Findings Of Fact The parties stipulated that s. 381.494(6)(c) 5, 6, 10, and 11, Fla. Stat. (1983) and s. 381.494(6)(d)3 and 5, Fla. Stat. (1983) either were not applicable to, or were satisfied by, Petitioner's application. The statutory criteria remaining in dispute at the final hearing are as follows: s. 381.494(6)(c) 1, 2, 3, 4, 7, 8, 9, 12, and 13; s. 381.494(6)(d) 1, 2, and 4. SUBURBAN MEDICAL CENTER, INC., the Petitioner in this case, operates an osteopathic primary care facility at the intersection of U.S. Highway 1 and Southwest 97th Avenue in South Dade County, and a satellite primary care facility in Naranja, Florida. Petitioner also has a certificate of need to operate an outpatient surgical clinic at its main facility, and is associated with International Medical Center, a health maintenance organization. Petitioner has approximately 6 physicians on its staff, and these physicians generate 1 to 3 patients per day needing acute care hospitalization with an average length of stay of about 6 to 7 days. Intervenor BAPTIST HOSPITAL OF MIAMI, INC., (BAPTIST), is a licensed and accredited 513 bed general acute care hospital located at 8900 North Kendall Drive, Miami, Florida, in subdistrict 4. Intervenor AMERICAN HOSPITAL OF MIAMI, INC., d/b/a AMERICAN HOSPITAL (AMERICAN), is a licensed and accredited 412 bed general acute care hospital located at 11750 Bird Road, Miami, Florida, also in subdistrict 4. Although both intervenors allow osteopathic physicians on their respective staffs, there is insufficient evidence to conclude that either intervenor in whole or in part constitutes an "osteopathic facility" as that term is used in Section 381.494(2), Fla. Stat. There is no evidence that any portion of either intervenor is under the management and control of osteopathic physicians so as to actively further, rather than to merely tolerate, the practice of osteopathic medicine. Both intervenors have allopathic physicians controlling admissions to staff and all important medical departments. Further, there is no evidence in this record that any other facility in District XI, with the exception of Southeastern Medical Center and Westchester Hospital, meet the definition of "osteopathic facility" contained in the statute as construed above by the Court in Gulf Coast Hospital, Inc. v. DHRS, 424 So. 2d 86 (Fla. 1st DCA 1982). Southeastern Medical Center is a 224 licensed acute care osteopathic teaching hospital located in North Miami Beach, Florida, close to the Broward County line. Westchester is a 100 licensed acute care osteopathic hospital located approximately at the intersection of Southwest 22nd Street (Coral Way) and the Palmetto Expressway in subdistrict 4, District XI, in Dade County. Pursuant to a settlement agreement with HRS, Westchester has permission to build a new, replacement 125 bed hospital for its current 100 bed facility. This permission is not pursuant to the current certificate of need law, and thus is not regulated by a certificate of need. There is no evidence in the record upon which to conclude that Westchester will exercise its permission, and therefore the existence of the permission is irrelevant to the determination of bed need for osteopathic facilities. Put another way, absent evidence that Westchester will in fact build a replacement facility, the Hearing Officer cannot conclude that it will, and will not find that Westchester will in the future provide osteopathic patients with a new 125 bed hospital. All calculations of osteopathic bed need on this record will be based upon the facts in the record, which show that Westchester now provides 100 osteopathic beds. Osteopathic medicine differs from allopathic medicine in several fundamental ways. Osteopathy is holistic, emphasizing treatment of the entire body; allopathic medicine tends to focus upon particular diseased areas of the body. Osteopathic medicine places great emphasis upon the health of the musculoskeletal system as a condition of healing, and employs techniques of manipulation of muscles and joints in the process of therapy for illness. Allopathic medicine does not. Osteopathic physicians tend to be general practitioners, since the emphasis of osteopathy is holistic. Allopathic physicians tend to specialize. Osteopathic medicine is growing in the United States. About 5 percent of all physicians in the United States are osteopaths. Of these, some 87 percent are general practitioners. Since 1970, the number of osteopathic medical schools has increased from 5 to 15 and these colleges now produce about 2000 graduates per year as compared to only 700 in 1970. Southeastern College of Osteopathic Medicine is affiliated with the Southeastern Medical Center in North Miami Beach, and in a few years will graduate 100 osteopathic physicians annually. Petitioner, SUBURBAN MEDICAL CENTER, originally sought 150 acute care beds, but amended its petition to 100 beds at the hearing. Petitioner intends to locate its proposed facility in conjunction with its primary care facility located at the intersection of U.S. 1 and Southwest 97th Avenue, commonly called Franjo Road. The facility's proposed location lies within subdistrict 4 of HRS Health Planning District XI. The primary service area for the proposed hospital extends from Southwest 152nd Street into South Dade County and the upper area of North Monroe County. The secondary service area for the proposed facility extends northward from the primary service area to Southwest 88th Street, also known as Kendall Drive, and southward to encompass the upper Keys in North Monroe County. These service areas generally encompass the northern portion of subdistrict 5 and the southern portion of subdistrict 4. Petitioner sought to demonstrate a need or a new 100 bed osteopathic hospital on the southern boundary between subdistrict 4 and 5 by projecting the need for such beds by means of a formula based upon current data. This primary evidence of need was supplemented with additional need evidence: the need for an osteopathic teaching facility, and the need to provide an osteopathic