The Issue The issue is whether the application of A Professional Nurse, Inc., (APN) for Certificate of Need No. 4636 to operate a home health agency in HRS District IX should be granted. STIPULATION CONCERNING APPLICABLE STATUTES In the prehearing stipulation, the parties agreed that the issues to be litigated are only those relating to the need for an additional home health agency in the HRS service district. The other criteria found in Section 381.494(6)(c), Florida Statutes, which the Department is required to take into consideration in granting certificates of need, are not in dispute. The only portions of the statute and rules which must be examined here are Section 381.494(6)(c)1., 2. and 12, Florida Statutes, and Rule 10.5.011(1)(b)1., Florida Administrative Code.
Findings Of Fact APN's Applications This case arises from the application by APN for Certificate of Need No. 4636, filed in June, 1986. In 1983, APN had filed another application for a certificate of need when the Department had imposed an administrative moratorium on applications. HRS originally denied the application but during the pendency of formal proceedings, reconsidered and would have granted the application, but other parties intervened. APN failed to respond to certain discovery (it did not have an attorney) and at the final hearing therefore was not allowed to present evidence. As a result, APN's 1983 application was denied. With respect to the current application, based upon its June, 1986, filing, under Rule 10.5.008, Florida Administrative Code, a decision would have been due in October of 1986. On September 16, 1986, an employee of the Department requested an extension of time for the Department's decision until January, 1987, because the Department had no rule methodology for determining need for home health agencies, but hoped to have one by January, 1987. APN agreed to a three-week extension but did not agree to defer a decision until January, 1987. In November, 1986, the Department issued a state agency action report proposing to deny the application. At no time during the application process was APN told how need for an additional home health agency would be determined during departmental review in the absence of any need methodology adopted by departmental rule. There were no other applications in HRS District IX filed in the same batch as this application, and there have been no petitions to intervene in this proceeding. APN And Its Related Companies APN is an existing, licensed home health agency which has operated in District IX for nine years. It has applied for a certificate of need in order to qualify as a Medicare and Medicaid provider. Without the certificate of need, it cannot receive Medicare or Medicaid reimbursement for its services. Due to the recent opening of psychiatric hospitals in District IX and the need for follow-up care after such hospitalization, there is a need in District IX for psychiatric home health services. APN has particular expertise in psychiatric nursing. The requirements APN met for licensure are nearly identical to those for certification. There is no capital expenditure necessary for the Medicare and Medicaid certification. APN also started a related company, Professional Staffing Services, which provides nurses for hospitals, nursing homes and other home health agencies. These clients have called upon Professional Staffing Services when they are short of staff. APN currently receives referrals of persons who need home health services which come from hospitals, social service departments, hospital discharge planners. It also has a plan with hospitals for providing indigent care called "Patient Care Partnership Plan" under which it provides two hours of indigent care for each 40 hours of private duty care obtained through a hospital. There are people who could benefit from home health services who are unaware that they qualify to be reimbursed by Medicare for home health services. There are even some physicians who are not familiar with the availability of home health services. Because of the relatively low level of public awareness of the availability of home health services, patients are sometimes placed in nursing homes rather than deceiving health services at home, which would be less expensive and more cost-effective than nursing home care. Method For Determining Need For Home Health Services in District IX Because there is no rule methodology for determining the need for home health services, the method for determining need used by the Department is subject to de novo review in this proceeding. Section 120.57(1), Florida Statutes (1985). The Department presented no evidence of the number of home health agencies it believes are needed in District IX. In the absence of a rule it has no way of quantifying need. The Department has had difficulty in developing a methodology for determining need for home health agencies. Its first rule promulgated in 1977 was known as the Rule of Three Hundred. That rule is determined to be invalid. See Johnson and Johnson Home Health v. Department of Health and Rehabilitative Services, Final Order, DOAH Case 83-2170R, affirmed 447 So.2d 361 (Fla. 1st DCA 1984). Thereafter, the Department used a nonrule policy requiring an applicant to prove that people were not being served in order to justify a certificate of need for a new home health agency. That policy was applied by the Department at the time of the hearing in Upjohn v. Department of Health and Rehabilitative Services, 496 So.2d 147 (Fla. 1st DCA 1986) and was criticized by the court. The Department's current policy of requiring applicants to show that people are not being served is unreasonable. Existing home health agencies have the ability to expand their staff as demand increases. This would preclude the entry of any new competitor into the market if the rule for determining need for additional agencies is that there must be current potential users who are unserved. The Department's assertion that additional need can be shown by surveys of doctors or hospital discharge planners which indicate an inability to obtain home health services places an unreasonable, unattainable burden on an applicant. The expert retained by the Department to help it develop a rule methodology attempted to survey discharge planners and received only a 25 percent response rate, which is unreliable. The Department's assertion that the applicant could show a waiting list as an indication of need is also unreasonable. Those in need of home health services who cannot obtain them do not wait, they obtain alternate services, by such means as entering a nursing home. Finally, to the extent that patients or even physicians are unaware of the availability of home health services, it is not possible to structure any survey to quantify that pool of unmet need. APN's Need Methodology The testimony of the health planning expert presented by APN, Eugene Nelson, was generally persuasive. He advocated an assessment of need based upon a use rate formula. Nelson found that the patients used home health services at varying rates throughout the state, with greater use in the southeast, less use in the mid-portion of the state, and lower use in north Florida. He therefore suggested the use of different use rates in north, central and south Florida. District IX is in the southern area. The data on the use of home health services by patients is not reported to the Department or to local health councils, and is therefore not readily available. It can be obtained, however, from Medicare financial intermediaries based on reimbursement reports those intermediaries process on behalf of the federal government. Only the Department can obtain this data. Intermediaries will not supply it to CON applicants on request. The most recent data which is complete is 1984 data. When this use rate is applied to the population over age 65, one can derive the expected number of Medicare home health visits for 1987. An HRS service district is the appropriate planning unit. By multiplying the use rate in south Florida times the District IX population over 65 (2.4446 x 268,056) the total expected visits for 1987 are 655,290. Even using the lower, and therefore more conservative, statewide average use rate yields 508,154 visits (1.8957 x 268,056). Nelson then converted the number of visits to a reasonable number of agencies based upon the number of visits each agency ought to be able to perform. There is little economy of scale in home health agencies and it is therefore difficult to determine an optimum agency size. Nelson discussed data showing reasonable agency size ranges from 9,000 to 15,000 visits per year. This range of agency size is accepted as reasonable. Using 15,000 visits as the appropriate agency size (which is conservative), there would be a need for 44 agencies in District IX if the south Florida use rate is applied, and 34 agencies needed if the statewide use rate is applied to the appropriate population. There are currently 25 existing home health agencies which have certificates of need in District IX. This methodology shows a net need for between nine and 19 new home health agencies. APN's use rate formula for determining the number of home health agencies is consistent with the goals and priorities found in the State Health Plan and the Local Health Plan. In this case, one of the significant objectives of the State Health Plan is Objective 1.5 which is To assure that the number of home health agencies in each service area promote the greatest extent of competition consistent with reasonable economies of scale by 1987. RECOMMENDED ACTION: 1.5a: Develop a need methodology based on historic cost data for Florida Home Health Agencies. Because it currently has no rule methodology for determining need for home health agencies, the Department has contracted with Dr. Elton Scott to draft a formula for determining need. The preliminary report of Dr. Scott recommends a methodology based on the historical Medicare use rate and is generally similar to one presented by APN. Until it adopts a new methodology by rule, the current policy of the Department is to request extensions of time for CON review from applicants rather than process the applications. This results in a de facto moratorium. No applications have been approved under the current policy of requiring the applicant to prove unmet need. In the record of this case the Department has failed to present any qualified health care expert to give any opinion about appropriate health care planning for home health agencies or to justify its current policy of requiring applicants to present evidence of need on an anecdotal basis. The policy is unreasonable for reasons stated in Finding of Fact 15.
Findings Of Fact CHS is an existing provider of home health care services in Pasco and Pinellas Counties, HRS District V, and has provided such services since 1981. CHS offers a wide range of nursing services including nurses specializing in I.V. therapy, oncology, geriatrics, obstetrics, pediatrics, and orthopedics; licensed practical nursing services; nursing assistants; home health care aides; and respiratory therapy services n the home. These services are offered solely to private payors. Only home health care providers who have been issued certificates of need are licensed and eligible to serve Medicare and Medicaid patients whose care is paid for under whose programs. CHS is applying for a certificate of need in order to be eligible to provide home health care which is paid for pursuant to Medicare and Medicaid procedures. At the time CHS' application was first considered Respondent found the application not to meet the requirements of a need methodology rule which was subsequently declared invalid. The present denial is alleged to be bared solely on statutory criteria. CHS presented one expert witness who calculated need for additional home health care services using a formula suggested by he U.S. Department of Human Services but which was never adopted as a rule by any agency. Pursuant to this formula, which takes into consideration the projected population of the service area, the age cohorts of the population, the population's historical and projected utilization of home health and related services, he service area's hospital discharge rate, and nursing home utilization data, an unmet need for services for 62,541 potential home bed health care patients in 1985, with 13,960 in Pasco and 49,581 in Pinellas Counties, was found. Based on the historical utilization of home health area services by patients in District V, the existing licensed home health agencies, of which there are 12, are projected to serve 25,424 patients in 1985 Exhibit 3). This would leave a potential unmet need for some 28,000 patients in District V. However, serious questions were raised as to the efficacy of the assumption in the formula since this methodology was never adopted by the U.S. Department of Health and Human Services, has not been tested by empirical verification, and the definition of home health services used in this formula is not limited to part-time or intermittent services. Home health care providers differ from other medical care providers principally in the fact that the capital outlay in establishing home health care is minimal. This is so because such care is personal service oriented with little tangible property required. As an example, CHS employs some four or five full-time employees and maintains a list of approximately 350 nurses and aides that can be called to provide the home health care services needed. Accordingly, there is no large fixed payroll to meet when work is slack and services can be increased by any home health care provider simply by employing nurses as the jobs arrive and stop their pay when the care is no longer needed. There is no large overhead to be concerned with in this type operation. CHS is financially capable and has the personnel resources to provide the proposed service. CHS has a line of credit with a commercial bank of $100,000, has the organizational ability to operate as a home health care provider, and has personnel available to provide all services needed. CHS proposes to serve all Medicaid patients who apply for services and to provide services throughout District V as needed. No evidence was presented that patients needing home health care are unable to get such care from existing providers. CHS presently serves private pay patients and holds itself out as able to provide all home health care required within District V. No evidence was presented that those 12 licensed home health care providers in District V are unable to provide all authorized Medicare and Medicaid home health care needed. Since any of them can increase the availability of services simply by employing additional personnel to provide such services as needed actual need for additional certificate of need holders will be difficult to prove. CHS presented evidence that when its private pay patients who are Medicare eligible are hospitalized and subsequently discharged from the hospital needing home health care, the hospital usually refers these patients to a licensed home health care provider who can be compensated by Medicare. This results in CHS losing these patients. Home health care providers get approximately one-half of their patients referred to them by a doctor and one-half referred by a hospital. This ratio is accurate for Petitioner and for the licensed home health care providers The advent of diagnostic relate groupings (DRGs) could impact on home health care providers, but no evidence was presented (if available) of the actual impact DRGs will have on nursing homes or on home health care providers.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulated facts, the following facts relevant to these proceedings are found: Upjohn operates a number of home health agencies throughout the State of Florida, as well as in other states. Prior to 1975, a patient served by a proprietary home health agency could not obtain reimbursement under the Medicare program. Such agencies were not able to obtain a Medicare "provider number" unless they were licensed under State law. In 1975, the Legislature enacted the Home Health Services Act, Chapter 400, Part III, Florida Statutes, providing for the licensure of proprietary home health agencies. On July 1, 1977, the "establishment of a new home health agency" became one of the projects subject to Certificate of Need review. HRS's rules pertaining to Certificate of Need review were amended in October of 1977, to include the "establishment of a new home health agency or a new subunit of any agency" as projects subject to review". During the rule adoption process, HRS specifically considered the suggestion that expansions of service areas by existing home health agencies without new facilities be subject to Certificate of Need review. This suggestion was rejected on the belief that such a requirement was not statutorily authorized. Confusion existed within the various offices of HRS as to whether additional licensure and/or Certificate of Need review as required when an existing home health agency desired to extend the provision of services to other counties without opening a new subunit or other physical facility in the new county. Prior to 1982, officials within the Office of Community Medical Facilities the office responsible for the Certificate of Need program, generally took the position that the mere geographical expansion of services by an existing certificated and licensed home health agency did not require further Certificate of Need review as long as additional physical facilities were not contemplated. For example, in September of 1981, Upjohn was informed by the OCMF that a Certificate of Need was not required for the provision of home health services from its Jacksonville, Duval County, office to patients residing in Nassau, Baker or St. Johns Counties, as long as subunits or other physical facilities were not opened in those counties. The above four counties were all located within the same health service area. On the other hand, the Office of Licensure and Certification generally took the position that each county served must appear on the home health agency license. On occasion, the OLC required home health agencies to build new offices if it was found that an agency was geographically overextending itself in terms of appropriate supervision or quality of care concerns. It appears to have been the policy of the OLC, on most occasions, to defer to the OCMF the determination of whether additional Certificate of Need review was required prior to the issuance of a license listing additional counties or service areas. However, in January of 1980, the Director of the OLC took the position that petitioner's licensed Marion County home health agency could not provide services to Citrus County residents without applying for and obtaining a Certificate of Need, and thereafter having its license extended to operate in Citrus County. The record in the instant proceedings does not reflect that the OCMF was requested, either by the OLC or by Upjohn, to render a specific opinion as to whether additional Certificate of Need review was required for the extension of home health services from Marion County to Citrus County. In October of 1981, Upjohn requested advice from the OLC as to whether it could provide services from its Broward County office to patients in Palm Beach County. Noting that it was the understanding of the OLC that a Certificate of Need would be required to authorize any expansion of home health services, the OLC referred Upjohn's request to the OCMF. The matter was thereafter referred to the HRS legal staff. James M. Barclay, an attorney with the Office of Health Planning and Development, issued Legal Opinion 82-2 on the issue of whether a Certificate of Need was required before a home health agency, licensed to operate in certain counties within a health service area, could provide services to additional counties within the same health service area. It was Mr. Barclay's opinion that a licensed home health agency could provide services to additional counties within the same health service area without an additional Certificate of Need. The rationale for this opinion as that when the original Certificate of Need review occurred, the review criteria were applied to the entire health service area and thus the original Certificate was evidence of a need within the entire health service area. Based on this opinion, the OLC informed Upjohn that it could not expand its Broward County services to Palm Beach County without Certificate of Need review since the two counties were located in separate health service areas. The Deputy Assistant Secretary for Health Planning and Development, Gary J. Clarke, disseminated the Barclay opinion to the Directors of the Health Systems Agencies. In his cover letter, dated April 7, 1982, Mr. Clarke noted that "the memorandum clarifies existing law; namely, that a home health agency in one county may offer services in an adjoining county without obtaining a CON." Based upon the Barclay opinion and the Clarke cover letter, Upjohn informer its various Florida office managers that its existing home health agencies, though licensed only for a particular county, could deliver services in additional counties within the health service area without the need for further Certificate of Need review. Subsequent to the Barclay opinion and the Clarke distribution letter, there were changes in the Certificate of Need law, as well as leadership changes within HRS. The former Health Systems Agencies were abolished and replaced with District Councils, local involvement with the Certificate of Need process was virtually eliminated and the "health service areas" were changed to "districts," some with different boundaries. These changes prompted the Director of the OLC, Jay Kassack, to request of the new Deputy Assistant Secretary a clarification of the policy regarding Certificate of Need review for expansion of home health agency service areas. In order to be consistent with regard to home health agencies and to make clearer to HRS officials, applicants and the public how HRS would be applying the statutes and rules, HRS developed a "home health agency review matrix." Basically, the, review matrix limited geographical expansion of services (without Certificate of need review) to those counties in which the applicant could demonstrate that the criteria for review had been applied by the appropriate reviewing bodies, either the OCMF or the former local Health Systems Agencies. The former OCMF policy, as expressed in the Barclay/Clarke documents, of allowing carte blanche expansion within the health service area once a Certificate of Need had been obtained had thus changed to allowing expansion only when the applicant could demonstrate that the review criteria had been previously and actually applied to the specific county in which expansion was desired. The matrix was developed in February or March of 1983, and was distributed internally within HRS. Upjohn had several license applications for geographical expansion of services in early 1983. While advised in late March that a "revised ruling" was going into effect, Upjohn had no knowledge of the development of the review matrix. By letter dated April 8, 1983, Upjohn was advised that its license application to expand services from its Pinellas County office to the Counties of Hillsborough, Manatee and Pasco was denied for failure to obtain a Certificate of Need or exemption from review. By "OPLC Policy Letter No. 33-83" dated April 8, 1983, addressed to "All Home Health Agencies" and "Home Health Agency Association," the Director of the OLC, Jay Kassack, gave notice of the OLC position with regard to expansion of services in counties other than those noted on a home health agency license. The addressees were advised that "it is illegal to provide services in any area not covered under your current license." This policy letter was written in direct response to the review matrix. It was not until May, 1983, that Upjohn became aware of the existence of the review matrix. By letter dated May 5, 1983, the Medical Facilities Consultant Supervisor, Nathaniel Ward, advises counsel for Upjohn that, "we have a matrix which we must apply (Exhibit 1) when determining whether a Certificate of Need is required for expansion into the service area." Upjohn's Marion County home health agency obtained a "statement of need" (the statutory predecessor of the present Certificate of Need) in 1977, and received a license for that agency in 1978 which it has renewed on an annual basis. From and after August, 1982, and in reliance upon the Barclay opinion and the Clarke memorandum, Upjohn extended the provision of home health services, without adding new physical facilities, from its Marion County office into Citrus, Lake and Sumter Counties. These three counties are located within the same "health service area" and "district" as Marion County, but have not been specifically named in either a statement of need, certificate of need or license issued to Upjohn. Under protest and pursuant to the Kassack policy letter referred to in paragraph (10) above, Upjohn filed an application with the OLC to renew its Marion County home health agency license and to add to said license the counties of Citrus, Lake and Sumter. The OLC issued and renewed the Marion County license from August 1983 to August 1984, but denied Upjohn's request to list Citrus, Lake and Sumter Counties on the face of the license. As the sole ground for denial of the request, the OLC stated that Upjohn had failed to obtain a Certificate of Need or exemption from review for those counties pursuant to the Certificate of Need statutes and rules. In spite of the OLC's demands that Upjohn cease providing home health services in Citrus, Lake and Sumter Counties, Upjohn continued to provide such services. 0n August 30, 1983, HRS issued an Administrative Complaint seeking to revoke Upjohn's Marion County license, or impose other penalties, on the ground that the Marion County home health agency had been providing home health services in Citrus and/or Lake Counties without a license that lists those counties on its face. The review criteria of the Certificate of Need law is necessarily geographic intensive in measuring the needs, feasibility, accessibility and availability of alternative services of a particular area. HRS and the local health planning agencies utilize counties and service districts as the geographic unit by which to measure need for health services and facilities. One of the reasons counties are chosen is because population and other demographic data and statistics are readily available and obtainable for such geographical units.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Upjohn's application to add Citrus, Lake and Sumter Counties to its Marion County license to operate a home health agency be DENIED until such time as a Certificate of Need is obtained for such services (Case No. 83-3059), and The Administrative Complaint dated August 30, 1983, be DISMISSED (Case No. 83-3248). Respectfully submitted and entered this 25th day of October, 1984, in Tallahassee, Florida. DIANE D. TREMOR 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 25th day of October, 1984. COPIES FURNISHED: James D. Wing, Esquire Barbara R. Pankau, Esquire P.O. Box 3239 Tampa, FL 33601 Robert P. Daniti, Esquire (Former) Assistant General Counsel 1323 Winewood Blvd. Tallahassee, FL 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32301
The Issue The issues concern the question of the entitlement of Petitioner to the grant of a certificate of need (CON) to provide home health services in District III.
