The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since August 27, 1971, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0018306. Respondent previously faced charges of professional misconduct in DPR Case No. 89-0925. In that case, Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989. The matter was resolved by the parties entering into a settlement stipulation, which was approved by the Board of Medicine in a final order entered August 13, 1990. Under the terms of the agreement, Respondent, without admitting his guilt, agreed to pay a $500.00 administrative fine and not to "in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto." Facts Relating to Case No. 93-2640/Administrative Complaint #1 From on or about February 8, 1991, to March 24, 1991, patient R.D., a 43 year old male who had tested positive for the Human Immunodeficiency Virus (HIV), was hospitalized at North Florida Reception Medical Center Hospital (hereinafter referred to as "MCH"). During his hospitalization, R.D. received treatment for advanced Acquired Immunodeficiency Syndrome (AIDS) and related complications. Elizabeth Mutch, M.D., was R.D.'s attending physician at MCH. R.D. was experiencing difficulty in swallowing oral medications due to multiple ulcerations in his mouth secondary to an uncontrolled Herpes Virus. On or about March 16, 1991, Dr. Mutch determined that R.D. would benefit from intravenous medications through a central venous line. She therefore wrote an order for "central venous line placement Monday 3/18." In another written order, she directed that "IV fluids [be held] until central venous line in place." Both orders were dated March 16, 1991. In her progress notes for March 16, 1991, Dr. Mutch indicated "Central line ASAP." In the middle of March of 1991, Respondent was the acting medical director of MCH. In addition to his duties as acting medical director, he was on the staff of the hospital's internal medicine department. Respondent was the only internist on staff at the hospital with any significant experience in central line placements of the type ordered by Dr. Mutch, although there was a surgeon affiliated with the hospital, a Dr. Capliwski, who had such experience and in fact performed most of the placements needed by patients at the hospital. Sometime after she wrote the order for central venous line placement for R.D., Dr. Mutch verbally requested Respondent to attempt such placement at his earliest possible convenience. On March 18, 1991, Respondent made approximately five unsuccessful attempts to place a subclavian venous line in R.D., the first of which yielded air, indicating that R.D.'s lung had been punctured. Following these unsuccessful placement attempts, Respondent ordered a chest x-ray for R.D. The x-ray taken revealed no evidence of pulmonary distress. Respondent's progress notes for March 18, 1991, do not reflect that he ordered a surgical consultation that day after his placement attempts failed. The next two or three days Respondent was out of town on hospital business in his capacity as the hospital's acting medical director. Respondent reasonably assumed that, in his absence from the hospital, Dr. Mutch would ask Dr. Capliwski to try to perform the central venous line placement that she had initially requested Respondent to attempt. Upon his return to the hospital, Respondent learned that no such attempt had been made. Respondent therefore again made several attempts at central venous line placement. Placement was attempted via R.D.'s jugular vein. While the approach was different, the results were the same. Respondent was unable to accomplish his objective. Following this second series of unsuccessful placement attempts, Respondent ordered another chest x-ray for R.D. On March 24, 1991, at approximately 1:00 a.m., R.D. began to have difficulty breathing. He also had a rapid heart rate, a pulse rate of 140, a respiratory rate of 30, and a temperature of 103.3. degrees. Respondent was the "on call" physician. He was at home, approximately 35 miles away from the hospital. The duty nurse telephoned Respondent and spoke with him about R.D. 3/ Respondent instructed the nurse to give R.D. Tylenol and to make sure that he was receiving oxygen. He did not suggest that R.D. be seen by Dr. Chandler, the physician manning MCH's emergency room. By 9:15 p.m. that same day, R.D.'s condition had further deteriorated. His respiratory rate had increased to 40. The duty nurse again telephoned Respondent at home and informed him of R.D.'s deteriorating condition. This time Respondent directed that R.D. be immediately evaluated by Dr. Chandler. In accordance with Respondent's directive, Dr. Chandler was contacted. He ordered a chest x-ray for R.D. The x-ray revealed a 50 percent pneumothorax with right mediastinal shift. Dr. Chandler therefore performed an emergency thoracotomy. Arrangements were then made to transfer R.D. to Lake Shore Hospital. At approximately 10:10 p.m. on March 24, 1991, shortly after he was placed in the ambulance that was to transport him to Lake Shore Hospital, R.D. experienced respiratory arrest and expired. An autopsy was performed by Carolyn Hopkins, M.D., of the local Medical Examiner's Office. The autopsy report prepared by Dr. Hopkins lists "complications of acquire[d] immunodeficiency syndrome" as the cause of death. More specifically, Respondent died as a result of a tension pneumothorax. Facts Relating to Case No. 93-2683/Administrative Complaint #2 Counts 1 and 2 Respondent's license to practice medicine in the State of Florida was inactive due to non-renewal from on or about December 31, 1983, until approximately November of 1989. Respondent engaged in the practice of medicine at Cypress Medical and Professional Centre (hereinafter referred to as the "Centre") in Winter Haven, Florida, during a portion of the period that his medical license was inactive. On or about September 12, 1989, Respondent entered a plea of nolo contendere to the criminal offense of referring a patient to a business entity without disclosure of financial interest, in violation of Section 458.327(2)(c), Florida Statutes (1989). It was stipulated by Respondent and the prosecutor at the time of the entry of the plea that the crime to which Respondent pled was a lesser included offense of the crime of practicing medicine without a license. On or about October 25, 1989, adjudication of guilt was withheld and Respondent was ordered to pay a $500.00 fine. Counts 3, 4 and 5 On January 20, 1989, patient M.L. went to the Centre complaining, among other things, of chronic headaches. M.L. was first seen by a chiropractor at the Centre, who referred her "to M.D. for complete detailed neurologic-orthopedic exam." On January 24, 1989, M.L. was examined by Respondent at the Centre. The records maintained at the Centre reflect that, during this initial examination, Respondent explored the history and possible etiology of M.L.'s chronic headaches. The entries made on the Progress Notes and Patient Control Sheet maintained at the Centre (11 of which apparently were made by, or at the direction of, Respondent) reflect that M.L. visited the Centre on 21 different occasions. Bills from the Centre for 20 of these 21 visits were signed by Respondent. 