hospital that is closer to potential patients than Westchester Hospital or Southeastern Medical Center. As will be discussed more completely ahead in the conclusions of law, there is no specific rule available to calculate osteopathic hospital bed need. Moreover, pursuant to the Gulf Coast case, the need for osteopathic hospital beds must be considered separately from considerations of need for allopathic bed needs. Consequently, the rule applicable for acute care hospital beds is inappropriate for calculating need. The parties offered a variety of methods to project the future need for osteopathic hospital beds, but none of the methods presented were very satisfactory. Each of these methods will be discussed with respect to the witness who offered the method for consideration. Petitioner presented calculations of need through the testimony of Ms. Gail Buck, who was accepted as an expert in certificate of need review and health planning. Based upon data contained in the District XI health plan, 3 percent of the physicians in Dade County in 1983 were osteopathic physicians. (169 osteopaths in Dade County in 1983.) From other studies, she testified that the percentage of osteopathic physicians nationally is about 5 percent, and that these physicians have approximately 10 percent of all patients as osteopathic patients. Applying this ratio, she concluded that one could reasonably assume that 6 percent of all patients in Dade are osteopathic patients. From other studies she had read, the number of osteopathic patients hovers around 5-7 percent. One of these studies was a study done by HRS, developed by the Office of Health Planning. Ms. Buck further testified that for acute care hospital bed planning, it was normal to project need five years in the future. She then testified that by 1989, 8,792 acute care beds would be needed in District XI based upon HRS projections. Assuming that 5 percent of these beds were needed for osteopathic patients, by 1989 District XI would need to allocate 440 of these hospital beds to osteopathic patients. Ms. Buck then calculated the net osteopathic bed need by subtracting 224 beds at Southeastern Medical Center, and 100 beds at Westchester, resulting in 116 net beds need. Using a 6 percent rate, the net bed need was 204 beds using the same method. Ms. Buck further testified that the data as to the number of osteopathic patients using allopathic hospital beds does not exist, but that such patients were not accounted for in the 5 percent estimate above. Ms. Buck stated that since the majority of osteopaths are general or family practitioners and refer their hospital-bound patients to specialists, who in turn admit the patients to hospitals, it is very difficult to obtain data as to actual osteopathic patient need, and that for this reason, the 5 percent method, as well as other methodologies, lacked a firm data base. She said ". . . there's no one methodology that can be considered totally accurate." Ms. Buck chose the 5 percent method because she felt it was based upon more accurate data than other methods. Ms. Buck did not set forth any underlying data to justify the assumption that osteopathic patients constitute from 5 to 10 percent of all patients. She simply stated that these figures came from various studies. Other data in the record reveals that at least for District XI, the S to 10 percent standard of need is much too high. In 1982, District XI had 11,052 licensed acute care beds as shown by American Exhibit 1. 324 of these beds, or 2.9 percent, were osteopathic acute care beds. If these beds had been running at 100 percent occupancy, then the data would be at least consistent with Ms. Buck's opinion that the "need" is from 5 to 6 percent of all acute care beds, though this would not necessarily be total proof of the point. But in 1982, these osteopathic beds were on the average only 60 percent occupied, thus indicating that "need" for osteopathic beds in 1982 in the District was only 60 percent of 2.9 percent of all acute care beds, or only 1.7 percent of all acute care beds. The difference between a real figure of 1.7 percent and the 5 to 10 percent range is so great that the conclusion has to be drawn that the 5 to 10 percent figure is inappropriate in this case for District XI. While Petitioner's need calculation is unreasonably high, the calculations presented by Respondent and Intervenor, AMERICAN HOSPITAL, suffered from unreliability that would tend to underestimate need. Daniel J. Sullivan was presented as an expert in health planning by AMERICAN HOSPITAL, and was accepted as such. He testified with respect to projections of need, and his testimony formed the basis for introduction into evidence of American Exhibit 1. Need was first calculated using the rule for acute care hospitals, rule 10-5.11(23), F.A.C. As will be discussed ahead in the conclusions of law, this evidence may be relevant to the issue of the financial feasibility of the proposed project, since an osteopathic hospital must compete for many of the same ill patients as are served by allopathic hospitals; but in accordance with the decision in the Gulf Coast case, the rule cannot be used to project osteopathic need because it impermissibly assumes that allopathic beds will be adequate for osteopathic patients. Mr. Sullivan criticized the 5 percent methodology presented by Ms. Buck as being overstated. In 1982, the number of patient days in osteopathic hospitals in Florida was 3.6 percent of all the patient days in all hospitals in Florida, and was 2.67 percent in Dade and Monroe Counties. From this he reasoned that 5 percent was too high as a representation of osteopathic patient needs. His reasoning, however, fails to account for the number of patient days of patients in allopathic hospitals admitted to those hospitals by osteopaths who would have been admitted to an osteopathic facility had one been available. Calculation of future osteopathic need based upon osteopathic hospital availability is inherently faulty because it equates supply of facilities with demand of patients. Three