Findings Of Fact On December 15, 1986, Petitioner made application for a certificate of need (CON) to provide home health services in Citrus County, Florida. That application was denied by Respondent on December 14, 1987. The basis for denial as set out in Respondent's State Agency Action Report (SAAR) was to the effect that there was no demonstrated need when resort was made to the methodology suggested by the North Central Florida Health Planning Council in its 1986 District III Health Plan. (At that time Respondent did not have a methodology for determining need). It was felt that some advantage might be gained in serving the needs of underserved groups; however, there was limited information to demonstrate that existing home health agencies in the county could not meet the demands for service. Finally, it was stated that the referral agreement between Petitioner, as a source of clients from its hospital operation, and Intervenor as an existing home health care provider, to include use of Petitioner's employees in the provision of care, care which was as "hi-tech", as Petitioner could provide, was sufficient. Following the application denial, Petitioner filed a timely request for formal hearing under the authority set forth in Section 120.57(1), Florida Statutes. On February 17, 1988, Intervenor was allowed to intervene. Given that the Respondent did not have a rule methodology in place to consider this application when first filed or at the point in time where the case was referred to the Division of Administrative Hearings for consideration, on May 12, 1988, Respondent moved, unopposed, to have the case returned to the agency to await the promulgation of a new home health rule. The motion was granted. On September 12, 1988, the new rule became effective as Rule 10- 5.011(1)(d), Florida Administrative Code. Which provided as follows: (d) Medicare Certified Home Health Agencies. Definitions. Home Health Agency. A home health agency is defined as a Medicare certified home health agency in accordance with subsection 381.702(10), F.S. Home Health Services. Home Health Services are defined in accordance with subsection 400.462(3), F.S. Home Health Services Provider. For the purpose of this rule, a home health services provider is defined as the person or corporate entity to which the certificate of need or license is issued. District. District means a service district of the department as established in subsection 20.19(5), F.S. Service Area. A certificate of need for the establishment of a home health agency shall authorize a home health services provider to locate a home health agency and serve persons anywhere within the district for which the certificate of need is awarded. Planning Horizon. The planning horizon is the anticipated time frame within which the agency is expected to be licensed. The planning horizon for applications submitted between January 1 and June 30 of each year, shall be July of the following year; the planning horizon for applications submitted between July 1 and December 31 of each year shall be January of the year following the year subsequent to the application deadline. Approved Home Health Agency. For the purpose of this rule, an approved home health agency is defined as a new agency within the district which holds a valid certificate of need and has not been licensed by the department one moth prior to the publication date of the semi-annual fixed need pool. Persons or corporations who do not operate Medicare certified home health agency in the district and are the holder of one or more certificate of need approvals within the same district, shall only be counted as one approval. Persons or corporations who do operate a Medicare certified home health agency in the district and are also the holder of a certificate of need approval for the same district, shall not be counted in the inventory of approved agencies. Quality of Care. Home health agencies regulated under this rule shall meet the minimum of care standards contained in HRS rules 10D-68, F.A.C. Need Methodology. The establishment of a home health agency by a provider who does not currently operate a Medicare certified home health agency in a district, shall require a certificate of need for the operation of a Medicare certified home health agency in the district. Applications for home health agencies shall be reviewed against all applicable statutory and related rule criteria. Applications for home health agencies shall not normally be approved unless a need is indicated in accordance with the formula under paragraph 3. The establishment of additional Medicare certified home health agencies, additional offices, mail drops, or any other physical presence by a Medicare certified home health services provider within the same district is not subject to a certificate of need. The need for the establishment of a new home health agency within the HRS district shall be determined twice a year. The net need for new Medicare home health agencies in each HRS district is calculated as follows: HHNN = ((PHHV - AHHV)/CEAS) - AHH Where: HHNN equals the Medicare certified home health agency net need. PHHV equals the projected number of home health agency visits for the respective district and planning horizon. The projected number of home health agency visits is calculated by multiplying the number of home health visits per 1000 population 65 years and over provided by the Medicare certified agencies in the district for the most recent year for which data available, by the projected population 65 years and over for the respective district. The population projections shall be based on the population projects issued by the Executive Office of the Governor available to the department 1 month prior to the publication date of the semi- annual fixed pool. AHHV equals the actual number of home health agency visits provided by all Medicare certified home health agencies in the district based on cost report data obtained from Medicare Intermediaries for the most recent year available to the department 1 month prior to the publication date of the semi-annual fixed need pool as specified in Rule 10-5.008(2), F.A.C. CEAS is the cost efficient agency size in numbers of visits at which economy of scale is achieved according to the data available to the department. If the fraction (PHHV - AHHV)/CEAS is .5 or exceeds .5, the fraction shall be rounded upward to the nearest whole number. CEAS shall be updated by the department annually and shall be determined by the department according to the following methodology: Rank all agencies by visit size, excluding hospital-based agencies. calculate the average cost for all visits for each remaining agency. Calculate the mean visit cost for all agencies, excluding hospital-based agencies, and two standard deviations from the mean for the remaining agencies. Eliminate agencies with average visit costs at or exceeding two standard deviations above and below the mean visit cost from further calculations. Array remaining agencies by visit size from low to high, and sort agencies into 4 groupings by visit size containing an equal or similar number of agencies, and calculate the mean cost for each groupings. Calculate the percentage reduction, if any, in mean visit cost for each grouping as compared to the previous grouping. Identify the agency size groupings which have a mean visit cost reduction of 5 percent or more compared to the mean visit cost of the previous groupings. Select the agency size grouping for which the last 5 percent or more reduction in mean visit cost is achieved prior to a grouping for which a less than 5 percent reduction is achieved as compared to the previous grouping and determine the median agency size for this grouping rounded to the nearest thousand. This agency size is defined as CEAS. AHH equals the number of approved home health agencies in the district. Preference shall be given to applicants proposing to provide home health care services to indigent persons and Medicaid patients. Preference shall be given to applicants proposing a comprehensive range of home health services if it is determined by the department that certain types of services are unavailable or that there is a shortage of certain types of home health service. Preference shall be given to applicants proposing to provide home health services and establish a physical presence underserved areas of the district. Data Reporting Requirements. Home health agencies regulated under this rule shall provide the following information to the department or its designee. The information shall be provided for the same reporting period covered by the annual cost reports submitted to the Medicare Intermediaries, and shall be submitted to the department or its designee at the same time the annual cost report is submitted to the Medicare Intermediary. The total number of patients served less than 65 years of age and 65 years of age and over by county of residence. The total number of visits provided by type of service. The total number of patients served by payment source including Medicaid, Medicare, and uncompensated care. As can be seen, this rule considers the need question district-wide as opposed to a county-by-county analysis in effect at the time of application by Petitioner. District III, which contains Citrus County, has fifteen other counties. The rule in its text is not found to be applicable per se to this application, although its underlying concepts arguably have an influence on the case outcome. While the Petitioner and Respondent urge that the rule does-have retroactive effect and the Intervenor disagrees, all parties acknowledge the logistical awkwardness of trying to employ the rule's terms in a literal sense. In fact, the rule cannot be used as it is written, for reasons to be explained and in any event neither of the proponents have exercised its terms in exact detail. When Respondent reviewed the application using a modified version of the new rule in the interest of what Respondent believed to be an equitable treatment of pending home health applicants who had waited for the rule to be enacted, it changed its position from one of recommended denial to recommended grant of the CON. The case was returned to the Division of Administrative Hearings and upon motion by the Intervenor, as granted, the Petitioner updated its application on December 5, 1988. This lead to the hearing on the dates previously described The updated information was provided to the other parties in this case. It was not given to the local health council for further review by that organization. Petitioner is a public not-for-profit healthcare organization created by state law. The hospital is governed by a Board of Trustees appointed by the Governor of the State of Florida. The proposed home health agency would be owned and operated by Petitioner. It treats indigent and Medicaid patients and other medically underserved groups. The hospital's mission is to serve the residents of the community regardless of their ability to pay. This approach would be continued in home health care. Petitioner provides high quality patient care and this could be expected to continue if a CON for home health care was granted. The quality assurance plan and mechanisms in place at Petitioner's hospital would be used in its home health agency to help assure high quality patient care. Petitioner would also develop a utilization review plan similar to what is in effect at the hospital that would help insure proper utilization of the home health agency. Petitioner is JCAH accredited and licensed by the State of Florida, and is currently in compliance with all State of Florida licensure requirements. Petitioner's home health agency would be a hospital-based home health agency, as opposed to a free-standing home health agency. There are benefits to being a hospital-based home health agency. The home health agency employees have the advantage of being part of the hospital's employment benefit package; the home health agency has the ability to tap into the expertise of the hospital in such areas as accounting, data processing, and so forth; discharge planning is easy to coordinate; and, the home health agency has the potential ability to use trained hospital personnel who have high tech skills and expertise and can provide services to the home health agency in their area of expertise. However, the suggestion that employees would be involved in both roles of hospital care and home health care is suspect in that certain employees such as nursing staff are not expected to fulfil that dual role and other employees such as the dietician were unable to consistently aid the patient in the home and carry out the duties in the hospital under an arrangement by which the Intervenor per agreement with the Petitioner sought to have continuation of services from the hospital to the home. If this could not be done, given the demands on the dietician in the hospital duties at that time, then there is no reason to believe that it would be any easier to achieve if the hospital had a home health agency. None of the aforementioned benefits are significant improvements over existing conditions in Citrus County where home health care is provided by freestanding agencies. More specifically, Petitioner currently has physical therapists, respiratory therapists, dietitians, and social workers on its full-time paid staff that could conceivably be available to the home health agency. Since these persons are already full-time salaried employees of the hospital, it would not cost the home health agency any additional amount for these skilled persons to provide services to home health care patients, assuming the ability to meet the needs of hospital patients and home health care patients, again a real uncertainty. Petitioner's personnel would be available to assist in the development of policy and procedure manuals, quality assurance plan and utilization review plan for the home health agency. There are other possible economies in service that could be derived from Petitioner's operation of a hospital-based home health agency. These include: the hospital-based agency is easily accessible to physicians; discharge planning is facilitated due to the close cooperation of nursing, social worker, and home care provider while the patient is still in the hospital; services will be available 24-hours a day through the use of hospital switchboard and communications systems; and use of current medical records systems will mean a patient's entire medical history will be available to practitioners. Again, these arrangements do not afford a significant improvement over existing home health services. Petitioner has sufficient resources available to initiate and operate a hospital-based home health agency. Necessary staff can be employed to the extent they are not already working at the hospital. Petitioner is in sound financial condition. Petitioner would be able to hire a qualified administrator. Petitioner's projected payor mix of 88% Medicare, 3% Medicaid, 4% insurance and 5% indigent, is an admirable goal. However, there is some question about whether the projections of Medicare and indigent care levels of service will be achieved. Petitioner as a referral source from its hospital operations had not achieved those projected levels of referrals in the past. This is important because Petitioner expects to obtain its home health patients from the hospital referrals. Consequently to promote the grant of the CON premised solely upon the belief that underserved groups will be better off would not be warranted. The possibility exists that with greater awareness more underserved persons might be referred for home health care but nothing in this case points to any increased effort to publicize the availability of home health for the underserved to justify the optimistic levels the applicant predicts. In a home health agency, all of the patient services are provided in the patient home. Thus, the only space requirement is for office space for the administrative staff and working space for the employees to do their necessary paperwork. Petitioner Memorial Hospital has about 1,600 square feet of vacant space available in which to house the home health agency offices. This building is currently owned by Petitioner. There is no debt associated with this building, and the building has been fully depreciated. Contrary to the statement in its application, Petitioner has decided not to offer prescription delivery services. This is not a significant change. Intervenor is a licensed home health agency in Citrus County. It first became licensed by the State of Florida in February, 1986. Intervenor has been surveyed annually by Respondent since 1986. In each of these surveys, it received no deficiencies. Intervenor is a full-service home health agency. It offers a range of "hi-tech" home health services, including: skilled nursing services; physical therapy; occupational therapy; speech therapy; social services; home health aide services; dietary guidance; medical supplies; home IV therapy; parenteral nutrition; interostomal therapy; home phlebotomy and lab testing services; and respiratory care. It has offered these services since its inception. Intervenor provides some homemaker services during home health aide visits, such as cleaning, straightening, and laundry. Intervenor's personnel include registered nurses, certified home health aides, physician therapists, licensed physical therapist assistants, speech therapists, occupational therapists, a medical social worker who holds a masters in social work, interstomal therapists, nutritionists, and respiratory therapists. Intervenor offers quality of care and ensures continuity of care in the delivery of home health services. Petitioner has never complained that a patient could not be discharged quickly enough due to Intervenor's shortcomings in taking on home health services for the discharged patient. Intervenor makes every effort to coordinate its operations with Petitioner to ensure quality and continuity of care related to patients referred by the hospital. The service area of Intervenor is Citrus County. Until late 1988, about 70% of Intervenor's referrals came directly from Petitioner. On average, Intervenor provides about 28.6 home health visits per patient. Intervenor provides home health services to all patients regardless of ability to pay. Intervenor provides home health services to the following payor classes: Medicare, Medicaid, VA, workmen's compensation, private insurance, and indigent. Its CON contemplates 2% Medicaid and 3% indigent patients. Since opening in 1989, Intervenor has treated 985 patients. Of these 985 patients, only ten (10) have been indigent and fifteen (15) have been Medicaid patients. This works out to one percent (1%) indigent care and one and one half percent (1.5%) Medicaid care. Community Care publishes a brochure that advertises its services to the community. Nowhere in this brochure does it indicate that Community Care serves indigent patients. The brochure stresses that services will be provided through reimbursed coverage, either Medicare, insurance, or other reimbursement sources. On the other hand it does not require any deposit or up-front payment from new home health patients and has never refused a patient due to an inability to pay. As stated until recently a very substantial portion of the Intervenor's referrals came from Petitioner and levels of service to the underserved, that is, Medicaid and indigent, have been low. This ties back to the observation that the 3% Medicaid and 5% indigent projection of service made by Petitioner may not be any easier to achieve and probably less so than the 2% Medicaid and 3% indigent which Intervenor is committed to. This is supported by the fact that on the first 11 months in 1988, Petitioner referred less than 2% Medicaid and 1% indigent. Moreover, the District III average for existing agencies of services to these underserved groups is .8% Medicaid and 1.3% indigent. As alluded to before, in December, 1985, Petitioner and Intervenor entered into an agreement. Per that agreement, Petitioner would refer all home health patients to Intervenor unless a patient or physician specifically requested otherwise. The agreement provided that Petitioner would provide certain services and personnel to Intervenor in exchange for compensation. It was a two-year agreement with an automatic one-year renewal. Petitioner chose to extend the contract for three years through the latter part of 1988. Since late 1988, Petitioner rotates its hospital referrals in the instance where the patient, patient's family or physician did not specify which home health agency was preferred. This means that as many as seven agencies could be involved in the rotation if Petitioner gained a CON, with Petitioner having no greater share than the rest. At present, there are four providers, two in the rotation are from the ABC home health group, the Intervenor and Upjohn another home health provider. Petitioner would make five. To make seven, VNA and Gulf Coast Home Health Services who have come into Citrus County would be added. VNA is another provider with a history of service to underserved patients. In this connection, Petitioner argues that its equal treatment of existing providers and itself, if granted a CON, minimizes the adverse impact of another competitor arriving on the scene and allows existing providers who are for profit agencies to remain financially viable. This together with trends toward early release in DRG for the hospital inpatient sector; provision of home health care through the Catastrophic Healthcare Act, and the general trend in increased home health visits in Citrus County make it possible for both the existing providers and the Petitioner to survive in the market place, if you accept the point of view of those who favor the grant of a CON to Petitioner. In fact, the DRG situation and the Catastrophic Healthcare Act, as events, are too speculative to say what their influence will be in promoting greater use of home health services. Otherwise, the trend toward increased visits that have been pointed out are now being met with an increased number of providers to deliver those visits. This dilutes market share. The Petitioner's rotation system further dilutes market share, especially as to the Intervenor. Thus, the question is raised on the matter of whether the historical trend toward increased visits is enough to sustain the existing providers with the advent of the Petitioner's presence and choice to rotate referrals. On the whole, the Petitioner's influence on competition is not positive and is not acceptable. The Petitioner's projections concerning its own market acceptance are unrealistic and unacceptable. The projections in the original application and in the December 5, 1988 update to that application as to skilled visits per patient far exceed the experience in the service area, Citrus County. The applicant speaks in terms of 53 visits when the historical experience in the county is approximately 30. Nothing in the record of the hearing tends to support the idea that Petitioner can deliver such an excessive increase in visits. Additionally, estimates of total home health visits in the first two years of operation are generally out of line. The estimate by Petitioner ranges as high as 42,000, plus visits. Some of the items in that count are not comparable to referrals made out of the hospital at present. Examples of this incomparability are homemaker services, DME and the category listed as general items. Again, prescription service is no longer proposed thereby reducing the numbers. Nonetheless, the estimate is still excessive. This is made the more apparent when taking in account that by annualizing available data 464 patients were referred by Petitioner in 1988. In examining what had been referred out in 1988 in number of patients, the number of visits on average by history and the idea of rotation of referrals, Petitioner cannot achieve the performance level it predicts. Moreover, projections for population in 1990 and 1991, the furtherest years out given by Petitioner in support of its application, don't change this impression because the increases in population will not justify the Petitioner's projections on market share as a function of number of visits. The estimates of visits at 1990 and 1991 based upon 50% retention of referrals projected from Petitioner's hospital for home health services is unrealistic in that retention could be as low as 15% to 20%. Therefore, visits would be much less than 5,693 and 7,950 in 1990 and 1991, respectively. (See Petitioner's Exhibit 22.) The failing in the estimate of performance level means that the revenue projections are inaccurate. Although Petitioner is a not for profit institution, its proposed home health operation is not seen to be financially feasible in the short term or long view. The fact that approximately 80% of costs in a home health operation are variable and that home health delivery is cost-based reimbursed does not relieve the Petitioner from giving a more realistic estimate of those costs, its performance and net financial position. The effect of this failing leaves the record unclear and the trier of fact unconvinced concerning the true facts about this project's financial feasibility. The pro formas as written do not identify employee benefits ranging in costs from 25% to 30%. Transportation costs are not reflected. If other facts were favorable to Petitioner, there would be very little additional costs associated with the start-up of its operation. Only minor "sprucing up" would be necessary before occupying existing space. Excess office furniture is currently available at the hospital. The addition of Petitioner as a provider of home health services will not significantly advance variety or quality of care sufficient to justify the issuance of a CON. At present, existing providers offer a wide variety of home health services and provide quality care. The fact that the Petitioner is a hospital based not for profit institution, does not alter these findings. The addition of Petitioner promotes no positive influence in competition in the market place. The risk is presented that overall cost in the health care system can be increased if the Petitioner is added and the market place becomes overburdened. Based upon past experience, the Intervenor needs to achieve around 8,700 visits a year to be financially viable, and to break even. Petitioner's proposal together with other competitors in the market, some recently arrived, Upjohn, VNA and Gulf Coast Home Health Services jeopardize the ability to remain financially viable. Nothing can be done about the other competitors, but the issue of Petitioner's presence can be dealt with and should be rejected as an outcome. At a minimum the addition of Petitioner does not foster cost containment in that it could cause the existing providers to up requests for reimbursement nearer the caps in the Medicare segment at public expense. While there is a need for homemaker services in Citrus County, that fact doesn't justify the grant of a CON to Petitioner because it is willing to provide them. In home health care delivery there is credible evidence that initial economies of scale occur between 6,000 to 9,000 visits per annum. There is a serious question about the Petitioner's ability to achieve that level of performance under the facts found previously. When initially reviewing the compliance of the application with the 1986 District III Health Plan, in addition to problems of compliance with the need methodology in that plan, Petitioner did not respond to the need for home health services in Hamilton County and expansion of the range of services in Columbia and Suwannee Counties. These counties are within District III. These latter items concerning the other counties do not hinder the Petitioner's attempt to gain a CON because at present the decision to grant or deny a CON is on a district-wide and not county-by-county basis. Therefore, in theory, the Petitioner could serve Hamilton, Columbia and Suwannee Counties. Admittedly, that is unlikely given the proximity of these counties to Citrus County. More importantly, there has been no showing that some other applicant entitled to comparative review with the Petitioner sought to serve the other three counties putting into effect the local planning guidelines on priorities for grant of a CON. Likewise the local planning council methodology is of no moment. It deals with a county-wide analysis, not a district-wide analysis of need. The district-wide concept applies in this case per the change in the method of assessment that was fostered by the agreement to wait for the Respondent to enact a rule methodology and with that delay the tacit acceptance of the idea that approved and licensed home health providers could expand their services throughout the district. By contrast the fact that the local council reported that 148% of need was being met in Citrus County is telling and works against Petitioner. Finally, the support of the application by the local council as advisor to the Respondent is noteworthy but cannot overturn the adverse facts in this hearing which cause the application to be rejected. Petitioner is basically in compliance with the Florida State Health Plan in effect at the time of application except for the question of whether the Petitioner can achieve the aforementioned economies of scale at 6,000 to 9,000 visits per annum and the possible adverse influence on existing providers in maintaining economies of scale. Rule 10-5.0111(1)(d), Florida Administrative Code, supra, is the product of a considerable effort by Respondent to establish a balanced method of measuring the need for additional home health care providers in the various districts throughout the state. Unfortunately, it has limited utility in trying to resolve this controversy. The proponents of the use of the rule point out that nothing in the rule states that it cannot be applied retroactively to the case facts. Intervenor reminds us that nothing says it can be applied in that way. As hinted before, the rule cannot be seen to apply retroactively as it is written to render a defensible projection of need at the theoretical planning horizon of January, 1988. First, the service area in December, 1986 through January, 1988 was in reality Citrus County, not the district. There is no way to postulate who might have taken advantage of the opportunity to serve the overall district and come into Citrus County from outlying counties within the district because that was not allowed as a matter of right back then as it is now in the terms of the rule. The present situation has shown that there is such interest in coming into Citrus County with the addition of Upjohn, VNA and Gulf Coast Home Health Services. Next, the idea of who would have been shown as approved as a home health agency taking into account the January, 1988 planning horizon cannot reasonably be ascertained. The annual fixed need pool publication did not occur such that one could see who had been approved, or held a CON, one month prior to that publication to serve the district. Although one could argue that the identification of the pool can be hypothetically set for the fall of 1986, problems with identifying the 1985 data to establish that pool based upon information that was available to the Respondent at the time to announce the pool or availability of a complete data set about 1985 at the point of hearing persist. Associated with this dilemma is the influence agency expansions into other counties would have on calculation of CEAS. In the area of CEAS the exact nature of that situation cannot be ascertained. It cannot because one doesn't know which existing providers might have determined to go out of the counties in which they had offered their services and into other counties to open new units. This would have some influence on the average agency size within the district, which in turn causes a possible different answer in deriving the number of needed providers by the use of the formula. All this makes the exercise of accurately setting the pool unlikely and it wasn't done in this hearing. In using the district-wide service analysis back in time to fit the Petitioner's situation, an application by VNA in District III, Alachua County, pending and denied in December, 1987, the same month as Petitioner's denial, was not comparatively reviewed with the Petitioner as the law would theoretically require. VNA was subsequently approved and is functioning now. Consequently, comparative review is no longer possible. On the topic of the 1985 data, which is mandated in exercising the rule, what data in this category was available in the fall of 1986 is uncertain. The data about 1985 presently held by the Respondent is incomplete. This incompleteness is in AHAV where visits in all categories cannot be shown for 1985. This tends to understate what the formula derives as an answer. The derived answer for needed agencies is .7, rounded up per terms in the rule is one agency if the other factors that were described are ignored. They should not be. Especially, compelling is the existence of VNA, Alachua County which could use up the net need of one agency. Concerning the applicants who waited for the Respondent to enact a rule who applied for a CON in the period June, 1985 through December, 1987, the Respondent modified the use of the rule. In its thinking to make certain that no applicant along that time continuum was treated unfairly, Respondent picked 1986 data and a July, 1988 planning horizon in deciding the question of need. The result in the Petitioner's case was to use inappropriate data and an inappropriate planning horizon, according to the rule. This produced an answer of 1.1 agencies rounded down to 1. This is the same answer as before and no purpose is served in criticizing the Respondent's choice to deviate from the terms of the rule. On balance the concept of this rule as opposed to the ability to use the rule per se may look appealing as an abstraction, but it is unappealing as a means to resolve the factual dispute. It superimposes a system of district review at a time of county level service. For that reason, it cannot answer the riddle of how many providers would have exercised the right to serve Citrus County from other counties in the district as they have begun to do when the rule took effect in September, 1988. Using the rule retroactively anticipates a planning horizon which is already past. In recognition of this anomaly the parties have spoken to the future in their proof through the years 1990 and 1991. This has been necessitated by the agreement to wait for the Respondent to enact a new home health rule. That future is not conducive to the grant of the CON on the facts in this case which are more instructive about the true need in the district than the exercise of the formula in some past period. Had the Petitioner chosen to reapply and fallen under the clear terms of the rule, the result might be different. It did not, and it must accept the results of that choice.
