Findings Of Fact The Respondent is licensed by the Board to practice as an osteopathic physician in Florida. The Respondent has been licensed to practice as an osteopathic physician in the State of Pennsylvania. He was criminally charged in the State of Pennsylvania with various violations of 35 Penna. Stat. Section 780- 113(a)(14). After entering a plea of not guilty, he was tried and convicted of three counts of violating the statute. He was adjudicated guilty and sentenced. The Respondent has exhausted all direct appellate remedies in Pennsylvania. He continues to pursue available collateral remedies. The Pennsylvania State Board of Osteopathic Examiners initiated disciplinary action against the Respondent. A hearing was conducted, and the Pennsylvania board concluded that the Respondent was convicted of a crime involving moral turpitude and was guilty of unethical conduct. The Board stated: It is clear that the Respondent blatantly disregarded the health and welfare of the citizens of Pennsylvania and the Board can impose a penalty for such disregard. How- ever, the Board has taken into consideration the fact that the Respondent no longer resides or practices osteopathic medicine in Pennsylvania, and therefore, he is presently not a danger to the health, safety and welfare of Pennsylvania. Apparently disregarding the testimony of the Respondent in the record that he did intend to continue practicing osteopathic medicine in Pennsylvania if his license was not revoked, the Board imposed no penalty against the Respondent. The Respondent thus continues to be licensed to practice osteopathic medicine in Pennsylvania. The Respondent is presently engaged in the general practice of osteopathic medicine in Florida. He practices in a black area and is the only doctor who accepts Medicaid patients in the area. During 1976 he turned in his federal license to dispense controlled substances. He is thus not able to prescribe controlled substances in his practice, but he can prescribe other drugs. The Respondent has not been the subject of any other disciplinary proceedings during his many years as a practicing osteopathic physician.
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent was licensed to practice osteopathic medicine in the State of Florida under license numbered 0003783. On April 1, 1981, the Florida Board of Osteopathic Medical Examiners (Board), through the Department of Professional Regulation (DPR), filed an Administrative Complaint against Respondent alleging several violations of Florida Statutes governing the practice of osteopathic medicine. In an effort to forestall an emergency suspension of her license as a result of these allegations, Respondent entered into a Stipulation with the Board whereby she agreed to cancel her certificate to prescribe Schedule II and III, Chapter 893, drugs; to remain enrolled in and comply with all terms of the Impaired Physicians Program; to submit blood and urine samples for drug screening upon request of DPR; and to obey all federal and state laws and regulations pertaining to the practice of osteopathic medicine. On June 10, 1982, the Board, after an informal hearing, entered an order finding that Respondent had violated the various provisions of the statutes as alleged and suspended her license for a period of six months. However, the Board considered and incorporated into its order the aforementioned Stipulation and stayed the suspension, placing Respondent on probation for three years. Sometime in January, 1983, the Secretary of DPR, being made aware of alleged violations of the terms of the probation, entered an order of emergency suspension of Respondent's license, alleging as reasons therefor: That on November 29, 1982, Respondent prescribed Demerol, a Schedule II controlled drug, for a patient, Ernestine Franklin; That on November 10, 1982, Respondent was found in an unconscious state at home. Taken to the hospital, when she regained consciousness, she was disoriented and incoherent; her speech was garbled, and she demonstrated erratic and violent behavior; That on or about December 7, 1982, Respondent prescribed Demerol for Maureen Lyewfong, the cost of which was charged to the Respondent; On December 17, 1982, an unidentified male brought Respondent to the hospital indicating she had snorted cocaine. She would not allow herself to be examined; That on December 24, 1982, Respondent was admitted to North Shore Hospital, Miami, claiming she had suffered an epileptic seizure. During the course of her workup, she indicated she was allergic to Demerol; and That by letter dated December 30, 1982, Dr. Morgan, head of the Impaired Physicians Program, informed DPR that Respondent had diverted for own use Demerol prescribed for her patients and that she had failed to keep appointments for treatment under the program. On January 18, 1983, sometime after the emergency suspension went into effect, the Board through the Department of Professional Regulation filed a seven-count Amended Administrative Complaint seeking to suspend, revoke, or otherwise discipline Respondent's license, listing as grounds for this action basically the same allegations as found in the emergency suspension order. On November 30, 1982, Respondent treated Ernestine Franklin for removal of a pilonidal cyst. Prior to the surgery, Respondent administered an injection of Demerol to the patient from a bottle for which she had written a prescription the previous day. This prescription had been filled at a pharmacy by Nurse Susan Dukes and charged to Respondent's account. When she brought the Demerol back to the office, Dukes placed it in the locked medicine cabinet and told Respondent where she had put it. When she went to set up for Ms. Franklin's surgery, the bottle of Demerol was not there. Dr. Krantz prepared the Demerol injection for the patient herself. The injection did not use up the entire amount on the prescription, and the unused portion was neither given to the patient nor seen in the office again. On December 7, 1982, Respondent wrote a prescription for Demerol for Maureen Lyewfong, the cost for which was charged to Dr. Krantz. Demerol is another name for meperidine hydrochloride, which is a Schedule II substance, as defined in Section 893.03(2)(b), Florida Statutes (1981). Respondent first entered the Impaired Physicians Program (IPP) under the supervision of Dr. Dolores Morgan in March, 1981,,because of her abuse of Demerol, Quaaludes, and cocaine. After a month in the hospital, she was released to an outpatient program which, because of her failure to progress properly, resulted in her going to the inpatient facility at Ridgeview, Georgia, where she spent several months. According to the terms of the IPP for Respondent, when she was discharged from the Ridgeview inpatient treatment center, she was to be in the program for two years. Since the IPP main office is in Miami and Respondent practices in West Palm Beach, she was placed under the supervision of a doctor in her area. From June, 1982, the date of the Stipulation, to December, 1982, Dr. Morgan heard nothing to indicate Respondent was not living up to the terms of the agreement. However, in December, 1982, Dr. Morgan was contacted by Dr. Joan Barice, local chairman of the IPP, who informed her that Dr. Krantz was missing required meetings of Narcotics Anonymous, as well as by the administrator of a local hospital, Mr. Steven Southerland, to the effect that Dr. Krantz was not performing properly. As a result, Dr. Morgan set up an appointment with Respondent for an interview on December 23, 1982, which Respondent did not keep. Another appointment was set up to discuss the matter, but before the date scheduled for the meeting, Dr. Morgan was advised Respondent was admitted to a hospital in Miami for drug detoxification. At this point, Dr. Morgan reported the latter to DPR. As will be seen in the succeeding paragraphs, this admission was not for drug detoxification, but for epileptic seizures. On December 17, 1982, at approximately 5:15 p.m., Respondent was taken by paramedics to the emergency room at Jupiter Hospital, Jupiter, Florida. At the time she was first seen by the paramedics, an empty vial of Demerol was found in her possession. When found, at her office, she was unconscious for five to ten minutes and, upon regaining consciousness, appeared drowsy. However, by the time she was seen by the emergency room nurse, Mr. Pollack, she appeared to be coherent. She indicated to him she was allergic to Demerol and had had a seizure earlier in the day because the level of Dilantin, a drug used to control epileptic seizures, in her blood was not high enough. In fact, on December 23, 1982, Respondent contacted Dr. Jack Kammerman, an internal medicine specialist on the staff at North Shore Hospital in Miami. She explained her symptoms, and Dr. Kammerman, who knew of Respondent's background through her mother, who had worked for him, suggested she immediately be hospitalized for tests. Dr. Krantz agreed, and the initial tests taken failed to reflect a reason for her seizures. A second CAT scan ruled out a tumor, so a neurologist was called in for consultation. This expert's initial and final diagnoses were "ideopathic epilepsy," the term "ideopathic" meaning "of unknown cause." At the time of admission, blood and urine samples were taken for use in tests. The first blood screen result showed traces of meperedine hydrochloride (Demerol) and Darvon, a pain reliever. A second screening of more blood taken from the same sample, but run later, reflected minute amounts of Demerol, which could indicate that the patient had taken the substance within the prior 72 hours. It was the pathologist's opinion that Demerol had been taken by Respondent. On the other hand, a false positive test result for Demerol in the blood is possible because many external factors, such as infection or the menstrual period (which Respondent was experiencing at the time), could affect it. I find, however, that based on the findings of the pathologist, an expert in his field, the substance in Respondent's blood was in fact Demerol. Respondent's seizures are now completely controlled through the use of the drugs Dilantin and phenobarbital. Dr. Kammerman is of the opinion that an osteopathic physician who suffers from controlled seizures can safely practice within the disciplines of family practice and internal medicine. Classically, seizure patients can predict the onset of a seizure due to the symptoms they experience before the seizure. Once the patient experiences the preseizure symptoms, he or she may prevent the seizure from occurring depending upon how fast the medicine can be gotten into the bloodstream in amounts sufficient to prevent it. Though Dr. Kammerman has never seen the Respondent go through a seizure and therefore does not know how she would react, he knows it is not uncommon for a patient who has just come out of the unconscious state of a seizure to be disoriented, confused, aggressive, and talkative, even to the extent of refusing help. Mr. Steven L. Southerland, Executive Director of Community Hospital of Palm Beach and one of the individuals who contacted Dr. Morgan regarding Respondent's aberrant behavior, knew her when she was on staff in the Department of Family Practice of that hospital. In the course of his official duties, information was brought to his attention that a patient admitted to the hospital by the Respondent was not seen by her afterwards for several days. This type of conduct was confirmed by Respondent's nurse, Ms. Dukes, who noticed a decided deterioration in Respondent evidenced by days of forgetfulness and confusion. On the other hand, two qualified osteopathic physicians who worked with Dr. Krantz on staff at Community Hospital and who have observed her in the practice of osteopathic medicine off and on for six or more years are satisfied that she is an extremely competent physician. She has assisted one, Dr. Michael A. Longo, in surgery, and he found her work to be excellent. He is aware of her epileptic-based seizures, and this does not change his high opinion of her competence. The other, Dr. Kirsch, who has also collaborated with her on the treatment of several patients, has never had the slightest problem with her, nor has he ever seen her in any way incapacitated.