additional methods of projecting acute care osteopathic hospital bed needs were presented by Mr. Sullivan. The first was to project need based upon a projection of the number of patient days that would be generated by the supply of osteopathic physicians in the District. There are 184 currently licensed osteopathic physicians in District XI as shown by the records of the, Florida Board of osteopathic Medical Examiners. Mr. Sullivan then selected the number of osteopathic patient days per osteopathic physician in Florida in 1983 as a basis for determining need. The data came from HRS, and simply reflects patient use of osteopathic hospitals. The method used by HRS to count osteopathic physicians in this data was not explained. The data results in 510 patient days per osteopathic physician which, when multiplied by the number of currently licensed osteopaths in District XI, results in a projection of 93,840 patient days. This number divided by 365 results in 257 beds needed at 100 percent capacity, and 321 beds needed at 80 percent capacity. Since 324 beds already exist, there is no need using this method. The above method of calculating need is inadequate for two reasons: it fails to account for osteopathic patients in allopathic hospitals and other patients who might want to be treated in an osteopathic hospital but cannot due to lack of facilities, and it fails to consider the number of additional osteopathic physicians who might be attracted to South Dade County if an adequate osteopathic hospital existed there. Parenthetically, Mr. Sullivan noted that most of the osteopaths in District XI have offices close to Southeastern Medical Center, and concluded from this zip code analysis that there was no need for an osteopathic hospital in South Dade County. The conclusion is untenable. From other testimony it is clear that all physicians tend to locate their offices near hospitals (just as lawyers tend to locate their offices near the courthouse.) More important, however, there was credible testimony of prior and lingering discriminatory practices against osteopathic physicians who try to practice at allopathic hospitals. A minority profession, under such circumstances, would be expected to locate offices close to a friendly, home osteopathic hospital, and not in areas lacking such a facility. Health planning methods that look for osteopaths in areas lacking osteopathic hospitals put the cart before the horse. The next need methodology proposed by Mr. Sullivan multiplied the rate of osteopathic patient days per 1,000 of population (based upon osteopathic hospital patient days in 1983 in seven districts) times the District XI projected population in 1989. This method resulted in a net projected osteopathic bed need of 20 beds. Again, the methodology is faulty in that it is based upon the status quo, the current availability of osteopathic hospitals, and fails to account for osteopathic patient needs which the existing stock of osteopathic hospitals may or may not be able to serve. The final methodology offered by Mr. Sullivan was first to compute the 1982 osteopathic hospital patient days for Dade County as a ratio of population in 1982, and then to extrapolate the expected number of osteopathic hospital patient days in 1989 for the 1989 projected population. This method projects a surplus of 52 osteopathic hospitals beds in Dade County by 1989. Again, the problem with the methodology is that it is based upon the status quo, and would be substantially inaccurate as a projection of need if current need is unmet by existing osteopathic hospitals. Respondent, HRS, proposed several methods to calculate need through the testimony of Walter Eugene Nelson, administrator of the Office of Community Medical Facilities at HRS, who was accepted as an expert in health care planning and certificate of need review in Florida. Mr. Nelson first mentioned the 5 percent method which was relied upon by the Petitioner, as described above. Mr. Nelson did not attempt to support this methodology, even though it had been proposed by HRS as a rule, and the record contains no other evidence from HRS to prove that the 5 percent method is reasonable or that it should determine need in this case. The second method proposed was to estimate the number of osteopaths in Dade County in five years and then to project the number of patient days chat would be generated by this number based upon current use rates for the two osteopathic hospitals in Dade County. This method projects a surplus of 86 osteopathic beds by 1989. This projection is mathematically incorrect. The surplus projected is actually 22. (The error is in the calculation of patient days per osteopath in 1984, Respondent Exhibit 1, which is 439.5 not 353.6, since 59,766 is divided by 136, resulting in 439.5.) Other than this error, the method has more fundamental flaws. First, though it reasonably projects that the 1984 census of osteopaths (136) will grow to a larger number in 1989, it accounts only for growth expected from graduates of Southeastern Medical College. Surely the climate of south Dade County will attract osteopaths from other colleges and other areas of the country, particularly if south Dade County were to have ample osteopathic hospitals. Second, as discussed above, the method fails to count the number of patients in allopathic hospitals who might prefer an osteopathic hospital if additional facilities were available. In summary, all of the methods of projecting need discussed above have major problems. But the primary evidence of lack of need in this case is a result not of the relatively unsatisfactory methods of predicting the future that have been offered, but the lack of need shown by the recent past use rates at the two osteopathic hospitals in the District. There are two osteopathic hospitals in District XI discussed above. The occupancy rates at these two osteopathic facilities have been significantly lower than capacity in recent years, and have been very similar to the use rates of allopathic hospitals: OCCUPANCY RATE 1981 1982 All district