Recommendation Based upon a consideration of facts found in the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the request for Certificate of Need as applied for by Petitioner. DONE AND ENTERED this 29th day of June, 1989, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Stephen K. Boone, Esquire Boone, Boone, Klingbell Boone & Roberts, P.A. 1001 Avenida Del Circo P. O. Box 1596 Venice, Florida 34284 Stephen M. Presnell, Esquire Macfarlane, Ferguson, Allison & Kelly Post Office Box 82 Tallahassee, Florida 32302 James C. Hauser, Esquire Joy Heath Thomas, Esquire Messer, Vickers, Caparello, French & Madsen, P.A. O. Box 1876 Tallahassee, Florida 32302 CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0386 The following discussion is given concerning the proposed facts of the parties. Petitioner's Proposed Finding of Facts The first paragraph and the first sentence to the second paragraph are subordinate to facts found. The remaining sentences within paragraph 2 are not necessary to the resolution of dispute. Paragraph 3 is contrary to facts found. Paragraphs 4-7 are subordinate to facts found with exception the last sentence in paragraph 7 which is contrary to facts found. Paragraph 8 is subordinate to facts found. Paragraph 9 may express the statement of policy by the Respondent, but it is not an acceptable outcome in this instance. Paragraphs 10-12 are subordinate to facts found. Paragraph 13 is an accurate portrayal of the facts as far as its goes; however, it does not account for the problems of imposing the new home health rule over the time period associated with the filing date in this application. Paragraphs 14-16 are subordinate to facts found. Paragraph 17 is contrary to facts found. Paragraph 18 is subordinate to facts found. Paragraph 19 is not necessary to resolution of dispute. Paragraph 20 in all sentences except the latter is subordinate to facts found. The latter sentence is not necessary to the resolution of dispute. Paragraph 21 is subordinate to facts found. Paragraph 22 is contrary to facts found. Paragraph 23 is subordinate to facts found. Paragraph 24 is contrary to facts found. Paragraph 25 is true in that at the time the local health council examined the application there was an indicated need for home health for Medicare and indigent patients. That need is being met at present to the extent that those classes of patients have been made aware of the existence of the home health services. Paragraph 26 is subordinate to facts found. Paragraphs 27 and 28 are contrary to facts found. Suggestions in Paragraph 29 do not comport with the situation in Citrus County at present. Paragraph 30 is subordinate to facts found. Paragraph 31 is contrary to facts found. Paragraphs 32-36 are subordinate to facts found. Paragraphs 37 and 38 are not necessary to the resolution of dispute. Paragraphs 39-43 are subordinate to facts found. Paragraph 44 is not necessary to the resolution of dispute. Paragraphs 45-51 are subordinate to facts found. Paragraph 52 is not necessary to the resolution of dispute. Paragraph 53 is subordinate to facts found. Paragraphs 54-56 are contrary to facts found. Paragraph 57 is subordinate to facts found. As to Paragraph 58 it is uncertain whether the staff levels are adequate given the failure to accurately portray the volume of visits. In a related sense, Paragraph 59 as to salary level made to depicts the cost of those salaries, but it fails to include the benefits. Paragraph 60 is to general in its contention. It does not answer the failure to identify the more reasonable statement of staffing levels. Paragraph 61 is subordinate to facts found. The pro formas were not clear and the complementary proof offered at hearing did not confirm the assertion set out in paragraph 62. Paragraphs 63-65 are contrary to facts found. Paragraph 66 is subordinate to facts found. Paragraph 67 is contrary to facts found. Paragraph 68 is not necessary to the-resolution of dispute. Paragraph 69 depicts a situation that is to speculative to have relevance in this case. Paragraphs 70 and 71 are contrary to facts found. While the Paragraphs 72-74 accurately states the circumstance related to the intervenor in its initial involvement in the market. This situation has changed since that time and if Petitioner were to gain entry into the market the probability is that the intervenor's business would be seriously impacted. Paragraph 75 is contrary to facts found. Paragraphs 76 and 77 are subordinate to facts found. Paragraph 78 is not necessary to the resolution of dispute. Paragraphs 79-82 with exception of the last sentence in 82 are subordinate to facts found. The last sentence in paragraph 82 is not accepted. Paragraph 83 is subordinate to facts found. Paragraphs 84 and 85 are contrary to facts found. Paragraph 86 is true if one fails to take into account the advent of services by the intervenor and additional providers who has come into the market who are willing to undertake service to those patients. Paragraphs 87 and 88 are contrary to facts found. Paragraph 89 is subordinate to facts found. Paragraphs 90 and 91 are contrary to facts found. Paragraph 92 is subordinate to facts found. In Paragraph 93, while it is true that Petitioner has an excellent record of service to the Medicaid population in Citrus County, it is unclear why Medicaid patients are not receiving sufficient home health services, compared to what one would expect the demand to be. Respondent's Proposed Findings of Fact Paragraphs 1-3 are subordinate to facts found. Paragraphs 4-6 are contrary to facts found. Suggestion in Paragraph 7 is not a certainty and is not accepted in the fashion presented in these proposed facts. Paragraphs 8-10 are contrary to facts found. Paragraph 11 is subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13 and 14 is subordinate to facts found. Paragraph 15 is a true statement if other factors which have been discussed in the recommended order are not taken into account. Paragraph 16 is subordinate to facts found. Paragraph 17-19 are not sufficiently relevant to this case to be reported as facts. Paragraph 20 is contrary to facts found. Paragraph 21 is subordinate to facts found. Paragraphs 22 and 23 may be basically an accurate statement of the Respondent's policies; however, this arrangement is not satisfactory on this occasion. Paragraph 24 is subordinate to facts found. Paragraph 25 is contrary to facts found. Paragraph 26 is subordinate to facts found. Paragraphs 27 and 28 are not necessary to the resolution of dispute. Paragraph 29 is subordinate to facts found. Paragraph 30 is true if the rule was found to be applicable. Paragraph 31 and 32 are not necessary to resolution of dispute. Paragraph 33 may be true in terms of the prospective use of the rule but is not influential in this case. Paragraph 34 is not necessary to the resolution of dispute. Paragraph 35 is speculative and has little relevance absent a showing that the expansion into the other areas within the district offset new providers coming into Citrus County, to include the Petitioner. Paragraphs 36 and 37 are subordinate to facts found. The suggestion in paragraph 38 is a statement of limited value in that there are no other competitors in District III from other batches. Paragraphs 39-43 are subordinate to facts found. The first sentence to paragraph 44 is subordinate to facts found. The remaining sentence is contrary to facts found. Paragraphs 45 and 46 are subordinate to facts found. Paragraph 47 is contrary to facts found. Paragraph 48 is accurate as for as it goes; however, it fails to take into account the fact that the Intervenor began to provide home health care to indigent and Medicaid patients. Paragraph 49 is contrary to facts found. Paragraph 50 is subordinate to facts found. Paragraph 51-53 are contrary to facts found. Paragraph 54 is subordinate to facts found. 35 The suggestion in the first sentence of paragraph 55 is true. Again it fails to take into account the change in circumstances with the advent of the Intervenor's services. The second sentence is subordinate to facts found. Paragraph 56 is not in meaningful contribution to the fact finding in the context of the overall facts reported in the recommended order. Paragraphs 57 and 58 are subordinate to facts found. Intervenor's Proposed Findings of Facts Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraph 7 is subordinate to facts found. Paragraph 8 is; not necessary to the resolution of the dispute. Paragraphs 9 through the first sentence in paragraph 16 are subordinate to facts found. The remaining sentences in paragraph 16 are not necessary to the resolution in dispute nor is the first and last sentences within paragraph 17. The other sentence within paragraph 17 is subordinate to facts found. The first sentence in paragraph 18 is subordinate to facts found. The remaining sentences are not necessary to the resolution of the dispute. Paragraphs 19 through the first sentence of paragraph 23 are subordinate to facts found. The second sentence in paragraph 23 is not necessary to the resolution of the dispute nor is paragraph 24. Paragraph 25 in all sentences save the last is subordinate to facts found. The last sentence is not necessary to resolution of dispute. Paragraph 26 through all sentences in paragraph 30 except the last sentence are subordinate to facts found. The last sentence is not necessary to the resolution of the dispute. The first sentence of paragraph 31 is subordinate to facts found. The remaining sentence is not necessary to the resolution of dispute. Paragraph 32 and the first sentence to paragraph 33 are subordinate to facts found. The remaining sentence in paragraph 33 is not necessary to the resolution of dispute. Paragraph 34 and the first sentence of paragraph 35 subordinate to facts found. The last sentence in paragraph 35 is not necessary to the resolution of the dispute. Paragraph 36 through the first sentence of paragraph 38 are subordinate to facts found. The remaining sentence in paragraph 38 is not necessary to the resolution of dispute. Paragraph 39 cannot be utilized in that the rule in question was not provided to the Hearing Officer under official recognition and is unavailable to confirm the assertion set out in that paragraph. Paragraphs 40 through 43 are subordinate to facts found. The suggestions in paragraphs 44 through 45 are contrary to the impression of the Hearing Officer. Paragraphs 46 through 48 are subordinate to facts found. Paragraphs 49 and 50 are not necessary to the resolution of dispute. Paragraphs 51 and 52 are subordinate to facts found. Paragraphs 53 through 55 as an approach to resolving factual disputes are rejected. Paragraph 56 is subordinate to facts found. Paragraph 57 is contrary to facts found. Paragraph 58 is not in keeping with the analysis of this case and the facts found in the recommended order nor is paragraph 59. Paragraphs 60 through 65 are subordinate to facts found. Paragraph 66 is not necessary to the resolution of dispute. Paragraph 67 and the first two sentences within paragraph 68 are subordinate to facts found. Remaining sentences within paragraph 68 are not in keeping with the analysis performed in the fact finding within the recommended order. Paragraph 69 is subordinate to facts found. Paragraph 70 is subordinate to facts found. Paragraph 71 is not necessary to the resolution of dispute. Paragraphs 72 through 76 are subordinate to facts found. Paragraph 77 is not necessary to the resolution of dispute. Paragraphs 78 and 79 are subordinate to facts found. Paragraph 80 is not necessary to the resolution of dispute. Paragraphs 81-86 are subordinate to facts found. Paragraph 87 is not necessary to the resolution of dispute. Paragraph 88 is subordinate to facts found. Paragraphs 89-91 are not necessary to the resolution of dispute. Paragraphs 92 through 94 are subordinate to facts found. Paragraph 95 is not necessary to the resolution of dispute. Paragraphs 96 through 101 in the first sentence to that paragraph are subordinate to facts found. The remaining sentences in paragraph 101 are not necessary to the resolution of dispute. Paragraph 102 is subordinate to facts found. Paragraph 103 is not necessary to the resolution of dispute. Paragraphs 104 and 105 are subordinate to facts found. Paragraph 106 is contrary to facts found. Paragraph 107 is not necessary to the resolution of dispute. Paragraphs 108 through 116 are subordinate to facts found. Paragraphs 117 and 118 are not necessary to the resolution of dispute. Paragraphs 119 through 122 are subordinate to facts found. Paragraph 123 is not necessary to the resolution of dispute. Paragraphs 124-126 are subordinate to facts found. Suggestion in paragraph 127 that the rotation system will not be employed is rejected. The remaining contents within that paragraph are subordinate to facts found. Paragraph 128 is not necessary to the resolution of dispute. Paragraphs 129 through 133 are subordinate to facts found. Paragraph 134 is contrary to the facts found. Paragraph 135 is contrary to the facts found. Paragraph 136 is not necessary to the resolution of dispute.
Findings Of Fact 1-3. Accepted as background information Accepted Accepted as background information 6-8. Accepted Adopted in Finding of Fact 23 Accepted but subordinated to Finding of Fact 41 11-12. Adopted in Finding of Fact 23 13. Adopted in Findings of Fact 14 and 30 14-15. Adopted in Finding of Fact 27 No such numbered Finding of Fact Subordinate to Finding of Fact 43 Accepted Adopted in Finding of Fact 24 20-24. Adopted in Finding of Fact 26 25. Subordinate to Finding of Fact 41 26-39. Accepted 40-42. Subordinate to ultimate issue 43-78. Subordinate to Finding of Fact 43 79. Accepted and adopted in Finding of Fact 41 80-101. Adopted in Finding of Fact 42 or subordinate thereto RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY PERSONNEL POOL OF ORANGE COUNTY, INC. Accepted as background information Subordinate to Findings of Fact 15-21 Adopted in Finding of Fact 31 Adopted in Finding of Fact 32 Accepted in Finding of Fact 31 Accepted in Finding of Fact 40 Accepted in Finding of Fact 32 Accepted in Finding of Fact 31 33 11. Accepted in Finding of Fact 34 12-13. Accepted in Finding of Fact 35 Accepted in Finding of Fact 36 Accepted in Finding of Fact 37 16-17. Subordinate to Findings of Fact 31-37 18-19. Accepted in Finding of Fact 40 20-23. Subordinate to Finding of Fact 43 24-26. Accepted in Finding s of Fact 38 and 39 27-29. Subordinate to Findings of Fact 31-37 30-42. Accepted as background 43-44. Subordinate to Finding of Fact 43 45-63. Rejected as immaterial in light of DOAH Case No. 85-1377R 64-77. Adopted in Findings of Fact 42-44
Recommendation In light of the forgoing Findings of Fact and Conclusions of Law, therefore, it is RECOMMENDED that Certificate of Need Number 3746 be issued to Winter Park Memorial Hospital Association, Inc. Certificate of Need Number 3474 be issued to Hospice of Central Florida, Inc. and Certificate of Need Number 3475 be issued to Personnel Pool of Orange County for operation of home health agencies in Orange and Seminole Counties, Florida. RECOMMENDED this 21st day of April, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1986. COPIES FURNISHED: Thomas D. Watry, Esquire 1200 Carnegie Building 133 Carnegie Way Atlanta, Georgia 30303 Sydney H. McKenzie III, Esquire Martin J. Edenfield, Esquire 2700 Blair Stone Road, Suite C Post Office Box 6507 James M. Barclay, Esquire Jay Adams, Esquire Suite 200 215 East Virginia Street Tallahassee, Florida 32301 Harden King, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this ease: RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY HOSPICE OF CENTRAL FLORIDA, INC. 1-3. Accepted as background information 4. Accepted in Finding of Fact 41 5-6. Rejected as immaterial in light of ruling in DOAH Case No. 85-1377 . Accepted in Finding of Fact 43 Subordinate to other Findings of Fact Accepted in Finding of Fact 41 No such proposed Finding of Fact Accepted in Finding of Fact 41 Rejected as immaterial in light of ruling in DOAH Case No. 85-1377. Accepted in Finding of Fact 43 Accepted in Finding of Fact 43 15-19. Subordinate to Finding of Fact 43 Accepted in Finding of Finding of Fact 15 Accepted in Finding of Fact 15 22-26. Accepted in Findings of Fact 15-21 Adopted in Findings of Fact 15-21 Subordinate to Finding of Fact 41
The Issue Whether the applications for certificate of need numbers 8380, 8381, 8382 and 8383, filed by Petitioners RHA/Florida Operations, Inc., Care First, Inc., Home Health Integrated Health Services of Florida, Inc., ("IHS of Florida,") and Putnam Home Health Services, Inc., meet, on balance, the statutory and rule criteria required for approval?