Recommendation Based upon the Findings of Fact and Conclusions of Law rendered herein, it is RECOMMENDED THAT: The Respondent be found subject to disciplinary action for a violation of Subsections 459.015(1)(1), (q), (r), (s), and (t), Florida Statutes; The license of the Respondent, Dr. Barbara Anne Krantz, to practice osteopathic medicine in the State of Florida be revoked; The revocation be suspended for a period of three years and that she be limited to practice while under the supervision of a licensed osteopathic physician; and, with the further provision, The restrictions and limitations continue for such time and under such terms and conditions as the Board of Osteopathic Medical Examiners determines necessary to ensure protection of Respondent's patients and her ability to practice osteopathic medicine with reasonable skill and safety. RECOMMENDED this 2nd day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William H. Pruitt, Esquire Pruitt & Pruitt 501 South Flagler Drive Suite 501 West Palm Beach, Florida 33401 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact South Dade Osteopathic Medical Center, Inc., d/b/a Suburban Medical Center is an outpatient office facility in South Dade County, Florida. Suburban Medical Ambulatory Surgical Center (the "Am/Surg Center") is a licensed ambulatory surgical center which is operating out of the same building. (Together these entities will hereinafter be referred to as the "Outpatient Center.") The Outpatient Center currently provides outpatient services including ambulatory surgical, diagnostic, radiologic, and laboratory services. The existing building which houses the Outpatient Center was completed in approximately 1980. The building has two floors. The AM/Surg surgical center occupies the second floor of the building. The Outpatient Center currently has approximately 6,000 open patient files and has serviced approximately 12,000 patients since it opened in or about 1980. The license to operate the AM/Surg Center was obtained in approximately 1988. The Outpatient Center operates as an osteopathic facility. However, it does have allopathic physicians on staff. Dr. Jules G. Minkes is an osteopathic physician who owns and controls the Outpatient Center. Dr. Minkes is also the sole owner of Suburban Medical Hospital, Inc. ("Suburban" or the "Applicant"), the applicant in this case. On March 29, 1989, Suburban filed an application for a Certificate of Need to convert the existing Outpatient Center into a 36-bed osteopathic acute care hospital. The Application was assigned CON #5868. The Executive Summary contained in the Application summarizes the project as follows: The proposal is to convert the 26 ambulatory surgical recovery beds into hospital beds. The surgi-center and 26 beds are on the second floor of the facility which was constructed in accordance with hospital code specifications. Thus, conversation of the center into a hospital will primarily involve certain struc- tural changes on the first floor of the center to meet code specifications. The project will also require additional construction for ten ICU/CCU beds, a cafeteria, and certain engi- neering equipment. The Center will continue to offer its current out-patient services. The evidence at the hearing created some confusion and questions as to the Applicant's intended operation of the proposed project. At the hearing, Dr. Minkes testified that the AM/Surg Center will continue to exist and operate in the same physical structure as the proposed hospital. The plan for continuing the AM/Surg Center is not detailed in the Application. It is not clear where the ambulatory surgical center would be located in the converted facility and what equipment and/or space would be shared. Furthermore, it is not clear to what extent the revenues and expenses for the ambulatory surgical center are included within the projections set forth in the Application. It should be noted that, under existing law, an ambulatory surgical center cannot be part of a hospital. See, Section 395.002(2)(a), Florida Statutes (1989). (This issue is discussed in more detail in the Conclusions of Law below.) As noted in Gulf Coast Hospital v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. 1st DCA, 1982), osteopathy and allopathy are two primary and separate schools of medicine which differ substantially in philosophy and practice. Doctors of medicine are licensed under Chapter 458, Florida Statutes. Osteopathic physicians are licensed under Chapter 459, Florida Statutes. The practice of medicine is defined in Section 458.305, Florida Statutes as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition." Allopathy is defined in Webster's Third New International Dictionary as "a system of medical practice that aims to combat disease by use of remedies producing effects different from those produced by the special disease treated." 424 So.2d at 89 n.8. Section 459.003(3), Florida Statutes, (1989) defines osteopathic medicine as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or any other physical or mental condition which practice is based in part upon educational standards and requirements which emphasis the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health." Osteopathic medicine places great emphasis upon the health of the musculoskeletal system as a condition of healing, and employs techniques of manipulation of muscles and joints in the process of therapy for illness. As explained by Dr. Minkes, osteopathic medicine is a distinct school of practice that embodies a philosophy based on a holistic approach that integrates the biomechanical and structural aspects of the body's function in all aspects of the functioning of the body. Dr. Minkes testified that it is his intention to seek accreditation for the proposed facility from the American Osteopathic Association and to operate the proposed hospital as an osteopathic hospital. Suburban intends to locate its proposed facility in conjunction with the existing Outpatient Center at the intersection of U.S. 1 and S.W. 97th Avenue. This location lies within Subdistrict 4 of HRS Health Planning District XI near the dividing line between Subdistricts 4 and 5. Baptist and South Miami are general acute care hospitals located in southern Dade County, Florida. The primary service area proposed by Suburban overlaps the primary service areas of Baptist and South Miami. Suburban's proposed service area is "bounded by S.W. 88th Street (Kendall Drive) and Homestead, Florida City and the upper Keys on the north and south; Biscayne Bay and the Everglades on the east and west: Subdistrict 4 from Kendall Drive south, subdistrict 5a, northern subdistrict 5(b)." There is an existing osteopathic hospital in District XI. That hospital, Westchester General Hospital ("Westchester"), is also located in Subdistrict 4. Currently, Westchester is licensed for 100 beds. It is an approved osteopathic teaching hospital and intern training hospital. Until 1989, there was another osteopathic hospital located in District XI. Southeastern Medical Center ("Southeastern") was a 224 bed facility that was approved for delicensure by HRS as of May 9, 1989. Southeastern was located in North Miami Beach Florida, close to the Broward County line. In 1983, South Dade Osteopathic Medical Center, Inc., one of the corporations owned and controlled by Dr. Jules Minkes, filed a Certificate of Need Application for a 150 bed osteopathic teaching hospital at the same site as the current Suburban proposal. The prior application was subsequently amended to 100 beds. After HRS denied that prior application, a hearing was held leading to the entry of a Final Order dated October 11, 1985 denying the application. See, South Dade Osteopathic Medical Center, Inc., d/b/a Suburban Medical Center vs. DHRS, 7 FALR 5686. (This case will hereinafter be referred to as the "South Dade" case.) In denying the prior application for a 100-bed osteopathic hospital, the Hearing Officer in the South Dade case noted the existence of the two osteopathic facilities in the district (Westchester and Southeastern) and found their occupancy rates had been significantly lower than capacity in the immediate years preceeding that application. He also noted that those occupancy rates were very similar to the occupancy rates for allopathic hospitals in the area. In 1981, the occupancy for all acute care hospitals in District XI was 67.4 percent. The occupancy rate for Westchester was 67.8 percent and Southeastern's occupancy rate was 61.3. In 1982, the overall occupancy for all District XI hospitals was 66.6 percent, Westchester's occupancy dropped to 65.8 percent and Southeastern's occupancy rate dropped to 58.4 percent. The Hearing Officer in the South Dade case noted that, in 1984, the occupancy rate for osteopathic beds had decreased even further. Based upon this evidence, the Hearing Officer found that there was an excess number of osteopathic beds in District XI in the years preceding that hearing. In the Recommended Order denying South Dade's application, the Hearing Officer noted: ...The cause of these lower use rates have been causes that apply equally to osteopathic and allopathic hospitals, thus leading to the conclusion that the lack of need shown by the above data will probably persist for several years into the future. All acute care hospitals have lost patients due to growth of alternatives to inpatient care, such as nursing homes, rehabilitation centers, outpatient surgical centers, and the like. Additionally, medicare policy changes have reduced the length of stay at all acute care hospitals. There is no compelling evidence on this record that osteopathic hospitals will not suffer from diminished need from these market forces in the same way that allopathic hospitals have suffered...7 FALR at 5698. The South Dade Recommended Order predicted that the lack of need for new acute care facilities of any affiliation was destined to continue for several years into the future. That prediction has proven to be correct. The evidence in this proceeding demonstrated that many of the same forces that caused reduced occupancy at both allopathic and osteopathic hospitals in 1984 continue to influence occupancy at both allopathic and osteopathic facilities. Without question, the overall occupancy rates and number of patient days in District XI acute care facilities has been declining significantly since 1984. The average annual occupancy rate for all acute care facilities in District XI was approximately 51 percent in 1988. The occupancy in Dade County alone was approximately 47 percent. These figures are well below the 80 percent efficiency standard established by HRS for an acute care facility. This decline can be attributed to a number a factors including the development of diagnostic related groups ("DRG's") for Medicare reimbursement. Osteopathic facilities have not been immune to this decline. Indeed, since 1984, the occupancy for the two existing osteopathic facilities in District XI decreased at a significantly greater rate than occupancy in allopathic facilities. In 1984, Westchester's occupancy was 46.7 percent. Westchester's average occupancy in 1987 was approximately 30.5 percent. By the end of the calendar year 1988, that occupancy had declined to 27 percent. Similarly, Southeastern Medical Center experienced declining occupancies from 1984 until its closure. Occupancy at Southeastern in 1984 was approximately 60 percent. Southeastern's average utilization rate for 1988 was only 20.3 percent. These trends are consistent with the statewide occupancy of osteopathic facilities which has been dropping at a rate equal to, if not greater, than, that of allopathic facilities. Suburban attempted to explain the closure of Southeastern through the testimony of several witnesses who were affiliated with that facility. Petitioner contends that the decline and eventual closing of Southeastern was the result of a conscious decision on the part of the owner of that facility, AMI, to focus its resources and efforts on the development of a nearby allopathic hospital which it also owned. While management decisions and/or problems may have contributed to the declining occupancy and ultimate closure of Southeastern, it is clear that the facility was also impacted by many of the factors that have contributed to the overall decline in occupancy at acute care facilities throughout the District. Based on the evidence presented at the hearing, it is concluded that there was an excess number of licensed osteopathic beds in the District at least prior to the time of the delicensure of Southeastern. With the delicensure of Southeastern, there are now 100 licensed osteopathic beds in the District, all of which are located at Westchester in the same Subdistrict as the proposed project. Petitioner presented extensive testimony regarding the perceived inadequacy of Westchester to meet the need for osteopathic services in the District. That testimony indicates that some osteopathic physicians are unhappy with the management philosophy of Westchester and they feel they are unable to provide quality osteopathic care in that facility. Most of the complaints about the care and treatment at Westchester were voiced by Dr. Minkes and Dr. Hershmann. Both of these physicians are expected to have a significant financial investment in the proposed facility. Several osteopathic physicians who do not have an interest in the proposed project testified that they did not have a problem with the quality of care at Westchester. Thus, while there may be some minor and/or individual problems with Westchester, the evidence was not sufficiently compelling to establish that the occupancy problems at Westchester are due to problems and/or inadequacies that facility. In other words, while some osteopathic physicians may prefer to treat their patients in a new, more modern facility, Westchester has not been shown to be so inadequate that it should be replaced or supplemented by the proposed project. The HRS Office of Licensure and Certification has not received any complaints against Westchester regarding the facility's physical plant or quality of care. Furthermore, Westchester's license is in good standing and it is accredited by the JCAH and the AOA. Petitioner presented hearsay evidence suggesting that a number of the beds at Westchester are not being utilized because of space limitations and that a number of the beds are contained in undesirable four bed rooms. As a result, Petitioner suggests that Westchester's functional bed count should be considered in the neighborhood of 50 rather than 100 beds. If this argument is accepted, Westchester's occupancy rates would not appear nearly as dismal. However, the evidence was insufficient to justify this conclusion. Westchester is presently licensed for 100 beds and no evidence was presented to establish that the hospital is not trying to fill all those beds. Petitioner also contends that Westchester has ceased functioning as a distinct osteopathic facility. The evidence was insufficient to support this conclusion. The testimony from several osteopathic physicians indicated that they still admit patients to Westchester. Similar contentions regarding Westchester were made in the South Dade case. In that earlier proceeding, the Hearing Officer found: ...While the foregoing is evidence that there are problems at Westchester for the physicians who testified, these problems were not proven with sufficient specificity and have not been shown to be such for this Hearing Officer to conclude that Westchester is so inadequate that it should be replaced by the hospital proposed by Petitioner. Nor is the evidence sufficient for the Hearing Officer to conclude that the low use rate at Westchester is due solely to inadequate health care at Westchester. As stated above, the record evidence indicates that the use rate at Westchester is quite similar to the use rates at allopathic hospitals in the District, which is consistent with the conclusion that the lower use rate at Westchester is caused by the same diminished need. Further, the use rate at Westchester is quite similar to the use rate at Southeastern Medical Center. On this record, there is no indication that Southeastern Medical Center is other than an adequate health care facility. The similarity in use rates, therefore, leads one to the conclusion that the use rate at Westchester is driven primarily by the same force that drives the use rate at Southeastern; lack of need or demand by osteopathic patients. 