XI Hospitals 67.4 percent 66.6 percent Westchester Hospital 67.8 percent 65.8 percent Southeastern Medical Center 61.3 percent 58.4 percent This is strong evidence that District XI has had an excess of osteopathic beds in recent years. Moreover, the need for the existing osteopathic beds in 1984 has decreased. In the first six months of 1984, the use rate at Westchester dropped to 46.7 percent and the rate at Southeastern Medical Center dropped to 52.5 percent. The cause of these lower use rates have been causes that apply equally to osteopathic and allopathic hospitals, thus leading to the conclusion that the lack of need shown by the above data will probably persist for several years into the future. All acute care hospitals have lost patients due to growth of alternatives to in-patient care, such as nursing homes, rehabilitation centers, outpatient surgical centers, and the like. Additionally, medicare policy changes have reduced the length of stay at all acute care hospitals. There is no compelling evidence on this record that osteopathic hospitals will not suffer from diminished need from these market forces in the same way that allopathic hospitals have suffered. The Petitioner presented some evidence that the lower use rate at Westchester was due not to lack of osteopathic patient demand and need, but rather to poor quality of care at that facility. But the evidence was insufficient to dispel the conclusion that an additional major cause was simple lack of need. Dr. Jules Gary Minkes testified with respect to the adequacy of Westchester Hospital for osteopathic patients. He said that there have been emergencies where Westchester was too far away to take the patient in the ambulance, and the patient had to be taken to a closer allopathic hospital. He did not testify as to how frequently this had occurred. Further, he testified that the bulk of the area to be his proposed osteopathic hospital was outside the service area of Westchester. Both of these problems, however, are ones that naturally flow from the fact that osteopathic physicians and patients constitute such a small percentage of all patients and physicians. Even if 10 percent of the acute care beds in District XI were osteopathic beds, these beds would be located at only a few hospitals at great distances from many of the osteopathic patients. Dr. Minkes further testified in a general way that at some time in the middle 1970's, Westchester ". . . did not develop and did not meet the needs of the osteopathic physicians and did not keep up. And there was not a sufficiently integrated cohesive development." In the next sentence he implied that Westchester did not keep its staff, but did not testify to that fact. Finally, Dr. Minkes testified that physicians that practice at Westchester had made requests to upgrade equipment and take a "more aggressive competitive attitude," but that this had not occurred at Westchester. On cross examination Dr. Minkes again acknowledged that he had "problems gaining access of my patients in our service area to go to Westchester," but he did not state further what those problems were. Perhaps the strongest evidence of the inadequacy of health care at Westchester came from Dr. Ira Hershman, an osteopathic physician who has practiced in Dade County since 1960. Dr. Hershman's testimony, however, is ultimately as general and nonspecific as the testimony of Dr. Minkes. Dr. Hershman was chief of staff at Westchester a number of years ago, and in the early years osteopathic physicians tried to modernize the facility. Dr. Hershman then testified without explanation or elaboration that in recent years those efforts had "gone by the boards," and he was of the opinion that the current management at Westchester would not support expansion of osteopathic medicine in south Dade County and Monroe County. Dr. Hershman was convinced that no effort now would improve Westchester. Dr. Hershman primarily admits his patients to Westchester, however, although he used allopathic hospitals occasionally for specialities not found at Westchester. Westchester has six or seven specialists on its staff, but does not have neurology, obstetrics, or psychiatry. Dr. Hershman said that his patients often do not approve of the quality of the facility at Westchester. Westchester, in his opinion, is designed in a "very poor way" and there are many, many inconveniences in there." He stated that Westchester is "very unpleasant for the patient and their families in many ways." He felt that the management of Westchester could have made improvements, but that architecturally "in its very design, it was just not made as a real facility." Dr. Hershman testified that Westchester had problems with equipment, both in terms of modernization and quality, with equipment breaking down. He concluded that "although I can get by with my cases in there on a general primary care level, it is really not an ideal facility. And that is being kind, I suppose." Dr. Kathleen M. Tillman, an osteopathic physician specializing in internal medicine and practicing in Dade County, testified that she admits patients to both Westchester and Larkin hospitals. She stated that there was a "definite problem" for her patients due to the distance to Westchester Hospital. She said that due to the distance and travel time to Westchester, she had to "almost talk them into going" to Westchester. She said that a lot of her patients were over 65 years of age, and driving was a problem for them, that family visitation at Westchester was a problem due to the distance, and that she planned an office further south, thus increasing the distance in her work to Westchester. Other than driving distance, the only reason Dr. Tillman could think of that her patients did not want to go to Westchester was the physical facility, "the actual looks of the place more than anything, more than the actual health care." Dr. William Levin is also an osteopathic physician who practices in Dade County. He testified that he had "difficulty" admitting patients to Westchester Hospital. Dr. Levin said that