent or desperately critical state of patients in the acute care setting. The two terms, "long-term" and "acute" have been used together with reference to the type of hospital to which Palm Beach Regional proposes to convert because of the history of the long- term care hospital’s development. Originally in Florida, long-term hospitals were licensed as acute care hospitals and were referred to, therefore, as "long-term acute," hence the combination of terms with disparate meanings. In the context of a study conducted by the Hospital Cost Containment Board, however, the agency examined the issue of whether long-term hospitals should be subject to CON review as long-term hospitals apart from other acute hospitals. As a result, long-term hospitals came to be reviewed in their own separate category under certificate of need review, subject to the same licensure requirements as a specialty acute care hospital. Because they had been licensed earlier as acute care hospitals, the term "acute" was carried over into the new category. At present, there is a recommendation to refer to long-term acute care hospitals simply as "long-term hospitals" to clear up any confusion caused by the terminology. This recommendation will be followed for the most part in the remainder of this order when reference is made to acute and long-term facilities and acute and long-term care. Long-term Care Hospital-based long-term care is a distinction established in federal Medicare regulations that describes a hospital with patients having an average length of stay of greater than 25 days. The distinction allows an exclusion from the Medicare prospective payment system so that reimbursement is received by the long-term hospital on the basis of cost. The distinction is of great import financially because of the distinction between "cost-based" Medicaid and Medicare reimbursement systems and another payment system used by Medicaid and Medicare: the prospective payment system. Before the prospective payment system was instituted, hospitals generally were well utilized, in fact, “filled to the brim.” The high utilization was due to the "cost-based" reimbursement system which contained a financial incentive for the hospital to keep patients in the hospital. Under the cost-based system, the more a hospital spent, the more reimbursement it would receive from Medicare and Medicaid. The prospective payment system was instituted to save taxpayers the high cost of the cost-based reimbursement system. Under the prospective payment system, the hospital receives a flat fee for Medicare and Medicaid patients depending on the diagnostic category, or diagnostic-related group, ("DRG,") into which falls the illness treated. The flat fee is figured on the basis of average length of stay for that diagnostic category. Under this system, unlike the cost-reimbursed system, the hospital receives the same reimbursement for Medicare and Medicaid patients who stay for less than the average length of stay assigned to the patient's DRG as for those who stay longer. With regard to a patient who stays in the hospital longer than the average length of stay for the patient's DRG, the hospital, in many cases, not only profits less the longer the patient stays but begins to lose money at some point in the stay. If the average length of stay for an appendicitis patient is four days, for example, then the hospital profits more in the case of an appendicitis patient who stays only two days because it has incurred only two days of costs instead of the expected four days of costs. In the case of another appendicitis patient, who stays longer than the average length of stay, the hospital makes less money and reaches the point eventually in some cases where the hospital actually loses money for treating the patient if the patient stays long enough. Medicare provides additional payments for both "day-outliers" and "cost-outliers," but not enough to prevent financial pressure on hospitals to discharge acute patients as soon as possible. The prospective payment system has succeeded in forcing hospitals to operate more efficiently; the average utilization of hospitals has declined dramatically. Today, about half of the hospital beds in Florida on any given day go unused. The system does not have the same effect on long-term hospitals; they are exempt from the prospective payment system. Instead, long-term care hospitals are reimbursed under a cost-based system. A long-term hospital well located geographically is particularly attractive to a large hospital system, such as Columbia. Not only will it likely be a financial success in its own right but it will assist Columbia’s sister acute care hospitals in relieving them of patients too sick to be discharged to a subacute setting yet finished with the acute episode which required the acute care hospital’s service in the first place. Development of Long-term Care Hospitals in Florida The first long-term care hospital was instituted in Florida in the 1980's. Fairly soon thereafter there were three long-term care hospitals in Florida, but then there was a lull in the attempt to establish long-term care hospitals. With the advent of the prospective payment system, however, there eventually came the closing of a number of small hospitals in Florida because of their inability to continue to operate in sound financial condition. At the same time, four or five applications for the conversion of small hospitals to long- term care hospitals were filed with the agency. In the early part of the present decade the agency conducted a study of long-term hospital care. The study took place within a larger study by the Hospital Cost Containment Board. Ultimately, it was recommended that long-term care hospitals be regulated separately from acute care hospitals and that they be subject to separate certificate of need review. The recommendation was made for a number of reasons. First, long-term hospitals were viewed by the agency as very different from acute care hospitals because of the patients' average lengths of stay. Second, long-term care hospitals were found to be expensive for the type of care given in them which was of great concern to the state since cost control is an objective of the certificate of need program. Third, long-term hospitals were found to experience high mortality rates. As the result of the study and recommendation, the agency made the creation or conversion of hospitals into long-term hospitals subject to certificate of need review. Admission Criteria In the study, the agency also found that there are no clear admission criteria for long-term hospitals. To date, neither the Health Care Finance Administration (“HCFA”), nor the Joint Commission on Accreditation of Hospital Organizations ("JCAHO,") or any of its sub-organizations have developed any criteria to define a long-term care hospital. It is not clear, therefore, exactly what type of patients are suitable for care in a long-term hospital. Sub-acute Care The parties are in agreement that sub-acute care is a level of care that is below acute care. Palm Beach Regional claims, however, that the care provided by long-term care hospitals is not subacute but rather falls into a category of care between acute and sub-acute. An understanding of this claim requires some discussion. Unlike other classes of hospitals which are exempt from the prospective payment system, like cancer, children's or psychiatric hospitals, patients in long-term care hospitals do not have a specific type of illness nor are they limited to serving a specific age group. Generally, however, they are patients who have had an acute episode, whose program of care has been identified and who need a longer term of care to recover or to be rehabilitated because of an acute illness or surgical procedure. And, although they are not limited to a specific age group, the experience of long-term care hospitals is that a major part of their patient population is elderly, virtually all of whom are covered by Medicare. In these respects, long-term care hospital patients are not much different from patients in other "subacute" settings: comprehensive rehabilitation hospitals, acute care hospital skilled nursing units, skilled nursing facilities in free-standing nursing homes, and, even, in some cases, home health care, assisted living and outpatient services for the elderly. If there is a difference between the long-term hospital patient and patients in other subacute settings, it is that the long-term hospital patient has more at-risk types of physical problems, is more likely to be medically unstable or is, in fact, medically unstable. But this difference is not strictly observed because of the financial pressure on hospitals to discharge patients from the acute setting into a subacute setting. Medically unstable patients, therefore, are found in subacute settings such as skilled nursing facilities whether hospital-based or in free- standing nursing homes. In contrast to what has become commonplace practice, Dr. Kathleen Griffin, an expert in health care planning with a specialty in long-term acute care and subacute care, testified that it would not be appropriate for a medically unstable patient to be transferred to a skilled nursing bed. In her opinion it would be best for a medically unstable patient about to be discharged from acute care to be admitted instead to a long-term care hospital. Despite the reality that there are no admission criteria for long-term care hospitals, Dr. Griffin maintains that if a hospital discharge planner believes through information gathered from