Findings Of Fact Care First The Proposal Care First, the holder of a non-Medicare-certified home health agency license, was established in March of 1996. Owned by Mr. Freddie L. Franklin, Care First is the successor to another non-Medicare-certified home health agency also owned by Mr. Franklin: D. G. Anthony Home Health Agency ("D. G. Anthony"). Established in May of 1995, D. G. Anthony provided over 10,000 visits in its first 10 months of operation mostly in Leon and Wakulla Counties, pursuant to a contract with Calhoun-Liberty Hospital Association, Inc. Very few of the 10,000 patients were referred to D. G. Anthony by Calhoun-Liberty; they became D. G. Anthony's patients through community-based networks, including physicians, created through the efforts of Mr. Franklin and D. G. Anthony itself. D. G. Anthony was dissolved in 1996. Both its patient census and its staff of 45 were absorbed by Care First. D. G. Anthony's contract with Calhoun-Liberty was substantially assumed by Care First so that it provided service to Medicare patients as Calhoun-Liberty's subcontractor. From the point of view of the federal government, the Medicare patients served by Care First were Calhoun-Liberty's patients, even those who had not been referred to Care First by Calhoun Liberty and who had been referred from other community sources. Care First, therefore, was simply a sub- contractor providing the services on Calhoun-Liberty's behalf. The contract was terminated effective December 1, 1996. Calhoun-Liberty was free to terminate Care First with 30 days notice, a peril that motivated Mr. Franklin to seek the CON applied for in this proceeding. With the termination of the contract, Care First ceased serving Medicare patients, "because Mr. Franklin did not want to enter into another subcontractor arrangement because of all the issues and problems," (Tr. 934,) associated with such an arrangement. Mr. Franklin is involved with nursing homes as the administrator at Miracle Hill Nursing Home in Tallahassee. He is an owner of Wakulla Manor Nursing Home in Wakulla County, and he owns a 24 bed CLF, Greenlin Villa, also in Wakulla County. Miracle Hill has the highest Medicaid utilization of any nursing home in District 2. Both Miracle Hill and Wakulla Manor are superior rated facilities. On the strength of Mr. Franklin's extensive experience with community-based organizations and health care services, as well as Care First's succession to D. G. Anthony and other historical information and data. Care First decided to proceed with its application. In the application, Care First proposes to establish a home health agency that, at first, will serve primarily Franklin, Gadsden, Jefferson, Leon, Liberty and Wakulla Counties. It plans to expand into Madison and Taylor Counties in its second year of operation. Five of these eight counties have high levels of poverty; six of the eight are very rural, with the population spread widely throughout the county. Ninety-six percent of Care First's patients are over age Minority owned, approximately 65% of the patients are members of minorities. Many of the patients live in rural areas and are Medicaid recipients or are uninsured low income persons who do not qualify for Medicaid but cannot afford home health care. Since it will be serving the same patient base as a Medicare-certified agency, Care First has committed to the provision of 7% of its visits to Medicaid patients and 1% of its visits to patients requiring charity/uncompensated care. Care First projects 18,080 visits in its first year and 29,070 in its second year. Care First will promote efficiency through the use of a case management approach. Each patient will be assigned a case manager who will act as the patient advocate to provide care required and to identify and assist the patient with access to other "quality of life" enhancing services. Care First proposes an appropriate mix of services, including skilled nursing, physical therapy, speech and language therapy, occupational therapy, home health aide services and social services. Care First estimates its total project cost at $25,808. Of this amount, $2,000 is indicated as "start-up cost", with nothing allocated to salaries. Care First indicates no "capital projects" other than its proposal for the home health agency in District 2. Care First's proposal would be funded from a $60,000 bank line of credit. Projected Utilization Potential patients will be able to gain access to Care First through several avenues, including physician referral, hospital referral, nursing home discharge, assisted living referrals from community agencies and organizations such as Big Bend Hospice and through private referral. In addition, there are several natural linkages to the community for Care First. Wakulla Manor and Miracle nursing facilities offer Care First's services to discharged residents in need. Very often, residents and families choose Mr. Franklin's agency because they are familiar with him, staff or the quality of care provided. Residents of Greenlin Villa, owned by Mr. Franklin, frequently chose Care First when in need of home health agency services. Mr. Franklin's civic, church, and community involvement is impressive. He is president of the Florida Health Care Association, chairman of the board of the Tallahassee Urban League, superintendent of the Wakulla County Union Church Group, and serves on the advisory board for the Allied Health Department for Florida A&M University. In the past, he has served on the Board of Trustees of Tallahassee Community College. He was accepted as an expert in long-term care administration in this proceeding based in part on his service on the Governor's Long Term Care Commission. Miracle Hill has held a "Superior" licensure rating for the last ten consecutive years. It is the highest rating awarded by the AHCA licensure office and is intended to blazon the high quality of care provided by the facility. Although reported through Calhoun-Liberty, very few of D. Anthony's and Care First's past referrals have been generated through that affiliation. Rather, they have come through community contacts and getting the referrals from "talking with physicians," (Tr. 922), in Tallahassee and the surrounding areas, many of whom Mr. Franklin has gotten to know through his post as Administrator of Miracle Hill Nursing Home. By far, it is through physician referrals that Care First receives most of its patients. Care First's physician referral list includes 47 doctors who referred patients to D. G. Anthony since May, 1995. These doctors practice in urban areas and some have rural clinic offices which they staff on certain days of the week. Physicians are willing to refer patients to Care First because of the quality of care which has been provided by Care First, as well as the reputation of its owners. The Care First application included letters of support from eight physicians who have referred patients to Care First in the past and state that they will continue to support Care First with referrals in the future. Among the letters included are those from Dr. Earl Britt, a practitioner of internal medicine and cardiology in Tallahassee, and Dr. Joseph Webster, who practices internal medicine and gastroenterolgy in Tallahassee. Many of the patients of these two physicians are elderly. Dr. Britt's patients often have chronic hypertension or heart disease, are diabetic or suffer strokes. These two physicians provided over half the total number of patient referrals to D.B. Anthony and Care First. Dr. Britt and Dr. Webster established through testimony that Freddie Franklin and Care First have an excellent reputation for provision of quality of care and enjoy significant support among physicians within the service area. Moreover, Dr. Britt, although based in Tallahassee, stressed the importance of Care First's proven ability to provide home health services in the rural setting both from the standpoint of understanding the needs of the rural patient and from being able to travel over rural terrain in order to deliver services. (Tr. 1151, 1152, 1154). Approximately 11,500 visits were performed by D. G. Anthony staff from the period of May 1995, through April 1996, before they became the staff of Care First. Since the agency has established a presence in the district and has physician and other referral mechanisms in place, it is reasonable to project that Care First will continue to grow and will experience between 18,000 and 20,000 visits in its first year and 28,000 to 31,000 visits in year two as a Medicare-certified home health agency. These projections stem from the historical and very recent monthly growth of D. G. Anthony, as well as demand it is experiencing from Franklin and Jefferson Counties, two counties it does not serve regularly at present but plans to serve regularly in the future. The reasonableness of Care First's projections is bolstered by the conservative number of visits per patient the projections assume, 35, when typically Medicare-certified agencies average at least 35 visits and as many as 60 visits per patient. Care First's utilization projections are reasonable. It enjoys an excellent reputation for quality of care and ability to deliver services. Together with its predecessor, D. G. Anthony, it has a proven track record and has benefited from a referral network that remains in place. These factors, together with the conservative assumptions upon which its projected utilization is based demonstrate that its projected utilization is reasonable. Financial Feasibility of Care First The total project cost for the Care First agency is projected to be $25,808. The majority of the costs are reasonable for this type of health care project. The majority of the project development costs, the application fee and much of the cost of the consultant and legal fees, have already been paid by Care First. Care First's Schedule 2 was prepared in conformance with the requirements of the agency and accurately lists all anticipated capital projects of Care First. The necessary funding for the Care First project will come from Care First's existing $60,000 line of credit with Premier Bank, in Tallahassee. This method of funding the project is reasonable, appropriate, and adequate. Care First has demonstrated the short term financial feasibility of its project. Care First's schedule 6 presents the anticipated staffing requirements for its home health agency. The staffing projections are based upon the historical experience of D. G. Anthony and Care First, taking into consideration the projected start-up and utilization of the agency. The projected salaries are based upon current wages being paid to Care First employees, adjusted for future inflation. Care First's schedule 6 assumptions and projections are reasonable, and adequate for the provision of high quality care. The staffing proposed by Care First is sufficient to provide an RN or an LPN and an aide in each of the eight counties Care First proposes to serve in District 2. Care First's schedule 7 includes the payor mix assumptions and projected revenue for the first two years of operation. Medicare reimburses for home health agency services based upon the allowable cost for providing services, with certain caps. The Care First revenues by payor type were based upon the historical experience of D. G. Anthony and Care First, as well as the preparation of an actual Medicare cost report. The Care First payor mix assumptions and revenue assumptions are reasonable. Care First's projection of operating expenses in Schedule 8A is also based on the historical experience of D. G. Anthony and Care First, as modified for the mix of services to be offered and the projected staffing requirements. The use of historical data to project future expenses adds credibility to the projections. Care First's projected expenses for the project are reasonable. The Care First application presents a reasonable projection of the revenues and expenses likely to be experienced by the project. Care First has reasonably projected a profit of $8,315 for the first two year of operation. Care First's proposal is financially feasible in the long term. As the result of its community contacts, Care First has been offered the use of donated office space in Franklin, Jefferson, Wakulla, and Gadsden counties. The use of donated office space will decrease the cost of establishing a physical presence and providing services in those counties since Care First will not have a lease cost for a business office and a place to keep supplies. Quality of Care Through the experience of D. G. Anthony, Care First has identified the particular needs of the community it served. This experience has been carried over into Care First's provision of services. In the 9 months of Care First's existence at the time of hearing, it provided quality of care. Its predecessor, D. G. Anthony, also provided quality of care. While Care First's experience is relatively limited, there is no reason to expect, based on the experience of both Care First and its predecessor D. G. Anthony, that quality of care will not continue should its application be granted. IHS of Florida The Application IHS of Florida is a wholly-owned subsidiary of Integrated Health Services, Inc. ("IHS") formed for the specific purpose of filing CON applications. IHS operates other home health agencies under other subsidiary names. Pernille Ostberg is a senior vice president of the Eastern Home Care Division of Symphony Home Care Services, Integrated Health Services. In that capacity she oversees nearly 195 operations in six states, including Florida. Her operations include home health agencies, durable and medical equipment distributions, and infusion therapy offered by pharmacists. Under Ms. Ostberg's guidance, IHS has grown to its current roster of 195 agencies in only three years, from a beginning of only five agencies. IHS first acquired Central Park Lodges, primarily a nursing home company which also owned five home health agencies. Once these agencies became Medicare certified, IHS made a corporate decision to acquire additional Medicare certified home health agencies. Beginning approximately three years ago, IHS undertook a series of acquisitions which included Central Health Services, Care Team, ProCare/ProMed, and Partners Home Health. More recently, IHS has acquired the Signature Home Health and Century Home Health Companies. And, immediately prior to the final hearing in this matter, IHS acquired First American Home Health Care, making IHS the fourth largest provider of home health services in America. Of all the home health agencies overseen by IHS, 95% are Medicare certified, and 62-63 are located in Florida. IHS now has a presence in all districts except District 1 and 2. IHS personnel also have extensive experience in starting up new home health agencies. IHS personnel have opened over 40 locations across the United States. IHS employees have extensive experience bringing new home health agencies through successful surveys by the Joint Commission on the Accreditation of Hospital Organizations ("JCAHO") recommendations. Of 18 branches personally taken through initial survey by IHS's Pernille Ostberg, none were recommended to change their operations and none were cited for a deficiency. IHS has recently opened, licensed, and certified new home health agencies in AHCA Service District 5, 6, and 10. They have also received licensure in District 7, 8, and 11. Based on the extensive expensive of IHS personnel, a start up home health agency typically experiences 8,000 - 15,000 visits per first year. Opening a new program requires two months for licensure. It will require a registered nurse for three months to make certain all manuals are in place and that quality personnel are recruited. After achieving licensure, one must wait for a certification survey, which may take as long as six months. The three IHS home health agencies that became certified recently have experienced 200 visits in the first month, a good sign of growth. IHS' umbrella organization for home health organizations is Symphony. Most of their home health companies retained their original names. Other IHS home health companies include ProCare, Central Health Services, Partners Home Health, Nurse Registry, and First American. IHS of Florida has applied for applications in other districts. This applicant filed applications in District 7, 8 and 10 and each were approved. IHS of Florida's CON application number 8382 was prepared by Patti Greenberg with the significant input of IHS and IHS of Florida's operational experts. Ms. Greenberg has prepared 75-100 CON applications, 20-25 of which sought approval for Medicare Certified Home Health Agencies. Each of these prior applications had been approved or otherwise reached settlement before litigation. The Proposed Project Once the needs analysis was complete, IHS examined geographic issues within the 14 county district. IHS examined where the populations required home health agencies and what niche of the market IHS could expect to achieve. Projected visits were determined by examining month by month, how this agency would grow. This projected utilization was subdivided among sub-visit types. Existing IHS home health agencies visit mix (skilled nursing as opposed to home health aide or therapy visits) was used to estimate skill type of the projected total volume. The projected utilization was also subdivided by payor class. This payor class projection was derived specifically for District 2, its poverty levels and its managed care penetration. In the aggregate, IHS projects 7,650 visits in year one and 17,100 visits in year two. This projection is reasonable and achievable. Witnesses for the Agency agreed that IHS of Florida's projected number of visits was "definitely attainable". Past and Proposed Service to Medicaid Patients and for Medically Indigent The payor class analysis allowed IHS to conclude it should condition its approval of its application under the performance of 5% Medicaid and 1% charity care. The balance of the population served by an IHS Medicare Certified Home Health agency would be covered by Medicare. The condition is important as it is a requirement which, if not achieved, will subject IHS of Florida to fines and penalties by the agency. Improved Accessibility The applicant will improve the efficacy, appropriateness, accessibility, effectiveness and efficiency of home health services in District 2 if approved. IHS of Florida will provide good quality of care, should its application be granted. Quality of Care Through competitive forces, the applicant's approval will also improve the quality of care offered by home health agencies in District 2. The approval of IHS of Florida's application will also comply with the need evidenced by the extent of utilization of like and existing services in District 2. Economies from Joint Operations Certain economies derived from the operation of joint projects are achieved by IHS of Florida's proposal. IHS has a home office and corporate umbrella which oversees all of its operations for home health services. This master office offers economies of sale by sharing resources across a wide array of home health agencies in Florida and other states. Thus, the incremental expense for corporate overhead is reduced as compared to a free-standing home health agency. Additionally, this national oversight provides better economies to provide the most recent policies and procedures, billing systems, and other systems of business operation. Financial Feasibility IHS of Florida has the resources to accomplish the proposed project. As demonstrated on schedule 1, and schedule 3 of IHS exhibit 1, the budget for the project is only $144,000. This budget includes all appropriate equipment for both the initial and satellite offices. Budgeted amounts include all required lease expenses, equipment costs and even start-up costs such as salaries for the recruitment of training and staff prior to opening. In total, $52,000 of pre-opening expenses are projected, which is reasonable. IHS of Florida filed applications for other home health agency start-ups in three different districts. The applicant had more than $180,000 in cash on hand and an additional $226,000 assured from a commitment letter from IHS which was also contained in the application. A letter of commitment from Mark Levine, a director and executive vice president of IHS, indicated IHS will provide $250,000 in capital for this specific project. Additionally, IHS will provide up to $1 million in working capital loan to assure no cash flow problems ever arise. A similar letter of commitment appears in each of the CON applications which IHS of Florida has filed. IHS has committed to fund each of the CON applications applied for by IHS of Florida. Each of these letters of commitment for the various CON applications sought by this applicant are on file with the AHCA. In total, the applicant projects $600,000 in capital commitments assured. IHS' balance sheet, reveals access to $60 million in cash and cash equivalent. The record clearly demonstrates an ability of IHS to fund all capital contributions required by the applicant. The current assets of IHS approximate $240 million. In addition to having cash in the bank, IHS is a growing concern and is, in fact, a Fortune 500 company that is publicly traded on the New York Stock Exchange. IHS generates revenues which exceed its annual expenses. In the last year, IHS derived $30 million more than it experienced in expenses. The application is financially feasible in the short- term. IHS' application is also feasible in the long-term. IHS of Florida's utilization projections are reasonable. Budgeted staffing and salaries are reasonable. The cost limit calculation and reimbursement calculation by payor source, which is provided in great detail in Schedule 5 of IHS of Florida's application, is reasonable. Projected expenses associated with this project were reasonably calculated based on the actual experience of other IHS Home Health operations. The reasonableness of these costs are also demonstrated when compared with the cost per visit by existing agencies in District 2. In fact, IHS of Florida predicted it would be a lower cost provider than the expected cost of existing agencies at the time IHS of Florida's operations would begin. IHS of Florida's proposal will have a healthy, competitive effect on the cost of providing services by other providers. Putnam The Proposal Putnam proposes to establish a Medicare-certified home health agency with its primary office located in Bay County. Bay County was selected as the primary office based upon the locations of existing and approved agencies in District 2, the aggregate utilization of each, and the number of individuals aged 65 and over distributed among the existing District 2 counties and agencies. Mr. Alan Anderson is Putnam's sole stockholder, Director, and President. Under the ownership and administration of Alan Anderson, Putnam has provided Medicare-certified home health services in AHCA District 3 continuously since 1986. Mr. Anderson is also the sole owner, director, and president of Anderson Home Health, Inc., a Medicare-certified home health agency serving AHCA District 4 since 1992. Anderson Home Health's CON was obtained by Putnam through the same process undertaken by the prospective applicants in this proceeding. Putnam's District 3 agency has successfully served District 3 residents since 1986 at first through its Palatka office, then growing to its current size of four offices. In District 4, Anderson Home Health, Inc. has also experienced successful operations having grown from its principal office in Duval County to a total of four offices. Putnam's District 3 home health agency began with the original office located in Palatka, followed by offices opened in Gainesville, Ocala and Crystal River. Anderson Home Health, Inc.'s District 4 operation began with the original office located in Jacksonville; the second office was opened in Daytona Beach, followed by the opening of the third office in Orange Park; and the fourth office was opened in Macclenny. Putnam's District 3 agency is JCAHO accredited "with commendation." As part of CON application No. 8383, Putnam has agreed to certain conditions upon award. First, the proposed project will locate its primary office in Bay County. Putnam also conditions its approval with the provision that 0.25% of its admissions will be persons infected with the HIV virus. Four percent of its patients will be Medicaid or indigent patients. Finally, Putnam has conditioned its approval upon the provision of various special programs such as high tech home health services, a volunteer program, and the establishment of a rural health care clinic. History or Commitment to Provide Services to Medicaid and Indigent Patients For Medicare reimbursement purposes, Putnam proposes to maintain a Medicare-only agency and private sister agency which provides services to non-Medicare patients. The private sister agency will provide service to the Medicaid and indigent patients. The costs of providing services to these non-paying or partial paying patients will be absorbed by the agency as a contribution to the community. The establishment of a private sister agency to handle the non-Medicare patients is common in the home health industry. As a condition in the application, Putnam will accept up to 3.0% Medicaid patients. Although it stated in its application that it would accept between .5%-1.0% indigent patients, its conditioning of the application on 4.0% Medicaid and indigent patients would necessitate that it accept at least 1.0% indigent (if not more, should the Medicaid patients fall below 3%) in order to meet the 4.0% Medicaid and indigent care condition. The percentages proposed by Putnam are consistent with the statewide average (approximately 95% Medicare) and the District average (approximately 92.1% Medicare). Bay County's average of Medicare patients is approximately 96.4% Medicare. To meet the 4.0% Medicaid and indigent condition, Putnam's average of Medicare patients might have to be less than the Bay County average but not by much. Certainly, meeting the condition is achievable. The agency's position is that Putnam's Medicaid/indigent commitment is not a ground for denial of the application. Quality of Care Putnam has continuously owned and operated a licensed Medicare-certified home health agency in District 3 since 1986 and has been JCAHO accredited with commendation status since 1994. In an effort to continuously provide quality care, Putnam has developed a comprehensive set of policies and procedures to guide its staff, its physicians, volunteers, patients, as well as patients families. No evidence was presented to suggest that Putnam does not have a history or ability to provide quality care. Availability of Resources, Including Health Manpower, Management Personnel and Funds for Capital and Operating Expenditures Putnam has provided Medicare-certified home health service to the residents of District 3 for ten years. Putnam will be able to share its existing personnel and operations expertise with the proposed District 2 agency. Administrative, Managerial, and Operational Personnel Putnam intends to utilize existing administrative personnel in the start up and overall operation of the proposed agency. These management personnel include the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, Data Processing Director, Director of Volunteers, Personnel Director. These experienced personnel will be available to provide valuable management support to the proposed agency. The proposed agency will be operated by an administrator who will report directly to Putnam's CEO, Alan Anderson. The agency's administrator will be actively involved in budget preparation, physician relations, community education, and preparation for regulatory agency surveys. The proposed agency will rely upon the demonstrated experience of key personnel in its initiation. Ms. Nora Rowsey, experienced in the start-up phases of home health agencies, will personally supervise and implement the start up phase of the proposed District 2 agency. Putnam intends to hire individuals to work within the proposed agency who already have experience in the provision of the necessary services. Current employees of Putnam's as well as contract personnel of the District 3 agency have indicated a willingness to provide services in Bay County once the application is approve. Funding and Capital Resources Putnam projects the total costs of initiating the proposed agency to be approximately $70,000. Putnam has simultaneously applied for two other Medicare-certified home health agencies, in Districts 6 and 7. Each of these projects area also projected to cost approximately $70,000. Putnam, therefore, has projected costs associated with all three projects of approximately $210,000. Additionally, there is a $10,000 contingency cost related to the District 3 offices bringing the total expenditure for all capital projects of $220,000. Putnam's application includes two letters from First Union National Bank of Florida which substantiate that there are funds on hand to finance all of Putnam's capital expenditures, including the District 2 proposed agency. As of April 18, 1996, Putnam's bank account had a twelve month average balance of $245,949.02. As of April 18, 1996 the accounts of both Putnam and Anderson Home Care Inc., had a combined twelve month average balance of $676,656.93. The evidence established that these funds exist and are available for all proposed capital projects. In the two years prior to hearing, Putnam showed sound management, significant growth, and a strong financial position. It continues to do so. In an interoffice memorandum dated May 28, 1996, from Roger L. Bell to Richard Kelly, Health Services and Facilities Consultant, Putnams' financial position was described as follows: The current ratio of .62 indicates the current assets are not adequate to cover short term liabilities. The long term debt to equity and equity to assets ratios are very weak. This, along with the negative equity make a weak financial position. The profit margin at .1% is also very weak, and raises some concern with the applicant's ability to cover operating expenses . Putnam Ex. No. 4. This criticism was answered by Putnam. The agency may not have considered certain factors applicable to a predominantly Medicare-reimbursed home health agency. Putnam's current liabilities are payable in a longer term than the receivables are collectible. Furthermore, with provision of 98% Medicare services, which is solely cost reimbursed, there remains only two percent of the operation left to make a profit. A .1% profit from the small amount of insurance and private pay patients indicated financial health. Putnam, moreover, is