his difficulty is partially caused by the physical plant at Westchester, and partially caused by the location. He felt that the physical plant was a major factor, but that rebuilding the facility would not solve the problem of patient acceptance. Dr. Levin further testified that for the past 10 years, the chief of staff at Westchester has always been an osteopathic physician. He also testified that he had been the past chairman of general medicine at Westchester, that Westchester had a department of family medicine, and that department heads at Westchester, to the best of his knowledge have always been osteopathic physicians. Dr. Nsitibe Nelson Ikpe, an osteopathic physician who practices in Dade County, is trying to expand his practice to the southern portion of Dade County. Dr. Ikpe is currently using Westchester Hospital. Dr. Ikpe has not in the last few years had any problem admitting patients to Westchester. Dr. Ikpe conceded that it could "take up to 30 minutes" for a patient to drive from north Monroe County to Westchester, but he did not say it would take more than 30 minutes, and did not testify that this driving time was a problem for him. Dr. Ikpe did not provide any other evidence as to the adequacy of Westchester. Finally, Dr. Arnold Melnick, Dean of the Southeastern College of Osteopathic Medicine, was offered the opportunity to express an opinion as to the adequacy of Westchester Hospital, and his testimony leads the Hearing Officer to conclude that he found no fault with Westchester, at least as a training facility. Dr. Melnick testified that if the American Osteopathic Association (AOA) approved a hospital, he would have no hesitation to recommend it to his students. He then testified that Westchester was AOA approved for internships. Finally, when asked to express an opinion as to the need for a new osteopathic hospital, assuming Westchester was no longer adequate, Dr. Melnick testified: "Since Westchester is accredited as a training institution by the American Osteopathic Association, I couldn't comment because it contradicts what you're stating." None of the osteopathic physicians who expressed general dissatisfactions with Westchester supported their conclusions with concrete examples of inadequacies. While the foregoing is evidence that there are problems at Westchester for the physicians who testified, these problems were not proven with sufficient specificity and have not been shown to be such for this Hearing Officer to conclude that Westchester is so inadequate that it should be replaced by the hospital proposed by Petitioner. Nor is the evidence sufficient for the Hearing Officer to conclude that the low use rate at Westchester is due solely to inadequate health care at Westchester. As stated above, the record evidence indicates that the use rate at Westchester is quite similar to the use rates at allopathic hospitals in the District, which is consistent with the conclusion that the lower use rate at Westchester is caused by the same diminished need. Further, the use rate at Westchester is quite similar to the use rate at Southeastern Medical Center. On this record, there is no indication that Southeastern Medical Center is other than an adequate health care facility. The similarity in use rates, therefore, leads one to the conclusion that the use rate at Westchester is driven primarily by the same force that drives the use rate at Southeastern: lack of need or demand by osteopathic patients. Petitioner also argued need for its proposed hospital because of plans to make the new osteopathic hospital a teaching hospital serving the needs of osteopathic students, interns, and residencies. Dr. Melnick, Dean of the Southeastern College of Osteopathic Medicine, testified with respect to the need for teaching hospitals for these purposes. The Southeastern College of Osteopathic Medicine has been in existence only a few years, and has yet to graduate its first class. The first class will be 40 students, but the fourth graduating class, and in every year thereafter, will be 100 students. In order to be certified as an osteopathic physician, a graduate of a college of osteopathy must serve an internship in an osteopathic hospital approved by the American Osteopathic Association. In District XI, Southeastern College of Osteopathic Medicine currently places about 16 of its interns in internships at the Southeastern Medical Center. Westchester is approved by the AOA for from 2 to 5 interns, and currently has one. Dr. Minkes testified that the proposed new hospital would strive to be approved by the AOA and provide at least 5 osteopathic internship slots, and possibly more based upon outpatient and emergency room use. Thus, if there were other compelling evidence of need to fill the beds of the proposed 100 bed osteopathic hospital, the above evidence would be some additional evidence of need. By itself, however, the need to provide 5 internships is not sufficient justification for the project, particularly since the internship crisis facing Southeastern College would be ameliorated only in a small way by the availability of 5 intern positions at the proposed hospital. Dr. Melnick testified that in a few years in Florida there would be a shortage of as many as 500 osteopathic internships. Petitioner further sought to establish a need for its proposed hospital by presenting evidence that Westchester does not have obstetric beds, and the proposed hospital would devote 10 percent of its beds (10 beds) to obstetrics. First, it should be noted that whether or not existing allopathic hospitals provide obstetric services, or whether any such allopathic services are currently running at capacity, is not relevant to this case since allopathic obstetric beds are not an adequate equivalent to osteopathic obstetric beds. Nonetheless, other than the fact that Westchester has no obstetric beds, there is no evidence in the record of the magnitude of need for such beds. Moreover, the proposed hospital will devote only 10 percent of its beds to obstetrics. Even assuming a need have been proved, this