4/ The Progress Notes and Patient Control Sheet do not reflect that Respondent saw M.L. on all 20 visits covered by these bills. Facts Relating to Case No. 94-0234/Administrative Complaint #3 On November 22, 1989, patient A.M.D., a 40-year old female, presented to the emergency room at Polk General Hospital (hereinafter referred to as "PGH") in Bartow, Florida, with complaints of a high fever, abdominal pain, vomiting and coughing. An examination revealed that she had rapid pulse and respiration rates. It was further observed that she had a flushed face and epigastric tenderness. A.M.D. was treated in the PGH emergency room with, among other things, an antibiotic, vibramyacin, for which she was also given a prescription. She was then discharged. A.M.D. returned to the PGH emergency room on November 23, 1989, with symptoms similar to those with which she had presented the previous day. She was again treated and discharged. Records of these two emergency room visits were made and kept by the hospital. A.M.D. paid a third visit to the PGH emergency room on November 24, 1989, with symptoms similar to those she had exhibited during her first two visits. On this occasion, she was admitted to PGH in the care of Respondent. She remained in Respondent's care throughout her entire stay at the hospital. As her attending physician, it was incumbent upon Respondent to review the records of A.M.D.'s prior two emergency room visits. Upon A.M.D.'s admission to the hospital, Respondent failed to order multiple blood cultures, notwithstanding that, as Respondent should have known, Respondent was already on an antibiotic. A single blood culture is insufficient to properly diagnose the condition of such a patient. Respondent's initial diagnosis of A.M.D., made without the benefit of results of multiple blood cultures, was undetermined gastrointestinal problems. A.M.D. was treated with, among other things, antibiotics. Although A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure, Respondent did not attempt to obtain a consultation with an infectious disease specialist, 5/ nor did he order that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics. A.M.D. continued to run a fever until December 4, 1989, after which her condition slightly improved. Even though a blood culture had indicated that A.M.D. had a staphylococcal infection, Respondent nonetheless ordered that the intravenous administration of antibiotics be discontinued because A.M.B. had been afebrile for a few days. Thereafter, A.M.D.'s condition quickly deteriorated. She suffered congestive hear failure, but Respondent did not seek to obtain a consultation with a cardiologist. On December 11, 1989, 17 days after she had been admitted to the hospital, A.M.D. expired. At the time of her death she was not on antibiotics. This was a factor which contributed to her demise. Respondent's final primary diagnosis of A.M.D. was toxemic shock, protracted. His secondary diagnoses included: staphylococcal septicemia, acute; cholelithiasis, chronic; and pneumonitis, subacute, staphylococcal. In not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal. Facts Relating to Case No. 94-0235/Administrative Complaint #4 On or about August 17, 1992, patient A.A., a 69 year old male, presented to Respondent at Preferred Quality Medical Care in Plantation, Florida with complaints of shortness of breath and nocturia (two to three times a night). A.A. provided Respondent with a written medical history, which revealed, among other things, that he was a heavy smoker. During his physical examination of A.A., Respondent observed and noted in his written record of the examination, among other things, inspiratory wheezes, prolonged expiration, shortness of breath and that A.A. gave the appearance of being chronically ill. Respondent diagnosed A.A.'s condition as C.O.P.D. (chronic obstructive pulmonary disease) and what Respondent termed "tobaccism," which is a nonstandard diagnosis. Respondent ordered an EKG, spirometry, urinalysis and blood tests. He failed to order a chest x-ray, notwithstanding that A.A. had indicated he was a heavy smoker and that Respondent's examination had revealed that A.A. had shortness of breath and that he had the appearance of someone who was chronically ill. Under such circumstances, it was quite possible that A.A. was suffering from C.O.P.D., as Respondent had opined. There were other possibilities, however, such as cancer, 6/ tuberculosis, pneumonia and congestive heart failure. In order to fully investigate these other possibilities, it was necessary for Respondent to order a chest x-ray. On or about September 11, 1992, A.A. returned to Respondent complaining of intermittent coughing spells. Respondent examined A.A. and observed prolonged wheezing. Respondent diagnosed A.A.'s condition as C.O.P.D. and hypertensive disease and treated him with bronchodilators. Although a diagnosis of hypertensive disease requires a baseline chest x-ray as part of the initial evaluation, Respondent made his diagnosis without the benefit of such an x-ray. A.A. next visited Respondent on October 19, 1992, complaining of extreme nervousness and inability to sleep. Respondent found that A.A. was expectorating large amounts of mucus. Respondent treated A.A. with Sinequan, which is an antidepressant that helps with sleep. Once again Respondent failed to order a chest x-ray. A.A. returned to Respondent on November 23, 1992, complaining of shortness of breath and nocturia. Respondent examined A.A. and discovered a soft mass in the supraclavicular area. He also noted that A.A. had a heart murmur. Respondent finally ordered a chest x-ray. The x-ray revealed pleural effusion. Subsequent testing detected inoperable cancer, which led to A.A.'s death on May 9, 1993. In waiting until A.A.'s fourth visit before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license for a period of eighteen months, placing him on probation for the following five years, and imposing an administrative fine in the amount of $4,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November, 1994. STUART M. LERNER 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 15th day of November, 1994.
Findings Of Fact The Application West Florida Regional Medical Center is a 400-bed acute care hospital in Pensacola, Escambia County, Florida. The hospital is located in a subdistrict which has the greatest population aged 65 and over who are living in poverty. That group constitutes the population qualified for Medicare. Some 17 percent of Escambia County's population falls into the medicare category. Prior to October, 1987, HRS had determined that there was a fixed pool need in the Escambia County area for 120 nursing home or extended care beds. Several hospitals in the Escambia County area applied for the 120 nursing home beds. Those beds were granted to Advocare (60 beds) and Baptist Manor (60 beds). The award of the 120 beds to Baptist Manor and Advocare is not being challenged in this action. West Florida, likewise, filed an application for an award of nursing home beds in the same batch as Advocare and Baptist Manor. However, Petitioner's application sought to convert 8 acute care beds to nursing home or extended care beds. West Florida's claim to these beds was not based on the 120 bed need established under the fixed need pool formula. West Florida's application was based on the unavailability of appropriately designated bed space for patients who no longer required acute care, but who continued to require a high skill level of care and/or medicare patients. The whole purpose behind West Florida's CON application stems from the fact that the federal Medicare system will not reimburse a hospital beyond the amount established for acute care needs as long as that bed space is designated as acute care. However, if the patient no longer requires acute care the patient may be re-designated to a skilled care category which includes nursing home or extended care beds. If the patient is appropriately reclassified to a skilled care category, the hospital can receive additional reimbursement from Medicare above its acute care reimbursement as long as a designated ECF bed is available for the patient. Designation or re-designation of beds in a facility requires a Certificate of Need. Petitioner's application for the 8 beds was denied. When the application at issue in this proceeding was filed Petitioner's 13-bed ECF unit had been approved but not yet opened. At the time the State Agency Action Report was written, the unit had just opened. Therefore, historical data on the 13 bed unit was not available at the time the application was filed. Reasons given for denying West Florida's application was that there was low occupancy at Baptist Hospital's ECF unit, that Sacred Heart Hospital had 10 approved ECF beds and that there was no historical utilization of West Florida 13 beds. At the hearing the HRS witness, Elizabeth Dudek stated that it was assumed that Baptist Hospital and Sacred Heart Hospital beds were available for West Florida patients. In 1985 West Florida applied for a CON to establish a 21-bed ECF unit. HRS granted West Florida 13 of those 21 beds. The 8 beds being sought by West Florida in CON 5319 are the remaining beds which were not granted to West Florida in its 1985 CON application. In order to support its 1985 CON application the hospital conducted a survey of its patient records to determine an estimate of the number of patients and patient days which were non acute but still occupied