a viable operation because of its historical success, its knowledge of the industry, its expansion to six locations, its growth in staff, and its growth in patient visits. Putnam has the resources available to provide the necessary administrative, managerial, and operational manpower needed by the proposed home health agency. AHCA's financial criticisms are unfounded; Putnam has on hand the capital necessary for the accomplishment of the proposed project. Putnam has the experience and know-how to make the proposed project work in District 2's rural areas. Financial Feasibility Putnam has the resources to implement this project if approved. Putnam has the same capability that existed when three offices were opened during the period from April 1992 through February 1993, and the same resources when four offices were opened in 1995. In every instance, the new offices were started up with cash on hand from operation. Mr. Anderson, Putnam's President and sole shareholder and director, testified that he spends much time in the financial area of the operations. As of November 29, 1996, after deducting all accounts payable, Putnam has a cash balance of approximately $390,000. Anderson Home Health, Inc. had a balance of approximately $425,000. Mr. Anderson testified that the First Union letters in the application at pages 231 and 232 were correct and that Putnam is in even better shape now than when the letters were written. Putnam is financially feasible in the short term. AHCA contends Putnam's project is not financially feasible in the long term because the projected visits stay the same in the second year and because it does not project a profit in year two of operation. This fails to take into account Putnam's performance over the past ten years which, as the agency conceded at hearing, is an important consideration . Mr. Anderson purchased Putnam in 1986. At that time the agency had a single office in Palatka doing 4,000 visits. Following Mr. Anderson's purchase of the agency it had grown to over 55,000 visits and close to a hundred employees. After the success experienced by Mr. Anderson in Palatka, Putnam filed a CON application for District 4, with a proposed principle site in Jacksonville. The District 4 CON was approved by the agency--without any concerns for financial feasibility nor with any concerns for Putnam's cash flows. Without having any experience or referral sources in Jacksonville, Putnam began doing approximately 7,000 visits. The number of visits jumped to 45,000 in the second fiscal year, 123,000 in the third fiscal year, and as of September 30, 1996 the Jacksonville office performed 158,000 visits. Aside from the extraordinary growth experienced in the Palatka and Jacksonville offices, already discussed, Putnam has opened rural offices also doing very well. The Macclenny office in rural Baker County had over 15,000 visits in the first twelve months and is currently averaging over 1800 visits. The Crystal River office in rural Citrus County made over 12,000 visits in its first year and is currently doing approximately 1400 visits a month. Every new office opened by Putnam or Anderson Home Health since 1991 has been break even or better. Putnam has a proven track record for the successful and profitable operation of new Medicare-certified home health agencies. Putnam's project is financially feasible in the long term. Utilization Projections The application sets forth reasonable utilization projections. Based on Putnam's utilization in the past, there is no reason to believe the projections set forth in the application are or unreasonable or will not be achieved. Impact on Costs Putnam is a high tech provider of home health services and will provide some services not currently available or available only in a limited number of agencies. The impact of approval of Putnam's application on costs in the District will be minimal due to the reimbursement issues associated with Medicare which is cost based. RHA A Not-for-Profit Corporation in District II RHA is not-for-profit corporation whose purpose is to provide a continuum of care to the community. All profits are returned to its nursing homes or agencies as a way of continuing to build the programs. RHA owns two nursing homes in AHCA District II; Riverchase Care Center in Gadsden County and Brynwood Center in Jefferson County. If approved, RHA is proposing to locate its Medicare certified home health agency in existing space within the Riverchase and Brynwood nursing facilities. Both of these facilities are managed and operated by HealthPrime, Inc., a company which operates approximately 40 facilities in 13 states. While RHA is technically the owner and therefore applicant for this CON, HealthPrime would operate the proposed Medicare certified home health agency within the nursing homes. RHA's home health agency would have two offices. The office located in the Riverchase facility would serve Gadsden, Liberty, Franklin, Gulf, Wakulla, Jackson, Calhoun, Washington, Holmes and Bay Counties. The office located in the Brynwood facility would serve Leon, Jefferson, Madison and Taylor Counties. Financial Feasibility The only questions raised by AHCA concerning RHA's financial feasibility went to the ability of RHA to fund this project in conjunction with other CON projects listed on Schedule 2 of its CON application. The largest project on Schedule 2 of RHA's application was a CON application for a 20 bed addition to Riverchase Care Center. At hearing it was determined that since the filing of the instant home health CON application, the 20 bed application had been withdrawn, was no longer viable, and was not being pursued by RHA. Once AHCA's financial expert learned that the 20 bed addition to the Riverchase Care Center had been administratively withdrawn and that its costs should therefore no longer appear on Schedule 2, questions about the financial feasibility of the project were resolved. RHA's project was shown to be financially feasible in the short term based upon the financing commitment of HealthPrime. RHA proved that its assumptions and projections made in its financial analysis are reasonable. These assumptions were based on actual experience in the operation of similar skilled nursing facility based home health agencies, as well as prior experience of other home health agencies in their first two years of operation. RHA's proposed project shows a net income in years one and two and is financially feasible in both the short and long term. Availability and Access of Services To the extent that the number of people needing home health care will increase in the future, there is need for new providers of home health services to provide such availability and access. RHA's willingness to condition its application on service to AIDS, indigent and Medicaid patients can only improve the availability and access to services in the district. In addition, RHA's approval to provide nursing home based home health services is unique to the provision of home health services in District II. Efficiency RHA's proposal, which would place its home health agency within its nursing homes, is unique among the applicants in this proceeding. Such an arrangement provides not only an efficient continuum of care to the patients, it also provides efficiencies and cost savings in the sharing of resources. RHA's proposed project is cost effective because it utilizes existing space and equipment in its nursing homes. Skilled nursing home based Medicare certified home health agencies are specifically recognized by the Federal Medicare program in their cost reports. Home health reports are filed as a part of the nursing home cost report and there is an allocation of the nursing home's cost to the home health agency. This benefits both the provider and the Medicare program through cost savings. RHA's cost per visit to the Medicare program of $48 will be substantially less than the District II average of $66 per visit projected for the time RHA will be operational under the applied- for CON. RHA's proposed project will have no impact on its costs of providing other health care services. Appropriateness and Adequacy RHA proposes to provide the entire range of home health services throughout the district. Given the project need in the planning horizon, RHA's proposal is more than adequate to meet the demand for such services. Quality of Care An applicant's ability to provide quality care is another important factor in statutory and rule criteria. RHA and HealthPrime have shown, through operation of their nursing homes in Florida, all of which have superior ratings, that they have the ability to provide quality health care. In addition, HealthPrime, which will actually operate the home health agency, has experience operating four other nursing home based home health agencies. HealthPrime will utilize its quality assurance programs already in place in its other home health agencies and will seek JCAHO accreditation of this proposed agency. By combining a home health agency with its existing nursing homes, RHA will improve the case management of its patients by providing vertical integration of its services in a continuum of care. Such continuum of care provides a stability in personnel and providers that are working with the patient. Economies and Improvements from Joint or Shared Services As previously discussed, RHA's unique proposal to operate a nursing home based home health agency not only offers a continuum of care for the patient, it also provides fiscal economies to the agency as well as the Medicare program. Resource Availability Based on RHA's experience of hiring personnel for its existing nursing homes in the district, there will be no problem in hiring sufficient personnel for RHA's agency. Fostering Competition The addition of other Medicare certified home health agencies in a district consisting of 10 counties and only 23 providers will promote increased competition and more options for patients. Findings Applicable to All Four Applicants No Fixed Need Pool The agency has no rule methodology to determine the need for Medicare-certified home health agencies. The agency's most recent home health need methodology was invalidated in Principal Nursing vs. Agency for Health Care Administration, DOAH Case No. 93-5711RX, reversed in part, 650 So.2d 1113 (Fla. 1st DCA 1995). There is, therefore, no numeric need determination, or "fixed need pool", established by the agency applicable in this proceeding. District 2 AHCA District 2 is composed of 14 counties. The applicants propose to concentrate their service in various, different parts of the district. Local and State Health Plan Preferences District 2 Health Plan Services to Medicaid and Medically Indigent The first preference under the District 2 Health Plan provides a preference to applicants with a history of providing services to Medicaid or medically indigent patients or commitment to provide such services in the future. Mr. Franklin of Care First has such a history. He is an owner of Wakulla Manor, which had a Medicaid occupancy rate of 88.09% for the period of July-December, and the administrator of Miracle Hill Nursing Home which had a Medicaid occupancy rate of 95.74% for the same period. In the face of such a record, Care First’s commitment of 7% Medicaid and 1% uncompensated/charity patients might seem to pale. But it is a significant commitment, given the nature of the home health agency business, and one upon which Care First agrees its application should be conditioned. IHS conditioned its application on 5% Medicaid and 1% charity care. Putnam conditioned its application on an “Indigent and Medicaid participation equal[ling] 4.0%.” Putnam Ex. No. 1, pg. 51. Putnam, moreover, proposes a Medicare-only agency. Establishment of a private sister agency, a practice common in the home health care industry, will allow Putnam to provide service to the Medicaid and indigent patients separate from its Medicare-only agency. RHA has provided a high percentage of Medicaid/charity days at its Riverchase facility (92.10%) and at its Brynwood facility (90.24%). In addition, RHA is willing to condition its CON on the provision of a minimum of 1% of annual visits to indigent care and 5% to Medicaid. Service to Unserved Counties. Preference 2 states that “[p]reference should be given to any home health services CON applicant seeking to provide home health care services in any county within the District which is not presently served by a home health agency.” There are no counties within District 2 that are not presently served by a home health agency. Service Through a County Public Health Unit Preference 3 states that “[p]reference should be given to a home health services CON applicant seeking to develop home health care services to be provided through a county public health unit in the district in order to more adequately serve the elderly and medically indigent patients who are isolated or unable to travel to permanent health care sites." Of the four applicants, only IHS of Florida’s application is conditioned on working with public health units. IHS has experience working with public health units, working with them currently in Martin County, Manatee County and Broward County. Nonetheless, IHS of Florida will not be providing its services “through” a public health unit. Public Marketing Program Preference 4 states, “[p]reference should be given to a home health services applicant who has a history of providing, or will commit to provide, a public marketing program for services which included pamphlets, public service announcements, and various other community awareness activities. These commitments should be included on the granted CON as a condition of that CON.” Care First currently markets its services to the community and commits to a public marketing program in the future as a condition of its CON. IHS of Florida committed to performing at least one community awareness activity per calendar quarter as a condition of its application. It also indicated, moreover, that it would work to develop public service announcements and marketing programs with the help of public health units or any other appropriate vehicle. The latter indication, however, was not made a condition of the application. Putnam provides educational services to the community, its employees, patients and patients’ families, including the provision of pamphlets, and presenting audio and video tapes as appropriate to the patient and their families. Putnam, however, did not condition its application on a commitment to a public marketing program or commit to such a program in any other way in its application. RHA stated it would accept a condition on its CON to provide a public marketing program for services, including pamphlets, public service announcements and other community awareness activities. It did not reflect such a condition on the “Conditions” page of the application, but, given its statement that it would accept such a condition, there is nothing to prevent the agency from imposing such a condition should it grant RHA’s application. Access Requirements Preference 5 is, “[p]reference should be given to a home health services CON applicant who agrees, as a condition of the CON, to meet the following access requirements for each county in which services are provided: 1) 24 hour local telephone call (or toll-free) contact. 2) 24 hour call/response capability. 3) Maximum on one (1) hour response time following call. Care First currently meets the requirements of Preference 5 in the counties in which it now provides services, and has committed to continue to meet these requirements as a Medicare certified home health agency in all counties in which it will provide services. Care First has made as conditions of its CON, provision for 24-hour accessibility by answering service and installation of a toll-free access line and maintenance of a log of calls during the hours the agency is closed, including documenting of response time to each call. IHS of Florida conditioned grant of its CON on a 30 minute response time, and 24-hour phone availability on a toll-free hot line. Putnam presently provides the services in this preference in its District 3 Medicare certified home health agency and agrees to meet this preference within 90 days of initiating services. It did not, however, make a commitment to meet this preference on the “conditions,” page of its application. There is nothing to prevent the agency from making Putnam’s CON, if granted, conditional upon compliance with this preference. RHA has agreed to have its CON conditioned to meet the access requirements of Preference 5. 2. State Health Plan Service to Patients with AIDS The first preference under the State Health Plan is that “[p]reference shall be given to an applicant proposing to serve AIDS patients.” All four applicants are committed to serving AIDS patients. Full Range of Services. Preference 2 of the State Health Plan is “[p]reference shall be given to an applicant proposing to provide a full range of services, including high technology services, unless these services are sufficiently available and accessible in the same service area." There are currently 11 hospital-based Medicare certified home health agencies in District 2. Several of them provide the high tech services which are sometimes needed by discharged hospital patients. Very few referrals for high tech care have been received by D. G. Anthony or Care First since May, 1995, and there is no indication such services are not available in District 2. Care First has identified, however, an unmet need for the pediatric and pre-hospice home health agency services and has conditioned its application on the provision of those services to the community. IHS of Florida proposes, among other high tech services, infusion therapies, pain management therapies and chemotherapy. There is no evidence, however, that these therapies are not available in District 2. The same is true of Putnam as to the high tech therapies it proposes to provide. There is no evidence that they are not available in District 2. Although RHA indicated in its application that it intended to provide the entire range of services that a home health agency can provide, again, there is not evidence that they are not available in District 2. Disproportionate Share Provider History Preference 3 is “[p]reference shall be given to an applicant with a history of serving a disproportionate share of Medicaid and indigent patients in comparison with other providers within the same AHCA service district and proposing to serve such patients within its market area." Care First, having been formed in March, 1996, did not have a history of providing Medicaid and indigent patients. Care First has committed to 7% of its visits to Medicaid patients, well above the average of existing District 2 agencies of 2-3% Medicaid. Care First has committed to 1% of its visits to charity/uncompensated care. IHS of Florida has committed to 5% Medicaid and 1% charity care. Like Care First, IHS of Florida, as a newly formed corporation, does not have a history of serving a disproportionate share of Medicaid/indigent care patients. Putnam’s commitment is 3% to Medicaid and 1% to charity care. This commitment will be met through its sister home health agency and not the Medicare-certified home health agency for which the CON is sought. RHA has committed to set aside 5% total annual visits to Medicaid patients and 1% of annual visits to indigent care. It has a history of providing a disproportionate share of services to Medicaid patients at its two skilled nursing facilities in District 2, Riverchase Care Center in Quincy and Brynwood Center in Monticello. Underserved Counties Preference 4 is [p]reference shall be given to an applicant proposing to serve counties which are underserved by existing home health agencies. The rural areas of District 2 are traditionally underserved. Putnam will serve Bay County, an underserved county; the three other applicants will serve rural areas of more than one county in District 2. Consumer Survey Data Preference 5 is "[p]reference shall be given to an applicant who makes a commitment to provide the department with consumer survey data measuring patient satisfaction." Care First has committed to providing such data to the agency. IHS of Florida will maintain a data base of results of patient satisfaction surveys and make them available to the agency, just as it already does. Putnam will make available to the agency the results of surveys similar to surveys measuring patient satisfaction Putnam has already developed. Putnam has conditioned its application on providing these surveys to the agencies as well as surveys measuring physician satisfaction. RHA has cited on its “Conditions” page, “. . . (it) will provide the Agency for Health Care Administration with consumer survey data.” Quality Assurance Program and Accreditation The State Health Plan’s Sixth Preference is “[p]reference shall be given to an applicant proposing a comprehensive quality-assurance program and proposing to be accredited by either the National League for Nursing or the Joint Commission on Accreditation of Healthcare Organizations." Care First included in its application a copy of its Quality Assurance Program which has been in use since May, 1995. The program meets the state and federal licensure and certification requirement and the stringent requirements of JCAHO. Moreover, Care First has conditioned its application upon JCAHO accreditation. IHS of Florida submitted documentation regarding its Quality Assurance Program through initiatives such as Total Quality Management and Continuous Quality Improvement. It will seek accreditation from JCAHO within one year of receiving its CON. Putnam, an existing home health agency in District 3 since 1986, has over the years developed and refined a comprehensive quality assurance program which is above the industry standard. The District 3 agency, using its quality assurance program, has attained its JCAHO accreditation “with commendation,” a distinction received by less than 4% of all applicants. Putnam will seek accreditation from JCAHO for its District 2 operation within one year of receiving its CON. RHA is willing to condition its CON on the provision of a comprehensive quality assurance program and accreditation by the JCAHO. Need 1. Numeric Need Since there is no published fixed need pool applicable to this proceeding, the parties, other than the agency, developed their own methodologies for determining numeric need. Each of the methodologies employed by the parties was reasonable. After taking note of the statistics for actual patient visit growth in District 2 from 1991 to 1994, Michael Schwartz began with a conservative number of 60,000 new patient visits per year, a number half of the growth for the lowest growth year of that time period. Multiplying that number times the three horizon years of 1994-97 equals 180,000 new patient visits from 1994 which yields a need for 5.2 agencies. The reasonableness of numeric need in excess of four is supported by other factors. After the filing of the four applications at issue in this proceeding, there are two fewer Medicare-certified home health agencies with certificates of need in District 2. At the same time, home health care visits have been on the increase not only in the district as discussed, above, but in the state as well. Statewide, home health care visits grew from 18 million to 22 million between 1991 and 1994. The utilization of home health care agencies is increasing because of population growth and an increase in the number of visits per patient. The amount of time spent by patients in the hospital is decreasing. The decrease translates into increased need by patients for visits from home health agencies. The need for home health is going to continue to increase because it is a cost-effective alternative to nursing home placement and hospital care. From 1991 to 1994, the number of home health visits more than doubled: from 369,396 to 869,893. This trend continued in 1995. The recent significant growth in the utilization of home health agencies in District 2 is expected to continue. The growth is attributable not only to a population increase in the district but to increase in the use rate for home health agency services as well. The growth in use rates can be explained, in part, by the increase in the senior population (65 and older) and the pressure exerted by managed care for earlier hospital discharges and home health agency services as a viable alternative in some cases to inpatient treatment. The senior population in District 2 is reasonably expected to grow approximately 8% in the five years after 1996, with 15% growth expected reasonably in the 75 to 84 year old population and even higher growth, 25%, in the population over 84 years old. 2. Other Indications of Need Local physicians have experienced difficulty arranging for the existing home health agencies to provide services to patients located in remote areas of District 2. Specialized groups, such as AIDS patients, would, in all likelihood, benefit from additional home health agencies in District 2. Furthermore, a study conducted by IHS of Florida showed that the district has an unusually high rate of diabetes and in four counties has a diabetes death rate 100% greater than the statewide average. Well Springs home health agency is one of the two Medicare-certified home health agencies to cease providing Medicare-certified home health services after the four applicants in this proceeding filed the applications at issue here. Well Springs was licensed in all 14 counties of District 2 and had physical locations in Franklin, Gadsden, Bay, Leon, Liberty, Taylor and Madison Counties. It had a significant share of the District 2 Medicare certified home health agency market with 13.1% of the 1994 visits, the second highest in the District. With Well Springs discontinuing Medicare-certified home health agency services, a void was left for such services in District 2, particularly in those counties in which Well Springs had a physical presence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter its final order granting CON Nos. 8380, 8381, 8382 and 8384 to RHA/Florida Operations, Inc., Care First, Inc., Home Health Integrated Health Services of Florida, Inc., and Putnam Home Health Services, Inc., respectively. DONE AND ENTERED this 9th day of June, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1997. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5408 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5403 Richard Ellis, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5408 W. David Watkins, Esquire Watkins, Tomasello & Caleen, P.A. 