the medical and nursing staffs that the patient "is highly acute and at risk, and there is a long-term care acute hospital available, then that would be the placement of choice." (Tr. 523.) If a long-term care hospital is not available, however, the alternative is to keep the at-risk, medically unstable patient in the acute care hospital rather than discharge the patient into a nursing facility. Dr. Griffin's opinion is shared by the physician practicing in long-term hospitals. Representative of such a physician is Dr. Wendell Williams, presently the Medical Director of a long-term care hospital, Specialty Hospital of Jacksonville. Dr. Williams sees a distinction between long-term acute care and subacute care. Long-term hospital care is acute care without the need for "highly technical diagnostic capabilities," and "high surgical capabilities," but still care in the "medically complex case that requires frequent physician direction [and] high skill level of caregivers." (Petitioner's Ex. No. 16, pg. 13.) In Dr. Williams view, long-term hospital care occupies a level of care between acute and subacute care. The views of Dr. Griffin and Dr. Williams find support in analyses of nursing hours per patient. In a typical nursing home, the number of hours per patient is about 4.5 hours per day, while in a long-term care hospital, the number is around 6.5 hours per patient day. At Specialty Hospital of Jacksonville, the nursing hours per patient day for non-ventilator patients is 6.75 hours, and for ventilator patients is 10 hours. In contrast, Integrated, a nursing home, provided nursing hours per patient day in its "med-surg unit" at 4.34 hours in March of 1996, 4.60 hours in April and 4.52 hours in May although at times Integrated's nursing hours per patient day have reached as high as 6 hours. The opinions of Dr. Griffin and Dr. Williams have not yet been generally accepted. Following the agency's study in the earlier part of the 1990's, the federal government, under the auspices of HCFA, launched a major study that addresses what AHCA viewed as the "whole gamut of what is marketed as subacute care," (Tr. 272). The study included long-term care hospitals, as well as those settings which the parties all agree are clearly in the category of "subacute": hospital-based skilled nursing facilities, free-standing nursing homes, comprehensive rehab hospitals and home health care. The report was issued in November of 1995. It confirmed that there was a great deal of overlap among the settings studied including between the long-term care hospital and other settings unquestionably subacute. Moreover, it confirmed that many of the services are "primarily driven by reimbursement," (Tr. 275), and not by which provides the best or most cost-effective health care for the very ill, elderly patient no longer in need of acute care. In other words, the financial pressure on hospitals to discharge patients from the acute care setting was what accounted for the tremendous growth of subacute services and the move toward more long-term care hospitals rather than what is actually best for the patient or the health care system. The study concluded that there is insufficient data to determine the cost effectiveness of subacute care as defined in the study. As for overlap in the various settings, the extent of overlap was not precisely determined. But just as long-term care hospitals provide ventilator treatment, skilled nursing units specialize in ventilator patients. Nursing home subacute units specialize in wound care, infectious disease programs and IV antibiotic therapy programs, as well, just as would Palm Beach Regional if approved. The HCFA study also confirmed that the cost of care and mortality rates at long-term care hospitals are high, $2,000 per day and 40 percent, respectively. The average cost per discharge at a long-term care facility was between $150,000 and $250,000. Despite the long-term hospital's recognition by the federal government, the presence in Florida for more than eight years, and separate CON regulation for the last several years, it remain unsettled which patients should be treated and cared for in long-term hospitals. While for some, such as Dr. Griffin and Dr. Williams, the question is one which discharge planners, after consultation with nursing and medical staff, ably make, it is not generally accepted that it is clear which patients should be cared for in long-term care hospitals. It is not generally accepted as evidenced by the wont of admission criteria for long-term hospitals. Furthermore, it is not clear whether long-term hospitals represent the best means or the most cost-effective way of treating patients ready for discharge from an acute care setting. Specialty Hospital of Jacksonville: the Model The Palm Beach Regional proposal to convert to a long- term care hospital is modeled after another Columbia long-term care hospital, Specialty Hospital of Jacksonville, the hospital of which Dr. Williams is the medical director. Opened in 1992, Specialty offers four major program areas: ventilator and other respiratory complications, infectious diseases, wound management and complex medical and rehabilitative services. The typical ventilator patient is quite ill; often with other attendant system breakdown such as cardiac or renal failure. The goal is to free the patient from ventilator dependence. If the patient is judged to be a lifetime custodial ventilator patient, the patient would not be appropriate for Specialty. A variety of infections are treated in the infectious disease program. Often the primary antibiotic treatment has failed and there may be other conditions attendant. The typical wound care patient admitted to Specialty has severe wounds that may derive from circulatory problems. Often admission is from a hospital or nursing home. The patient may be diabetic, paraplegic or quadriplegic. The patient may have experienced a surgical intervention which has not healed. Or the patient may have a distressed digestive system which inhibits the body's ability to absorb the proper nutrients to support the healing process. The typical complex medical and rehab patient includes the spinal cord injured patient and the multiple system failure patient. The patients at Specialty are under the management of an attending physician but typically four or five different specialties are involved in each patient's care. Specialty Hospital has experienced approximately five percent Medicaid and one percent charity care. A representative patient at Specialty Hospital has an average length of stay of 23 days. The representative patient in the infectious diseases program would experience an average length of 18, 20 days in the pulmonary program, 29 days in the ventilator program, 36 days in the wound program, 18 days in the physical medicine and rehabilitation program and 26 days in the medicine program. These lengths of stay resemble acute or Medicare certified skilled nursing bed lengths of stay more than the historical 90 day lengths of stay experienced in Florida at long- term care hospitals. A representative patient at Specialty Hospital will experience an average daily charge of $1,122 and an average charge per case of $25,810, the highest averages incurred by the ventilator program at $1,848 per day and $52,781 per case. From a medical standpoint, all of the patients treated at Specialty Hospital could be treated in an acute care hospital. There is one difference between Specialty's patient profile and the one expected at Palm Beach Regional. The approach proposed by the applicant will include patients with greater levels of instability. Whereas Specialty has taken the approach that patients at the intensive care level should be in a general acute care hospital, Palm Beach Regional expects to treat patients in need of services from an intensive care unit. Palm Beach Regional, therefore, has planned for an intensive care unit at the facility should its CON application be approved. Integrated's Existing Programs Sixty of Integrated 120 beds are dedicated to meet the needs of patients requiring subacute care. Although they may differ slightly in intensity of application because of slightly lower acuity levels of the patients, the programs offered in this sixty-bed skilled nursing unit encompass the four programs proposed for Palm Beach Regional's long-term care hospital: ventilator and respiratory complications; infectious disease; wound management; and complex medical and rehabilitation service program. Integrated uses its own method to measure the acuity of its patients. Within this method, two of the levels require active treatment of co-morbidities, multiple diseases which complicate the primary diagnoses. By whatever means acuity is measured, it is reasonable to expect that the average level of acuity would be somewhat higher among patients treated at a Palm Beach Regional long-term care facility. (Although without criteria to measure acuity for admission or to know for sure what patients are actually being treated at long-term hospitals, this is not certain.) Nonetheless, considering both diagnosis and treatment, Integrated's patients at Integrated's two highest levels of acuity, even if not at quite as high an acuity level on average, would be similar to the patients Palm Beach Regional might serve if its application were granted. Patients at a Palm Beach Regional's long-term care facility who would exceed the highest level of acuity of those patients at Integrated are patients appropriate for treatment in an acute care hospital. Ventilator Care at Integrated