7 FALR 5702 The evidence in this case was similarly insufficient to attribute the low occupancy at Westchester to other than market forces. While the low occupancy rates at Westchester may be due in part to problems with that facility and reluctance on the part of some osteopathic physicians to utilize that hospital, the evidence indicates that both Southeastern and Westchester have experienced declining enrollments for many of the same reasons that all acute care facilities in District XI have. The evidence did establish that osteopathic physicians experience some difficulties in practicing osteopathy in allopathic facilities and that the facilities of many allopathic institutions are not conducive to osteopathic treatment. Most physical therapists at allopathic facilities are not trained to provide osteopathic treatment. In addition, few osteopathic specialists have obtained staff privileges at allopathic facilities. On the other hand, it appears that many of the difficulties and barriers that osteopathic physicians have historically experienced are being eroded. Virtually all of the osteopathic physicians who testified had staff privileges at several allopathic facilities and regularly admit patients to those facilities. Several of the osteopathic physicians who testified are practicing in partnership with or in association with allopathic physicians. Suburban presented the testimony of several osteopathic physicians who testified that additional osteopathic hospitals are needed in the District in order to enhance the survivability of osteopathy as a distinct approach to health care. Such facilities enable osteopathic physicians to learn and practice together and consult with osteopathic specialists in a forum that is supportive of osteopathy. The evidence established that approval of the proposed facility would, to some degree, enhance the survivability of osteopathy as a distinct and separate alternative treatment mode in the District. However, no evidence was presented to demonstrate that individuals seeking osteopathic care are currently being denied such services. While a significant number of osteopathic physicians have indicated an intention to use the proposed facility if it is approved (even though many of them do not use the existing osteopathic facility in the District, Westchester,) the evidence was insufficient to establish the need for an additional 36 osteopathic beds in the District. Moreover, as discussed in more detail below, the evidence did not establish that Suburban's Application satisfies the remaining criteria necessary for the issuance of a CON. Section 381.704(1), Florida Statutes (1989), recognizes that the review of CON applications includes consideration of the state and local Health Plans. Neither the Local Health Plan nor the State Health Plan specifically address osteopathic facilities. Therefore, Petitioner contends that the State and Local Health Plans are largely irrelevant to this case. This legal argument is addressed in the Conclusions of Law below. The Local Health Plan for District XI is prepared by the Health Council of South Florida. Linda Quick, Executive Director of the Health Council of South Florida testified that the Health Council does not support the construction of any new hospitals in the District. The Health Council opposes the construction of any new hospitals regardless of whether they are osteopathic or allopathic. The Health Council has prepared a booklet entitled District XI CON Allocation Factors Report for 1989. That booklet does not contain any CON allocation factors for osteopathic facilities. There are approximately thirty-two acute care facilities in the District. Utilizing the state's bed need methodology, the Health Council has concluded that there are nearly two thousand too many acute care hospital beds in the District through 1993. This determination does not differentiate between osteopathic and allopathic acute care beds. Because of the existing excess number of beds in the District, Linda Quick emphasized the need to fully explore alternatives to the construction of a new acute care facility. Such alternatives could include the acquisition of an existing facility, establishing a working relationship with an existing provider, increasing utilization at Westchester or arranging a joint venture with a licensed hospital. The Petitioner's failure to fully explore these alternatives weighs against approval of Suburban's Application. The purpose of the Local Health Plan is to describe the existing health care system, the existing population and its health status. The Plan also establishes goals and objectives for the growth, development and change of the local health system. The Local Health Plan sets forth general criteria and policies regarding health planning for services to individuals within the area. One of those goals is for the District to have a licensed bed capacity of no more than five beds per one thousand population by 1993. The State Health Plan calls for an even lower ratio. Currently, the ratio of acute care beds to the population is well in excess of five per one thousand. Approval of Suburban's Application would increase the number of acute care beds and, therefore, would be contrary to this goal of the Local Health Plan. However, it should be noted that this goal does not differentiate between osteopathic and allopathic acute care beds. Another pertinent goal of the Local Health Plan for District XI is to make services in the community geographically and financially accessible to all segments of the resident population. Because the proposed facility is located in the same Subdistrict as Westchester, it does not appear that the proposed project would significantly improve geographic accessibility to osteopathic services. Similarly, because of the large number of hospitals in the District, it does not appear that this proposed project would measurably improve the accessibility to acute care services. Section 381.705, Florida Statutes, sets forth the specific criteria to be considered in the review of a CON application. The first criteria to be considered under Section 381.705(1)(a) is the need for the proposed project in relation to the State and Local Health Plans. In assessing need, it is necessary to also consider the provisions of Section 381.713(2), Florida Statutes which provides that the need for an osteopathic hospital "shall be determined on the basis of the need for and availability of osteopathic services and osteopathic acute care hospitals in the District..." The Application cites the First District Court of Appeal's decision in Gulf Coast Hospital v. Department of Health and Rehabilitative Services, 424 So.2d 86, for the assumption that approximately ten percent of the population of the United States prefers to be treated by osteopathic physicians. Based upon this assumption and the most recent population estimate for Dade County (1.829 million as of 1987), Petitioner suggests in its Application that there should actually be 750 osteopathic beds in Dade County. No evidence was presented to support the assumption that ten percent of the population in the District prefers to be treated by osteopathic physicians. Indeed, the evidence of occupancy at osteopathic facilities in Dade County indicates that the ten percent assumption is vastly overstated. In 1985, only 2.4 percent of the total patient days for all hospitals in District XI were in osteopathic facilities. In 1986, that number decreased to 2.1 percent and in 1987 it decreased to 1.8 percent. These rates coincide with the declining occupancy rates at the existing osteopathic facilities in the District during this period. These facts indicate that the assumption that ten percent of the patients prefer osteopathic facilities is not accurate, at least in District XI. HRS has not adopted a rule or an official methodology to calculate osteopathic bed need. The need methodology set forth in Rule 10-5.011(1)(m) for calculating acute care bed need is not applicable to osteopathic facilities. The Application does not present any methodology to demonstrate osteopathic need in the District. At the hearing in this case, Suburban attempted to demonstrate the need for additional osteopathic beds in Dade and Monroe counties through the testimony of Dr. Howard Fagin, who was accepted as an expert in health planning, bed need methodology development and health economics. Dr. Fagin presented several calculations of "need" which Petitioner contends support the conclusion of need set forth in the Application. None of Dr. Fagin's calculations were included in the Application. Dr. Fagin's calculations used current hospital and physician utilization data and, by applying certain assumptions, attempt to project osteopathic need and/or demand in the District for five years into the future. In other words, Dr. Fagin attempted to develope a methodology specifically geared to calculate osteopathic need over a five-year planning horizon. Dr. Fagin set forth five different approaches for calculating osteopathic need. Most of these approaches had been considered and rejected by HRS in connection with other applications for osteopathic facilities. Intervenors and Respondent have painstakingly pointed out the deficiencies in Dr. Fagin's testimony. While their criticisms have merit, the shortcomings in the methodologies submitted by Dr. Fagin must be considered in the context of Section 381.713(2), Florida Statutes, and the lack of an approved and/or workable methodology for determining osteopathic need. It does not appear that there is a reasonably identifiable osteopathic unit of service for planning purposes. It is extremely difficult, if not impossible, to measure osteopathic need in accordance with the usual "normative" methodologies used to determine need for discreet services. However, the burden is on the Applicant to overcome these obstacles and present persuasive evidence of the need for the proposed project. Insufficient evidence was presented to accomplish this task. Intervenors and Respondents suggest that only those patients who receive osteopathic manipulative therapy during their stay in the hospital should be considered in determining "osteopathic patient days." They contend that such manipulative therapy is the only specific procedure measurable and monitored as distinctly osteopathic. The Hospital Cost Containment Board's data indicates that only two percent of the patients discharged from "osteopathic" hospitals received osteopathic manipulative therapy during their hospital stay. However, the evidence established that osteopathic care includes more than manipulative therapy. Thus, utilizing this unit of measure would significantly understate osteopathic need. All of the projections prepared by Dr. Fagin rely upon an assumption that "osteopathic patient days" are an identifiable unit of service which can be distinguished from allopathic patient days. There are several problems with this assumption. Dr. Fagin obtained the number of "osteopathic patient days" by simply taking the number of days in osteopathic designated facilities. However, not all patient days in an osteopathic hospital are "osteopathic patient days." There are clearly a number of allopathic physicians who admit and treat patients in osteopathic facilities. Indeed, at some osteopathic facilities, allopathic physicians constitute a majority of the staff. While Dr. Fagin contends that the number of allopathic admissions to osteopathic hospitals is a "wash" with the number of osteopathic admissions to allopathic hospitals, no evidence was presented to support this