acute care beds. The hospital utilized its regularly kept records of Medicare patients whose length of stay or charges exceeded the Medicare averages by at least two standard deviations for reimbursement and records of Medicare patients whose charges exceed Medicare reimbursement by at least $5,000. These excess days or charges are known as cost outliers and, if the charge exceeds the Medicare reimbursement by $5000 or more, the excess charge is additionally known as a contractual adjustment. The survey conducted by the hospital consisted of the above records for the calendar year 1986. The hospital assumed that if the charges or length of stay for patients were excessive, then there was a probability that the patient was difficult to place. The above inference is reasonable since, under the Medicare system, a hospital's records are regularly reviewed by the Professional Review Organization to determine if appropriate care is rendered. If a patient does not meet criteria for acute care, but remains in the hospital, the hospital is required to document efforts to place the patient in a nursing home. Sanctions are imposed if a hospital misuses resources by keeping patients who did not need acute care in acute care bed spaces even if the amount of reimbursement is not at issue. The hospital, therefore goes to extraordinary lengths to place patients in nursing home facilities outside the hospital. Additionally, the inference is reasonable since the review of hospital records did not capture all non-acute patient days. Only Medicare records were used. Medicare only constitutes about half of all of West Florida's admissions. Therefore, it is likely that the number of excess patient days or charges was underestimated in 1986 for the 1985 CON application. The review of the hospital's records was completed in March, 1987, and showed that 485 patients experienced an average of 10.8 excess non-acute days at the hospital for a total of 5,259 patient days. The hospital was not receiving reimbursement from Medicare for those excess days. West Florida maintained that the above numbers demonstrated a "not normal need" for 21 additional ECF beds at West Florida. However as indicated earlier, HRS agreed to certify only 13 of those beds. The 13 beds were certified in 1987. The 13-bed unit opened in February, 1988. Since West Florida had planned for 21 beds, all renovations necessary to obtain the 8-bed certification were accomplished when the 13- bed unit was certified in 1987. Therefore, no capital expenditures will be required for the additional 8 beds under review here. The space and beds are already available. The same study was submitted with the application for the additional eight beds at issue in these proceedings. In the present application it was assumed that the average length of stay in the extended care unit would be 14 days. However, since the 13 bed unit opened, the average length of stay experienced by the 13-bed unit has been approximately 15 days and corroborates the data found in the earlier records survey. Such corroboration would indicate that the study's data and assumptions are still valid in reference to the problem placements. However, the 15- day figure reflects only those patients who were appropriately placed in West Florida's ECF unit. The 15-day figure does not shed any light on those patients who have not been appropriately placed and remain in acute care beds. That light comes from two additional factors: The problems West Florida experiences in placing sub-acute, high skill, medicare patients; and the fact that West Florida continues to have a waiting list for its 13 bed unit. Problem Placements Problem placements particularly occur with Medicare patients who require a high skill level of care but who no longer require an acute level of care. The problem is created by the fact that Medicare does not reimburse medical facilities based on the costs of a particular patients level of care. Generally, the higher the level of care a patient requires the more costs a facility will incur on behalf of that patient. The higher costs in and of themselves limit some facilities in the services that facility can or is willing to offer from a profitability standpoint. Medicare exacerbates the problem since its reimbursement does not cover the cost of care. The profitability of a facility is even more affected by the number of high skill Medicare patients resident at the facility. Therefore, availability of particular services at a facility and patient mix of Medicare to other private payors becomes important considerations on whether other facilities will accept West Florida' s patients. As indicated earlier, the hospital goes to extraordinary lengths to place non- acute patients in area nursing homes, including providing nurses and covering costs at area nursing homes. Discharge planning is thorough at West Florida and begins when the patient is admitted. Only area nursing homes are used as referrals. West Florida's has attempted to place patients at Bluff's and Bay Breeze nursing homes operated by Advocare. Patients have regularly been refused admission to those facilities due to acuity level or patient mix. West Florida also has attempted to place patients at Baptist Manor and Baptist Specialty Care operated by Baptist Hospital. Patients have also been refused admission to those facilities due to acuity level and patient mix. 16 The beds originally rented to Sacred Heart Hospital have been relinquished by that hospital and apparently will not come on line. Moreover the evidence showed that these screening practices would continue into the future in regard to the 120 beds granted to Advocare and Baptist Manor. The president of Advocare testified that his new facility would accept some acute patients. However, his policies on screening would not change. Moreover, Advocare's CON proposes an 85 percent medicaid level which will not allow for reimbursement of much skilled care. The staffing ratio and charges proposed by Advocare are not at levels at which more severe sub-acute care can be provided. Baptist Manor likewise screens for acuity and does not provide treatment for extensive decubitus ulcers, or new tracheostomies, or IV feeding or therapy seven days a week. Its policies would not change with the possible exception of ventilated patients, but then, only if additional funding can be obtained. There is no requirement imposed by HRS that these applicants accept the sub-acute-patients which West Florida is unable to place. These efforts have continued subsequent to the 13-bed unit's opening. However, the evidence showed that certain types of patients could not be placed in area nursing homes. The difficulty was with those who need central lines (subclavian) for hyperalimentation; whirlpool therapy such as a Hubbard tank; physical therapy dither twice a day or seven days a week; respiratory or ventilator care; frequent suctioning for a recent tracheostomy; skeletal traction; or a Clinitron bed, either due to severe dicubiti or a recent skin graft. The 13-bed unit was used only when a patient could not be placed outside the hospital. The skill or care level in the unit at West Florida is considerably higher than that found at a nursing home. This is reflected in the staffing level and cost of operating the unit. Finally, both Advocare and Baptist Manor involve new construction and will take approximately two years to open. West Florida's special need is current and will carry into the future. The Waiting List Because of such placement problems, West Florida currently has a waiting list of approximately five patients, who are no longer acute care but who cannot be placed in a community nursing home. The 13-bed unit has operated at full occupancy for the last several months and is the placement of last resort. The evidence showed that the patients on the waiting list are actually subacute patients awaiting an ECF bed. The historical screening for acuity and patient mix along with the waiting list demonstrates that currently at least five patients currently have needs which are unmet by other facilities even though those facilities may have empty beds. West Florida has therefore demonstrated a special unmet need for five ECF beds. Moreover, the appropriate designation and placement of patients as to care level is considered by HRS to be a desirable goal when