Ventilator patients are treated in skilled nursing facilities both in hospitals and in free-standing nursing homes like Integrated. Some skilled nursing units even specialize in ventilator care. There is clearly overlap between ventilator services in skilled nursing facilities and long-term care hospitals. The precise extent of the overlap is not clear. While the overlap may not be 100%, it is certainly significant. Twenty of Integrated's 60 subacute beds are capable of assisting ventilator patients. Within this 20 bed unit, Integrated provides oxygen, air, and wall suctioning just like in a hospital setting. Additionally, Integrated can provide respiratory services outside of its specific unit by using portable suction machines and oxygen concentrators. The ventilator patients treated at Integrated are similar to the ventilator patient treated in intensive care units in hospitals. Some of Integrated ventilator patients are in need of acute care. All are hemodynamically stable but some are medically unstable. Nonetheless, there are patients who would be too unstable to allow them to be suitable for admission into Integrated's respiratory unit. Patients who would need to remain in acute care in the hospital would be patients who, for example, were bleeding or having trouble with a post-surgical trach placement. The medical director at Integrated is a pulmonologist. Integrated has a 24-hour respiratory staff. The ventilator program at Integrated meets the description in the application of the proposed ventilator program at Palm Beach Regional. Comparison of the respiratory services offered at Integrated to the services proposed to be offered in Palm Beach Regional's ventilator program reveals significant overlap between the two. Integrated primarily uses a Bear 3 Ventilator. Other equipment used by Integrated includes pulse oximeters and pneumatic blood pressure cuffs to provide hemodynamic monitoring. The respiratory unit is able to obtain an assessment of the patient's arterial blood gases within two hours through an arrangement with a courier service and nearby JFK Hospital. On average the blood work results are received within an hour of the blood being drawn from the patient. An interdisciplinary team of therapists, including respiratory therapists, physical therapists, occupational therapists and speech therapists, work together on the plan of care and recovery of the ventilator patient including weaning the patient from the ventilator. Of those ventilator patients determined to be weanable, 75% are actually weaned from the machines. Ninety-two percent of the tracheotomy patients achieve decannulation. The average length of stay in the respiratory unit for Integrated's ventilator patients is 37 days, an average length of stay that meets that which defines the long-term care hospital patient, that is, in excess of 25 days. Infectious Disease Treatment at Integrated Just as long-term care hospitals, nursing homes offer infectious disease programs employing IV anti-biotic therapies. Integrated provides its patients with multiple antibiotic therapies. Among the IV anti-biotic therapies used at Integrated are cepo, fortaz and vancomycin. Integrated treats patients with pulmonary edema, pleural affusion, pulmonary embolus and pulmonary infarcts and patients with bi-lobar and multi-lobar pneumonia. Patients are treated with intravenous cortico steroids, intravenous bronchodilators, intraveous diuretics and intramuscular antimedics. Wound Care at Integrated Nursing homes offer wound management programs. There is significant overlap between patients treated for wounds at nursing homes and at long-term care hospitals. Limitations in care of the wound patient are similar as well. Just as a patient in need of surgical intervention for wound care, for example, would be discharged to an acute care hospital from a nursing home so would that patient be discharged to an acute care hospital from Specialty Hospital of Jacksonville, the model hospital for Palm Beach Regional's long-term care facility. Integrated offers wound and skin management treatment of the type described by Palm Beach Regional's proposal. Many of Integrated's patients recieve wound care upon admission. For instance, respiratory patients who have tracheotomies receive care for their wounds throughout the day. Integrated treats all levels of decubitous ulcers, including the most severe, Stage III and IV ulcers, as required by law in order to qualify for Medicare Certification. Complex Medical and Rehabilitative Care Integrated offers radiology and other imaging services on campus: mobile chest x-rays, normal x-rays, and video flouroscopy as well as an in-house staff of rehabilitation professionals: physical and registered occupational therapists and registered speech therapists. The rehabilitation programs proposed by Palm Beach Regional and those programs of other long-term care hospitals overlap significantly with those programs already offered at Integrated. The difference between the complex medical and rehabilitative care offered at Integrated and that proposed for Palm Beach Regional lies in the expected acuity of the patients. One would reasonably expect the patients to be slightly higher in acuity at Palm Beach Regional if approved than as are presently at Integrated. Nonetheless, the patients at Integrated are similar to those Palm Beach Regional would care for, in that Integrated treats patients with co-morbidities, including combinations of congestive heart failure, post-open heart surgery, arteriosclerotic heart disease and renal failure. Integrated's Services in General On an average month, Integrated offered 7.28 hours per day of nursing and respiratory, physical and occupational therapy care per day to the patients within its subacute unit. Forty percent of Integrated's subacute nursing hours are provided by registered nurses, 20% by licensed practical nurses, and the remaining 40% by certified nurse aides. A sample of Integrated's admissions noted numerous patients admitted with cardiopulmonary vent and ventilator needs. Integrated also maintains a large number of orthopedic patients in need of complex rehabilitation. Integrated treats patients with congestive heart failures, patients recovering from recent open- heart surgery, patients requiring specialized wound care, patients with post-operative cranial head injuries, and patients requiring tube feedings, IVS, ventilator and tracheostomy care. Integrated offers the equipment that is listed in the application as equipment to be purchased by Palm Beach Regional if approved. Integrated accepts patients who are medically unstable. These include patients admitted to Integrated's cardiopulmonary unit, patients with recent tracheostomies, patients on ventilators, patients with hemodialysis and peritoneal dialysis who have co- morbidities. Palm Beach Regional's application lists diagnoses of patients to be treated through long-term care which it claims are not appropriate for skilled nursing facilities. The application alludes to various types of comprehensive therapies, care and resources available for these patients. Yet, despite the application's claim that care of these patients is not appropriate for the skilled nursing facility, present at Integrated for the benefit of patients with the same diagnoses are very nearly all, if not all, of these therapies, care and resources. These include: IV antibiotic therapy, IV drips, plasma pheresis, management of severe decubitus ulcers, tracheotomy care with hourly suction, treatment with chest tubes and PCA pumps, cardiac monitoring, dialysis and an on-site pharmacy. Moreover, Integrated's roster of consulting physicians credentialed at the facility included the range of specialists listed in Palm Beach Regional's application. Integrated's roster of physician ranges from family practitioners to practitioners specializing in internal medicine, dermatology, neurology, and infectious disease control, to orthopedic specialists, physiatrists and psychiatrists, nearly the "full gamut" of specialties in medicine. Adverse Impact There will be adverse impact on Integrated if Palm Beach Regional's proposal is approved. The impact occurs as the result of a combination of significant overlap of services offered by Integrated and proposed for Palm Beach Regional and the likely loss of admissions to Integrated's subacute unit generated by patients discharged from JFK Hospital. JFK Hospital and Palm Beach Regional are each approximately 2 miles from Integrated. Approximately 85% of Integrated's subacute admissions come from JFK. A good estimate of how many patients JFK refers to Integrated's subacute unit on an annual basis is 460. It is reasonable to assume that many of these patients would be referred to Palm Beach Regional by its sister Columbia Hospital, JFK, if the application were approved. If only two-thirds of these patients were lost to Palm Beach Regional, using a conservative figure for contribution margin of $100 per patient day, the loss to Integrated would be about $1 million in contribution margin per year. Furthermore, if the application is approved, Integrated will also have to either raise salaries to keep qualified staff for ancillary staff or risk losing them because Palm Beach Regional proposes to offer ancillary staff salaries higher than those paid by Integrated. Certificate of Need Criteria The criteria to be used in evaluating the application are found in statutes, and in rules of the agency which implement these statutes. Section 408.035(1)Health Plans Neither the District 9 Treasure Coast