assumption. Patient days is a generally recognized unit of service for inpatient care and acute care beds. Typically, patient days are broken down into discreet units of service, i.e., obstetrical, psychiatric, pediatric, etc., relating to the underlying epidemiology of the population. Osteopathy is an approach to the practice of medicine rather than a specific clinical service. Osteopathy can not be measured in the same manner as a clinical service. Mixed staff hospitals and the inability to isolate a discreet unit of measurement such as an osteopathic patient day make it virtually impossible to quantify need for an osteopathic facility utilizing a traditional "normative" approach to planning. A "normative" approach provides a projection based on an estimate of the number of units of service or resources that should be in place. It is based on a number of unit of services related to an underlying need of the population. Dr. Fagin's forecast of "osteopathic patient days" includes the "need" for osteopathic beds to provide patient services in several specialized areas of care which will not be offered in the proposed project. For example, the proposed project will not offer obstetrics, psychiatry, pediatrics, tertiary care services, or cardiac catheterization. "Osteopathic patient days" as utilized by Dr. Fagin includes all of these services because he did not isolate those services that will be offered by the proposed facility. At best, Dr. Fagin's calculations show how many beds would be utilized at an osteopathic hospital if it achieved the average utilization of other osteopathic facilities. There was no showing that the average utilization at other osteopathic hospitals is appropriate or reflective of need. Thus, these methodologies do not measure need or demand for osteopathic services in the true sense of the word. In making his calculations, Dr. Fagin relied upon population figures published by the Executive Office of the Governor on May 15, 1989. The Intervenors and Respondent objected to the testimony and contended that only the population projections which had been released at the time the Application was filed could be used in connection with this Application. The earlier projection figures were released on January 1, 1989. These objections are discussed in more detail in the Conclusions of Law below. The evidence indicates that there would be no material changes in Dr. Fagin's conclusions regardless of whether the January 1st or May 15th projections are used. From 1980-1989, District XI experienced a population growth of approximately 14.6 percent and from 1990 through 1994 the projected increase is 22.1 percent. Thus, the population in the District is growing significantly. There is less than a one percent difference in the January and May population projections. In addition to the general limitations set forth above, there are several specific flaws contained in certain of the calculations performed by Dr. Fagin. The first methodology employed by Dr. Fagin was referred to as Florida Osteopathic Utilization Based Bed Need. This methodology divided the 1988 Florida population by the number of "osteopathic patient days" in the state that year to obtain a rate of 31.62 patient days per one thousand population. "Osteopathic patient days" was determined from the Florida Health Care Cost Containment Board, 1988 Hospital Budget Data. The rate of 31.62 osteopathic patient days was then multiplied by the projected 1994 District XI population, resulting in a projection of 65,192 osteopathic patient days in District XI in 1994. The projected number of osteopathic beds needed in District XI to accommodate these patient days was accomplished by dividing the projected patient days by 365 to arrive at an average daily census of 179. The average daily census was then divided by the HRS standard of eighty percent occupancy for efficient operations, resulting in a projected need of 223 osteopathic beds in District XI in 1994. Subtracting the 100 licensed beds at Westchester, this methodology results in a projected need of 123 additional osteopathic beds by the year 1994. This first methodology suffers from the deficiencies noted in Findings of Fact 53-58 above. In addition, the state wide total of osteopathic patient days for purposes of this first methodology was obtained from fourteen "osteopathic" hospitals. However, the evidence raises serious doubt as to the reliability of this data. At least one of those hospitals is no longer osteopathic and another one of the hospitals includes a utilization rate of ninety-five percent for a service (psychiatric) which will not be offered by the proposed facility. The next methodology submitted by Dr. Fagin was entitled Florida Osteopathic Physician Based Bed Need. This method calculated patient days per osteopathic physician in the State of Florida by dividing the 1988 "osteopathic patient days" by the number of osteopathic physicians in 1989. Patient days per osteopathic physician was then multiplied by the projected number of osteopathic physicians in District XI in 1994 to arrive at a projection of 66,544 osteopathic patient days in District XI in 1994. The projected patient days were then divided by 365 to arrive at an average daily census of 182. Applying the occupancy standard of eighty percent, this method projects 228 osteopathic beds will be needed in District XI in 1994. Again, subtracting the beds at Westchester, Dr. Fagin concludes that there is a net bed need of 128 beds. In addition to the overall problems noted above with respect to identification of "osteopathic patient days," this calculation includes an overly optimistic assumption of the number of osteopathic physicians that can be expected in District XI. In making this calculation, Dr. Fagin assumed a thirty percent increase in the number of osteopathic physicians in District XI from 1989 to 1994. This assumption is predicated on an expectation that a large number of graduates from Southeastern College of Osteopathic Medicine ("SECOM") would remain in the area and there would also be an influx of practicing osteopaths moving into the area. Dr. Fagin based his assumption, in part, on data provided by the Florida Health Care Atlas which showed that there were 198 osteopathic physicians in District XI in 1986, 180 in 1987, and 256 in 1989. Dr. Fagin attributes the apparent increase in osteopathic physicians in the District from 1987 to 1989 on the influx of the first graduating class from the SECOM in 1988. However, the 1986 and 1987 data reflected only active osteopathic physicians whereas the 1989 data reflected all licensed osteopaths. In other words, the 1986 and 1987 data did not include retired and inactive physicians whereas the 1989 data did. No reliable evidence was presented to compare the number of active osteopathic physicians to any year subsequent to 1987. Furthermore, SECOM's first graduating class actually occurred in 1985, not 1988. Additional classes also graduated in 1986 and 1987. Therefore, Dr. Fagin's assumption that SECOM graduates will increase the ranks of osteopathic physicians in the district is not necessarily correct. In addition, these projections assume new physicians in the area will be as productive as established physicians, which is unlikely to be the case. In sum, Dr. Fagin's assumptions as to the expected growth and the number of osteopathic physicians in District XI during the next five years is predicated on several erroneous assumptions. The next methodology presented by Dr. Fagin was entitled District XI Osteopathic Utilization Based Bed Need. Dr. Fagin projected a minimum and maximum number of expected osteopathic patient days in 1994 in the District based upon the actual utilization of existing osteopathic facilities in the District (Westchester and Southeastern) in 1986 and 1987. He calculated the number of "osteopathic patient days" in the District in those years and divided it into the District population to obtain rates of 24.67 and 19.72 patient days per one thousand population. These rates were multiplied by the projected District population in 1994, then divided by 365 and achieved an average daily census of between 139 and 111. Applying the eighty percent occupancy standard, Dr. Fagin calculated that there would be a need in District XI for between 174 and 139 osteopathic beds. After subtracting the existing beds at Westchester, he calculated the net bed need in 1994 to be between 74 and 39 beds. In addition to suffering from the general defects noted above, this approach is unnecessarily narrow. This methodology does not include any years prior to 1986 because Dr. Fagin did not feel that DRG's fully impacted on occupancy rates prior to that time. Dr. Fagin eliminated any years after 1987 on the grounds that the impending closure of Southeastern introduced too many variables into the equation. By eliminating all other years, this methodology provides a limited view of actual utilization and ignores the continuing decline in the utilization rate of osteopathic facilities in the District dating back to the 1970's. Dr. Fagin's next methodology was entitled Osteopathic Physician Based Bed Need. The "osteopathic patient days" from the existing facilities in District XI in 1986 and 1987 were divided by the number of osteopathic physicians in the District. The patient days per physician were then multiplied by the projected number of osteopathic physicians in the District in 1994 to arrive at an estimate of maximum and minimum patient days in 1994. Dividing by 365, an average daily census of between 210 and 188 was projected. Applying the eighty percent occupancy standard, Dr. Fagin concluded there would be a need for between 263 and 235 osteopathic beds in District XI in 1994. After the 100 beds at Westchester were subtracted, a net need of 163 and 135 beds was calculated. This methodology suffers from the same deficiencies as those noted in Findings of Fact 53 through 59 and 63 through 65 above. Dr. Fagin's final projections were based on the relationship of the overall bed need in District XI to Osteopathic Bed Need. In 1986, osteopathic facilities in the District accounted for 2.1 percent of the total patient days. This figure was 1.8 percent in 1987. Applying these percentages to HRS' projected total bed need for the District in 1994, Dr. Fagin concluded that a minimum of 159 to 137 osteopathic beds were needed. After subtracting the beds at Westchester, he calculated a net need of between 59 and 37 beds. This approach suffers from the deficiencies noted in Findings of Fact 55 through 59 above. In addition, it does not account for the continuing decline in occupancy at osteopathic facilities in the District. Suburban's Application includes over 2,000 signatures from members of the community indicating their support for the proposed project. Those petitions do not specifically indicate support for an osteopathic facility. Instead, the petitions include the following statement: "I support the establishment of Suburban Medical Hospital in the Perrine/Cutler Ridge area." It is clear from the evidence that the desire of osteopathic physicians to have a new facility in the area and the reputation of Dr. Minkes will attract a number of admissions to the proposed project. Suburban presented extensive testimony from osteopathic physicians regarding their interest in the project and their intent to refer patients to the proposed facility if it is built. Physician referral plays a large role in determining where a patient is admitted. Thus, it does appear that the proposed project can be expected to achieve a higher occupancy rate than Westchester or other acute care facilities in the area. However, this expected occupancy does not in and of itself establish need. The second review criteria set forth in Section 381.705(1), deals with the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the district. For purposes of reviewing applications for osteopathic acute care facilities, HRS has interpreted "like and existing health care services" to include all acute care facilities irrespective of their orientation towards osteopathic or allopathic care. In evaluating this criteria, the goals of the local Health Plan are pertinent. One of the goals set forth in the local Health Plan is an access standard that an acute care hospital should be available to all residents of the District within 30 minutes average driving time. The Plan does not set forth a goal for access to osteopathic facilities. The existing hospitals in the District are sufficient to satisfy this criteria without the need to add another hospital. In accordance with the State Health Plan, HRS has concluded that the efficient level of utilization for acute care services is eighty percent occupancy. The utilization rate for osteopathic beds in Dade County is twenty- seven percent. Thus, the effective utilization standard is not met regardless of whether it is applied to all acute care hospitals or only osteopathic hospitals. Section 381.705(1)(c), Florida Statutes, requires a consideration of the Applicant's ability to provide quality care. HRS did not dispute Suburban's ability to provide quality osteopathic medical care. The Intervenors and Respondents have questioned whether quality care could be provided in the project as it is currently planned since the physical layout of the proposed facility does not meet hospital code requirements. Those deficiencies are discussed in more detail in Findings of Fact 97 through 101 