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Mark Emanuel, Esquire Panza, Maurer, Maynard & Neel NationsBank Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308 Paul Amundsen, Esquire Amundsen & Moore 502 East Park Avenue Tallahassee, Florida 32301 Theodore E. Mack, Esquire Cobb Cole & Bell 131 North Gadsden Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Faith Home operated as a home health agency with its principal place of business located at 3202 North Howard Avenue, Tampa, Florida. Faith Home's license number is 299991078. Joni Miller is a registered nurse (RN) surveyor for AHCA. Ms. Miller holds an associate of arts degree in nursing and practiced as an RN for almost 30 years. She practiced as an RN in the areas of coronary care, research, home health, cardiology, and sports medicine. Ms. Miller has completed the requisite classes in surveyor training and is a certified home health surveyor. Ms. Miller was received without objection as an expert in nursing. Jeanette Peabody is an RN who worked for AHCA as an RN specialist. Ms. Peabody obtained an associate of arts degree in applied science with a major in nursing. In 1995, Ms. Peabody was licensed as an RN in Pennsylvania. Thereafter, she worked for various health-related entities, including (but not limited to) two home health agencies and the Pennsylvania Department of Health. She became licensed as an RN in Florida in 2004. Ms. Peabody became a certified surveyor after receiving the appropriate training. While working for AHCA, Ms. Peabody conducted surveys of health care facilities and agencies for compliance with the applicable rules and regulations. Ms. Peabody was received as an expert in nursing. Beverly Eubanks is the chief operating officer for Faith Home, a position she has held for 15 years. Ms. Eubanks is an RN, who received her associate's degree in nursing from Manatee Community College in 1990. Faith Home primarily serves the underprivileged, low-income families, and public housing residents. Celina Okpaleke is the sole owner of Faith Home and has been its owner since 1997. Ms. Okpaleke is a licensed physician assistant, having been licensed in 1996. Her duties at Faith Home are to oversee its day-to-day management. Prior to the February 2011 survey, Ms. Okpaleke had not been going to the Faith Home office every day.2/ The methodology for any survey includes the following: the team arrives at the location; the team is introduced to the survey entity's staff members; the team explains to the entity's staff members the nature of the survey, including a list of items required for the team to conduct the survey; and there is a request for work space. Upon receipt of the required items, the team reviews the material, conducts interviews, conducts visits with patients at their various locations, interviews staff, and reviews the accumulated information. In the event the surveyors have any questions, the surveyors will make requests to the appropriate entity staff, and additional materials may be provided to the surveyors. The survey findings are reviewed with the staff, and, at the end of the survey, the team conducts an exit conference with the appropriate staff. Any entity staff is welcomed to be present. In the event any documentation is missing, the entity is allowed to provide that material after the surveyors have left the facility. In those instances when an agency is out of compliance, AHCA will make a return visit to ensure the agency has corrected the deficiencies. There was credible testimony that this survey procedure was the same procedure used during the Faith Home survey and follow-up survey. It is recognized as a good nursing practice to document in a patient's record or chart the care, treatment or other services being provided to a patient. This includes all medical and medically-related support services. Faith Home has numerous policies that govern how it is to be run. A few of the pertinent policies are set forth below. "Patient Visits," last revised on December 1, 2010, provides: All patients will be seen according to physician's orders and in compliance with the plan of treatment. At each visit, a progress or visit note will be completed. On the visit note (progress not [sic]/visit note) the patient's progress toward meeting established goals shall be documented. In addition, the patient's response to treatment will be documented as well as any other pertinent assessment information. All patient visits will be performed according to a pre-established schedule. If there is [sic] any changes in visit schedule, time or staff, the patient will be consulted prior to the change. "Initial Assessment Process for Medicare [P]atients," last revised on December 1, 2010, reflects in pertinent part: Upon admission, each patient will receive initial assessment in order to determine patient's needs. To achieve this goal, the following important processes must be performed: * * * More in depth functional assessments performed by a qualified PT [physical therapist] or OT [occupational therapist] are available to those patients who need one. These assessments are documented on the appropriate PT/OT Evaluation form. * * * Initial assessments will be performed within 48 hours of referral or within 48 hours of a patient's return home from an impatient [sic] stay, or on the physician-ordered start of care [SOC] date. MSW will make assessments within one (1) week of referral based on the patient's priority level as determined by RN and/or MD, PT, ST, and OT will make evaluations within one (1) week of referral based on the patient's priority level as determined by the RN and/or MD. Administration/start of care assessment data must be completed within five (5) calendar days of the SOC date. The agency then has seven (7) calendar days from the SOC date to encode the data, check for errors and lock the data for transmission. The data will than [sic] be transmitted on a monthly basis; data minimum no later than the month[.] "Oasis Data Set," last revised on December 1, 2010, reflects in pertinent part: The agency has implemented the OASIS data set and is actively collecting data as of March 15, 1999. Current assessment data and notes utilized by the agency have been incorporated into the OASIS core data. OASIS requirements apply to all patients . . The only exclusions are as follows: Patients under the age of 18 Patients receiving maternity services Patients receiving ONLY no skilled services such as personal care, homemaker, chore, or companion services. OASIS data are collected at the following points: Start of Care * * * Resumption of Care following impatient [sic] stay * * * Follow-up/Recertification * * * 4. Follow-up/SCIC * * * 5. Discharges and Death * * * Do not administer OASIS data set as an interview. Questions are meant to be part of the professional opinion of the staff member performing the assessment, based upon the evaluation of the patient. Be sure to incorporate agency assessment material (Discharge Summary, etc.) with the OASIS data set. The OASIS data set does not constitute a complete assessment. "Policies & Procedures for Accectance [sic] of Patients/Cases" last revised on December 1, 2010, reflects in pertinent part: B) Qualifying Criteria for Accepting a Patient * * * 7) Client must have a telephone or use of phone in close distance for emergency situation. Running water and electricity are also important factors for providing adequate care in the home. * * * D) Criteria for Acceptance of Skilled Nursing Clients * * * A copy of MD orders may accompany Skilled Nursing Admission. If nurse [is] able to receive a faxed copy of orders, Faith Home Health will fax them. If not, a copy of the order will be sent to patient's residence with supplies. "Policies & Procedures for Admissions," last revised on December 1, 2010, reflects in pertinent part: Admission & Assessment Policies & Procedures * * * 7) All documentation will be kept in the patient's Faith Home Health folder. "Caregiver Job Descriptions," last revised on December 1, 2010, reflects in pertinent part: Registered Nurses * * * Activities may include: * * * 11. Recording pertinent information. * * * LICENSED PRACTICAL NURSE * * * Activities may include: * * * 7. Recording all pertinent observations and treatments[.] * * * Certified Nurse Aide * * * Activities may include: * * * 22. Keeping a record of observations and care given[.] Home Health Aide * * * Activities may include: * * * 10. Maintaining a proper record of activities. The February 2011 Survey In early February 2011, Ms. Peabody was the lead surveyor in the annual Florida licensure recertification survey conducted at Faith Home (FH survey). Ms. Miller was also a member of the FH survey team. This FH survey team conducted reviews, interviews, home visits, and conferences over the course of three days. During the February 2011 FH survey, Ms. Peabody requested and was provided Faith Home's records for patient 5. The home health certification and plan of care (HHC/POC) for patient 5 provided the SOC date as December 14, 2010. The HHC/POC ordered skilled nursing visits to occur one to two times a week for nine weeks. According to the HHC/POC, at each visit, the skilled nurse was to perform various treatments with respect to patient 5's multiple medical issues, including assessing vital signs, cleaning a toe wound and applying a dressing, instructing the patient on diet and nutrition, and reporting any changes to the "MD [medical doctor] & supervisor ASAP [as soon as possible]." Patient 5 did not receive skilled nursing visits during the weeks of December 19 or 26, 2010. During the following skilled nursing visits, patient 5 did not receive wound care treatment: December 13, 2010, and January 6, 13, 18, and 21, 2011. Additionally the HHC/POC called for a PT to evaluate and treat patient 5. There were orders that the PT was to administer therapeutic home care exercises in order to increase patient 5's functional abilities. Patient 5 did not have the physical therapy evaluation or treatment as directed. There was no PT evaluation or treatment documentation for patient 5, and there was no documentation that the MD or supervisor was notified that the treatments did not take place. Following the review of the documentation provided, Ms. Peabody afforded Faith Home the opportunity to provide any additional documentation they had with respect to the care and treatment provided to patient 5. No additional documentation was forthcoming to the surveyors. Ms. Eubanks contended that patient 5 was seen by a nurse during the week of December 18, 2010. She testified that there was no wound care treatment necessary for patient 5 because the wound had healed. Ms. Eubanks "believe[d]" the wound had resolved by December 9, 2010, and that no PT was ordered because patient 5 was still "refusing it." Ms. Eubanks also testified that no wound care treatment was required because it was not on the OASIS data collection sheet. Ms. Eubanks's testimony is not credible as the HHC/POC is clear as to the physician's order regarding patient 5's toe wound care and the PT evaluation and treatment. The OASIS data form may be the methodology "to track your [Faith Home] benchmarks and your progression to see how you rank" among other home health agencies, but it does not take the place of a HHC/POC executed by a physician. Further, although a patient always has the right to decline a health care service, that response does not preclude the physician from ordering the particular care to be provided. Based on the violations observed and documented during the February 2011 survey, Ms. Miller went back to Faith Home in June 2011 to follow up on the areas of concern. Ms. Miller reviewed five patients at the June 2011 revisit, one of whom was part of the February 2011 survey, patient 5.3/ Patient 5J's HHC/POC, signed on April 16, 2011, ordered skilled nursing visits to occur one to two times a week for nine weeks. According to the HHC/POC, at each visit, the skilled nurse was to perform various treatments with respect to patient 5J's multiple medical issues. The HHC/POC included an assessment of patient 5J's vital signs including the endocrine, cardiac, and neuro, with instructions regarding the disease process and management; fall prevention; diet and nutrition; and skin, nail, and foot care. It also included an order to report "any changes or concerns to [the] MD & supervisor ASAP." This April 16, 2011, HHC/POC also ordered a home health aide (HHA) to provide services two to three times a week for nine weeks for patient 5J. The HHA was to assist patient 5J with the activities of daily living (ADL). During the follow-up survey, Ms. Miller was unable to find documentation of any nurse's treatment for patient 5J during three of the nine-week certification period. The skilled nursing visit notes on April 21 and May 5, 2011, failed to reflect any assessment of patient 5J's vital signs, including the cardiovascular system. The lines drawn through certain boxes do not indicate review or assessment of patient 5J. Further, there was no evidence of any HHA visits during the seventh week through the ninth week of the certification period for patient 5J. This totaled six missed HHA visits for patient 5J. With respect to patient 7, the HHC/POC, with a SOC date of December 18, 2010, ordered a PT to evaluate and treat patient 7. The PT was to administer a therapeutic home care exercise program to patient 7 to increase strengthening.4/ The HHC/POC also ordered the skilled nurse to "report any changes and or concerns to the MD & RN ASAP." Patient 7 did not receive the physical therapy evaluation until December 29, 2010, 11 days after it was ordered. The PT's care plan for patient 7 involved physical therapy two times a week for three weeks. At the time of the FH survey, there was no documentation that the physician was notified of the delay or the reason for the delay in performing the PT evaluation on patient 7. Ms. Eubanks provided a "Communication/Status Report" (C/SR) pertaining to patient 7, dated January 3, 2011. Although this C/SR purports to put Faith Home services (including the PT) on hold until the patient returns from being with the "daughter and family for a couple of weeks," it is at odds with the credible evidence presented by AHCA. The physical therapy documentation reflects that patient 7 was provided PT services twice during the week of January 9, 2011, just one week after Faith Home was "notified" the patient would be gone "for a couple of weeks." Additional physical therapy documentation reflects that service was also provided twice during the week of January 17, 2011.5/ Ms. Eubanks's contention that this C/SR was faxed to patient 7's physician to notify him/her of the change in plans is not credible. There was no testimony or documentation of the physician's actual fax number or the actual number to which this C/SR was purportedly faxed, nor did the person who actually faxed the C/SR testify. Patient 11's HHC/POC, signed December 15, 2010, ordered skilled nursing care two to three times a week for nine weeks. At the end of the HHC/POC orders, there is an order to "Report any changes and or concerns to MD & supervisor ASAP." Although it is noted on the HHC/POC that the "Certification period [was] extended due to [a] procedure on [the] left second toe," there was no actual doctor's order to provide wound care to patient 11's left second toe. There is, however, a "60 Day Summary" notation which states: Wound to [the] right great toe healed without complication. Skilled nurse currently caring for left second toe. No S&S of infection noted. Blood pressure and blood sugar has remained stable through out [sic]. This summary statement is not an order for care to patient 11's left second toe. When a nurse observes a new wound in need of care, the nurse should immediately document the toe wound and contact the physician. The burden then falls to the physician to decide what, if any, order is appropriate for the wound care. This recording/reporting process was not followed, and there was no documentation of patient 11's wound to the left second toe. However, the skilled nursing visits record that wound care was provided to patient 11's left second toe. Ms. Eubanks testified that patient 11's podiatrist, Dr. Rappaport, wrote an order to discontinue wound care to the right great toe because it had healed. Other than the 60-day summary note found in the HHC/POC signed December 15, 2010, there was no order signed by Dr. Rappaport that discontinued care to the right great toe, and no order for care to patient 11's left second toe was introduced at hearing. Although Ms. Eubanks testified that patient 11 had the left second toe nail bed removed, she never testified that she was present when that nail bed was removed or that she was the attending skilled nurse who provided the post nail bed removal care. Her testimony is at odds with the credible evidence presented by AHCA. Patient 13's HHC/POC, with a SOC date of December 21, 2010, ordered skilled nursing care one to two times a week for six weeks with specific skilled nursing tasks to be performed. There was no documentation that a skilled nurse provided care during the weeks of December 26, 2010, or January 9, 2011. Patient 13's HHC/POC also ordered a physical therapy evaluation. As part of the HHC/POC, the PT was to administer therapeutic home care exercises to increase functional strength, range of motion (ROM), balance and endurance, and transfers and to report "any changes and or concerns to [the] MD & RN CM [case manager] ASAP." Patient 13's physical therapy evaluation was not conducted until January 5, 2011, roughly two weeks after it was ordered. The physical therapy care plan directed that patient 13 was to be seen two times a week for the first week and three times a week for the next four weeks. Although there are "missed visit reports" that document a PT's attempt to see the patient on six different January 2011 dates, there is no credible evidence that patient 13's physician was notified of those six missed visits as soon as possible. Ms. Eubanks points to a January 24, 2011, C/S Report (January note) for the reason the PT missed the visits with patient 13. This January note reflects that patient 13 had gone to Georgia to be with her daughter and would return the end of January 2011 or the first Tuesday in February. This January note prompts more questions than answers because it does not reflect exactly when patient 13 went to Georgia and only asks that the "nursing services" not the physical therapy services be held until patient 13's return. The missed visit reports indicate that a PT went to the residence and knocked on patient 13's door, but no one came to the door. Although the missed visit reports provide space for the patient's name (appropriately redacted), the date (of service), the discipline (in this case "PT" was checked), the reason (for the missed service; in this case phrases to the effect: drove by, no one answered door, etc.), and who completed the missed visit report (the PT's signature is illegible), none of these missed visit reports have a checkmark (or any indication) next to the "Y," which signifies that the physician was notified. Ms. Eubanks's posturing that these missed visit reports were left in an inbox at a public housing building facility so that the physician was notified is not credible. Ms. Eubanks also testified that patient 13 did not have a telephone, and "so there was no other way to contact [her] but actual face to face." This statement is in direct contradiction to Faith Home's policy that a client must have a telephone or that a phone be close by for communication purposes. Further, there was evidence that two skilled nursing visits took place: one on January 26, 2011, and the other on January 29, 2011, just two and five days, respectively, after the January note stating patient 13 would be gone until the end of January or the first of February. Patient 2's HHC/POC, signed September 13, 2010, ordered skilled nursing visits to occur up to seven days a week, and the nurse was to provide a complete assessment with each shift. According to the HHC/POC, the skilled nurse was to, among other things, monitor patient 2's GI status and provide G-tube care every shift, weigh the child weekly on Mondays when scales became available, and document it in the mom's notebook. Based on patient 2's condition, care had to be taken that the patient did not become dehydrated or lose a lot of weight. There was no documentation of patient 2's weight being recorded by the Faith Home skilled nurses during the scheduled Monday visits. Patient 2's records provided to the surveyors during the February 2011 FH survey failed to reflect documentation as to any G-tube care being provided on every shift. Ms. Eubanks testified that patient 2 was weighed weekly at his school. Based on the phrase in the HHC/POC "when a scale becomes available," Faith Home took the position it was not obligated to secure a scale to ensure it weighed the patient per the HHC/POC. Rather, Faith Home unilaterally decided that, because the Department of Children and Families (DCF) was having patient 2 weighed weekly at school, Faith Home was meeting its obligation. However, this position flies in the face of the physician's order for patient 2. Patient 2's record does not reflect where patient 2's weight was being recorded, either at home or school, nor does it reflect that the physician was being made aware of patient 2's weight on a regular basis. Faith Home did not document the lack of a scale, did not inform the physician that the weight was being monitored by DCF at patient 2's school and did not ensure that the physician was aware of patient 2's weekly weight status. Patient 3's HHC/POC, signed November 30, 2011, ordered an RN to be present 20 hours a day up to seven days per week. Additionally, the skilled nurse was to assess the patient and perform other specific care. One specific task was for patient 3's tracheotomy care to be performed twice a day and as needed.7/ Documentation for patient 3 failed to reflect the tracheotomy care twice a day or as needed between December 20, 2010, and January 22, 2011. Ms. Eubanks testified to patient 3's medical circumstances. Although Ms. Eubanks understood that AHCA's surveyors had patient 3's pediatric notes, she only pulled "random notes" for the "period because they had already copied everything that they wanted to take." Of Faith Home's documents that she discussed, Ms. Eubanks only presented two dates (out of the 34 days alleged in the AAC) that recorded some type of tracheotomy care for patient 3. Hence, her testimony lacks credibility in light of the overwhelming evidence AHCA provided. Patient 6's HHC/POC for the certification period of October 14, 2010, to December 12, 2010, ordered skilled nursing care three to four times a week for nine weeks and also provided for specific disciplines and treatments to be performed. There was evidence that a skilled nurse provided one visit to patient 6 on October 15, 2010; yet, there was no evidence that a skilled nurse provided the minimum number of visits to patient 6 during the remainder of the nine-week certification period. It was noted that two skilled nursing visits were made during the week of November 14, 2010. However, the HHC/POC ordered a minimum of three, up to four skilled nursing visits to be made. Patient 6's HHC/POC also ordered HHA services to be provided two to three times a week for nine weeks. The HHA was to assist patient 6 with ADLs. The HHA failed to provide patient 6 the minimum number of visits during weeks one, two, or three of the certification period. Ms. Eubanks testified that Faith Home could not provide services to patient 6 after October 14, 2010, as patient 6 was admitted to a local hospital. Further, Ms. Eubanks testified that the HHA documentation "has to be incorrect," although she also testified that the Faith Home documents were "true. There has been an error."8/ Ms. Eubanks's testimony is at odds with the credible evidence presented by AHCA. Patient 14's HHC/POC dated January 20, 2011, ordered skilled nursing services to be provided one to two times a week for four weeks then every other week (EOW) for nine weeks. The HHC/POC also ordered that a HHA was to assist patient 14 with ADLs, a PT was to evaluate and treat patient 14, a speech therapist was to evaluate and treat patient 14, and an occupational therapist was to evaluate and treat patient 14. On January 25, 2011, patient 14's medical doctor again ordered the physical therapy and directed the HHA to provide services three times a week for nine weeks. The evidence regarding patient 14 documented two skilled nursing visits missed during the first two weeks of the certification period (January 16, 2011, to March 16, 2011), and there was no evidence of any HHA service visits for the first two weeks of patient 14's certification period. Additionally, patient 14 did not receive three physical therapy visits. Ms. Eubanks testified that patient 14 was in an adult day care setting and that Faith Home missed no less than four skilled nursing visits. The "Missed Visit" reports (MVR) provided by Faith Home purport that patient 14 was in an adult day care setting; yet, that same MVR documentation fails to record that patient 14's physician was notified of the lack of services being provided. Further, the MVR dated (Wednesday) January 26, 2011, reflects that patient 14's daughter "made arrangements to have [patient 14] home next on Thursday by 3 p.m. Understands nurse do [sic] not go to day care." This MVP reflects that the date of the next Faith Home service visit will be February 4, 2011, a Friday, not a Thursday. Also, within the material provided by Faith Home, there is a C/SR dated January 20, 2011. That C/SR records that patient 14 is "requesting a hold on home health aide visit. Daughter will be able to provide service for the next few weeks." Yet, there is also a HHA note dated January 22 or 23, 2011,9/ detailing HHA services provided to patient 14 on that date. The inconsistencies in Faith Home's documentation presented during the hearing are damaging to its credibility as a whole. Patient 15's HHC/POC, dated December 15, 2010, ordered skilled nursing services to be provided two to three times a week for nine weeks. As part of the skilled nursing services, patient 15 was to have her vital signs assessed along with other specific assessments. The HHC/POC also contained an order to "Report any changes or concerns to [the] MD & supervisor ASAP." The evidence presented regarding the skilled nursing visits for November 3 and 5, 2010, failed to reflect patient 15's neurological assessments or any observations by the nurse and also failed to provide the "nursing diagnosis/problem." Other portions to these specific records contain words or phrases to provide information, a number with a percentage sign, a zero (Ø), or simple checkmarks indicating a system was observed or treated. These written words or markings provide clarity to patient 15's completed assessments or status. Patient 15's skilled nursing records for December 29 and 31, 2010, and January 2, 12, and 14, 2011, failed to document one or more of the patient's systems: cardiovascular, genitourinary, neurological, or musculoskeletal. Ms. Eubanks testified that certain portions of patient 15's skilled nursing notes were completed using a method called "charting by exception." According to this method, when the professional leaves an area of the chart blank, it indicates that nothing is wrong with the patient. A review of patient 15's skilled nursing notes simply does not support the use of this methodology. Specifically as an example, on the November 5, 2010, skilled nursing visit note, nothing is checked or notated in the neuro-sensory section; yet, at the "PAIN" section, there is a "Ø" marked through all five lines. If the "charting by exception" method was being used, this area should have been left blank as there was no pain. It is impossible to determine when charting by exception is in place when one area of a record has check marks or specific notations regarding an assessment or status and another section (or sections) is left blank even though the HHC/POC specifically ordered that assessment. There is no base line by which the next skilled nurse would know if there had been a change in patient 15's assessment or status such that her attending physician or the supervisor should be appropriately notified. Ms. Eubanks's testimony is not credible in light of the evidence presented by AHCA. The June 2011 Follow up Survey Both parties presented medical records for Patient 2J. Patient 2J's two HHC/POCs appear to be identical in scope; yet, one was signed on April 25, 2011, while the other was signed on April 27, 2011. Within the HHC/POCs, the doctor ordered skilled nursing services to be provided once in the first week, then one to two times a week for eight weeks. As part of the skilled nursing services, patient 2J was to have her vital signs assessed and other specific assessments completed. The HHC/POCs also ordered a PT to evaluate and treat patient 2J. Ms. Eubanks testified that the PT evaluation was ordered on April 8, 2011, when it "came upon [sic] assessment." However, the HHC/POCs ordering the PT evaluation were not signed until April 25 or April 27, 2011. Patient 2J's actual physical therapy evaluation occurred on April 21, 2011, either four or six days before it was ordered. Faith Home either delayed 13 days in having the physical therapy evaluation completed, or Faith Home obtained a physical therapy evaluation prior to having a physician's order to provide the service. In either instance, Faith Home did not follow its own policies for providing services. Although the PT created a care plan for patient 2J, there is no physician's order directing the physical therapy care plan be used. Further, the physical therapy services were actually performed by a physical therapist assistant (PTA) and provided to patient 2J during weeks four, five, six, and seven of the certification period. An extra PTA visit was noted in week seven. Again, Faith Home provided services that were not in compliance with their own policies. Patient 3J had an April 5, 2011, order for physical therapy to be provided three times a week for six weeks based on her gait instability, her osteoarthritis in her knees, and her degenerative spinal joint disease. There was no evidence of any physical therapy being provided to patient 3J during the applicable certification period. Ms. Eubanks testified that patient 3J's actual care started in February 2011, despite the HHC/POC documentation that it started on March 24, 2011. Ms. Eubanks blamed a nursing supervisor for the wrong start date (March 24, 2011) and confirmed that the difference in start dates would make a difference in the dates of Faith Home services. Even if one were to accept the February 2011, order for physical therapy services, that order is incomplete because it fails to enumerate how many times a week and how many weeks the physical therapy services were needed. It is an incomplete order. Ms. Eubanks's testimony is not credible in light of the evidence presented by AHCA. Patient 4J's HHC/POC contained a SOC date of April 8, 2011. Therein it ordered skilled nursing services to be provided two to three times a week for nine weeks. As part of the skilled nursing services, patient 4J was to have her vital signs assessed along with other specific assessments. Additionally, the HHC/POC contained an order for a PT to evaluate and treat. Ms. Miller was unable to locate any documentation of home health services provided to patient 4J after May 5, 2011 (four missed visits), and there was no evidence that any physical therapy services were provided to patient 4J. Ms. Eubanks testified that patient 4J was in the hospital when Faith Home services were not provided to patient 4J. Although Ms. Eubanks relied on a discharge instruction sheet to make the claim, there is no date on the discharge instruction sheet, and no one testified as to the exact date that patient 4J was admitted to or discharged from the hospital. Ms. Eubanks's testimony is not credible as it relied on an undated discharge instruction sheet. Further, although the physical therapy referral for patient 4J was faxed to the physical therapy agency, that agency never received the referral and never provided the service. Faith Home failed to have a system in place to ensure services ordered by the physician were obtained. Ms. Okpaleke, as the owner of Faith Home, engaged an expert to help Faith Home "correct all the cites . . . and implement a plan of correction . . . to make sure that we were in compliance." Ms. Okpaleke terminated the expert's employment after the summer. Ms. Okpaleke then started monitoring Faith Home's practices and ensured that Faith Home returned to compliance with AHCA's regulations. Ms. Miller's salary at the time of the FH survey was $20.15. Ms. Miller expended approximately 30 hours in conducting the recertification survey of Faith Home. Based on her rate of pay, AHCA expended $1,370.20 for Ms. Miller's services. Ms. Peabody's salary while employed by AHCA during the FH survey was $21.07 an hour. Ms. Peabody expended approximately 42 hours preparing for, conducting, and completing the FH survey. Based on her rate of pay, AHCA expended $1,048.23 for Ms. Peabody's services. Mr. Bronson Sievers is the health facility evaluator supervisor for AHCA. His salary is $19.87 an hour. Mr. Sievers expended approximately ten hours reviewing the statement of deficiencies to determine if the appropriate citations had been used and the appropriate penalty assessed. Based on his rate of pay, AHCA expended $198.70 for Mr. Sieivers services. Mr. Sievers responsibility included the supervision of several AHCA programs and included the home health agencies. Mr. Sievers determined that the repeated violation warranted a Class III violation, which resulted in a $1,000.00 fine because it may affect the clients' well-being and health. Mr. Sievers provided AHCA's interpretation of the fine imposed when a home health agency demonstrates a pattern of failing to provide the specified services to its clients or patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order finding that Faith Home: Violated section 400.484 by committing a Class III violation as identified during the February 2011 survey and found again during the June 2011 survey and imposing an $1,000.00 administrative fine; Violated section 400.474(5) as found in no less than 107 instances when Faith Home failed to provide services ordered by an appropriate authority and imposing a $45,000.00 administrative fine; and Pursuant to section 400.484(3), AHCA shall assess and receive $2,617.13 for the investigation costs associated with this case as evidenced by the time expended by the three agency witnesses. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2012.