Health Plan nor the State Health Plan contain any mention of long-term acute care beds. Both plans were written before there were any CON requirements for this type of bed. (b) Availability, Quality of Care, Efficiency,Appropriateness, Accessibility, Extent of Utilization and Adequacy of Like and Existing Services There is no agency rule regarding need determination for long-term acute care beds. Neither is long-term hospital care defined by agency rule as a referral service, one dependent upon other hospitals to refer patients. The service area for a referral hospital is larger than just one district. Patients are referred from districts 9 and 11 to the long-term care hospitals in District 10. This is certainly not surprising for patients in district 9 since there is no long- term hospital in the district and referrals are the common way for long-term hospitals to gain patients. Patients are referred from Districts 3, 5, 6 and 8 to the long-term care facility in Tampa. With the exception of the long-term care hospital in District 11 where the largest proportion of patients came from within the District 11, all of the long-term hospitals in the state, "had referrals from all over the place." (Tr. 288.) Palm Beach Regional itself proposes to serve patients from Districts 7 and 10. The reality is that long-term care hospitals are primarily referral hospitals. Nonetheless, since there is no agency rule defining long-term care hospitals as referral hospitals and since there is no agency rule defining the service area of a long-term care hospital, District 9 may be the appropriate service area for the health planning purposes of Palm Beach Regional's application. In order for the district to be the appropriate service area, however, the application must demonstrate that there is a need for a certain number of beds based on the data collected from District 9. Since there is no need methodology applicable to long- term care acute beds, Palm Beach Regional developed three different methodologies for the agency's consideration. The agency found the "components," (Tr. 910,) of the methodologies to be reasonable. Indeed, the agency never offered any other need methodology which it claimed was superior to those offered by the agency. Instead the agency criticizes the methodologies for failing to take into consideration the availability of like and existing services and alternative to the proposed services. Patients who will be served in the proposed facility are currently being served in either the short-term acute hospitals or skilled nursing facilities in nursing homes such as Integrated, both of which are less costly alternatives to this proposal. Palm Beach Regional anticipates referrals from other Columbia Hospitals in the districts; however, six of the eight Columbia Hospitals have skilled nursing units which propose to treat the same patients and conditions the applicant proposes to treat. Furthermore, at the time of hearing, five Columbia hospitals in the districts had 56 approved skilled nursing beds not then operational. Included among the 56 were the 12 skilled nursing unit beds transferred from Palm Beach Regional. Palm Beach Regional's presents arguments in favor of improved quality of care to the patient in need of care following stabilization of an acute episode. There is, however, no data to support a conclusion that outcomes are better in long-term care hospitals. As for the applicant’s ability and record to provide quality of care, there is little doubt. The testimony of Dr. Ron Luke as to the high quality of care to be provided by Palm Beach Regional was not challenged. The patients proposed to be served by the applicant are currently being served in hospitals, subacute units at nursing homes or hospitals, or in rehabilitation facilities. Some may even be in home health with high technology equipment. Transferring these patients to a long-term care facility has significant financial implications costly to the health care system. The 60 beds proposed in the application will, in all likelihood, be adequately utilized. In the case of long-term care hospitals, demand follows the supply because of the strong financial incentive to fill the beds. There is nothing to indicate, however, that acute care beds are not an alternative to long-term hospital beds. There are plenty of empty beds in acute care hospitals to be filled by patients who would be treated by the applicant. That these patients proposed to be treated by Palm Beach Regional might receive treatment, if the application is denied, in hospital-based skilled beds or, perhaps inappropriately at times, in nursing home skilled nursing units is not due to lack of alternatives. Rather, it is the product of financial pressure on the acute care hospitals to discharge patients from the acute setting. Effective utilization of at least 85 percent of cost- based services such as long-term services is an important consideration because fixed costs can be spread over more patient days, thereby decreasing the costs per patient day. The average utilization rate in Florida for long-term care beds is 66 percent. The most recent occupancy rate for Specialty Hospital is only 41 percent. The record of long-term care hospitals would indicate that the utilization projections by Palm Beach Regional are unreasonable. But, there was nothing established that indicated the three methodologies used by Dr. Luke were unreasonable in any way. Given that Palm Beach Regional will be able to draw patients from its sister Columbia acute care hospitals, all of whom will be anxious to provide patients to this long-term hospital, and given that long-term hospital care is a kind of care for which demand follows the supply, it is likely that utilization at Palm Beach Regional, if approved, will be strong. Despite the record of other long-term care hospitals, Palm Beach Regional’s utilization projections are reasonable. Need for Research and Educational Facilities There are no plans to provide research or education at this facility. Availability of Manpower, Management Personnel and Funds for Capital and Operating Expenditures The State Agency Action Report shows that the agency believes that there will be adequate levels of staffing available. The adequacy of the staffing levels was confirmed by the administrator of Specialty Hospital of Jacksonville. Palm Beach Regional will be able to adequately staff the hospital at the salary levels proposed in the application. Long-term acute care hospitals treat the very old. Since almost all of these people have Medicare coverage, economic access is not a problem for the individuals the applicant proposes to serve. The applicant has a 1% indigent commitment and a 5% projected Medicaid utilization. Geographic access is also served well by this facility. The facility is located where the population base of the elderly population is in District 9. Financial Feasibility The immediate financial feasibility of Palm Beach Regional is evident from its ability to open and operate for the first two years with a positive cash flow with a financing letter in the amount of $407,000 from Columbia. Palm Beach Regional, in its pro formas and the analysis underlying its pro formas concluded that it would be under the prospective payment system for six months before it could transer to a facility exempt from the prospective payment system. This conclusion is reasonable. Palm Beach Regional has two months to get the necessary certification changed prior to the end of its fiscal year. Palm Beach Regional will be able to institute the necessary six month evaluation, within CON constraints, when it chooses. Furthermore, Palm Beach Regional could change the end of its fiscal year so that the six-month time period could be accommodated. Finally, short-term financial feasibility was demonstrated by the pro forma which properly shows reimbursement levels for patients who were treated in the first six months, and who were discharged after the first six months. Under Medicare regulations, the hospital would be reimbursed on a cost basis for these patients. Palm Beach Regional projected an occupancy level of 85% in the first year of operation and 87% in the second year of operation. Neither Specialty Hospital of Jacksonville, the model for Palm Beach Regional, nor the other long-term care hospitals in Florida have occupancy levels that high. Comparison, however, is not valid. The long-term care hospitals that converted from acute care facilities converted their entire complement of beds which resulted in overbedding. In contrast, Palm Beach Regional seeks to convert only 60 of its 200 beds. The situation of Specialty is very different. It is a converted 105 bed facility which was in bankruptcy when it first started, limiting its ability to attract patients. Within its district, Specialty competes with Vencor of North Florida, a 60 bed facility. Not only does Palm Beach Regional not have any in-district competition, but it will benefit greatly from being a member of the Columbia system. Palm Beach Regional's application demonstrates financial feasibility, both immediate and long-term. Special Needs and Circumstances of HMOs Whether the facility provides an additional level in the continuum of care available to HMO patients is uncertain. It is not generally accepted that the level of care Palm Beach Regional argues it will provide, that is, a level between acute care and subacute care, even exists let alone whether such a level of care is necessary, cost-effective or the best means of treating patients. Needs and Circumstances of