is not a sufficient reason to grant a certificate of need for all 100 beds. As further justification for need, Petitioner presented evidence that osteopaths had been discriminated against in the years before this decade, and that the growth of the profession has thus been retarded by these practices. Petitioner argued that the numbers of osteopathic physicians in District XI was not reflective of actual patient need, and that a new osteopathic hospital would attract more osteopathic physicians. Though not extensive, the evidence of discrimination by allopathic hospitals and physicians through the 1970's was shown by the record. Moreover, there is good reasons in the record to believe that osteopathic physicians will cluster around an osteopathic hospital. Osteopaths currently locate their offices near Southeastern and Westchester. Despite the general truth of the above two principles, however, on the record of this case the operation of these principles does not compel the conclusion that a new osteopathic hospital is needed. If indeed there were continued serious discrimination against osteopaths and their patients, one would expect that the use rates at Westchester and Southeastern would be higher. The relatively low use rates at Westchester and Southeastern lead one to the conclusion that the magnet effect of those hospitals has already pulled all available and interested osteopathic physicians to District XI, and has attracted all those osteopathic physicians who have been discriminated against. And still, presuming the full operation of both principles, both existing osteopathic hospitals run at about 50 percent capacity. In sum, prior discrimination and the potential of attracting new osteopaths to a new hospital, even if probably true, do not ultimately show a need for a third osteopathic hospital in District XI. Dr. Melnick testified that about 80 percent of his students at Southeastern College of Osteopathic medicine came from Florida, and estimated that "a good number" would practice in Florida. Dr. Melnick did not provide any data as to the number that might practice in Dade County. Eugene Nelson based his estimates of the number of osteopathic physicians who might stay in Dade County after graduating from Southeastern College of Osteopathic Medicine upon actual experience at the University of Miami College of Medicine, and as such his testimony is based upon better evidence and is accepted over the estimate of Dr. Melnick. Eugene Nelson mentioned one other methodology for calculating bed need, a methodology which assumes that each osteopathic physician will generate 660 patient days per year. This methodology was used in OMHI-UHSI vs. DHRS, 5 FALR 2294A, the "Wellington" case, and is based upon the use rate at one osteopathic facility in Palm Beach County. It therefore was based upon a sample of data relevant only to that case, a sample size too small to provide a basis for extrapolation to this case. As will be discussed ahead in the conclusions of law, since osteopathic bed need constitutes at most only 10 percent of all acute care hospital beds, the 30 minute driving standard for urban areas is of little use in this case to determine osteopathic hospital bed need. Many osteopathic patients will always be at some distance from the few osteopathic hospitals if, at best, only 1 out of 10 hospitals is an osteopathic hospital. Nonetheless, for the record, additional findings will be made with respect to the evidence of driving distances to the two osteopathic hospitals, Westchester and Southeastern. Southeastern Medical Center is located in the northeastern portion of Dade County and, of the hospitals considered at the hearing, is the furtherest hospital from residents living in subdistricts 4 and 5. Southeastern Medical Center is currently over 30 minutes driving time from all the persons residing in subdistricts 4 and 5, and will continue to be beyond 30 minutes driving time in 1988. Westchester Hospital is closer to residents in subdistricts 4 and 5. It is located approximately at the intersection of Coral Way and the Palmetto Expressway about 9 miles north northeast of the proposed new osteopathic hospital. Westchester is located in a dense urban area, and consequently the 30 minute driving distance surrounding the hospital consists of a smaller area. In 1984, about 30 to 35 percent of the population in subdistrict 4 resided more than 30 minutes driving time from Westchester, and 100 percent of the population of subdistrict 5. In 1988, about 40 to 45 percent of the population is subdistrict 4 is expected to reside beyond 30 minutes driving time of Westchester, and 100 percent of subdistrict 5. Baptist Hospital presented travel time evidence that showed 30 minute distances from locations on major roadways to four allopathic hospitals and Westchester Hospital, all located in the south Dade County area. The data provided did not show the percentage of population within 30 minutes driving time of Westchester Hospital. Moreover, the driving distances tend to overstate the accessibility of the hospitals considered. The data does not account for driving time from residential areas to major roadways, but rather, begins (or ends) at points still on major roadways. The driving data presented by Petitioner, however, tends to understate the area of accessibility to Westchester Hospital and Southeastern Medical Center. Petitioner's travel times include time to park at the hospital and walk to the entrance. This is an entirely reasonable approach, at least with respect to parking time as discussed above. Rule 10-5.11(23)(i)1, F.A.C., is concerned with "beds" being "accessible within an automobile travel time." A bed is not accessible until one is there, and parking can take a few minutes. However, it is also reasonable for HRS to construe its own rule, for the sake of simplicity, as not counting these periods of travel, and therefore it is the obligation of the Hearing Officer to follow the interpretation of the agency of its own rule, if reasonable. The record does not reflect how much