below. Certainly, if those deficiencies are not corrected, the quality of care could be affected. Although the parties stipulated that Section 381.705(1)(e), Florida Statutes, remained at issue in this proceeding, no evidence was presented with respect to this criteria. Suburban's Application does not involve joint, cooperative, or shared health care resources and, therefore, there are no probable economies or improvements in service that may be derrived from its proposal. Section 381.705(1)(g), Florida Statutes, requires a consideration of the need for research and educational facilities. The existing Outpatient Center currently provides externship training for SECOM students. While the proposed facility may provide some additional training opportunities for osteopathic students, the evidence did not demonstrate that any such additional benefits would be significant. Section 381.705(h) requires a consideration of the availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. It also requires a consideration of the effects the project will have on clinical needs of health professional training programs in the District and the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities. Finally, this Section requires a consideration of the availability of alternative uses of the resources for the provision of other health services and the extent to which the proposed services will be accessible to all residents of the District. The evidence indicates that there is a current shortage in the District of nurses and skilled hospital personnel, such as physical therapists, laboratory technicians, radiation therapy technicians, respiratory therapists and pharmacists. This shortage of available health care personnel is ongoing and long standing. While a number of existing employees of the Outpatient Center have indicated a willingness to become employees of the proposed project at the salary stated in the Application, they constitute only 35% of the projected staff for the proposed project. It does not appear that any of the existing staff are required to work weekends and nights on a regular basis. Such positions are likely to be the most difficult to fill. Petitioner has not demonstrated an ability to recruit and hire the additional skilled staff necessary to run a hospital on a full-time basis. Approval of this project is likely to exacerbate the existing shortage. It is also not clear from the Application whether Suburban intends to hire a hospital administrator. No such position is reflected on the tables in the Application setting forth "manpower requirements." The evidence presented at the hearing was very sketchy as to the availability of funds for capital and operating expenditures. Suburban's audited financial statements only show $10,000.00 cash on hand, all of which was donated by Dr. Minkes. Thus, Suburban has virtually no capital resources except to the extent that it might be able to borrow funds for capital expenditures and operating expenses. The Applicant does not own the property on which the proposed project will be located. No evidence was presented to establish the basis upon which the proposed project will be occupying the land and existing facility. The existing Outpatient Center and the land on which it is located is owned by Dr. Minkes and subject to a first mortgage of 1.5 million dollars. Monthly interest payments on this mortgage currently run between $25,000 and $35,000. The proposed project budget does not provide for the payoff of this mortgage. Dr. Minkes contended that the interest/amortization figures on the long-term feasibility table contained in the Application included the funds necessary to service the underlying mortgage on the property. However, no specific breakdown of this figure was provided. Furthermore, no clear explanation was given as to the basis upon which the proposed hospital would occupy the land and existing facility. Thus, it is not clear whether the existing mortgage would be paid off, some lease arrangement would be entered into between Suburban and Dr. Minkes as owner of the property, or whether some other arrangement would be made. It is not clear from the initial Application whether Suburban intends to finance 100% of this project. Lending institutions typically are not willing to assume all of the risk for a proposed project and, therefore, will usually only lend between 60 to 70% of the project cost. While the Applicant suggests that private investors may participate in the financing of the project, the only evidence introduced to support this contention was the testimony of Dr. Minkes that he had talked with various osteopathic physicians who had indicated an interest in participating as private investors and the testimony of Dr. Hershman who indicated that he was willing to commit $100,000.00 to the project. These statements do not provide a sufficient basis to conclude that Suburban has the resources available to meet the initial capital expenditures for this project. Dr. Minkes suggested that one possible way to raise funds for the project would be through a limited partnership offering or a private placement. However, the estimated project costs in the Application does not provide for the cost of registering a limited partnership or otherwise raising money through private investment. As part of its Application, Suburban submitted a letter from a real estate investment banking firm, Sonnenblick-Goldman Southeast Corp., indicating an "interest in exploring arranging financing" for 4.1 million dollars for the proposed project. At the hearing, Petitioner also proffered another "letter of interest" from James F. Perry of Professional Bancorp Mortgage indicating an interest in processing a loan application for the project. This letter was not part of the Application and does not provide any additional proof that the resources are available to complete this project. Both letters merely reflect an interest in seeking a loan on behalf of Suburban. Neither of these letters establishes that Suburban has secured sufficient funds to finance the proposed capital expenditure. The Application indicates that the proposed facility would treat all patients requiring medical care regardless of ability to pay and would implement payment schedules based on the patient's ability. The Application contains a projected distribution of fifty percent Medicare patients, ten percent Medicaid patients, and three percent indigent. However, no competent evidence was presented to support the reasonableness of this projected patient mix. The issues related to training are discussed in Findings of Fact 75 above. Section 381.705(1)(j), Florida Statutes, requires a consideration of the immediate and long-term financial feasibility of the proposal. As set forth in Findings of Fact 76 through 82 above, Petitioner has not demonstrated that it has the resources available to complete the project. Therefore, there are significant questions regarding the short-term feasibility of the project. In addition, as set forth in Findings of Fact 91 through 101, below, there are significant questions as to whether the project can be completed within the budgeted cost of $4,085,780 and still meet hospital code requirements. The long term financial feasibility and the pro forma projections contained in the Application were not verified by any direct testimony at the final hearing. Suburban's financial feasibility expert, Mr. Darrell Lumpkin, did not prepare the pro formas contained in the Application. Mr. Lumpkin was not hired by Suburban until several months after the Application was filed and shortly before the hearing in this cause. Suburban conceded that Mr. Lumpkin did not base his financial feasibility analysis on the Application filed by Suburban and that he would not testify regarding the figures contained in the Application. Mr. Lumpkin prepared a feasibility study generally applicable to any 36-bed proprietary hospital in the State. His study utilizes occupancy rates of 50% for year one and 60% for year two. In presenting his testimony concerning operating expenses, Mr. Lumpkin looked only to the average charges, average deductions from revenue, average contractual allowances, etc., from all proprietary hospitals in Florida. He did not adjust these average figures to reflect the payor mix anticipated at Suburban or to compensate for the small size of Suburban. He was provided with occupancy figures and salary costs to use in making his projections. However, the reasonableness of these figures was never established. While Petitioner contended that Mr. Lumpkin's study confirmed the reasonableness of the pro formas contained in the Application, there were several significant differences between Mr. Lumpkin's study and the information contained in the Application. For example, the Application assumes a first year occupancy of 38%; Mr. Lumpkin's study assumes a first year occupancy of 50%. Furthermore, Mr. Lumpkin's first year revenue projections and average daily charges were significantly higher than the figures contained in the Application. The reasonableness of the figures used by Mr. Lumpkin are also questionable. He used HCCB data which contained consolidated information from all proprietary hospitals rather than utilizing information that was more closely tailored to the proposed project. In determining revenue deductions, he utilized statewide averages which contain many variables. In sum, Mr. Lumpkin's study is of minimal help in evaluating the financial feasibility of this project. The evidence did not establish the reasonableness of the income and expense projections contained in the Application. Moreover, there are several areas where the Application omits or understates expected operating costs. For example, the benefits to be provided to employees, as stated in the pro forma projections, are only 8% of salaries. This percentage would be insufficient to cover the cost of the statutorily mandated benefits of Social Security and unemployment insurance. Furthermore, this benefit level would not cover Workers' Compensation, health insurance, disability insurance, retirement benefits or life insurance. While Suburban suggested that some or all these costs were built into the salary figures rather then the benefit numbers, no specific evidence was presented to support or explain this position. The Application assumes that financing can be obtained at a 10% interest rate. However, the evidence suggests that, at the time the Application was filed and as of the date of the hearing, this rate was probably overly optimistic. It is possible, indeed likely, that Suburban will have to borrow money at a rate in excess of 10%. Therefore, the monthly principal and interest payments may be higher than allotted. The evidence was unclear as to exactly what equipment would be purchased and/or leased for the Project. The Application contains no provision for the purchase of anything other than medical equipment. While a $600,000 contingency is provided, it does not appear that serious consideration has been given to the expected costs for day-to-day items such as furniture, televisions for patient rooms, and similar such items. In addition, it was unclear as to exactly what medical equipment would be required, whether it would be purchased or leased, what equipment in the existing Outpatient Center could be utilized, and whether there would be costs associated with such utilization. Much of the existing equipment serves as security for indebtedness of the Outpatient Center. The Application does not provide for the cost of security or a dietician, both of which are required at an acute care hospital. In sum, Suburban has not proven that the costs set forth in the Application are a reliable estimate of the costs that will necessarily be incurred to open the proposed hospital. The Application provides for ten ICU beds and 26 acute care beds. This bed configuration makes it unlikely that the facility will be able to achieve the utilization rate set forth in the Application. Thus, it is not clear that the projected revenues are reasonable. Section 381.705(1)(l), Florida Statutes, requires a consideration of the "probable impact of the proposed project on the cost of providing health services proposed by the Applicant, ... including... the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost-effectiveness." It is not clear whether osteopathic health services should be distinguished from allopathic health services in applying this criteria. No evidence was presented as to the probable impact of the proposed project on the cost of providing osteopathic services. Suburban contends that it will be offering health care services at lower cost than allopathic facilities in the area and, therefore, will have a positive effect on the cost of health care in the area and enhance competition to the benefit of health care consumers. To support this contention, Suburban argues that its per diem charges will be less than the Intervenors' and other allopathic facilities per diem charges. However, as indicated above, the evidence was insufficient to establish the reasonableness of the projected costs set forth in the Application. Furthermore, Suburban will not be providing some of the more costly services provided by larger hospitals. Suburban did not present any evidence comparing its charges with facilities providing similar services and/or with small hospitals. A comparison of Suburban's proposed patient charges with the average