Entities Providing Substantial Portion of Services to Individuals Residing Outside the District There are no facilities in the district which provide a substantial portion of its service to individuals residing outside the district. Probable Impact on Costs of Providing Health Services Total property costs for Palm Beach Regional amount to $3.572 million per year, or approximately $250,000 per month. This includes depreciation, interest, insurance and all other property costs. Because Palm Beach Regional would enjoy cost- reimbursement from Medicare instead of being paid on the basis of the prospective payment system, Medicare would pay as much as $190 per patient day for simple property costs and not for patient care, if Palm Beach Regional's utilization projections prove true. Were Palm Beach Regional's utilization projections to turn out to be incorrect and Palm Beach Regional's occupancies were more in the range of other long-term care facilities, (50% the first year and 60% the second), the cost would be "into the $3-400 a day cost range for the cost of [the] ... property allocated per patient day, which would be picked up in their entirety or close to their entirety [by Medicare.]" (Tr. 782.) Either way, the high property costs of Palm Beach Regional would result, should the application be approved, in shifting a huge financial burden to Medicare. The result would be to "wind up costing the Federal government, the Medicare program, multiples of what it now cost[s] ... to treat those same patients in acute care hospitals." (Tr. 792). The Applicant's Past and Proposed Provision of Services to Medicaid and the Medically Indigent Palm Beach Regional projected a 5% Medicaid utilization but its commitment is to indigent care only and that being a mere 1%. The commitment to indigent care (as opposed to the projection for Medicaid care) is meager. Furthermore, Palm Beach Regional has little established pattern accepting patients in these payor classes. Given the savings to Columbia acute care hospitals which would feed patients to Palm Beach Regional, and ultimately, the profit to be enjoyed by the applicant, a commitment of 1% is lacking. That recognized, it must be said that the modesty of the commitment is consistent with the advantage Medicare's cost- reimbursement system provides long-term care hospitals. It is not to be expected that there will be many Medicaid or indigent patients utilizing long-term care hospitals. "The vast majority of the population utilizing the facility will be the elderly, virtually all of whom are covered by Medicare." (Palm Beach Regional's Proposed Recommended Order, p. 23, Tr. 339.) Still, a greater commitment, more along the lines of the commitment provided by St. Petersburg Health Care Management, Inc., with which Palm Beach Regional has drawn comparison, (See Findings of Fact, 123- 128, below,) would lend this criterion to favor the application rather than disfavor it. The Applicant's Past and Proposed Provision of Services Which Promotes a Continuum of Care There is no long-term hospital available in District 9. But whether that means Palm Beach Regional is adding a level to the continuum of care available for patients in the district is uncertain. There is no data to support the conclusion that long- term care hospitals provide a level of care between that of acute and subacute. Despite the earnestness with which Dr. Griffin and Dr. Williams hold their opinions to the contrary, their opinions are simply not yet accepted widely enough at this point to support such a conclusion. That Less Costly, More Efficient, or More Appropriate Alternatives to Such Inpatient Services are not Available Long-term care hospitals have existed for years by Act of Congress. "[W]hile there has been an active discussion of alternatives, so far they have not come up with one which has been moved into rule or legislation." (Tr. 421). Certainly keeping long-term care hospital patients covered by Medicare in acute care hospitals would be a less costly alternative. Whether caring for these patients in one facility or another is more cost-efficient, however, is unknown. At bottom, there is no determinative data on the issue of cost-efficiency. As for more appropriate alternatives, there is a group of long-term care hospital patients for whom it is less appropriate to be in a free-standing skilled nursing unit. But, the size of this group is uncertain. Certainly, from the point of view of care to the patient, it is at least equally appropriate for all long- term care patients to remain in acute care hospitals rather than be discharged to long-term care. Alternatives to New Construction As the result of renovations, the facility requires little capital to convert it to a 60 bed long-term care hospital. The capital outlay of $500,000 is an indication of how little actual construction is necessary to complete the project. Problems in Obtaining the Proposed Inpatient Care in the Absence of the Proposed New Service With the exception of inappropriately premature discharges of patients from the acute care hospital's acute care setting, there are beds available for appropriate care in the absence of approval of the application. There is an abundance of beds in acute care hospitals available to patients who might otherwise be discharged to the long-term care hospital. As for the patient for whom discharge from the acute care setting is appropriate who might be admitted to a long-term care hospital, there are available for inpatient care skilled nursing beds in one type of facility or another. Administrative Due Process Palm Beach Regional contends that it has been treated differently by the agency, without reasonable explanation, from St. Petersburg Health Care Management, Inc., a successful applicant for the conversion of a general acute care hospital to a long-term care hospital in another district. Initially approved by the agency, the "St. Petersburg" application, CON 8213, was not subjected to the scrutiny of a formal administrative hearing at the Division of Administrative Hearings. Nonetheless, in support of its claim of unfair treatment, portions of the St. Petersburg application and omissions response for Certificate of Need number 8213 were introduced into evidence by petitioner as well as the State Agency Action Report. There are similarities between the two applications. For example, both proposed conversion of underutilized facilities to long-term acute care beds, as well as reduction of the hospitals' complements of 200 acute care beds to 60 long-term care beds. But there are differences as well. The St. Petersburg commitment to indigent and Medicaid care is 500% of the commitment by Palm Beach Regional. St. Petersburg's commitment is a combined 5%: 2% to indigent and 3% to Medicaid. In contrast, Palm Beach Regional's commitment is 1%, to indigent care only. Palm Beach Regional stated in its application that "[p]atients classified as Medicaid payers are projected to equal 5.0% of total patient days in 1999, 2000, and 2001." Petitioner's Ex. No. 1, p. 79. As reasonable as this projection may be, it is just that: a projection, nothing more and a projection is a far cry from a commitment. There is another difference between the two applications. While the facilities from which Palm Beach Regional's application received letters of support were limited to Columbia's affiliated facilities, St. Petersburg received letters of support from three disproportionate share providers as well as numerous unaffiliated hospitals and nursing homes in the Pinellas and Pasco County areas. The difference is critical to an understanding of the likelihood that the facility will, in fact, meet its commitment to the historically underserved. As Ms. Elizabeth Dudek, Chief of the Certificate of Need and Budget Review Office at the Agency for Health Care Administration testified, "You have, in the case of having the support of all the disproportionate share providers ... more of an assurance that the historically underserved, the Medicaid and the indigent patients, will be served and get access to the service." (Tr. 902). Such an assurance is omitted unfortunately from Palm Regional’s application.
Recommendation ACCORDINGLY, it is recommended that the application of Palm Beach Regional to establish a long-term acute care hospital by delicensing 128 beds and converting 60 acute care beds to 60 long- term acute care beds be denied.DONE AND ORDERED this 24th day of March, 1997, in Tallahassee, Florida. DAVID MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Eric Tilton, Esquire Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1997. Gustafson, Tilton & Henning, P.A. 204 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Lesley Mendelson, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building III Tallahassee, Florida 32308-5403 Thomas F. Panza, Esquire Seann M. Frazier, Esquire Panza, Maurer, Maynard & Neel, P.A. 3600 North Federal Highway Fort Lauderdale, Florida 33308 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building III Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building III Tallahassee, Florida 32308-5403
The Issue The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.