considering CON applications because the level of care provided in an ECF unit is less intense than the level of care required in an acute care unit. Thus, theoretically, better skill level placement results in more efficient bed use which results in greater cost savings to the hospital. In this case, Petitioner offers a multi-disciplinary approach to care in its ECF unit. The approach concentrates on rehabilitation and independence which is more appropriate for patients at a sub-acute level of care. For the patients on the awaiting proper placement on the waiting list quality of care would be improved by the expansion of the ECF unit by five beds. Finally, there are no capital costs associated with the conversion of these five beds and no increase in licensed bed capacity. There are approximately five patients on any given day who could be better served in an ECF unit, but who are forced to remain in an acute care unit because no space is available for them. This misallocation of resources will cost nothing to correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a CON to Petitioner for five ECF beds. DONE and ORDERED this 30th day of March, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1989. APPENDIX The facts contained in paragraph 1-29 of Petitioner's proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 1, 2, 3, 4, 5, 6, 8, 12, 15, 16, 20, 27, 28, 29, 31 and 33 of Respondent's Proposed Findings of Fact are subordinate. The first sentence of paragraph 7 of Respondent's Proposed Findings of Fact was not shown to be the evidence. Strict compliance with the local health plan was not shown to be an absolute requirement for CON certification. The remainder of paragraph 7 is subordinate. The facts contained in paragraph 9, 10, 11 and 30 of Respondent's Proposed Findings of Fact were not shown by the evidence. The first part of the first sentence of paragraph 13 of Respondent's Proposed Findings of Fact before the semicolon is adopted. The remainder of the sentence and paragraph is rejected. The first sentence of paragraph 14 of Respondent's Proposed Findings of Fact was not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in paragraph 17, 26 and 32 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. The acts contained in paragraph 18 are rejected as supportive of the conclusion contained therein. The first (4) sentences of paragraph 19 are subordinate. The remainder of the paragraph was not shown by the evidence. The first (2) sentences of paragraph 21 are adopted. The remainder of the paragraph is rejected. The facts contained in paragraph 22 of Respondent's Proposed Findings of Fact are irrelevant. The first sentence of paragraph 23 is adopted. The remainder of paragraph 23 is subordinate. The first sentence of paragraph 24 is rejected. The second, third, and fourth sentences are subordinate. The remainder of the paragraph is rejected. The first sentence of paragraph 25 is subordinate. The remainder of the paragraph is rejected. COPIES FURNISHED: Lesley Mendelson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Donna H. Stinson, Esquire MOYLE, FLANIGAN, KATZ, FITZGERALD & SHEEHAN, P.A. The Perkins House - Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact Since 1904, a group of citizens in Tampa has paid weekly or monthly fees entitling each member to medical care as needed at little or no additional expense. Medical facilities for the group have been housed in a hospital building in Ybor City. In 1939, A. A. Gonzalez, a physician, gained control of these physical facilities. The A. A. Gonzalez Hospital Corporation acquired a 34 bed hospital. A. A. Gonzalez was president of the corporation until his death in 1953, when his widow, Lucia Gonzalez Nuniz, became president and treasurer of the corporation, positions she still holds. Aurelia Gonzalez- Risler, daughter of A. A. Gonzalez, now chairs the corporation's board of directors and is an executive vice-president of the corporation. There were some 6,000 members of this mutual aid medical society in 1976, but membership has fallen off considerably since then. Respondent has at least two subdivisions with whom hospitals in Florida sometimes come into contact. There is the Office of Licensure and Certification and there is the separate and distinct Office of Community Medical Facilities. The Office of Licensure and Certification employs architects and others who review plans for health care facilities in an effort to insure that they will comply with standards designed to protect the public health and safety. Among other things, these standards cover hospital laboratories, pharmacies, radiology departments, fire control, sanitation, and general physical plant requirements. See Chapters 395 and 400, Florida Statutes, and Chapter 10D-28, Florida Administrative Code. In furtherance of its objectives, the Office of Licensure and Certification also conducts periodic hospital inspections. Respondent's Office of Community Medical Facilities, on the other hand, administers the certificate of need program, an elaborate regulatory scheme intended to reduce health care costs by preventing unnecessary capital outlays by health care providers. Under this program, health care facilities or health maintenance organizations apply for certificates of need as a legal prerequisite to constructing new facilities, making certain capital expenditures, or taking certain other steps. See Sections 381.493 through 391.497, Florida Statutes, and Chapter 101, Florida Administrative Code. Preparation of an application for a certificate of need is a substantial undertaking. Before a proposed hospital is built, both a license from respondent's Office of Licensure and Certification and a certificate of need from respondent's Office of Community Medical Facilities are ordinarily required. At all pertinent times, the Office of Licensure and Certification had an official policy of referring inquiries about certificates of need to the Office of Community Medical Facilities. In addition, there was an unwritten agreement between the two offices that the Office of Licensure and Certification would issue no license until the license applicant had obtained either a certificate or need or a letter from the Office of Community Medical Facilities stating that no certificate of need would be required. Respondent's Office of Licensure and Certification conducted inspections of petitioner's facilities on February 5, 1976, on March 22, 23 and 24, 1976, on October 7, 1976, and again on October 24, 1976. As a result of these inspections, numerous deficiencies were pointed out to the petitioner. Some of these were readily correctable, but others, including the installation of new plumbing and widening the corridors, would have required substantial outlays. On December 20, 1976, Oscar Gonzalez, then petitioner's administrator, Mrs. Nuniz, Mr. Gilbert Flores, an architect retained by petitioner, and employees of respondent, Messrs. Owen, Schilling, Stankaitis, Insley, Burton and Honeywell, met in Jacksonville. Petitioner's counsel, J.J. Craparo, initiated arrangements for this meeting but did not attend. "At this meeting, many possibilities were discussed, including extensive renovation and replacement facilities," Respondent's exhibit No. 1, and including the requirement that a hospital building comply with the more stringent code standards applicable to new buildings if more than half the value of the building is expended on renovation, in a twelve month period. As a practical matter, petitioner's building could not be altered to comply with the code standards applicable to new buildings. During the meeting on December 20, 1976, Mr. Flores made a telephone call to determine whether land adjacent to the existing building would be available. Everybody at the meeting was under the impression that a project on the scale necessary to correct the deficiencies at A.A. Gonzalez Clinic and Hospital would require a certificate of need. Mr. Burton said as much. Every employee of respondent in attendance worked for the Office of Licensure and Certification. None was familiar with every exemption from the requirement that certificates of need be obtained. Petitioner's representatives relied on respondent's employees for their information. At this meeting, Louis Norman Schilling strongly urged that petitioner build a replacement facility rather than attempt