charges of larger hospitals does not reflect whether Suburban will be a cost-effective provider of acute care services. Finally, the proposed project may somewhat increase the demand for nurses and other skilled health care personnel which could exacerbate existing shortages in the District and lead to higher costs. Section 381.705(1)(m), Florida Statutes, requires a consideration of the costs and methods of the proposed construction. Suburban is proposing to convert an existing outpatient center to an acute care hospital. The Application projects a total project cost of $4,085,780. The total construction costs are estimated at $2,173,600. This sum includes a construction contingency of $190,000. In addition, the total project costs include a working capital reserve of $600,000. Schematic plans of the proposed project to 1/16th inch scale are required to be submitted with the CON Application. The Application is also required to contain certain tables that indicate the functional spaces, square footage per space, and construction cost per square foot for various areas. HRS conducts an architectural review of the submitted plans to determine whether the state requirements for the planned facility can be met. The physical plant requirements for general hospitals in this state are set forth in Rule 10D-28.081, Florida Administrative Code. As noted below, the plans submitted by Suburban fell short of these requirements in many areas. The evidence demonstrates that the proposed project could not be licensed without significant modifications to the submitted architectural plans. Such modifications will necessarily impact upon the cost of the project and, unless rectified, may also impact upon the quality of care rendered in the new facility. The uncertainty surrounding the changes needed to the architectural plans weighs heavily against approving the Application. When the existing building was constructed, Suburban attempted to build it to the then-existing hospital codes. Many aspects of those code requirements have changed and several aspects of the building do not meet the new standards. While Suburban has suggested that, because there is an existing building in place, it may not have to meet all of the current standards, no persuasive evidence or legal precedent was presented to indicate that HRS can or will waive those standards. Bernard Horovitz, the architect who prepared the plans for Petitioner, testified that the plans submitted were conceptual in nature and were not intended as final plans to be held to code standards. According to Mr. Horovitz, the development and refinement of the plans is an ongoing process with HRS that continues even after a Certificate of Need is issued. While Mr. Horovitz felt that the project could be completed in accordance with the applicable code requirements at a price that was not significantly different than the cost estimate set forth in the initial Application, the extent of the deficiencies detailed below raises considerable doubt as to this conclusion. During the review of Suburban's plans, James Gregory, the HRS Architectural Supervisor for the Office of Plans and Construction, discovered that certain essential functions were missing or not indicated in the plans. Some of the omissions and/or deficiencies in the plans submitted with the Application were as follows: Emergency room- The plans indicate that the emergency room is to be constructed in the area of the existing outpatient clinic. The evidence was unclear as to how or whether the outpatient clinic would continue to operate. Moreover, while the Application indicates that the facility would be operating an emergency room on a 24 hour basis, Dr. Minkes' testimony at the hearing raised some question as to whether the proposed hospital would have a fully- staffed emergency room. In any event, the plans provide no clear layout as to how the emergency room and out-patient clinic would be mixed. The plans contain no emergency grade level entrance for ambulance entry, parking or emergency room entry as required by Rule 10D-28.081(12), Florida Administrative Code. There was no reception and control area for the emergency room shown on the plans. Such a reception and control area is required by Rule 10D-28.081.(12)(b). Mr. Gregory testified that during his review he scaled the plans and discovered that the examination and treatment rooms were not large enough to meet the 100 square foot requirement set forth in Rule 10D-28.081(12)(e). Furthermore, Suburban's plans show a corridor running through the emergency room contrary to Rule 10D- 28.081(12)(m). While the cost estimates in the Application indicate extensive remodeling will be done in the area of the outpatient clinic, it is not clear that the remodeling could be completed and the emergency room brought up to code standards within the costs allocated. Furthermore, the evidence was unclear as to the Applicant's intentions with respect to jointly operating an emergency room and an outpatient clinic. Dietary and Dining Facilities - While the Application indicates the conversion of the existing building will include a cafeteria, the evidence at the hearing indicates that a final decision has not been made as to whether Suburban will operate a cafeteria for employees and visitors. In any event, the plans provide for only 720 square feet for the hospital's dietary and dining facilities. This area is too small to meet the functional requirements of Rule 10D-28.081(21). Storage Areas - Suburban's plans only allocate 1,260 square feet for general stores and central service areas. Rule 10D-28.081(25) requires the general storage area of a hospital to contain 20 square feet of storage per patient. In order to meet the general stores requirement, Suburban will only have 540 square feet of storage for central services. This remaining storage area would have to include a decontamination receiving room, a clean workroom to clean medical supplies used in the hospital, storage for clean medical supplies, storage for equipment used in delivery of patient care and a storage room for distribution carts. Furthermore, the plans did not provide for a body holding room as required by Rule 10D-28.081(19)(f). It is unlikely that all of these functions could be fit in the allocated area. Operating rooms - Rule 10D-28.081(10) sets forth a minimum size requirement of 360 square feet for operating rooms. The surgery rooms reflected on the plans do not meet this requirement. Moreover, the surgical area set forth in the plans contains only 75% of the required functions specified in the rule. The area lacked a storage room for splint and traction equipment and a sink for plaster work as required by Rule 10D-28.081(10)(b) if orthopedic surgery is to be performed. The proposed recovery room did not provide for an isolation room with an anteroom for infected patients, a medication administrative station, a supervisor's office, a nurses station, two scrub stations for each operating room, an equipment storage room of at least 100 square feet, a soiled workroom for the exclusive use of the operating staff, a storage room, an out-patient change area, (which is required if out-patient surgery is to be provided,) a stretcher alcove and a storage area for portable x-ray equipment as required under Rule 10D-28.081(10)(d) and (e). ICU/CCU - The ICU area was only generally laid out on the plans and there was no indication where the isolation room, emergency cardio-pulmonary resuscitation cart storage, soiled utility room, clean linen storage, equipment storage, staff toilets, staff lounge, waiting room, conference room, and nurses station would be located within this unit. All of these functions are required by Rule 10D-28.081(6). The ICU area functions cannot be shared with the general medical/surgical and nurses stations. The proposed ICU area does not appear to be large enough to accommodate the proposed ten ICU beds. This lack of space exists whether the rooms are arranged in a corridor or suite arrangement. The area where the ICU is proposed to be located has only one means of exit/access. Therefore, the ICU units will have to be set up in corridor system rather than a suite arrangement. Such an arrangement will reduce the usable square footage by approximately 800 feet. The loss of this 800 square feet further exacerbates the problem of lack of area. Nursing Care Unit - The nursing care unit shown on the plans does not have enough area to include all of the required functions set forth in Rule 10D- 28.081(5). Among the functions required to be located in the nursing care unit are a medication room of at least 50 square feet, a workroom and a storage room of at least 60 square feet, an equipment storage room and an alcove for stretchers. The plans submitted by Suburban failed to appropriately represent that the proposed project would meet the minimum standards set forth in Chapter 10D-28, Florida Administrative Code. While Suburban contends that the plans were not intended to be final and many of the issues could be addressed with HRS during the licensure process, the extent of the deficiencies raises serious questions as to whether this project could be completed within the budget set forth in the Application. A major redesign of the project will be necessary in order for it to meet code requirements. Suburban's contentions that these modifications could be made within the existing budget (including contingencies) and/or that waivers of certain elements could be obtained during the licensure process were not supported by persuasive evidence. Section 381.705(1)(n) requires a consideration of the applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent. As indicated above, no competent evidence was presented to establish the reasonableness of the patient mix set forth in the Application. Since Suburban has not begun operations, it has no historical record regarding provision of services to Medicaid and indigent patients. Dr. Minkes testified that the existing Outpatient Center treats all patients regardless of ability to pay and that the proposed project will operate on a similar basis. The existing Outpatient Center has entered into a contract with the State of Florida to provide primary care to Medicaid patients on a prepaid basis. Dr. Minkes anticipates that the proposed project would be used to provide hospital care to a large portion of the patients who enroll in the program. If that contract is implemented, the proposed project should provide some increased access for Medicaid patients. Section 381.705(2)(a) requires a consideration of the availability of less costly, more efficient or more appropriate alternatives to the proposal. Alternatives to new construction include purchasing an existing acute care hospital, working in conjunction with an existing acute care hospital in a joint venture or shared facility arrangement or increasing the utilization of Westchester. All of these alternatives could further the osteopathic presence in the District and Subdistrict without the need for additional construction and the addition of new acute care beds. While Dr. Minkes indicated that he did not feel any of these alternatives were viable, it does not appear that any serious efforts were undertaken to explore these alternatives. Section 381.705(2)(b) requires a consideration of the utilization of existing facilities providing inpatient service similar to those proposed. As set forth in Findings of Fact 14 through 19 above, Westchester, which is located in the same subdistrict as the proposed facility, has been operating at approximately 27% occupancy. This occupancy level has been steadily decreasing for several years. It must be anticipated that the approval of this Application would further deteriorate the efficient use of Westchester. For purposes of this Section, HRS interprets "similar services" to osteopathic acute care bed applications to include allopathic facilities which provide osteopathic services within the service area. If this interpretation is accepted, it is clear that there is a great excess of acute care beds in the District and the addition of the proposed beds would only diminish the potential for their efficient use of the existing beds. Section 381.705(2)(d) requires a consideration of whether patients will experience problems in obtaining inpatient care of the type proposed in the absence of the proposed new service. While there are only one hundred licensed osteopathic beds in the District, the evidence did not indicate that any individuals seeking osteopathic care were being denied such services. Section 381.705(2)(c) Florida Statutes, requires that, in the case of new construction, alternatives to new construction such as modernization or sharing arrangements, be considered and implemented to the maximum extent possible. As set forth in Findings of Fact 41 and 104 above, the evidence did not indicate that the modernization of Westchester or shared arrangements with other facilities have been fully explored. Baptist and South Miami are general acute care hospitals located in South Dade County. The primary service area for the proposed project overlaps the primary service areas of Baptist and South Miami. The evidence indicated that both intervenors are likely to loose some admissions and will probably experience some difficulties in obtaining skilled staff if this Application is approved. Both of the intervenor hospitals have a substantial number of vacant positions for which Suburban would be competing. If the Application is approved, Suburban will be seeking to fill its skilled staff positions from an already limited pool. One expected result would be an increase in salary structure for both Baptist and South Miami. Petitioner challenged the accuracy of the zip code analysis prepared by Mr. Cushman which attempted to estimate the number of lost admissions that each of the Intervenors could expect. While the zip code analysis does have many flaws, the evidence was sufficient to establish that both South Miami and Baptist will loose some admissions if the proposed facility is opened. Established programs at Baptist and South Miami could be substantially affected by the increase in salaries and lost admissions that are likely to occur if the proposal project is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, recommended that HRS enter a final order denying Suburban Medical Hospital, Inc.'s application for Certificate of Need #5868 to convert an existing outpatient surgery center to an osteopathic acute care hospital by conversion and new construction. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of March, 1991. J. STEPHEN MENTON 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 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4445 All four parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1.-2. Adopted in substance in the Preliminary Statement. Adopted in substance in Findings of Fact 1 and 3. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4 and 10. Adopted in pertinent part in Findings of Fact 8 and 10. Adopted in pertinent part in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 14 and 15. Adopted in substance in Findings of Fact 48. Subordinate to Findings of Fact 50-58. Subordinate to Findings of Fact 59. 12. Subordinate to Findings of Fact 63 and 64. 13. Subordinate to Findings of Fact 52 and 53. 14. Subordinate to Findings of Fact 61 and 62. 15. Subordinate to Findings of Fact 63 and 64. 16. Subordinate to Findings of Fact 65. 17. Subordinate to Findings of Fact 66. 18. Subordinate to Findings of Fact 67. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 58. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 53 and 56. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 55 and 65. Subordinate to Findings of Fact 69, 33 and 34. Rejected as a summary of testimony rather than a finding of fact. Subordinate to Findings of Fact 68. Adopted in substance in Findings of Fact 44 and in the Preliminary Statement. 26. Subordinate to Findings of Fact 37-42. 27. Subordinate to Findings of Fact 37 and 42. 28. Subordinate to Findings of Fact 37. 29. Subordinate to Findings of Fact 26. 30. Subordinate to Findings of Fact 27. 31. Subordinate to Findings of Fact 24-30. 32. Subordinate to Findings of Fact 24. 33. Subordinate to Findings of Fact 24 and 28. Rejected as vague, overbroad and irrelevant. Subordinate to Findings of Fact 26 and 30. Adopted in substance in Findings of Fact 15. Rejected as constituting a summary of testimony rather than a finding of fact because it is irrelevant to the conclusions reached in the Recommended Order. Subordinate to Findings of Fact 21-23. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 21-23. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject area is addressed in Findings of Fact 41, 70, 94 and 106. Subordinate to Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 75. Subordinate to Findings of Fact 79-81 and 90. Rejected as irrelevant. This subject matter is addressed in Findings of Fact 76. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 81 and 82. Rejected as unnecessary and irrelevant. Subordinate to Findings of Fact 13 and 83. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject matter is addressed in Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 85. Subordinate to Findings of Fact 82. Subordinate to Findings of Fact 86-93. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 93. Rejected as constituting a summary of testimony and argument rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 73. Subordinate to Findings of Fact 80 and 89. Subordinate to Findings of Fact 80. Subordinate to Findings of Fact 86 and 87. Subordinate to Findings of Fact 86-93. Subordinate to Findings of Fact 86-92. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 93 and 98-100. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject matter is addressed in Finding of Fact 86 and 87. 70-72. Subordinate to Findings of Fact 94 and 105. 70.(sic) Rejected as unnecessary. A related issue is addressed in Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 100. Subordinate to Findings of Fact 100. Rejected as unnecessary. Subordinate to Findings of Fact 90. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 96-101. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 96-101. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 100. Subordinate to Findings of Fact 102. Subordinate to Findings of Fact 103. Subordinate to Findings of Fact 104. See the rulings on proposed findings 29-40 above. Subordinate to Findings of Fact 108. Subordinate to Findings of Fact 26 and 27. Subordinate to Findings of Fact 31. Suburban has submitted eleven proposed findings with respect to the standing issue. Those proposals are subordinate to Findings of Fact 109-112. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 5. 2.-3. Adopted in substance in Findings of Fact 1. 4. Adopted in substance in Findings of Fact 5. 5.-6. Subordinate to Findings of Fact 7. 7.-8. Adopted in substance in Findings of Fact 36 and 42. Addressed in Findings of Fact 36, 42, 43 and 71. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 15 and 21. Subordinate to Findings of Fact 43. Subordinate to Findings of Fact 71. Adopted in substance in Findings of Fact 33. Adopted in substance in Findings of Fact 24 and 25. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 41-43 and 71. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 72. 24.-25. Adopted in pertinent part in Findings of Fact 21. Adopted in substance in Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 20. 28. Subordinate to Findings of Fact 40. 29. Subordinate 106. to Findings of Fact 105 and 30. Subordinate 49. to Findings of Fact 46 and 31. Subordinate 49. to Findings of Fact 46 and Adopted in substance in Findings of Fact 50. Subordinate to Findings of Fact 51. Subordinate to Findings of Fact 59. Subordinate to Findings of Fact 53. Subordinate to Findings of Fact 53. Subordinate to Findings of Fact 53 and 55. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 8, 10 and 56. 39. Subordinate to Findings of Fact 58. 40. Subordinate to Findings of Fact 62. Subordinate Subordinate to Findings of to Findings of Fact Fact 57. 53 and 57. 43. Subordinate to Findings of Fact 55. 44. Subordinate to Findings of Fact 53-55. 45. Subordinate to Findings of Fact 54. 46. Subordinate to Findings of Fact 65. Subordinate Subordinate to Findings of to Findings of Fact Fact 65. 63 and 66. Subordinate Subordinate to Findings of to Findings of Fact Fact 64 and 64. 66. Subordinate to Findings of Fact 55 and 64. Subordinate to Findings of Fact 67. Adopted in pertinent part in Findings of Fact 53. 54. Subordinate to Findings of Fact 85-93. 55. Subordinate to Findings of Fact 85-93. 56. Subordinate to Findings of Fact 86 and 87. 57. Subordinate to Findings of Fact 87. 58. Subordinate to Findings of Fact 86 and 87. 59. Subordinate to Findings of Fact 87. 60. Subordinate to Findings of Fact 87. 61. Subordinate to Findings of Fact 87. Addressed in pertinent part in Findings of Fact 86. This subject matter is also addressed in the Preliminary Statement and the Conclusions of Law. Subordinate to Findings of Fact 86 and 87. This subject is also addressed in paragraphs 17 of the Conclusions of Law. Addressed in paragraphs 17 of the Conclusions of Law. Addressed in pertinent part in Findings of Fact 65. 66. Subordinate to Findings of Fact 82. 67. Subordinate to Findings of Fact 81. 68. Subordinate to Findings of Fact 81. 69. Subordinate to Findings of Fact 81. 70. Subordinate to Findings of Fact 78 and 81. 71. Subordinate to Findings of Fact 86-93. 72. Subordinate to Findings of Fact 86-93. 73.-74. Addressed in pertinent part in Findings of Fact 86 and 88. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 101. 80.-101. Adopted in substance in Findings of Fact 101. Subordinate to Findings of Fact 100 and 102. Subordinate to Findings of Fact 98, 100 and 102. Rejected as a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 71. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 20. Subordinate to Findings of Fact 42, 43 and 107. Adopted in substance in Findings of Fact 107. Subordinate to Findings of Fact 31, 33, 42, 43 and 70-73. Adopted in substance in Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 70 and 106. 111. Subordinate 101. to Findings of Fact 73 and 97- 112. Subordinate and 108. to Findings of Fact 45, 104 113. Subordinate and 108. to Findings of Fact 45, 104 Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 45, 104 and 108. Rejected as unnecessary. Furthermore, there is considerable confusion as to how this per diem calculation was made. 116.-117. Subordinate to Findings of Fact 105-106. The Intervenor's Proposed Findings of Fact (Baptist Hospital) Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1.-7. Subordinate to Findings of Fact 109-112. This subject matter is addressed in paragraph 2 of the Conclusions of Law. 8.-14. Subordinate to Findings of Fact 50-67. Subordinate to Findings of Fact 15 and 17- 23. Adopted in pertinent part in Findings of Fact 17, 21, 30, 65 and 69. This proposal consists largely of legal argument and is addressed in the Conclusions of Law. Pertinent portions of the proposal are addressed in Findings of Fact 14 and 18. Subordinate 37. to Findings of Fact 42. 19. Subordinate and 108. to Findings of Fact 41, 104 20. Subordinate to Findings of Fact 71 and 83. 21. Subordinate 71-73. to Findings of Fact 24-33 and 22. Subordinate to Findings of Fact 71. 23. Subordinate 71-73. to Findings of Fact 37-43 and 24. Subordinate 72. to Findings of Fact 20, 42 and 25. Much of this proposal consists of legal argument. The pertinent factual provisions are addressed in Findings of Fact 70 and 106. 26. Subordinate to Findings of Fact 106. 42 and 27. Subordinate to Findings of Fact 105. 42 and 28.-29. The pertinent portions of these proposals are addressed in Findings of Fact 73. The remainder of these proposals are rejected as irrelevant. Subordinate to Findings of Fact 71. Adopted in pertinent part in Findings of Fact 14 and 75. 32. Subordinate to Findings of Fact 76. 33. Subordinate to Findings of Fact 77. 34. Subordinate to Findings of Fact 78-81. 35. Subordinate to Findings of Fact 75. 36. Subordinate and 108. to Findings of Fact 41, 104 37. Subordinate 103. to Findings of Fact 83 and 38. Subordinate 85. to Findings of Fact 76-82 and 39. Subordinate to Findings of Fact 85-102. 40. Subordinate 93. to Findings of Fact 86-88 and 41. Subordinate to Findings of Fact 86-102. 42. Subordinate to Findings of Fact 94. This proposal consists largely of legal argument. Pertinent factual issues are addressed in Findings of Fact 20 and 21, 76 and 94. Subordinate to Findings of Fact 95-102. Subordinate to Findings of Fact 83 and 103. Much of this proposal consists of legal argument and/or speculation. Pertinent factual issues are addressed in Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 105 and 106. Subordinate to Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 69. The Intervenor's Proposed Findings of Fact (South Miami Hospital) Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. 4.-6. Subordinate to Findings of Fact 16-19. Adopted in substance in Findings of Fact 15, 20 and 21. The first sentence is adopted in substance in Findings of Fact 48. The remainder is rejected as constituting legal argument. Adopted in pertinent part in Findings of Fact 49 and 50. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 101. Adopted in substance in Findings of Fact 79. Adopted in substance in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 101. Subordinate to Findings of Fact 100. Included in the Preliminary Statement. Subordinate to Findings of Fact 73. Adopted in pertinent part in Findings of Fact 96. Adopted in substance in Findings of Fact 101. Subordinate to Findings of Fact 101. Subordinate to Findings of Fact 98-100. Subordinate to Findings of Fact 100 and 102. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 98-102. Adopted in substance in Findings of Fact 44 and in the Preliminary Statement. Adopted in substance in Findings of Fact 44 and 45. Adopted in substance in Findings of Fact 45. Adopted in pertinent part in Findings of Fact 48 and 49. Rejected as irrelevant. Subordinate to Findings of Fact 70 and 106. Adopted in pertinent part in Findings of Fact 20 and 21. Rejected as vague. This subject matter is addressed in Findings of Fact 20 and 21. Subordinate to Findings of Fact 33 and 35. Subordinate to Findings of Fact 20, 21 and 42. Subordinate to Findings of Fact 23 and 30. Adopted in substance in Findings of 25. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 24 and 30. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 23. Addressed in pertinent part in Findings of Fact 20 and 21. 42.-43. Rejected as overly broad. This subject matter is addressed in Findings of Fact 31. 44. Subordinate to Findings of Fact 40 and 42. 45. Subordinate to Findings of Fact 73. 