Findings Of Fact Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician. Alston received the same level of care at Miracle Hill Nursing Home. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed. The pertinent provisions of the benefit document of the State Health Plan are as follows: I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications. * * * I.N. "Hospital", means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis . . . and which fully meets all the tests set forth in ., 2., and 3. below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged. * * * I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired medical results. * * * I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered custodial . . . . * * * II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing care . . . subject to the following: The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility; Transfer to a skilled nursing facility is because the insured requires skilled care for a condition . . . which was treated in the hospital; The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital; A physician must certify the need for skilled nursing care . . . and the insured must receive such care or services on a daily basis; . . . 6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year. * * * VII. No payment shall be made under the Plan for the following: * * * L. Services and supplies provided by . . . a skilled nursing facility or an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged. * * * N. any services in connection with custodial care . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home. DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston 1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected. 2. Proposed finding of fact 4 is irrelevant to the resolution of this matter. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13). Proposed findings of fact 2, 3, and 16 are unnecessary. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order. 2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence. COPIES FURNISHED: James C. Mahorner Attorney-at-Law P. O. Box 682 Tallahassee, Florida 32301 Andrea Bateman Attorney-at-Law Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue An administrative complaint dated March 8, 1990, alleges that Respondent violated Section 464.018(1)(h), F.S. by abandoning her nursing shift without notice. The issue in this proceeding is whether that violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Rachel Ethel Hibbert, was licensed as a registered nurse in the State of Florida, on March 28, 1988, by examination. Now, and at all relevant times, her license has been current through March 31, 1991. Ms. Hibbert was employed by Largo Medical Center Hospital, Largo, Florida, on December 28, 1988, and was assigned to the Critical Care Unit (CCU). She successfully completed her critical care internship on March 24, 1989. On Saturday, April 1, 1989, Ms. Hibbert was assigned to work a 12-hour shift on the CCU. The unit was overstaffed and another unit, ICVTU, with open heart critical care patients needed help. The practice of "floating" staff between units is common, and each nurse was expected to take his or her turn when the ICVTU needed help. It was Ms. Hibbert's turn on April 1st. However, she told her Supervisor, Danielle Page, that she didn't feel "comfortable" with the ICVTU patients, as she had just finished training. Another nurse was selected to "float". However, Ms. Hibbert was counselled that her turn would come up again soon, and that she was properly trained. The type of patient and care on the ICVTU was explained to her. The following day, April 2, 1989, Ms. Hibbert was again working a 12- hour shift. Around 3:00 p.m., a call came from ICVTU for a "float" nurse. Ms. Hibbert was told it was her turn, and she did not argue or otherwise refuse. She completed her records for the patients on the ICU and left the unit. Danielle Page told the ICVTU Charge Nurse that they had a new nurse coming and she was assured that the patient load would be light, and that experienced nurses could help Ms. Hibbert. About 30-45 minutes later, ICVTU called to ask what happened to the float nurse. A search was made for Ms. Hibbert, and eventually someone checked her time card and found that she had clocked out at 3:12 p.m., shortly after leaving ICU. Jacqueline Tobin, the Nursing Supervisor for Largo Medical Center, attempted to reach Ms. Hibbert by telephone, but was unsuccessful. Ms. Hibbert, or someone on her behalf, called in sick on April 3rd. She was scheduled to be off on the 4th and 5th, and called in sick again on April 6th. Roberta Bischoff, Director of Critical Care Nursing, attempted to reach Ms. Hibbert by phone, but when she identified herself, the person answering the phone hung up. On April 7, 1989, Rachel Hibbert called the personnel office to discuss her check. Roberta Bischoff spoke with her and asked why she left her shift. She replied that she did not feel qualified. Ms. Bischoff explained that this was an extremely serious matter and that she was deemed to have resigned without notice. Ms. Hibbert's employment with Largo Medical Center Hospital was terminated effective April 2, 1989. Diane Gossett, a Medical Quality Assurance Investigator for the Department of Professional Regulation, contacted Ms. Hibbert during the course of her investigation. Ms. Hibbert admitted that she was supposed to go to the ICVTU, but she reiterated that she felt she was not qualified. Notwithstanding Ms. Hibbert's personal misgivings, her abandonment of her shift, leaving without notice, was inexcusable. Petitioner's witnesses, professional women with extensive nursing training and experience, established that such action violates minimal standards of acceptable and prevailing nursing practice.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Rachel Hibbert guilty of violating Section 464.016(1)(h), F.S., and imposing discipline of one year probation, to commence upon her return to the State of Florida, and requiring the successful completion of an approved continuing education course in legal aspects of nursing. DONE AND RECOMMENDED this 29th day of October, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of October, 1990. COPIES FURNISHED: Judie Ritter, Executive Director DPR-Board of Nursing 504 Daniel Building 111 East Coastline Dr. Jacksonville, FL 32202 Kenneth E. Easley, General Counsel DPR-Northwood Centre 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Lois B. Lepp Allied Health Legal Section DPR-Northwood Centre 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Rachel Hibbert Route 2, Box 486 Mays Landing, NJ 08330
Findings Of Fact The Parties. University is a 180-bed skilled nursing home located in Gainesville, Florida. The facility was licensed by the Department and all 180 beds were Medicaid certified at all times relevant to this proceeding. University's facility is managed by Covenant Care Corporation. The Department is the State agency designated the responsibility for administering Florida's Medical Assistance (Medicaid) Program. Section 409.266, et. seq., Florida Statutes. The Office of Licensure and Certification is the office of the Department responsible for licensing and the certification of nursing homes in Florida. 1989 Annual Survey. The Office of Licensure and Certification (hereinafter referred to as "OLC"), conducted an annual survey of University's nursing home facility for 1989 from February 28, 1989, through March 3, 1989, to determine the extent of University's compliance with federal and state laws. At the conclusion of the 1989 annual survey the Department issued a Statement of Deficiencies and Plan of Correction, Form HCFA-2567 (10-84) (hereinafter referred to as the "Annual Survey Statement"). The Annual Survey Statement was provided to University. A number of deficiencies in the operation of University's facility were noted on the Annual Survey Statement. In relevant part, the deficiencies involved the need for University to improve the manner in which patient rehabilitation care was provided. The Annual Survey Statement did not indicate that University was required to add staff to its facility to correct the deficiencies. The Annual Survey Statement included space for University to indicate how it intended to correct the deficiencies noted by OLC. University completed this portion of the Annual Survey Statement noting how it intended to correct each deficiency and the date by which the deficiency would be corrected. University indicated on the Annual Survey Statement that it would correct the deficiencies by May 12, 1989. University did not indicate that it intended to add staff to its facility in order to correct any deficiency noted on the Annual Survey Statement. As part of its plan of correction, University drafted and adopted a Rehabilitative and Restorative Care Program (hereinafter referred to as the "Care Program"). The Care Program provided for the employment of a "Rehabilitative-Restorative Registered Nurse" and "Rehabilitative-Restorative Certified Nursing Assistant(s)". The Annual Survey Statement with the corrections University intended to make noted on it was submitted to OLC. A copy of University's Care Program was also provided to employees of the Department as part of University's corrective plan. The Department, through OLC, accepted University's corrections and its Care Program. By "accepting" University's corrections and Care Program, OLC agreed that the corrections addressed the deficiencies noted in the Annual Survey Statement. OLC did not, however, inform University that it "approved" of the corrections University indicated it intended to make or the Care Program. May 31, 1989 Survey. On May 31, 1989, OLC personnel surveyed University's facility in response to a complaint the Department had received concerning alleged inadequate certified nursing assistants at University. Certified nursing assistants perform "hands