Findings Of Fact VNA Healthcare Group of Florida, Inc. is a non- profit parent corporation with four health-related subsidiaries. Visiting Nurse Association, Inc. is a Florida not-for-profit corporation which is licensed and Medicare- certified to provide home health care in the District VII, counties of Orange, Seminole and Osceola. VNA Respite Care, Inc. (hereafter "VNA Respite") is a licensed and non-Medicare certified subsidiary of VNA Healthcare Group which presently Provides private duty nursing services across District borders to residents of Orange, Seminole, Osceola, Lake, Marion, Sumter, Volusia, Polk, and Brevard counties. VNA Respite currently has offices in Orlando, Sanford, Longwood, Kissimmee, and Leesburg. Community Health Services, Inc. d/b/a VNA of Brevard, provides licensed Medicare- certified home health services in Brevard County. VNA of Central Florida, Inc. is the Community Care for the Elderly program provided in Orange and Seminole counties. On or before December 15, 1985, Visiting Nurse Association, Inc. (A) timely filed a CON application to establish a Medicare-certified home health care agency in District III. The application clearly identified Leesburg, Lake County, Florida, which is within District III, as the existing base of operations for the proposed agency. VNA applied for a CON to make its existing local home health agency, VNA Respite, Inc. eligible for Medicare reimbursement. The application, identified as CON number 4356, was denied by the State Agency Action Report (SAAR) of July 16, 1986. VNA's was the sole home health care agency application reviewed in this batching cycle, which contemplated a July, 1987 planning horizon. Since that time, HRS takes the position that it cannot tell what the horizon would be because its rules and policies have been invalidated. (TR 270-271). HRS is the agency responsible for certification and licensure of home health agencies in Florida. A home health agency in Florida must obtain a CON from HRS before it can become eligible to receive Medicare reimbursement. Medicare is a federally funded health program for elderly and disabled persons. Medicare reimbursement of home health agencies is on a cost reimbursement basis with a cap for each specific discipline covered. Home health agency costs in excess of the Medicare caps must be absorbed by the home health agency. This affects financial feasibility of individual applicants. Conversely, it also insures that traditional concepts of price competition have no applicability to home health agencies to the extent they provide Medicare reimbursable services and further establishes that there is negligible impact on competition among these labor (as opposed to capital) intensive providers. On August 15, 1906, VNA timely petitioned for a formal administrative hearing to challenge the denial. The only issue at the final hearing was whether VNA should be granted a CON. Both parties agreed that the only criteria remaining to be litigated were Florida Statutes subsections 381.494(6)(c) 1,2, 3, 4, 9, and 12 and 381.494 (6)(c) 8 as it relates to the extent to which the proposed services will be accessible to all residents of the service district. Presently, HRS has no rule or policy designating a numeric methodology to determine the need for new home health agencies in any given district. Review of CON applications for home health agencies is based upon statutory criteria of Section 384.494(6)(c), the merits of the proposal, and the district need demonstrated by the applicant. At final hearing, VNA, through its expert in need analysis for purposes of CON review, Sharon Gordon-Girvin. Presented two numeric methodologies to calculate need in District III. The method represented as the state's policy or "approach" for determining need was based upon an invalidated proposed rule which is no longer utilized by HRS and which, although pronounced reasonable" by both Ms. Gordon-Girvin and Respondent's spokesman, Reid Jaffee, cannot be legitimately used here as a reasonable methodology. (See Conclusions of Law. The other methodology presented by Gordon-Girvin was the District III Health Council need methodology. Gordon-Girvin and Jaffee each opined that District III's methodology is a very conservative procedure because of its use of a 5 year horizon line to project home health agency need. It is applied on a county by county basis and reveals a need on each of Alachua, Columbia, Hamilton, Lake and Marion counties for 1989. Jaffee concedes these foregoing figures. The plan also reveals a net need in 1987 for an additional agency in Alachua, Lake, Hamilton, and Columbia counties and in 1988 for an additional agency in Alachua, Lake, Hamilton, Columbia, and Marion counties. The District III Health Plan provides for a separate sub-district for each county. However, a county basis for subdistricting District III is not required by statute or rule and no part of the District III Health Plan has been adopted by HRS as a rule. The SAAR addressed the entire district as the service area. Although District III's need methodology does not establish a need for a home health agency for every county within the District, it provides that there are some circumstances in which the local need methodology may be set aside. District III's Review Guidelines provide that additional home health agencies may be granted certificates of need for counties within District III if certain circumstances are documented. The Review Guidelines propose that if residents of a specific area have not had access to home health services for the past calendar year preceding the proposal for new services or residents of a county have not had access to home health services for the past calendar year preceding the proposal for new services due to a patient's ability to pay or source of payment and the CON applicant documents an ability and willingness to accept patients regardless of payment source or ability to pay, the applicant may be approved as an additional home health agency. Although not a rule, this portion of the District III Health Plan is probative of need. In the absence of numeric need, it recommends additional home health agencies based upon a demonstration of unmet need for Medicaid and indigent patients. As of the date of hearing, HRS resisted granting the CON to VNA primarily because of unspecified prior batched applicants still in litigation (TR 232-233). Applicants in litigation are neither approved nor established and their existence, even had it been demonstrated, which it has not, is irrelevant. HRS' post-hearing proposals submit that neither of the proposed need methodologies suggested by VNA is applicable here. HRS urges the determination that VNA has thereby failed to establish numerical need for an additional District-wide home health agency and further submits that there is no compelment substantial evidence of unmet need for Medicaid and indigent patients. However, by a prehearing stipulation ratified at hearing, HRS agreed that, Although DHRS agrees that there is a need in District III for at least 18 other home health agencies, it contends that VNA should be denied its application because of certain other deficiencies in its proposals. (TR 14) VNA's principal office for HRS Service District VII is in Orlando, Orange County, Florida. HRS witness, Reid Jaffee, was the HRS reviewer of VNA's CON application. He candidly admitted that HRS' initial denial was based in part on his Failure to note the existence of VNA's local base of operations for its proposed home health agency. Most of HRS' concerns and reasoning for denial contained within the SAAP were based upon Mr. Jaffe's erroneous cognitive leap that VNA intended to "cover" the entire 16 county geographic area designated as HRS District I II From its corporate headquarters in District VII. Actually, VNA seeks certification of its existing licensed home health agency in District III. VNA Respite, VNA's existing licensed but non-certified home health agency in Leesburg, Lake County, a county within HRS District III, was established in January, 1985, and licensed in July 1986. Its office has continuously been located in and has operated out of Leesburg, Lake County, Florida, and it has continuously provided, without Medicare reimbursement, the same types of home health services as VNA now proposes to provide for Medicare reimbursement if the sought-for CON is granted. If granted a CON, VNA proposes to initially provide medical home health care services to patients in Lake, Citrus, Sumter, Marion, and Alachua counties. Services will initially be coordinated through the existing office of VNA Respite in Leesburg, Lake County, Florida. VNA would later phase in the remaining counties of District III by establishing another base office located in Alachua County. Reid Jaffee stated HRS probably would not have any cause to oppose the CON on the basis of anticipated geographic problems impinging on feasibility or quality of care if the service area were Lake, Sumter, Citrus, and Marion counties serviced from the existing Leesburg, Lake County base. (TR 256-258). In the first year VNA estimates 6,000 visits. In the second year it estimates 12,000 visits. A visit" is defined as the provision of service to meet the needs of a patient at his place of residence. In their Leesburg office, VNA Respite has received an average of 10 calls per week for Medicare reimbursable services which they currently must turn down. VNA submitted corrected financial information because of some inadvertent errors that had been made in the initial application. This was accepted by HRS and permitted by the Hearing Officer because it did not constitute a substantial amendment. It will cost VNA a maximum of $50,000 in start-up costs to operate in District III, although many of these costs have already been met by VNA Respite's previous and existing presence in Lake County. The initial application mistakenly submitted VNA's actual operating budget for a two year period in the place in the application designated for start-up costs. VNA's charges for a visit in the existing service area would be $55 the first year and $60 per visit the second year. The corrected financials reflect a net income projection of $10,442 in the first year and of $19,078 the second year. The project is financially feasible on both a short and a long term basis. Significant economies of scale will be realized by virtue of VNA's size in District VII which affords and will afford VNA Respite in District III the benefits of centralized accounting, billing, personnel services, nurse education services, and quality assurance programs while the use of VNA Respite in Leesburg as a dispatching base will assume quick, quality responsiveness to District III patients' needs. In the past, VNA has never exceeded Medicare cost caps. The projected costs of the VNA application are less than the cost caps in effect for District III. VNA will be operating cost effectively in District III in part because its cost per visit will be less than the Medicare cap. VNA's proposed home health agency will operate with reasonable efficiency if it is phased in as projected by VNA planners and economic experts. VNA proposes to offer the full six-core range of Medicare reimbursable services. It will provide, among other services, skilled nursing and medical supplies, physical therapy, occupational therapy, speech therapy, home health aid, and medical social services to patients in their homes. These are now offered out of VNA Respite's Leesburg office but are not Medicare reimbursable without a CON. VNA currently offers and proposes to offer high-tech home health services including enterostomal therapy, psychiatric nursing, parenteral-enteral therapy, and oncology and pediatric services. Additionally, homemakers and medical supply services are offered and are proposed to be offered. They are now, and if the application is granted, will continue to be made available 24 hours a day, 7 days a week. VNA proposes a voluntary advocacy program. The program anticipates added support to service elderly patients by coordination of volunteers who make daily telephone calls to the elderly or visit them at home. A similar program is working successfully in VNA's District VII operation at the present time. No other similar program is offered by other existing District III providers. By competent, substantial evidence, VNA has demonstrated considerable community and professional health care provider support for approval of its application. VNA Respite has a modest but positive record of community involvement in the areas of citizen education and continuing medical education. It offers health fairs on a regular basis and offers blood pressure clinics and diabetic screening programs weekly. VNA offers special training programs for home health aides which meet the State criteria. Graduates of the program are then employable by any Florida home health agency. The program is taught by VNA's Director of Education and VNA staff members. VNA offers clinical nursing programs ( internships) to students of the nursing schools of the University of Central Florida and University of Florida for nursing, dietary, and medical social worker master level programs. VNA is also a community-based agency, that is, it is governed by a board of directors which is comprised of community members who without pay, serve on the board and set policy. The District Health Plan, Table Home Health 6 entitled "Estimate of Population in Need of Home Health Services District III 1984 and 1989" reveals that: The licensed and approved home health agencies in District III in 1984 were only able to meet 72 percent of the existing need for home health services in District III. In 1984 only 66 percent of the need for home health services was met by licensed and approved home health agencies in Lake County. In 1984 only 59 percent of the need for home health services was met by licensed and approved home health agencies in Marion County. In 1984 only 58 percent of the need for home health services was met by licensed and approved home health agencies in Alachua County. In 1934 only 51 percent of the need for home health services was met by licensed and approved home health agencies in Sumter County. There was no hint that more recent figures (i.e. figures for the calendar year immediately preceding the proposal) are in existence or available. There is no minimum amount of indigent care required by Statute or rule which must be provided by a Medicare-certified home health agency. VNA committed at formal hearing to serve the following mix of patients by payor class from its VNA Respite base in District III if a CON is granted: 37 percent Medicare; 7.2 percent Insurance; 2.5 percent Medicaid; 2.3 percent Indigent. This revised commitment is more than eight times greater than the other District III home health agencies average commitment of .28 percent for indigent and three times their average for Medicaid patients. There was uncontroverted testimony that occasionally in instances when a patient's funding has been depleted or a patient is temporarily off Medicare for some reason, other District III home health agencies have discontinued all or select services even though the patient was still in need of the services. The VNA Respite office in Leesburg has provided indigent care in many past situations despite its lack of Medicare and Medicaid funding. VNA proposes to expand its service area to include District III in part to meet the need it perceives in District III for a nonprofit charitable home health agency. VNA's application states a commitment to provide totally uncompensated care to indigents. This noble ideal has to be taken with a grain of salt, however. A more realistic commitment is contained in VNA's Mission Statement, which reflects the basic philosophy and direction for VNA. It states that based upon the financial ability of the agency through available charity monies, VNA will provide select services to those patients having medical need regardless of their ability to pay. Absent a greater demonstration of guaranteed public and private beneficiary funding than appears in this record, the former lofty goal cannot be accepted as credible. However, the latter Mission Statement may be taken as a credible and valid commitment which is reasonably capable of fulfillment by VNA Respite for the reasons set out in the next Finding of Fact. VNA's dedication to providing indigent care and its Mission Statement policy have been implemented beyond the ramifications set forth in the Mission Statement through a policy of VNA's board of directors which transfers proceeds from other VNA subsidiaries to meet the service requirements of the certified home health agency. This policy allows VNA to provide more charity care than that for which it has been reimbursed by charitable contributions. VNA is one of only two nonprofit licensed home health agencies in District III. Due to VNA's non- profit status, it has opportunities to obtain charity monies to provide care to patients who have no payment source. In District VII, VNA typically receives monies from the public United Way and other private foundations. VNA`s dedication to service of indigents is reflected by its service in District VII. In District VII, in 1985, 70 percent of all charity visits were provided by VNA, although there were five other certified agencies. VNA maintains a professional advisory group which reviews the voluntary board's policy and VNA's provision of services. Such a professional advisory group is mandated under Medicare. It is made up of physicians and social workers but also includes lay members from the counties served. Qualifications for all members, but particularly for lay membership, was not sufficiently explored at hearing to make it possible to determine how "professional" the advisory group is, but it will be expanded to include representatives from District III counties if a CON is granted. VNA has established several internal departments and agency policies to insure a high quality of the home health services it provides. The intent behind VNA's Quality Assurance Department program is to oversee quality review controls and monitor nursing services through utilization and clinical record reviews to assure adherence to professional standards, corporate goals, and statements of policy (including the Mission Statement.) The evidence as to the implementation of each part of this lofty intent in actual practice in the Leesburg office of VNA Respite is hardly overwhelming, however, VNA has adequately demonstrated by competent substantial evidence that each VNA staff member receives a 3-week orientation upon initial employment and that after 3 months each staff member is evaluated by a quality assurance staff member accompanying the newcomer on home visits to review and verify the newcomer's clinical skills. It is also established that VNA's Community and Staff Education Department trains and orients staff and develops continuing medical education programs as discussed above. VNA publishes and provides its contract nurses and therapists with a detailed Policy and Procedure Manual, thereby providing further quality assurance, uniformity of care, and further staff training beyond that already described. The "track record" of its existing home health agency offices elsewhere provides some further insight for predicting the quality of care to be offered if the present CON application is granted. In 1985, VNA, Inc. made 144,000 visits or 48 percent of the total 297,000 visits made by home health agencies in Orange, Osceola, and Seminole counties. VNA, Inc. was formed in 1951 and has been Medicare-certified since 1966. Annual state licensing surveys conducted for VNA operations in Osceola, Orange and Seminole Counties have revealed either no deficiencies in operations or minimum deficiencies, none of which have ever addressed the quality of care provided. VNA demonstrated that accessibility of residents of certain counties within District III to certain types of core home health services is currently limited, particularly as to certain high-tech services and certain non- traditional forms of nursing. VNA has demonstrated that the 19 existing providers within District III have often failed to render certain types of high- tech and specialty nursing services within District III. It has been stipulated that two of the 19 existing providers have home offices located outside District III. They are Central Florida Home Health Service based in Volusia County and Gulf Coast Home Health Service based in Pinellas County. Lakeview Terrace Christian Retirement's CON and license limit it to providing home health care only to its residents, rather than to the general population of District III. Unfortunately, the evidence of record on the inaccessibility of services does not always follow the same county lines and this factor together with the variation of types of service which are sometimes inaccessible renders reaching any determination with regard to inaccessibility and unmet need on a District- wide basis difficult. The evidence is, however, clear that VNA has received a number of pediatric referrals because of the inability of other home health agencies to provide this nursing service. These remain a continuing need. Another continuing need is for long term intermittent visits which are difficult to obtain in District III, particularly11 for the elderly. Referrals to VNA Respite in District III have also been made from HRS in Lake and Marion Counties because of VNA's proven ability to provide otherwise inaccessible and unavailable high-tech services. Some of these latter referrals are somewhat remote in time from the date of hearing but there was no contrary HRS evidence that these situations of unmet need have alleviated. Seasonal fluctuations of population and the inadequacies of competing home health agency staffs put an increased strain on the existing District III home health agencies' ability to meet the current population's needs. VNA provides nurses specially trained and certified in a variety of the high-tech specialties. For example, VNA Respite in Leesburg offers certified enterstomal therapists, as well as certified intravenous (I.V.) therapy nurses with specialized training. From this specialization, it may be inferred that VNA is able to offer a higher level of care, increase the continuity of patient care, and decrease the amount of time necessary for each home visitation with certain patients within counties within a reasonable radius of Leesburg. VNA's application, as modified, satisfies the applicable planning guidelines established by the most recent District III Plan. There is negligible impact on competition in labor intensive providers such as home health agencies.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a Final Order granting VNA a CON to establish a District-wide home health agency as set forth in the proposal and conditioned upon its fulfilling its 2.3 percent indigent and 2. 5 percent Medicaid percentage commitments and upon phasing in its services in two stages, beginning with its first base at VNA Respite in Leesburg, Lake County. DONE and ORDERED this 21st day of May, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 21st day of May, 1987. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-3558 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the respective proposed findings of fact (FOF): Petitioners proposed FOF: 1-6 Covered in FOF 1. 8-14 Accepted but as stated subordinate to the facts as found. 15-17 Covered in FOF 16. 18 Accepted but subordinate to the facts as found. 19-21 Covered in FOF 17. Rejected as conclusionary and not supported by credible competent substantial evidence. Covered in FOF 18. Covered in FOF 16. Covered in FOF 24. Covered in FOF 14. 27-23 Covered in FOF 24. 29 Covered in FOF 18. 30-35 Covered in FOF 24. 36-37 Covered in FOF 18. 38 Rejected as a conclusion of law of facts as found 25-26. 39-40 Covered in FOF 16, 22 and 25. 41-52 Except as covered in FOF 16, 22, and 25-26, these proposals are subordinate and unnecessary to the facts as found, or to the degree indicated in those FOF, are not supported by direct competent substantial evidence. 53-55 Except as covered in FOF 3, 25-26, these proposals are subordinate to the facts an found and unnecessary. 56-57 Covered in FOF 19. 58 Rejected as stated as not supported by the direct credible evidence as a whole. 59-68 Covered in FOF 22-23. Covered in FOF 21. Covered in FOF 20. 71-74 Subordinate and unnecessary to the facts as found in FOF 21. 75-86 In large part these proposals are irrelevant for the reasons stated in the facts as found; that material which is not irrelevant is CUMULATIVE, subordinate and unnecessary to the facts as found. Additionally these proposals are so unsatisfactorily numbered or otherwise delineated as to be something apart from proposals of findings of ultimate material fact. See FOF 10, 19, and 27. 87-94 Covered in FOF 15. 95-96 Covered in FOF 14. 97-98 Subordinate and unnecessary to the facts as found. 99-101 Covered in FOF 15. 102-105 Rejected in part for the reasons set out in FOF 4 and 28 in part as not supported by the record as a whole and in part as subordinate and unnecessary. 106-110 Except as covered in FOF 7-12, 19, 22, and 25, and the conclusions of law (COL), these proposals are rejected as not supported by the record as a whole. 111. Rejected as not supported by the record as a whole. See FOF 2 and 8. 112-118 Except as covered in FOF COL, these proposals are the record as a whole. 7-12, 19, 22, aid 25, and the rejected as not supported by 119 Covered in FOF 2. 120 Covered in FOF 10-12 and the COL. 121-129 Except as covered in FOF 7-12 and 14, rejected as not 1-131 Supported by the record as a whole. Covered in FOF 22 and 25. 132 Covered in FOF 21-23. 133-134 Rejected as conclusions of law. Respondent's proposed FOF: Covered in FOF 2. Covered in FOF 5. Covered in FOF 6. Covered in FOF 1. Covered in FOF 2-3. Covered in FOF 16. Covered in FOF 17. Covered in FOF 21. Covered in FOF 3. Covered in FOF 2-3. Covered in FOF 4. Covered in FOF 7. Covered in FOF 8-12. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Leo P. Rock, Jr., Esquire Linda D. Schoonover, Esquire Suite 1200 201 East Pine Street Orlando, Florida 32801 John Rodriguez, Esquire, Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Conclusions Having reviewed the Notice of Intent to Deny the renewal license application for a home health agency, attached hereto and incorporated herein (Ex. 1), and other matters of records, the Agency for Health Care Administration ("Agency") finds and concludes as follows: By Order dated August 26, 2008, the Administrative Law Judge closed its files in the above-styled case. Petitioner filed a status report withdrawing the application for renewal oflicense on August 20, 2009, attached hereto and incorporated herein (Ex. 2). The denial of the renewal application for Petitioner home health agency is upheld and the application for license renewal has been withdrawn. Upon consideration of the foregoing, it is ORDERED that the Agency's file is hereby closed. DONE and ORDERED at Tallahassee, Leon County, Florida this ffj day of ,2009. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Monica L. Rodriguez Attorney for Petitioner Dresnick & Rodriguez, P.A. One Datran Center 91 South Dadeland Blvd, Suite 1610 Miami, Florida 33156 (U.S. Mail) Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8350 NW 52nd Terrace, Suite #103 Miami, Florida 33166 (Interoffice Mail) Home Care Unit Agency for Health Care Administration' 2727 Mahan Drive, MS #34 Tallahassee, Florida 32308 (Interoffice Mail) Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 2 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was sent to the above-named addressees by U.S. Mail, or the method designated, on thisLday of s5xpf 009. Richard Shoop. Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 (850) 922-5873 3 CHARLIE CRIST GOVERNOR June 23, 2008 Kelly Marie Damas, Admin istrator- 1 / / ·.:;, '. TEHC LLC '- -...· , .. ' ' 3317NW10thTerrSte404 i' r:;_'.'./fl Fort Lauderdale, Fl 33309 J:.:·:>r 1.< \ ii{;;_ License Number: 204390961 Case#: 2008007748 NefltE't)iKIN1'ENT:·q,oDENY It is the decision of this Agency that the application for renewal licensure as a home health agency, for TEHC, LLC., located at 3317 NW 10th Terrace, Suite 404, Fort Lauderdale, Fl 33309, is DENIED. The basis for this action is pursuant to authority of Section 120.60 Florida Statutes (F.S.) and Section 408.815 (1), (c) and (d), F.S. which states as follows: (1) In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license ... include any of the following actions by a controlling interest: A violation of this part, authorizing statutes, or applicable rules. A demonstrated pattern of deficient performance. The home health agency did not demonstrate compliance with Chapter 400, Part III, F.S. and the state home health agency rules, Chapter 59A-8, Florida Administrative Code (F.A.C.) at the home health agency licensure survey conducted Mr..y 5 through May 8, 2008. The plan of correction due June 7, 2008 as submitted to the Agency's Field Office was not acceptable. Non compliance was found in the following areas: The home health agency failed to ensure the Director of Nursing established and conducted an on-going quality assurance _program that evaluated the effectiveness of all the provided service for consistency with professional standards and anticipated outcomes. (H 224) The pertinent statutes and rules that apply include the following: 59A-8.0095(2) (c), F.A.C. "Director of Nursing: (c) The director of nursing shall establish and conduct an ongoing quality assurance program which assures: 2727 Mahan Drive,MS#34 Tallahassee, Florida 32308 EXHIBIT j Visit AHCA Online at http://ahca.myflo rida.com 'Tehc LLC Page 2 · ·-:June 23;·2008· Case assignment and management is appropriate, adequate, and consistent with the plan of care, medical regimen and patient needs; Nursing and other services provided to the patient are coordinated, appropriate, adequate, and consistent with plans of care; All services and outcomes are completely and legibly documented, dated and signed in the clinical service record; Confidentiality of patient data is maintained; and Findings of the quality assurance program are used to improve services." The home health agency failed to ensure that the Registered Nurse (RN)provide case management for 5 of 17 nursing and therapy patients. This was evidenced by: failure to provide an assessment prior to documenting a start of care comprehensive assessment for one patient; failure to provide supervision for the Licensed Practical Nurse (LPN) in the performance of duties for two patients and failure to assure progress reports were made to the physician for patients receiving nursing services when the patient's condition changed for two patients. The pertinent statutes and rules that apply include the following: 59A-8.0095 (3) (a), F.A.C. "Registered Nurse. A registered nurse shall be currently licensed in the state, pursuant to Chapter 464, F.S., and: Be the case manager in all cases involving nursing or both nursing and therapy care. Be responsible for the clinical record for each patient receiving nursing care; and Assure that progress reports are made to the physician for patients receiving nursing services when the patient's condition changes or there are deviations from the plan of care." The home health agency failed to ensure that the RN retained full responsibility for the care given and making supervisory visits to the patient's home for 3 of 17 sampled patients as evidenced by failure to provide supervision for the LPN in the performance of duties for two patients; failure to provide supervision for the Home Health Aide (Aide) and failed to prepare a written Aide assignment/instructions for services to be provided to the patient for 3 patients. (H 231) The pertinent statutes and rules that apply include the following: 59A-8.0095 (3) (b), F.A.C., "Registered Nurse. A registered nurse may assign selected portions of patient care to licensed practical nurses and home health aides but always retains the full responsibility for the care given and for making supervisory visits to the patient's home." The home health agency failed to provide supervision for the LPN in the perfonnance of duties for 2 of 17 patients. (H 235) Tebc LLC Page 3 --+---- ----:June-23--;-2008·--------- ·-- --------- --- The pertinent statutes and rules that apply include the following: 59A-8.0095 (4) (a), F.A.C., "Licensed Practical Nurse. A licensed practical nurse shall be currently licensed in the state, pursuant to Chapter 464, F.S., and provide nursing care assigned by and under the direction of a registered nurse who provides on-site supervision as needed, based upon the severity of patients medical condition and the nurse's training and experience. Supervisory visits will be documented in patient files. Provision shall be made in agency policies and procedures for annual evaluation of the LPN's performance of duties by the registered nurse." The home health agency failed to ensure the LPN reported any changes in the patient's condition to the RN and document the changes in the patient's clinical record for 1 of 17 sampled patients. (H 236) The pertinent statutes and rules that apply include the following: 59A-8.0095 (4) (b), F.A.C., "Licensed Practical Nurse A licensed practical nurse shall: Prepare and record clinical notes for the clinical record; Report any changes in the patient's condition to the registered nurse with the reports documented in the clinical record; Provide care to the patient including the administration of treatments and medications; -------and --- , ---------------- , -------------, ------------------ -------------·· Other duties assigned by the registered nurse, pursuant to Chapter 464, F.S." The home health agency failed to ensure that the care provided followed the plan of treatment for 11 of 17 sampled patients. The home health agency also failed to ensure a verbal order obtained by a home health agency nurse was put into writing and signed by the attending physician for 1 of 17 sampled patients. (H 302) The pertinent statutes and rules that apply include the following: Section 400.487 (2) F.S., "When required by the provisions of chapter 464; part I, part III, or part V of chapter 468; or chapter 486, the attending physician, physician assistant, or advanced registered nurse practitioner, acting within his or her respective scope of practice, shall establish treatment orders for a patient who is to receive skilled care. The treatment orders must be signed by the physician, physician assistant, or advanced registered nurse practitioner before a claim for payment for the skilled services is submitted by the home health agency. If the claim is submitted to a managed care organization, the treatment orders must be signed within the time allowed under the provider agreement. The treatment orders shall be reviewed, as frequently as the patient's illness requires, by the physician, physician assistant, or advanced registered nurse practitioner in consultation with the home health agency." 'Tehc LLC Page 4 _June 2},-200&------- ----- Chapter 59A-8.0215(2), F.A.C., "Home health agency staff must follow the physician, physician assistant, or advanced registered nurse practitioner's treatment orders that are contained in the plan of care. If the orders cannot be followed and must be altered in some way, the patient's physician, physician assistant, or advanced registered nurse practitioner must be notified and must approve of the change. Any verbal changes are put in writing and signed and dated with the date of receipt by the nurse or therapist who talked with the physician, physician assistant, or advanced registered nurse practitioner's office." The home health agency failed to ensure 9 of 17 patients were advised of the payment for home health agency services before care was started and were clear about the payor source and any charges required from the patient. (H 304) The pertinent statutes and rules that apply include the following: Section 400.487 (1), F.S., "Services provided by a home health agency must be covered by an agreement between the home health agency and the patient or the patient's legal representative specifying the home health services to be provided, the rates or charges for services paid with private funds, and the sources of payment, which may include Medicare, Medicaid, private insurance, personal funds, or a combination thereof. A home health agency providing skilled care must make an assessment of the patient's needs within 48 hours after the start of services." Chapter 59A-8.020 (2), F.A.C., "At the start of services a home health agency must establish a written agreement between the agency and the patient or client or the patient's or client's legal representative, including the information described in Section 400.487(1), F.S. This written agreement must be signed and dated by a representative of the home health agency and the patient or client or the patient's or client's legal representative. A copy of the agreement must be given to the patient or client and the original must be placed in the patient's or client's file." Chapter 59A-8.020 (3), F.A.C., "The written agreement, as specified in subsection (2) above, shall serve as the home health agency's service provision plan, pursuant to Section 400.491(2), F.S., for clients who receive homemaker and companion services or home health aide services which do not require a physician, physician assistant, or advanced registered nurse practitioner's treatment order. The written agreement for these clients shall be maintained for one year after termination of services." The home health agency failed to demonstrate effective communication between interdisciplinary team members to coordinate services as outlined in the plan of care for 3 of 17 'patients and failed to ensure that 8 of 17 sampled patients received the skilled nursing services in accordance with the physician's VvTitten plan of care. (H 306) The pertinent statutes and rules that apply include the following: 'Tehc LLC Page 5 --·-- June 23, 20-08 ··· - ----- Section 400.487 (6), F.S., "Tl1e skilled care services provided by a home health agency, directly or under contract, must be supervised and coordinated in accordance with the plan of care." The home health agency failed to ensure the registered nurse completed the initial evaluation visit for 1 of 17 patients. The Director of Nursing who signed the initial evaluation visit never made a home visit to the patient. (H 307) The pertinent statutes and rules that apply include the following: 59A-8.008 (1), F.A.C.., "In cases of patients requiring only nursing, or in cases requiring nursing and physical, respiratory, occupational or speech therapy services, or nursing and dietetic and nutrition services, the agency shall provide case management by a licensed registered nurse directly employed by the agency.'' The home health agency failed to provide written notice for tenninating home health services to 1 of 3 sampled patients. There was no written notification regarding the date of termination; reason for termination or a referral to another agency with a plan for continued services prior to the termination. (H 316) The pertinent statutes and rules that apply include the following: Chapter 59A-8.020 (4), F.A.C., "When the agency terminates services for a patient or client needing continuing home health care, as determined by the patient's physician, physician assistant, or advanced registered nurse practitioner, for patients receiving care under a physician, physician assistant, or advanced registered nurse practitioner's treatment order, or as determined by the client or caregiver, for clients receiving care without a physician, physician assistant, or advanced registered nurse practitioner's treatment order, a plan must be developed and a referral made by home health agency staff to another home health agency or service provider prior to termination. The patient or client must be notified in writing of the date of termination, the reason for termination, pursuant to Section 400.491, F.S., and the plan for continued services by the agency or service provider to which the patient or client has been referred, pursuant to Section 400.497(6), F.S. This requirement does not apply to patients paying through personal funds or private insurance who default on their contract through non-payment. The home health agency should provide social work assistance to patients to help them determine their eligibility for assistance from government funded programs if their private funds have been depleted or will be depleted." The home health agency failed to develop a plan of care for 6 of 17 sampled patients that included all of the required items needed to appropriately serve patients including goals to support the physician's treatment orders, level of staff to provide the services to reach the goals, and the frequency of visits to conduct the services by appropriate home health agency staff. (H 320) Tehc LLC Page 6 -June 23, 2008 The pertinent statutes and rules that apply include the following: Section 400.487 (2). f.S., "When required by the provisions of chapter 464; part I, part III, or part V of chapter 468; or chapter 486, the attending physician, physician assistant, or advanced regis1ered nurse practitioner, acting within his or her respective scope of practice, shalJ establish treatment orders for a patient who is to receive skilled care " Chapter 59A-8.0215 (1), F.A.C., "A plan of care shall be established in consultation with the physician, physician assistant, or advanced registered nurse practitioner, pursuant to Section 400.487, F.S., and the home health agency staff who are involved in providing the care and services required to carry out the physician, physician assistant, or advanced registered nurse practitioner's treatment orders. The plan must be jncluded in the clinical record and available for review by all staff involved in providing care to the patient. The plan of care shall contain a list of individualized specific goals for each skilled discipline that provides patient care, with implementation plans addressing the level of staff who will provide care, the frequency of home visits to provide direct care and case management." The home health agency failed to demonstrate evidence that patients were informed in advance about any changes to the plan of care prior to implementation of the changes for 1 of 17 patients. (H 321) The pertinent statutes and rules that apply include the following: Chapter 59A-8.0215 (3), F.A.C., "The patient, caregiver or guardian must be informed by the home health agency personnel that: He has the right to be informed of the plan of care; He has the right to participate in the development of the plan of care; and He may have a copy of the plan if requested." The home health agency failed to maintain a clinical record in accordance with accepted professional standards for 12 of 17 patients. (H 350) The pertinent statutes and rules that apply include the following: Section 400.491 (1), F.S,, "The home health agency must maintain for each patient who receives skilled care a clinical record that includes pertinent past and current medical, nursing, social and other therapeutic information, the treatment orders, and other such information as is necessary for the safe and adequate care of the patient. When home health services are terminated, the record must show the date and reason for termination " 'Tehc LLC Page 7 June 23,-2008 The home health agency failed to include all of the required items in the discharged patient clinicai records for 3 of 3 patients. There were no tem1ination summaries as required. (H 356) The pertinent statutes and rules that apply include the following: Chapter 59A-8.022(5), F.A.C., "Clinical records must contain the following: Source ofreferral; Physician, physician assistant, or advanced registered nurse practitioner's verbal orders initiated by the physician, physician assistant, or advanced registered nurse practitioner prior to start of care and signed by the physician, physician assistant, or advanced registered nurse practitioner as required in Section 400.487(2), F.S. Assessment of the patient's needs; Statement of patient or caregiver problems; Statement of patient's and caregiver's ability to provide interim services; Identification sheet for the patient with name, address, telephone number, date of birth, sex, agency case number, caregiver, next of kin or guardian; Plan of care or service provision plan and all subsequent updates and changes; Clinical and service notes, signed and dated by the staff member providing the service which shall include: Initial assessments and progress notes with changes in the person's condition; Services rendered; Observations; Instructions to the patient and caregiver or guardian, including administration of and adverse reactions to medications; (i) Home visits to patients for supervision of staff providing services; G) Reports of case conferences; (k) Reports to physicians, physician assistants, or advanced registered nurse practitioners; (1) Termination summary including the date of first and last visit, the reason for termination of service, an evaluation of established goals at time of tennination, the condition of the patient on discharge and the disposition of the patient." The home health agency failed to submit their comprehensive emergency management plan to the local county health department for review and approval. (H 376) The pertinent statutes and rules that apply include the following: Section 400.497(8) (c), F.S. "Preparation of a comprehensive emergency management plan pursuant to s. 400.492. (c) The plan is subject to review and approval by the county health department. During its review, the county health department shall contact state and local health and medical stakeholders when necessary. The county health department shall complete its review to . Tehc LLC Page 8 - --June 23.1008 ensure that the plan is in accordance with the criteria in the Agency for Health Care Administration rules within 90 days after receipt of the plan and shall approve the plan or advise the home health agency of necessary revisions. If the home health agency fails to submit a plan or fails to submit the requested information or revisions to the county health department within 30 days after vvTitten notification from the county health department, the county health department shall notify the Agency for Health Care Administration. The agency shall notify the home health agency that its failure constitutes a deficiency, subject to a fine of $5,000 per occurrence. If the plan is not submitted, information is not provided, or revisions are not made as requested, the agency may impose the fine." Chapter 59A-8.027 (2), F.A.C., "The plan, once completed, will be forwarded electronically for approval to the contact designated by the Department of Health." Section 400.492, F.S., "Each home health agency shall prepare and maintain a comprehensive emergency management plan that is consistent with the standards adopted by national or state accreditation organizations and consistent with the local special needs plan. The plan shall be updated annually ... " Chapter 59A-8.027(3) and (4), F.S., "The agency shall review its emergency management plan on an annual basis and make any substantive changes. (4) Changes in the telephone numbers of those staff who are coordinating the agency's emergency response must be reported to the agency's county office of Emergency Management and to the local County Health Department. For agencies with multiple counties on their license, the changes must be reported to each County Health Department ap.d each county Emergency Management office. The telephone numbers must include numbers where the coordinating staff can be contacted outside of the agency's regular office hours. All home health agencies must report these changes, whether their plan has been previously reviewed or not, as defined in subsection (2) above." · The home health agency failed to renew the application for a Certificate of Exemption that authorizes the performance of waived laboratory tests. (H 390) The pertinent statutes and rules that apply include the following: Section 483.091,F.S. "Clinical laboratory license.--A person may not conduct, maintain, or operate a clinical laboratory in this state, except a laboratory that is exempt under s. 483.031, unless the clinical laboratory has obtained a license from the agency A license is valid only for the person or persons to whom it is issued and may not be sold, assigned, or transferred, voluntarily or involuntarily, and is not valid for any premises other than those for which the license is issued. 483.031 Application of part; exemptions.--This part applies to all clinical laboratories within this state, except: (1) A clinical laboratory operated by the United States Government. (2) A clinical laboratory . Tehc LLC Page 9 · - · June 23;-2008 that performs only waived tests and has received a certificate of exemption from the agency under s. 483.106. (3) A clinical laboratory operated and maintained exclusively for research and teaching purposes that do not involve patient or public health service. 483. l 06 Application for a certificate of exemption.--An application for a cenificate of exemption must be made under oath by the owner or director of a clinical laboratory that performs only waived tests as defined ins. 483.041. A certificate of exemption authorizes a clinical laboratory to perform waived tests. Laboratories maintained on separate premises and operated under the same management may apply for a single certificate of exemption or multiple certificates of exemption ... EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Anne Menard, Manager Home Care Unit cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 Arlene Mayo-David, AHCA Delray Beach Field Office Manager Track & Confirm Search Resuhs Label/Receipt Number: 7160 3901 9845 4743 6663 Status: Delivered Your item was delivered at 11:36 AM on June 26, 2008 in FORT LAUDERDALE, FL 33309. Track.& Confirm FAQs Enter Label/Receipt Number. Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. ( /,h,>) fgnns Oov'I Services .Jobs Priv11.c;y Policy Tenns_ofUse • Nation;il_&.Premier Accounts Copyright© 1999-2007 USPS. All Rights Reserved. No FEAR Act EEO Data FOIA http://trkcnfrm l .smi.usps.com/PTSintemetWeb/Inter Labellnquiry .do 7/21/2008 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Agency ,i' ., :, In RE: Licensure Renewal Application of Care Admi :i: : TEHC,LLC AHCA No. 2008007748 License No. 204390961 I REQUEST FOR FORMAL HEARING The law firm of Dresnick & Rodriguez, P.A., notices its appearance as counsel for TEHC, LLC, in conjunction with the above-referenced matter. All pleadings, documents, and other communications should be provided to TEHC's counsel at the address below. TEHC disputes the allegations of fact contained in the Notice oflntent to Deny and requests that this pleading be considered a demand for a formal hearing, pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and pursuant to Rule 28-106.2015,. Florida Administrative Code, before an Administrative Law Judge appointed by the Division of Administrative Hearings. In support of this Petition, TEHC states the following: The Petitioner is TEHC, TLC, 3317 NW 10th Terrace. Suite 404. Fort Lauderdale, FL 33309. TEHC's telephone number is 954-351-1895, and the facsimile number is 954-351-1820. TEHC's counsel should be contacted at the address and fax number below. TEHC disputes allegations of fact including, but not limited to, those in paragraphs 1, 6, 7, 8, 9, 11, 12, 15 and 16 of the Notice oflntent to Deny, and requests an Administrative Hearing regarding these allegations. In addition, TEHC disputes that they DRESNICK & RODRIGUEZ, P.A., ONEDATRAN CENTER, SUITE 1610, 9100 SOUTH DADELAND BOULEVARD, MIAMI, F'L 33156-7817 • (305) 670-9800 AHCA No. 2008007748 License No. 204390961 have demonstrated a pattern of deficient performance, and that the plan of correction submitted in June, 2008 was not acceptable. TEHC received the Notice oflntent to Deny on June 26, 2008. The Agency's file number in this case is 2008007748. Respectfully submitted, DRESNICK & RODRIGUEZ, P.A. Attorneys for TEHC, LLC One Datran Center 9100 South Dadeland Blvd, Suite 1610 Miami, FL 33156 Off: (305) 670-9800 Fax: (305) 670-9933 '£' Monica L. Rodriguez) Florida Bar No. 986283 2 DRESNICK & RODRIGUEZ, P.A., ONE DATRAN CENTER, SUITE 1610, 9100 SOUTH DADELAND BOULEVARD, MIAMI, FL 33156-7817 • (305) 670-9800 AHCA No. 2008007748 License No. 204390961 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing has been furnished by telefax and U.S. Mail on July 16, 2008 to: Nelson Rodney, Assistant General Counsel, Agency for Health Care Administration, 8350 N.W. 52nd Terrace, Suite 103, Miami, FL 33166, with a copy via telefax and U.S. Mail to Richard Shoop, Agency Clerk, 2727 Mahan Drive, Mail Stop # 3, Tallahassee, Florida 32308. '-<:;.., )...f?. .c..,...:_ Monica L. Rodriguez O ') 3 DRESNICK & RODRIGUEZ. P.A., ONEDATRAN CENTER, SUITE 1610, 9100 SOUTH DADELAND BOULEVARD, MIAMI, FL 33156-7817 • (305) 670-9800 08/20/2009 15 51 FAX 305 870 9933 ?RESN ICK & RODRIGUEZ, PA 002/003 STATE OF FLORJDA