46. Subordinate to Findings of Fact 35. 47.-51. Subordinate to Findings of Fact 49-67. 52. Subordinate to Findings of Fact 35. 53.-55. Subordinate to Findings of Fact 109-112. 56. Subordinate to Findings of Fact 85-93. 57. Subordinate to Findings of Fact 69. 58. Subordinate to Findings of Fact 69 and 93. Rejected as overly broad. This subject matter is addressed in Findings of Fact 35 and 73-109. Rejected as unnecessary. COPIES FURNISHED: Daniel C. Minkes, Esquire 17615 S.W. 97th Avenue Miami, Florida 33157 Silvio Amico, Esquire 6401 S.W. 87th Avenue Suite 114 Miami, Florida 33173 Thomas R. Cooper, Esquire Edward Labrador, Esquire Suite 103 2727 Mahan Drive Tallahassee, Florida 32308 Kyle Saxon, Esquire Catlin, Saxon, Tuttle & Evans 1700 Alfred I. Dupont Building 169 East Flagler Street Miami, Florida 33131 Jay Adams, Esquire 1519 Big Sky Way Tallahassee, Florida 32301 Jean Laramore, Esquire 7007 McBride Pointe Tallahassee, Florida 32312 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Prior to and during part of 1983 Dr. Sturdivant practiced as an osteopathic physician. Dr. Sturdivant operated an office in Bradenton, Florida. Sometime during 1983 Dr. Sturdivant met and discussed employment with Dr. Daniel Clark. Dr. Clark operated the Total Health Care Clinic Center (hereinafter referred to as the "Center"), in Ormond Beach, Volusia County, Florida. Dr. Clark had been licensed as a physician in Florida. Dr. Clark's license to practice medicine in Florida was revoked, however, on April 21, 1983. As a result of his discussions with Dr. Clark, Dr. Sturdivant practiced medicine at the Center four days a week during most of 1983. One day a week Dr. Sturdivant continued to work out of his office in Bradenton. Sometime during 1984 Dr. Sturdivant left the Center. He did not return to the Center until 1985. During the early part of 1985 Dr. Sturdivant returned to the Center where he worked full time as the Center's Medical Director. Dr. Sturdivant worked at the Center from at least March 27, 1985 to at least June 22, 1985. During the period of time during 1985 that Dr. Sturdivant acted as the Medical Director of the Center, Dr. Clark's title was Administrator of the Center. During the period of time after April 21, 1983, that Dr. Sturdivant was employed at the Center Dr. Sturdivant knew or had reason to know that Dr. Clark's license to practice medicine in the State of Florida had been revoked. During the portion of 1985 that Dr. Sturdivant was employed as the Medical Director of the Center Dr. Sturdivant was aware that he was responsible for the medical care of patients seen at the Center. Ms. Judy Baxley was seen as a patient at the Center several times beginning in March, 1985, while Dr. Sturdivant was the Medical Director. Ms. Baxley was treated for asthma and a "yeast" infection. Ms. Baxley was seen by Dr. Clark on some of her visits. She received medical tests and treatments at the direction of Dr. Clark, as evidenced, at least in part, by progress notes signed by Dr. Clark. Ms. Shirley Van Gampler was seen as a patient at the Center on May 8, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Van Gampler was seen by Dr. Clark as a patient. Dr. Clark's treatment of Ms. Van Gampler included examination, testing and diagnosis, as evidenced, at least in part, by progress notes signed by Dr. Clark. Mr. Douglas Cutsail was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director. Mr. Cutsail had a history of heart attacks and hypertension. He went to the Clinic in an effort to control his high blood pressure. Dr. Clark treated Mr. Cutsail as a patient, performing tests on Mr. Cutsail and directing chelation therapy treatments of Mr. Cutsail's medical problems. Dr. Clark signed the progress notes on Mr. Cutsail. Dr. Sturdivant also signed the progress notes but his signature was added at a later date after Dr. Clark had already treated Mr. Cutsail. Ms. Eileen Deasy was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Dr. Clark treated Ms. Deasy as a patient, as evidenced by progress notes signed by Dr. Clark. Ms. Lonna Sloan was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Sloan, who is now deceased, had breast cancer at the time she was seen by Dr. Clark. Ms. Sloan was treated as a patient by Dr. Clark. The treatment received by Ms. Sloan was substandard treatment. Dr. Sturdivant allowed Dr. Clark to exercise professional medical responsibilities during 1985 while Dr. Sturdivant was the Medical Director of the Center and with knowledge that Dr. Clark was not licensed to carry out those responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Dr. Sturdivant's license to practice in the State of Florida be suspended for a period of one (1) year. It is further, RECOMMENDED that the recommended suspension of Dr. Sturdivant's license for one (1) year be stayed and set aside and that he be placed on probation for a period of three (3) years in lieu thereof. During the period that Dr. Sturdivant is on probation, he should be required to work under the supervision of an osteopathic physician. He should not work in any supervisory capacity. During the period of his probation, Dr. Sturdivant and his supervisor should submit quarterly written reports of Dr. Sturdivant's employment activities. DONE and ENTERED this 8th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1988. 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. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Stipulated to by the parties. 2 3. 2 and 4. 5 and 6. 5 6. 6 7. 7 8. 8 9. 9 10. 10 11. 11 12. 12-13 13. This is a conclusion of law. Lonna Sloan's deposition is hearsay. It has been accepted only to the extent that it corroborates the testimony of Dr. Smith and Petitioner's exhibit 3, the progress notes on Ms. Sloan. Summary of testimony. Cumulative and hearsay. The Respondent's Proposed Findings of Fact Not supported by the weight of the evidence and irrelevant. The evidence established that Dr. Sturdivant was aware that Dr. Clark's license to practice in Florida had been revoked. Whether Dr. Clark had a license to practice in Georgia is irrelevant. The evidence failed to prove this contention. The evidence did prove that some of the products sold by the Center were nutritional products available in health food stores. The evidence also proved that persons who received nutritional products were treated medically by Dr. Clark. The evidence failed to prove that these nutritional products were prescribed as only for nutritional purposes. COPIES FURNISHED: Susan Branson, Esquire William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Sturdivant, D.O. 800 South Nova Road Suite H Ormond Beach, Florida 32074 Mr. Rod Presnell Executive Director Department of Professional Regulation Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent, Henry J. Petrillo, D.O., has been licensed to practice osteopathic medicine in the State of Florida since July 1, 1973 and at all times pertinent to these proceedings was licensed by the State of Florida as a Doctor of Osteopath. The Board entered an order dated February 18, 1982, in a prior unrelated case, placing respondent on probation for a period of two (2) years commencing February 18, 1982 with the condition, among others, that the respondent " . . . shall obtain/continue counseling with a psychiatrist or psychologist and shall cause progress reports to be submitted to the Board or probation supervisor every three (3) months." In response to that order, respondent began to visit psychologist Sidney T. Merin, Ph.D. for counseling. Dr. Merin submitted progress reports on the respondent to the Board by letter on April 15, 1982, August 5, 1982, October 25, 1982 and January 24, 1983. No progress reports were submitted by Dr. Merin, or any other psychiatrist or psychologist, on the respondent to the Board after January 24, 1983. Based on Petitioner's Exhibit 1 (letter to respondent from Dr. Merin date stamped received March 25, 1984), Dr. Merin continued to treat respondent until his probation was terminated. But, there was a period of time from January 24, 1983 until November 30, 1983 that respondent did not visit Dr. Merin for counseling. Respondent attended counseling sessions with Dr. Merin on November 30, 1983 and January 9, 1984. Respondent petitioned the Board for early termination of his probation by letter dated February 21, 1983. On June 25, 1983 the Board heard respondent's request. On August 6, 1983 the Board entered its order denying the respondent's "request for termination of probation and full reinstatement of his license to practice osteopathic medicine." The Board's order specifically required that respondent was to "continue to be on probation pursuant to the terms and conditions set forth in the final order dated February 18, 1982." The evidence indicated that the Board was aware that respondent had completed counseling with Dr. Merin in January, 1984 and had been "discharged" other than for visits on a "as needed" basis. On June 25, 1983, at the time of respondent's hearing on his request for reinstatement of license and termination of probation, over three (3) months had expired since Dr. Merin's last progress report to the Board on the respondent. Angela Turner was one of respondent's patients. Between May 9, 1983 and July 30, 1983, the respondent saw Angela Turner eight (8) times on a physician-patient relationship. The respondent's medical records and Angela Turner's testimony indicated that she was suffering from a continuing vaginal infection that resulted in a discharge. Angela Turner's last visit with respondent on July 30, 1983 was for the purpose of bringing in a urine sample for a pregnancy test which respondent had requested on Angela Turner's prior visit of July 26, 1983 and for consultation with respondent as to the results of the pregnancy test. Upon arriving at the respondent's office on July 30, 1983, Angela Turner submitted the urine sample to Janaee Brown, a nurse in respondent's office. Later, Angela Turner was taken to the examination room by Janaee Brown who inquired as to how Angela Turner was feeling, Angela Turner replied, "that she was feeling a lot better, but she had slight dizziness and she thought her yeast infection might be coming back." Janaee Brown then left Angela Turner in the examination room. At this point, there is conflicting testimony concerning whether Janaee Brown relayed instructions from the respondent for Angela Turner to disrobe from the waist down and provided a gown for this purpose. The more credible evidence is that Janaee Brown did not instruct Angela Turner to disrobe from the waist down and that Janaee Brown did not give Angela Turner a gown or robe for this purpose. Although there was some evidence that respondent may have deviated, at one time or another, from his office policy of having someone accompany him at all times while consulting with or examining a female patient, the weight of the evidence shows that respondent did have such an office policy and that no exception to that office policy was made during Angela Turner's visit with respondent on July 30, 1983. Angela Turner's testimony was that respondent came into the room alone, reported a negative pregnancy test, asked how she was feeling, examined her vagina without gloves, or lubricant or device to spread vagina, unbuttoned her blouse and moved her bra and examined her breasts. Respondent then kissed each of her breasts, her stomach, her vagina and tried to kiss her lips but she pushed him away. The respondent denies any impropriety with Angela Turner on July 30, 1983. The weight of the evidence shows that respondent consulted with Angela Turner in the presence of his wife, Vida Petrillo, concerning her pregnancy test, prescribed five (5) douches for vaginal infection and discussed something about abortion. The evidence shows that Angela Turner did mention to Janaee Brown something to the effect that the doctor had done something he shouldn't do and asked if that was office policy, to which Janaee Brown replied "no." The evidence shows that Angela Turner did not appear to be emotionally upset at this time. Angela Turner paid her bill, picked up her douches and went outside and called her husband who in turn contacted the police. Counsel for petitioner stipulated that a civil suit for damages had been filed by Angela Turner and her husband against respondent and presently there was an ongoing lawsuit. The evidence fails to establish sufficiently that the respondent conducted a vaginal examination on July 30, 1983 or made any sexual advances toward Angela Turner by kissing her breasts, stomach, and vagina or attempting to kiss her lips.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found not guilty of the violation of Sections 459.015(1)(k), and 459.014, Florida Statutes (1983) and that Count II and Count III be DISMISSED. It is further RECOMMENDED that respondent be found guilty of violating a lawful order of the Board in violation of Section 459.O15(1)(x), Florida Statutes (1983). For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand to the respondent. Respectfully submitted and entered this 1st day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of May, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Dorothy Faircloth Executive Director Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Grover C. Freeman and David P. Rankin FREEMAN & LOPEZ, P.A. 4600 West Cypress, Suite 410 Tampa, Florida 33607 =================================================================