time, on the average, Petitioner's expert added to the driving time for parking and walking, but the amount should not have been more than a few minutes. Petitioner's travel may have also been understated because Petitioner's expert assumed that travel by night would be 10 percent slower. The testimony of intervenor's expert, that night driving should be the same or faster, is accepted as more correct. Petitioner's expert further assumed that driving times in the future would be 10 percent slower. Intervenor's expert presented a contrary view, arguing that it was impossible to predict future traffic demand and traffic improvements but on this point Petitioner's expert's view of the future traffic in south Dade County is accepted as being more accurate. Since none of the allopathic hospitals represented in any of the travel studies was shown to be an "osteopathic facility" as discussed above, the travel times to these hospitals for this case was irrelevant. If one were to rely upon the acute care bed rule to project need for osteopathic patients, District XI by 1989 shows a significant maldistribution of beds. Subdistrict 4 will have a net surplus of 1012 beds, while subdistrict 5, the extreme southern portion of Dade County and Monroe County, will have a net need for 533 beds. This is some evidence that were this proposed project to be located in subdistrict 5 it would serve the unmet needs of that district. However, this is not an appropriate conclusion to draw for several reasons. First, the overbedded situation in subdistrict 4 is so extreme that the better policy would be to require patients in subdistrict 5 to travel to hospitals in subdistrict 4, at least until the extreme circumstance in subdistrict 4 is improved. The distances from south Dade County are not that much greater, and the distances from the keys would remain troublesome for any new hospital located in the northern part of subdistrict 5. Moreover, the bulk of the population of subdistrict 5 lives in the northern section immediately adjacent to subdistrict 4. More importantly, however, if the acute care bed rule is inappropriate for projecting osteopathic bed need, it remains inappropriate whether it shows or does not show a need. The financial feasibility of the proposed project depends primarily upon whether the new hospital will attract and keep an adequate number of patients Petitioner projected that its hospital would be 44 percent occupied in the first month of operation, 65 percent at the end of the first year, and 75 percent at the end of the second year. These projections were not substantiated by Petitioner, and the evidence would indicate that they are overly optimistic. First, the other two osteopathic hospitals are having trouble attracting enough patients to fill 50 percent of their beds, thus suggesting that the new facility will rely upon a pool of patients that is inadequate to fill two facilities. Second, the record does not contain adequate evidence as to the numbers of osteopathic patients currently treated in allopathic hospitals who would want to switch to the new osteopathic facility. What little evidence there is on that point tends to show that the new osteopathic hospital cannot expect to gain large numbers of osteopathic patients from allopathic hospitals. In 1983, BAPTIST had 18,167 patient admissions. Ernest Nott, Chief Executive Officer at BAPTIST, testified that in the same year, osteopaths admitted only 240 of these patients, or 1.3 percent of all 1983 admissions. (Petitioner submits as a proposed finding that osteopathic physicians admitted 42 patients to AMERICAN HOSPITAL in 1984, and that osteopaths admitted 121 patients during 1984 to BAPTIST HOSPITAL, citing Petitioner's exhibits 12 and 13 as containing that evidence. This proposed finding is rejected because those figures are not contained in those exhibits.) Thus, if the data from BAPTIST is typical, there are very few osteopathic patients in allopathic hospitals available to the new hospital as a future source of income. Finally, the projection that the new osteopathic hospital will be 75 percent occupied by the second year of operation is suspect given the fact that established subdistrict 4 hospitals in two consecutive years (1981 and 1982) operated at only a 63.2 percent occupancy level. Since the most basic element of financial feasibility, projected patient days, has not been shown on this record, there is no need in this Recommended Order to consider the subsidiary points as to financial feasibility raised by the parties. Thus, no findings have been made with regard to the reasonableness of financing proposals, projected costs and expenses, projected revenues, or the reasonableness of the space study. Westchester is also in subdistrict 4, the same subdistrict as the proposed hospital, and therefore the fiscal impact upon Westchester would very likely be quite negative. As discussed above, the osteopathic physicians who testified in this case would probably discontinue using Westchester, thus lowering its use rate even below the current 47 percent. The magnitude and precise effect of the impact cannot be ascertained on this record, but a significant negative impact is certain. The impact of the proposed new osteopathic hospital upon the two intervenors would not be substantial, and would not be a cogent reason to deny this application. Both of these hospitals have continued to be profitable despite lower occupancy levels. In 1982, American had only a 51.4 percent occupancy level, but it ended up with $153.48 excess of patient charges per day over operating expenses per day, which was an excess of 22 percent over the average charge per patient day. Similarly, Baptist was occupied at the level of 66.7 percent in 1982, and it had $93.25 excess of patient charges per day over operating expenses for 1982, a margin of 20 percent. Either hospital could lose a number of patients to the proposed new hospital and not suffer major financial damage. Moreover, if it is true that fewer than 2 percent of the patients at these hospitals are osteopathic