renovation, a recommendation be repeated in a meeting on January 3, 1977, with Oscar Gonzalez, Gilbert Flores and Alberto Gonzalez del Barrio. At the time, Mr. Schilling worked for respondent. He is now an architect in private practice whom petitioner has retained in its efforts to build a replacement facility. At the meeting on January 3, 1977, Mr. Schilling advised petitioner's representatives that they would have to have a certificate of need or a "waiver letter" before proceeding with construction. After considering various alternatives, including the possibility of building a new hospital with 50 beds, petitioner decided to build a 34 bed replacement facility adjoining the existing building, which could then be used for doctors' offices and out patient services. As early as the summer of 1976, Mr. Schilling, at the behest of his supervisor, Mr. Rosenvold, told petitioner's representatives to contact the Florida Gulf Health Systems Agency (HSA) about applying for a certificate of need. The HSA is a non profit federally funded organization that makes recommendations on certificate of need applications to respondent's Office of Community Medical Facilities. In January of 1977, Oscar J. Gonzalez and other persons connected with petitioner met with Gary Silvers, the HSA's director of project review. They told Mr. Silvers that they needed to act to meet the objections of the Office of Licensure and Certification. Among the possibilities discussed was a new facility with expended services. Mr. Silvers did not advise petitioner's representatives that an exemption from the certificate of need review process was available to them. Instead, he recommended that they obtain technical assistance in preparing an application and suggested that they contact Michael J. Maffe, a consultant. Acting on this suggestion, petitioner entered into negotiations with Mr. Maffe which resulted in an agreement between petitioner and Health Research & Planning Associates, Inc., of which Mr. Maffe was president. Under the terms of this agreement, which was entered into in April of 1977, petitioner paid the consultant seventy- five hundred dollars ($7,500.00). Mr. Silvers received a letter from petitioner dated March 9, 1979, petitioner's exhibit No. 4, which he accepted as a letter of intent to file an application. The HSA forwarded this letter to respondent's Office of Community Medical Facilities, which received it on March 24, 1977. Some of the money used to finance the initial phases of the project came from Ybor Community Hospital and Health Care Center, Inc. (YCHHCC) a separate corporation whose board of directors overlaps petitioner's. Several physicians contributed to capital to YCHHCC, including Dr. Muniz ($18,000.00), Dr. Angel Alonso ($10,000.00 individually), Dr. Jorge Capote ($6,000.00), Dr. Victor A. Mallea ($2,000.00 individually), Drs. Mallea, Montoya and Alonso ($7,500.00 jointly), and Dr. Michael Martinez-Corpas ($2,000.00). Some $25,000.00 was expended on architects' fees, consultants' fees and the like before July 1, 1977, alone, in efforts to obtain certificate of need. As a result of petitioner's facility's deterioration, membership in the health care plan has fallen off, and people who have remained members frequently choose to be hospitalized elsewhere or are sent elsewhere by their physicians. Before July 1, 1977, petitioner received dues of between $30,000.00 and $35,000.00 monthly. By the time of the hearing, receipts had fallen off to about $15,435.00 monthly. At the hearing, the parties stipulated that, until July 1, 1977, petitioner could lawfully have renovated or replaced the facility without a certificate of need, but would have required a certificate of need as a legal prerequisite to an expansion. Petitioner only learned this after July 1, 1977. Respondent first acknowledged that this was the case on May 22, 1979. But for being misled about the necessity for a certificate of need, petitioner would have begun construction of a replacement facility before July 1, 1977. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue petitioner a certificate of need for the replacement of existing facilities on condition that construction begin within one year of the final order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August 1979. APPENDIX Paragraphs two, eight through eighteen, twenty, twenty-one, twenty-three through thirty-one, thirty-four, thirty-six, thirty-seven, forty through forty- two, forty-four and fifty-one of petitioner's proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of petitioner's proposed findings of fact has not been adopted because the income levels and ethnic backgrounds of the membership were not proven. Paragraph three of petitioner's proposed findings of fact has not been adopted because the uncontroverted testimony was that predecessor institutions dated from 75 not 71 years ago. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that the the name is A. A. Gonzalez Clinic & Hospital. Paragraphs five through seven of petitioner's proposed findings of fact have not been adopted because they were not proven. Paragraph nineteen of petitioner's proposed findings of fact has been adopted in substance, insofar as relevant, except that the weight of the evidence was that Mr. Rosenvold was not present. Paragraph twenty-one of petitioner's proposed findings of fact has been adopted in substance, insofar as relevant, but this advice was also given before December 20, 1976. Paragraph thirty-two of petitioner's proposed findings of fact has been adopted, in substance, except that expenses incurred since July 1, 1977, were not proven, according to the hearing officer's notes. Paragraph thirty-three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that respondent's Office of Community Medical Facilities did receive petitioner's letter forwarded to it by the HSA. Paragraphs thirty-five, forty-five through fifty and fifty-three are properly conclusions of law. Paragraph thirty-eight of petitioner's proposed findings of fact has not been adopted because is was not proven. Paragraph thirty-nine of petitioner's proposed findings of fact has been adopted in substance, except that the evidence did not establish any change in official policy after the summer of 1976. Paragraph forty-three of petitioner's proposed findings of fact has been adopted in substance insofar as relevant except that the evidence showed that counsel advised petitioner of this situation before May 22, 1979 (but after July 1, 1977). Paragraph fifty-two of petitioner's proposed findings of fact has not been adopted because petitioner was also given the choice of ceasing its operations. COPIES FURNISHED: Jean Laramore, Esq Kenneth G. Oertel, Esq. Suite 600, Lewis State Bank Building Tallahassee, Florida 32302 Amelia M. Park, Esq. Department of Health and Rehabilitative Services 4000 W. Buffalo Avenue Tampa, Florida 33614
The Issue The issue presented is whether Petitioner's application for a certificate of need to establish a hospice with a six (6) bed component to be located in Dade County, Florida, should be approved.
Findings Of Fact The Parties Since 1975, Petitioner, Comprehensive Home Health Care, Inc., has been serving the elderly population of Dade County, primarily working with the Hispanic community to provide skilled nursing services and the services of physical therapy, speech pathology, occupational therapy, home health aide and medical social services. Petitioner currently provides its services as a home health care agency licensed by the Department. Respondent, Department of Health and Rehabilitative Services (Department), is a state agency which is responsible for administering Section 381.701 through 381.715, Florida Statutes, the "Health Facility and Services Development Act", under which applications for certificates of need (CON) are filed, reviewed and either granted or denied by the Department. Petitioner currently does not participate in an approved hospice program. Two hospice programs are licensed by the Department to serve Dade County: Catholic Hospice, Inc., and Hospice, Inc. Neither entity chose to intervene in the instant proceeding. The Application On or about March 27, 1989, Petitioner filed an application with the Department for a CON to implement a six (6) bed hospice service in Dade County, Florida, with no capital expenditure. The application