on" rehabilitation work at skilled nursing homes. Rehabilitation work performed by certified nursing assistants includes assisting residents to walk, eat and with other activities of daily living. A Statement of Deficiencies and Plan of Correction (hereinafter referred to as the "May Survey Statement") was issued by OLC as a result of the May 31, 1989, survey. The May Survey Statement was provided to University. The May Survey Statement noted the following deficiencies: NH-106. Review of facility staffing for five of seven days selected at random revealed significant shortages of non-licensed nursing staff as evidenced by but not limited to: Insufficient staff to meet the personal care and hygiene needs of the residents. Insufficient staff to monitor the nutritional needs of the residents ([?] residents with significant weight loss). Insufficient staff to implement the restorative nursing program so as to maximize the optimal level of independence enjoyed by each resident. Ref: 405.1124(c)(B)3; 10D-29.108(4) The overall deficiency of University's facility noted in the May Survey Statement was based upon OLC's determination that, although University had sufficient certified nursing assistants scheduled to work during the seven shifts reviewed, an insufficient number of certified nursing assistants actually reported to work during five of those shifts. This determination formed the basis of OLC's determination that there was "insufficient staff" and not a determination that additional staff needed to be scheduled for work. University indicated in the May Survey Statement that it intended to take the following actions to correct the deficiencies noted by OLC: 5 bonus, recruitment and retention programs established along with the use of nursing pools (see attached). Seven new positions above the required standards established and filled (see attached staffing schedule). New assignment policy assures monitoring of feeding (3 meals a day) 7 days a week. New Rehab. R.N. and five restorative aides now assigned to restorative programs (see attached). The May Survey Statement with the corrections University intended to make noted on it was submitted to OLC. The Department, through OLC, accepted University's corrections. Again, by "accepting" University's corrections, OLC agreed that the corrections addressed the deficiencies noted in the May Survey Statement. OLC did not, however, inform University that it "approved" of the corrections University indicated it intended to make. June 5, 1989, Survey. On June 5, 1989, OLC personnel visited University's facility. As a result of this survey, a moratorium on admissions to University's facility was imposed. University was informed of the moratorium at the conclusion of the June 5, 1989, survey and in a letter from the Department dated June 6, 1989. In the letter of June 6, 1989, University was informed, in pertinent part: This moratorium is being imposed . . . because of the serious deficiencies identified by personnel from the Pensacola Office of Licensure and Certification during a survey conducted on June 5, 1989. These deficiencies include but are not limited to the following: Number of staff insufficient to meet minimum standards. Lack of adequate staff to meet resident needs. Lack of adequate monitoring of changes in residents' conditions. Lack of nutritional monitoring. [Emphasis added]. University and the Department ultimately entered into a Joint Stipulation resolving the issues which gave rise to the moratorium. Pursuant to the Joint Stipulation, the Department rescinded the moratorium effective June 29, 1989. Although the Joint Stipulation did not specifically require that University add staff to its facility, it did provide, in pertinent part, the following: 3. Effective upon signing this stipulation, Respondent [University] shall maintain the minimum staffing standards for licensed and non- licensed nursing personnel to meet the resident care needs. June 22-23, 1989, Survey. The Joint Stipulation called for interim visits to University's facility by OLC. An interim visit was conducted on June 22-23, 1989. A Statement of Deficiencies and Plan of Correction (hereinafter referred to as the "June Survey Statement") was issued by OLC as a result of the June 22-23, 1989, survey. Among other things, OLC noted in the June Survey Statement the following deficiency: NH-106 Progress has been made but "NOT CORRECTED" as evidenced by: Continued insufficient staff to monitor nutritional needs or residents (see F-181) implement restorative nursing program. Ref: 405.1124(c)(b)3 10D-29.108(4) Class III 7-23-89 The June Survey Statement was provided to University. University indicated in the June Survey Statement that it intended to take the following actions to correct the deficiency noted in finding of fact 29: Five Rehab. Aides (in addition to required number of certified aides) are monitoring all meals. In addition to Two new positions of Resident Care Supervisors whose duties include meal monitoring. The June Survey Statement with the corrections University intended to make noted on it was submitted to OLC and was "accepted" by OLC in the same manner that the Annual and May Survey Statements were accepted. Additional Staff at University's Facility. Between May, 1989, and August, 1989, University established the following positions and employed individuals for those positions: 1 Rehabilitation Coordinator 5 Rehabilitation Aides 7 Certified Nursing Assistants 4 Resident Care Supervisors University also employed the services of a nursing consultant and used pooled nursing staff. University incurred the following costs associated with the newly created positions, the pooled nursing staff and the nursing consultant: Rehabilitation Coordinator $ 26,817.78 Rehabilitation Aides -0- Certified Nursing Assistants 121,919.60 Nursing Consultant 25,000.00 Resident Care Supervisors 60,559.38 Pooled Nursing Staff 183,040.00 Total $417,336.76 The Rehabilitation Aide positions were filled with 5 employees who were serving as certified nursing assistants. Medicaid Reimbursement. The method by which Medicaid providers are reimbursed for their services is provided for in the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter referred to as the "Reimbursement Plan"). The Reimbursement Plan is a "cost-based prospective plan." The rate of reimbursement is determined by calculating a provider's historical costs for a specified reporting period and factoring in an inflation index to estimate the provider's future costs. The provider is then paid a rate of Medicaid reimbursement based upon the projected future costs. In Florida, prospective rates are calculated January 1 and July 1 of each year. During a reimbursement period a providers' actual expenditures may be greater or less than the estimated costs for the period. If actual expenditures are less, the additional amount the provider receives may be kept. If actual expenditures are more, the provider must absorb the difference. The Reimbursement Plan allows providers to request and receive a rate change between reporting periods if certain exceptional circumstances are met. The rate change is referred to as an "interim rate change." The requested rate increase at issue in this case was a request for an interim rate change. Section IV, J.2. of the Reimbursement Plan provides the following concerning requests for interim rate changes: Interim rate changes reflecting increased costs occurring as a result of patient care or operating changes shall be considered only if such changes were made to comply with existing State or Federal rules, laws, or standards, and if the change in cost to the provider is at least $5000 and would cause a change of 1 percent or more in the provider's current total per diem rate. [Emphasis added]. The Department stipulated that the requirements of the Reimbursement Plan that interim rate changes involve a change in cost of at least $5,000.00 and cause a change of 1% or more have been met in this case. Interim Rate Increase. On August 23, 1989, the Controller of Covenant Care Corporation requested a Medicaid interim rate increase from the Department in University's Medicaid funding. This was the first time during 1989 that University requested an interim rate increase. University had not sought approval of an interim rate increase at any time while the surveys conducted during the first 8 months of 1989 were being conducted. Nor had the Department indicated that it would approve a rate increase as a result of its surveys, the deficiencies it found at University's facility or the acceptance of University's plan of correction. The request was reviewed by the Medicaid Cost Reimbursement Analysis section of the Department in consultation with OLC. University requested a rate increase for the $417,336.76 of additional costs incurred by University for additional staff during 1989. This resulted in an increase in per diem of $6.90 per patient day. The rate increase requested by University was very large. If approved, University would have the highest per diem patient care cost of all Medicaid approved nursing homes in the Department's District 3 where University is located. By letter dated October 19, 1989, the Department informed University that it would allow an increase in rate of $1.16 per patient day and that the additional requested increase of $5.74 was denied. The approved increase was effective August 12, 1989. The increase in rate approved by the Department was attributable to 7 new certified nursing assistant positions. The Department was confused during its review of the rate