was designated as CON Number 5871. No public hearing was requested. After the submittal of an omissions response, the Department deemed the application complete on May 16, 1989. The application was reviewed as the sole applicant in its batching cycle After review of the application, the Department issued its intent to deny the application in its state agency action report (SAAR) on June 29, 1989. In the application, Petitioner proposes to establish a not-for-profit, full service hospice which includes a six (6) bed inpatient component with beds to be located in the Northwest, Central West and Southwest Dade County, Florida, in three of the following hospitals: AMI Kendall Regional Medical Center Coral Gables Hospital North Gables Hospital Palmetto Hospital Pan American Hospital Westchester Hospital In addition to relying on its application as meeting pertinent statutory and rule criteria- Petitioner asserts that the application demonstrates mitigating and extenuating circumstances which would allow the approval of the application even if the numeric need prescribed by rule were not demonstrated by the application. Further, the application states that Hospice, Inc., as the only provider in Dade County, has a monopoly on the market in Dade County. Petitioner also intends to concentrate on providing service to the Hispanic population and those individuals suffering from AIDS. The application was not presented in the format which the Department usually receives applications for certificate of need. The usual format was not made part of the record in this proceeding. However, the application, as supported at hearing, shows Petitioner's desire to provide hospice services to the residents of Western Dade County. The witnesses testifying on behalf of Petitioner were Teresa Corba Rodriguez, Roger Lane and Rose Marie Marty. Ms. Rodriguez is an experienced registered nurse who worked for Hospice, Inc., from November, 1987, through June, 1989. She is currently employed at Victoria Hospital. Mr. Lane is the director of information and referral at Health Crisis Network in Miami, and Ms. Marty is the Vice President of Petitioner. The Department's primary bases for issuance of its intent to deny the application were the lack of need for additional inpatient hospice beds, and the failure to document sufficiently certain statutory and rule criteria, as discussed in the following paragraphs. The Department offered the testimony of Elizabeth Dudek, who is an employee of the Department, and is an expert in health planning. Compliance with Statutory Criteria In its proposed recommended order, the Department acknowledged that only six statutory criteria in Section 381.705(1), Florida Statutes (1987) are at issue, in addition to Rule 10-5.011(1)(j), Florida Administrative Code. State Health Plan Although the State Health Plan was not offered into evidence, the Department through testimony and the SAAR indicates that the Application conforms to the State Health Plan. Local Health Plan The applicable Local Health Plan is represented by the plan entitled, "1988 District XI Certificate of Need Allocation Factors", adopted on March 3, 1988. This plan, as it relates to hospice services, is composed of a Subsystem Description, a statement of Issues and of Recommendations. The SAAR chose to base its determination of Petitioner's compliance with the local health plan on an evaluation of whether the application fulfilled the several preferences within the recommendations portion of this plan. In so doing, the Department determined in its SAAR that the Petitioner was in partial compliance. The first preference reads as follows "Preference should be given to applicants having a workable plan for training and maintaining a corps of volunteers." Petitioner demonstrated its consistency with this preference by utilizing volunteers who are bilingual and who will assist in performing the clerical, visitation, counseling, public relations and community awareness aspects of the program. Petitioner also intends to rely on the volunteer efforts of the servicing hospital, churches, schools, community functions, educational efforts and media to enhance community awareness about the program. The second preference reads as follows, "Preference should be given to those applicants who propose to provide care for the indigent and medically needy." Petitioner demonstrated its consistency with this preference by proposing to provide ten (10) percent of its total patient day for Medicaid recipients, and five (5) percent of its total patient days to the medically indigent, at least, during the first year of operation. The third preference reads as follows, "Preference should be given to those applicants who propose a commitment to serving persons with AIDS." Petitioner demonstrated its consistency with this preference by stating both in the application and through the testimony of its witnesses that it intends to serve the ever-increasing number of patients diagnosed with AIDS. Further, it is one of Petitioner's long range objectives to seek funding sources and grants to provide additional services to AIDS patients. The fourth preference reads as follows: "Preference should be given to those applicants who can demonstrate or have entered contractual agreements with other community agencies to ensure a continuum of care far those in need." Petitioner's application is consistent with this preference by its claim that the hospitals set forth in paragraph 6 intend to participate in the program, and should supplement the home health care system which Petitioner currently maintains. However, no competent proof was offered in support of the proposed arrangements. The fifth preference reads as follows: "Preference should be given to those applicants who have developed specialized innovative services to special sub-population in need within the District." Petitioner demonstrated its partial consistency with this preference by showing its intent to service patients with AIDS, the elderly and the Hispanic sub-populations of Dade County. However, Petitioner failed to show that the service it would provide was different from the service provided by the existing hospices in Dade County, other than the intended geographical location of Petitioner's proposal. Siting in Western Dade County on its own was not shown to be a specialized, innovative offering. The sixth preference reads as follows: "Preference should be given to those applicants who will address specific needs of the culturally diverse minority populations in the District." Petitioner demonstrated its consistency with this preference by showing that it intends to serve the elderly, ethnic minorities, victims of AIDS, and the indigent populations of Dade County. Each of the groups Petitioner has singled out are indeed minority population groups within Dade County, and are elements of, and contribute to the cultural diversity of the area. The seventh preference reads as follows: "Preference should be given to those applicants who propose to have health care personnel on call during night and weekend hours." Petitioner demonstrated its consistency with this preference by showing its intent to provide for home care up to24 hours a day, 7 days a week, to control its patients' symptoms and respond to emergencies as needed. The eighth preference reads as follows: "Preference should be given to applicants who build quality assurance methods into the proposed program." Petitioner demonstrated its consistency with this preference by expressing its plan to install a quality assurance program which will include clinical records review by a registered nurse, ongoing clinical record review, and utilization review. On balance, the Petitioner's application is consistent with the Local Health Plan. Availability, Accessibility and Extent of Utilization Currently there are two hospices that serve the District. The two are located in the Eastern portions of the County. Petitioner intends to locate its beds in the Northwest and Southwest portions of Dade County, whereas the existing beds are housed in the Northeast and Southeast parts of the County. Thus, Petitioner's proposed beds are more geographically accessible to the residents of Western Dade County, which the application asserts is the fastest growing area of the County. By providing beds in the Western portion of the District, and in locations different from the existing beds, Petitioner would make the hospice services in the District more geographically accessible. Hospice, Inc., is currently licensed for twenty- five (25) beds, of which only between fourteen (14) to sixteen (16) are operable. The record is silent as to the availability of the thirty (30) beds approved for Catholic Hospice, Inc. The record does not indicate why the approved beds are not in service, or how the beds requested by Petitioner would improve the availability of hospice service in the District. Quality of Care, Efficiency, Appropriateness and Adequacy The Application suggested that patients suffering from acquired immune deficiency syndrome (AIDS) are underserved, and that Petitioner will fulfill that need. Testimony offered by Petitioner sought to establish that some patients suffering from AIDS, and those of Hispanic origin, had been refused service by the existing hospices, and made vague reference to some credit problems which Hospice, Inc., had experienced If proven, the statements might impact on the quality of care, efficiency, appropriateness and adequacy; however, without a more direct showing this testimony is not considered, substantial, or credible. As to other references concerning the quality of care, efficiency, appropriateness and adequacy, the record is again silent. Availability and Best Use of Resources Petitioner currently operates as a home health care agency. The hospice program would be an extension of the existing service offered by Petitioner and targeted to serve the Hispanic, elderly and terminally ill patients within the District, utilizing existing and voluntary personnel. Without demonstrating more about the current operations, and proof of the market demand for the proposed services, a determination of the best use of resources cannot be made. Financial Feasibility The application projects a financially sound forecast in the short-term through 1991 starting with $75,000 available. The Department through testimony and in the SAAR recognized the short- term financial feasibility of the project. However, the record is silent on financial projections past 1991. Accordingly, a determination of the long-term financial feasibility of the proposal has not been shown. Effects on Competition Petitioner asserted that eligible patients were not being served by the existing facilities, as discussed in above paragraph 24. To the extent these underserved patients exist and were to be provided for by the proposed program, the offering might have an impact on the costs of providing health services in the District. However, as discussed in paragraph 24, the evidence presented did not support Petitioner's claim. Compliance with Rule Criteria Rule 10-5.011(1)(j), Florida Administrative Code, sets forth the Department's methodology for calculating the numeric need for hospice services within a particular service area. Dade County is the pertinent service area for the evaluation of the application. The methodology provides a formula by which the total number of hospice patients for the planning horizon, in this case January, 1991, are to be estimated. The formula takes the cancer mortality rate in the district, and factors in a certain percentage to allow for any other types of deaths, and then factors in considerations of both long-term, and short-term hospital stays to yield the projected number of beds which will be needed in the horizon year. For the batching cycle in which Petitioner's application was reviewed, the projected bed need is fifty-nine (59). From that figure, the number of approved beds is subtracted. At the time Petitioner submitted its letter of intent, the inventory of licensed beds in the District indicated that Catholic Hospice, Inc. was approved for thirty (30) beds, and Hospice, Inc., for twenty-five (25) beds. In other words, the inventory of licensed approved beds applicable to this application is fifty-five (55) beds. Thus, the numeric need for the pertinent batching cycle is four (4) beds. As referenced in paragraph 5, Petitioner requested approval for six (6) hospice beds. The application contains no request for approval of less than six (6) beds, nor did Petitioner raise the issue of a partial award. The Department does not normally approve an application when numeric need is not met unless, in the instance of a request for hospice services, mitigating and extenuating circumstances are proven by demonstrating the following: (1) documentation that the population of the service area is being denied access to existing hospices because the existing hospices are unable to provide service to all persons in need of hospice care and service, and, (2) documentation that the proposed hospice would foster cost containment, discourage regional monopolies and promote competition for all providers in the health service area. Hospice Inc., frequently maintains a waiting list for its hospice beds; however, the reason or reasons for the list was not demonstrated. The census of the hospice beds at Catholic Hospice, Inc., was not discussed at the hearing, or in the application. All of Petitioner's witnessed testified that they believed that the existing hospices were unavailable to potential patients in need of hospice service who lived in the Western portion of the District because the existing hospices were located in the Eastern portion of the District. The travel time from the Southern portion of the District to the Northernmost existing facility can require up to two and one-half hours. The witnesses asserted that the patients and their families do not wish to travel for that period of time to receive the services or to visit patients in the existing hospices. However, no patient or family member testified that the travel time or location of the existing hospice were a hindrance to care. The testimony presented concerning the patients and their families is not competent or corroborated by competent evidence. Further, Petitioner's witnesses asserted that doctors who had treated patients eligible for hospice service had told the witnesses that the physicians hesitated to refer the patients to the existing hospices because the doctors might not have staff privileges at the hospitals which house the existing beds. Again, no physicians were available to corroborate the statements of the witnesses or offer competent testimony in support of these assertions. Although Hospice, Inc., is Licensed for twenty- five (25) beds, it has chosen to operate only between fourteen (14) to sixteen (16) of those beds. The reasons Hospice, Inc., has chosen not to operate all of its licensed beds were not offered in the record. The District has the largest number of AIDS diagnosed cases of any county in Florida. The number of cases in the District is doubling, more or less on a yearly basis. The incidence of AIDS cases adds to the number of person in need of hospice care in the District. Rule 10-5.011(1)(j) does not single out AIDS-related deaths in its calculation; however, deaths from other than cancer are factored into the formula. Again, no competent testimony was presented that the existing hospices were unable to serve patients suffering from AIDS. The methodology set out in Rule 10-5.011(1)(j) determines the initial need for hospice within the District. Once a hospice has been approved, it can increase the number of beds that it has without certificate of need approval as long as the hospice keeps a patient mix of twenty (20) percent inpatient to eighty (80) percent outpatient. The factors asserted in findings 33-37 would go to show mitigating and extenuating circumstances, if proven by competent substantial proof. However, from the evidence presented, it cannot be determined that the existing hospices are unable to provide service to those in need of hospice care. The evidence presented to document that the proposal would foster cost containment, discourage regional monopolies, and promote competition is discussed in paragraphs 25-28 above, and is lacking in substance to show the premise raised here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order which denies CON Application Number 5871. DONE AND ENTERED in Tallahassee, Leon County, Florida,, this 13th day of February, 1990. JANE C. HAYMAN 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 13th day of February, 1990.