increase request and during the formal hearing of this case about the number of newly established certified nursing assistant positions and rehabilitation aide positions. The Department believed that there were only 7 new positions created. The evidence established that there were a total of 12 newly created positions: 5 rehabilitation aide positions (which were filled by 5 existing certified nursing assistants) and 7 new certified nursing assistant positions. The 7 new certified nursing assistant positions and the 5 certified nursing assistant positions which were vacated by employees filling the 5 new rehabilitation aide positions were filled by new employees. The amounts expended by University for these 5 new rehabilitation aide positions were included with the amounts expended for the 7 new certified nursing assistant positions. I. Standard Imposed by the Department. During the period of time at issue in this proceeding, University's facility met the nursing staff requirements of Rule 10D-29, Florida Administrative Code. The nursing staff requirements of Rule 10D-29, however, are minimum requirements. Nursing home facilities may have to provide nursing staff in excess of the requirements of Rule 10D-29 in order to provide proper resident care. The Department informed University, as a result of the surveys conducted by OLC during 1989, that residents at University's facility were not receiving adequate care. The Department indicated on a number of occasions that inadequate care was being provided because of "insufficient staff." The Department did not, however, inform University specifically that it needed to add staff positions at its facility. When used by OLC, the terms "insufficient staff" can mean that a facility has an insufficient number of employees assigned and hired to work on shifts. "Insufficient staff" may also mean that, although a sufficient number of employees have been assigned and hired to work on shifts, the employees are not properly carrying out their tasks. In the latter instance, required tasks may not be carried out because an insufficient number of the employees who were scheduled to be present were actually at work or because those present were simply not working adequately. When the Department uses the terms "insufficient staff" to mean that an insufficient number of employees were assigned and hired, then it would be appropriate to hire additional staff. When the Department uses the terms "insufficient staff" to mean that required tasks are not being carried out because an insufficient number of employees were present or because those employees present were simply not working adequately, then it would not be appropriate to hire additional staff. In this case the Department did not consistently inform University what it meant by "insufficient staff." In some instances (i.e., the May Survey Statement) the Department did clearly indicate that it meant that, although a sufficient number of employees were assigned and hired to work, an insufficient number of employees actually were at work. On other occasions, however, this was not the clearly expressed intent. The Department's determination that University needed to improve the quality of the care it was providing to its residents and its use of the terms "insufficient staff" were reasonably interpreted by University to mean that University had an insufficient number of employees scheduled to provide the care required by the Department. Therefore, it was reasonable for University to conclude that it needed to increase its staff to some extent to meet the standards imposed upon it by the Department. This finding of fact is consistent with the Department's determination that an interim rate increase based upon an additional 7 certified nursing assistant positions established at University's facility should be granted. The crucial determination in this case is a determination of the extent to which University should have reasonably added staff in response to the Department's surveys. Based upon the weight of the evidence, it was reasonable for University to establish the 5 new rehabilitation aide positions and the 7 new certified nursing assistant positions in response to the Department's findings of deficiencies during its surveys of University's facility during 1989. These positions resulted in a total increased cost of $121,919.60 and a per diem increase of $2.02. Although it may have been good health planning to establish the rehabilitation coordinator position and the 4 resident care supervisor positions, and to hire a nursing consultant and use pooled nursing staff, it was not reasonable for University to conclude that it was being required to take these steps by the Department. Therefore, University did not incur the costs associated with these staffing changes in order to "comply with existing State or Federal rules, laws, or standards " University did not reasonably rely on the Department's findings of deficiencies or any comments or actions of Department employees during 1989, in establishing the rehabilitation coordinator position or the 4 resident care supervisor positions, or in employing the nursing consultant or pooled nursing staff. The $4.88 of increased per diem and the costs associated with these positions should not be reimbursed as part of an interim rate increase.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department granting University an interim rate increase of $2.02 and denying the remaining $4.88 of interim rate increase requested by University. DONE and ENTERED this 24th day of April, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of April, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. University's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 4. 4 5 and 7. 5 15 and 17-18. 6 20. 7 22. 8 Not relevant to this proceeding. 9 See 50-58. 10 24. 11 Hereby accepted. 12 27. 13 See 31. 14 See 50-58. 15 11 and 13-14. 16 Testimony is taken out of context. 17 Not supported by the weight of the evidence. 18 See 34. See 49. See 34 and hereby accepted. 21 41. 22 45 and 47. 23 34. 24-25 Hereby accepted. 26-31 Not totally supported by the weight of the evidence. See 50-58. 32 36-41. 33 Not totally supported by the weight of the evidence. See 50-58. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 4-6 and 9. 4 5 and hereby accepted. 5 6-7. 6 7-8. 7 Hereby accepted. 8 9. 9 10. 10 12. 11 14. 12 15. 13 16. 14 11. 15 17-18. 16 18-19. 17 Hereby accepted. 18 20. 19 21-22. 20 43. 21 34 and hereby accepted. 22 23-24. 23 25. 24 25 and 43. 25 27 and 29. 26 42 and hereby accepted. 27 34 and 45. 28 36. 29 37. 30 38. 31 39. 32 Hereby accepted. 33 39. 34 40. 35 39. 36 41. 37-38 Hereby accepted. 39 44. 40-42 Hereby accepted. 43 18-19, 29 and 51-55. 44 47-48 and 55. 45 46. 46 See 51-58. See 57. Hereby accepted. 49 47-48. Copies Furnished To: Grafton B. Wilson, II, Esquire Post Office Box 1292 Gainesville, Florida 32609 Carl Bruce Morstadt, Esquire Chief Medicaid Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 6, Room 230 Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Department is the state agency charged with the responsibility of regulating the profession of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times material to this case, Respondent has been licensed by the Department, license nos. RN 1672492 and 167249A. Respondent holds dual licensure since he is listed as a registered nurse (RN) and an advanced practice RN with specialty (ARNP). In Respondent's case, the advanced specialty practice is in the area of anesthesia. To become licensed as an ARNP, Respondent submitted an application, a fee, and copies of a certification from the Council on Recertification of Nurse Anesthetists (CRNA) which included an identification card specifying Respondent's CRNA number to be 24936. Respondent represented, under oath, that the copies were true and correct duplicates of the originals. Based upon this documentation, the Department issued the ARNP license. On or about March 25, 1986, Respondent was employed by the Hialeah Anesthesia Group (HAG). Respondent's supervisor was Manuel B. Torres, M. D., president of HAG. On or about November 30, 1987, Dr. Torres notified Respondent that his employment and privileges at Hialeah Hospital were being suspended. According to Dr. Torres, this suspension was to continue until confirmation was given by the Impaired Nurse Program at South Miami Hospital that Respondent's problem had been corrected. At the same time, Dr. Torres notified the CRNA that Respondent had voluntarily entered an impaired nurse program. Subsequently, Dr. Torres received a letter from Susan Caulk, staff secretary for CRNA, which notified him that, according to CRNA files, Respondent had not passed the certification examination, was not a member of the American Association of Nurse Anesthetists, and that Respondent's CRNA recertification number was not valid. Dr. Torres then notified the Department regarding the certification issue. Later, after Respondent had completed a controlled substance addiction program at Mount Sinai Medical Center, Dr. Torres advised him that, if he could prove his CRNA certification, he could be rehired at Hialeah Hospital. Respondent never returned to demonstrate his certification. An individual who represents himself to be certified as an ARNP when he has not qualified to be so certified has exhibited conduct which falls below the standard of care of the nursing practice. Further, such an individual, by practicing as an advanced practitioner without the educational background, compromises the safety of patient care.