Findings Of Fact Cilla McCray, is a resident of Gadsden County. The parties have stipulated that on December 3, 1977, she was admitted to the Tallahassee Memorial Hospital in an emergency medical condition, and that the treatment performed by the hospital was of an emergency nature. The parties have further stipulated that the Tallahassee Memorial Hospital is a regional referral hospital within the meaning of Section 154.304(4) , Florida Statutes (1977). Cilla McCray was admitted to the Tallahassee Memorial Hospital on December 3, 1977, and was discharged on January 9, 1978. The total bill for her services amounted to $8,753.80. The Hospital submitted a bill to Gadsden County in the amount of $1,521.48 for the services. This latter amount is the maximum allowed to be billed in accordance with the Florida Health Care Responsibility Act. Gadsden County has refused to pay the bill, contending that the patient was not indigent. The patient has not paid the bill. Cilla McCray is married to Lawrence McCray. They have three children but only two of them reside at home. The oldest child is not supported by his parents. During the six months preceding the hospitalization of Cilla McCray her husband had average earnings of $80.00 per week as a logger. Mrs. McCray had earned a total of $732.60 for employment during the six months prior to her hospitalization. The McCray's thus had average monthly earnings during that period in excess of $450.00 per month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered rejecting the bill submitted by the Tallahassee Memorial Hospital for medical services performed for Cilla McCray. RECOMMENDED this 16th day of June, 1978, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Shaw Curry, Esquire Post Office Box 706 Quincy, Florida 32351 John D. Buchanan, Jr., Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Chairman Board of County Commissioners Gadsden County Courthouse Quincy, Florida
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Based upon an agreement between the petitioner and the respondent, and a later addendum, petitioner received Certificate of Need Number 1460 in February of 1981 granting the petitioner the authority to construct 126 additional general medical/surgical beds but to only license and operate 72 of such beds. The instant proceeding involves petitioner's application for a Certificate of Need to license and operate the remaining 54 beds which have been previously constructed under Certificate of Need Number 1460. St. Joseph's Hospital is a 649-bed full service major referral hospital in Hillsborough County owned and operated by the Franciscan Sisters of Allegheny. Its services include a comprehensive community mental health center, a comprehensive pediatric unit with 88 beds, a radiation therapy center, a 60- bed community cancer center, cardiac catheterization, cardiac surgery and a large and active emergency room. It serves a considerable number of indigent patients and participates in the Medicaid and Medicare programs. Petitioner is now requesting permission to license the regaining 54 beds which were authorized to be constructed pursuant to Certificate of Need Number 1460. The project involves no additional construction or renovation inasmuch as all 126 beds previously authorized have been completed. No capital expenditure will be required in order to place the 54 beds into operation. If the Certificate of Need is granted, petitioner intends to create two specialty medical/surgical units: a 32-bed cardiac surgical unit to accommodate patients from the open heart surgical program and a 22-bed medical unit for psychiatric patients requiring medical treatment. There currently are no other beds available in the hospital to convert for use for the psychiatric patient or for the cardiac surgical unit. Petitioner has been operating, on occasion, at occupancy levels in excess of 90 percent. At times, it has been necessary to place non-emergency patients in the emergency room and have them remain there until beds become available. There are sometimes up to 40 patients on the waiting list for elective surgery. Due to the shortage of empty beds, petitioner cannot now admit new members to its medical staff. Steady operation of the hospital at occupancy levels exceeding 90 percent can have an adverse effect upon the efficiency of the nursing staff and the quality of care offered to patients. Because the bulk of projected growth in Hillsborough County is expected to occur in the center and northwestern area of the county, it is anticipated that the pattern of utilization of petitioner's facility will continue. While the licensing of the 54 additional beds involves no capital expenditure on petitioner's part, it is estimated that, if petitioner is not permitted to license these beds, a total yearly loss of over $3.8 million will be experienced. This figure is the sum of lost net revenues from the beds in the amount of $87,339 and lost net ancillary revenues in the amount of $2.36 million, as well as the absorption of $232,750 in yearly depreciation costs and $1.14 million in committed indirect costs. Petitioner anticipates a loss per patient day, calculated at 100 percent occupancy, of $16.82 if the licensing of the beds is not approved. This would result in an increase of current patient charges by 9.1 percent in order to maintain petitioner's budgeted profit margin. Petitioner is located in HRS District VI which, at the time of the hearing, was composed of Hillsborough and Manatee Counties. Some 81 percent of all beds in the District are located in Hillsborough County. As of the time of the hearing, the District had 3,899 licensed acute care beds, with 606 additional beds having been approved but not yet operational. The generally accepted optimum utilization rate for acute care beds is 80 to 85 percent. For District VI, the overall utilization rate is below the optimum level. In Manatee County, utilization of acute care beds is at 78.3 percent. In Hillsborough County, the utilization level is at 77.4 percent, with the major referral hospitals experiencing a higher level of utilization than the smaller community hospitals. Rule 10-5.11(23), Florida Administrative Code, contains the governing methodology for determining acute care bed needs of the various Districts. Applications for new or additional acute care hospital beds in a District will not normally be approved if approval would cause the number of beds in that District to exceed the number of beds calculated to be needed. Application of the Rule's formula to District VI results in a total acute care bed need of 3,622 projected for the year 1988. Given the 4,505 existing and approved beds in the District, there are 883 excess beds in District VI under the Rule's formula methodology for projecting need. The 1982 Health Systems Plan adopted by the Florida Gulf Health Systems Agency makes no bed need projections for other specialty medical/surgical beds," but shows no need for medical/surgical beds. Rule 10-5.11(23), Florida Administrative Code, provides that other criteria may result in a demonstration of bed need even when the formula approach illustrates no need for beds. When additional beds are approved pursuant to other criteria, those beds are counted in the inventory of existing and approved beds in the area when applying the bed need formula to review future projects. The formula methodology does account for the inflow and outflow of patients in a specific area. While Rule 10-5.11(23) permits the Local Health Councils to adopt subdistrict bed allocations by type of service, the Council for District VI had not adopted its local health plan as of the date of the hearing in this matter. The Rule itself simply addresses the need for general acute care bed needs in the future.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of St. Joseph's Hospital, Inc. for a Certificate of Need to license 54 acute care medical/surgical beds be DENIED. Respectfully submitted and entered this 10th day of November, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 10th day of November, 1983. COPIES FURNISHED: Ivan Wood, Esquire David Pingree Wood, Lucksinger & Epstein Secretary One Houston Center Department of Health and Suite 1600 Rehabilitative Services Houston, Texas 77010 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, Esquire 1323 Winewood Boulevard, Suite 406 Tallahassee, Florida 32301