patients, even the loss of all of these patients would not cause major economic damage to either intervenor. The acute care bed need rule, section 10-5.11(23), F.A.C., contains a health care planning standard for general medical and surgical beds: new beds should be authorized when existing beds reach 80 percent of their capacity. (This standard is contained in the formula district bed allocation in subpart (f)3a of the rule.) While the formula used in this rule (which treats osteopathic beds to be adequate alternatives to allopathic beds, and vice versa) is inappropriate as a means to project osteopathic bed need, the 80 percent planning standard is useful to measure osteopathic bed need based upon utilization of existing osteopathic facilities. The 80 percent standard has applicability to any acute care hospital since it addresses basic efficiencies in operation, and unlike the 30 minute driving standard, is not inapplicable to an osteopathic facility due to some factor unique to the osteopathic circumstance. Further, the 80 percent threshold was supported by other evidence in the record as a suitable standard for measurement of bed need in this case. First, the 80 percent standard is also used by The Health Council of South Florida, Inc., which is the local health planning agency responsible for the health plan for District XI. The 80 percent standard was used in the District XI health plan adopted in July 1983. Second, the 80 percent standard is a standard that is a generally accepted standard for acute care hospitals contained in national medical planning guidelines. All of the parties proposed a number of findings concerning the availability of allopathic hospital services in District XI, and in subdistricts 4 and 5 in particular. Since, as discussed above, no party proved that any allopathic hospital had any portion thereof which was in fact so dedicated to osteopathy that it could be called an "osteopathic facility" as defined by the Gulf Coast decision, supra, evidence as to the nature of existing or future allopathic hospital services was deemed to be irrelevant to this case. Likewise, evidence that osteopathic physicians are admitted to the staff of allopathic hospitals, or admit patients to allopathic hospitals, was also deemed to be irrelevant to this case because the evidence did not show that such osteopathic patients to have been treated in "osteopathic facilities" within such allopathic hospitals. The fact that some osteopaths may prefer to practice in an allopathic hospital was found to be true, and it was recognized that not all of the osteopathic patients currently served by allopathic hospitals would necessarily be served by the proposed osteopathic hospital. However, the A magnitude of this diminution of osteopathic patient need was not presented in the record, and was not necessary to the ultimate conclusion that no need was shown. There were a number of other findings of fact proposed by the parties in this case which are not mentioned in the above findings. No separate finding will be made as to these since they were subordinate to the findings made above, were unnecessary in view of findings made above, were cumulative, or were irrelevant. In summary, there may be a need for additional osteopathic hospital facilities in District XI, but that need was not shown in this case. First, the low utilization of the existing osteopathic hospitals was not adequately explained. And second, there was no reliable data as to the numbers of osteopathic patients who would prefer treatment in an osteopathic hospital but have been diverted to an allopathic hospital due to lack of existing osteopathic facilities.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of the Petitioner in this case for a certificate of need to establish and operate a 100 bed osteopathic teaching hospital in subdistrict 4, District XI, in Dade County, Florida, be DENIED. DONE and ENTERED this 15th day of February, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1985. COPIES FURNISHED: F. Philip Blank, Esquire Susan A. Maher, Law Clerk F. Philip Blank, P.A. 241 East Virginia Street Tallahassee, Florida 32301 John F. Gilroy, Esquire Culpepper, Turner & Mannheimer 318 North Calhoun Street Tallahassee, Florida 32301 Kyle R. Saxon, Esquire Paige & Catlin 169 East Flagler Street Suite 816 Miami, Florida 33131 Ivan Wood, Esquire Steven T. Mindlin, Esquire Wood, Lucksinger & Epstein 1501 Venera Avenue, Suite 200 Miami, Florida 31146 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondent, Eugene W. Williams, II, is an osteopathic physician licensed in Florida, and was so licensed at all times relevant to this proceeding. His address is 4394 Palm Beach Boulevard, Fort Myers, Florida 33905. On June 21, 1979, Sue Riley presented herself to Respondent for treatment of a fractured left distal radius. Respondent ordered arm elevation and ice bag treatment to reduce the swelling. The next day, he set the arm in a cast and performed a closed reduction. The injured arm was initially x-rayed at the hospital emergency room on June 21, 1979, and was not x-rayed again until July 5, 1979, when Respondent noted that the fracture was not closed. He then referred the patient to an orthopedic specialist. The testimony of Petitioner's expert witness indicated that a second X ray should have been taken after casting rather than two weeks later to insure that the fracture was, in fact, closed. Without such an X ray, Respondent could not be certain that the fracture was closed initially or that it had not reopened. Respondent's testimony and that of two other experienced physicians established that it is not uncommon to omit the X ray immediately after casting. In their view, no X ray is needed for ten days to two weeks provided the fracture appears to have been closed and properly aligned. Respondent's testimony established that all indications were favorable following casting and that he did not believe an X ray was needed for ten days to two weeks.
Recommendation From the foregoing, it is RECOMMENDED that the Second Amended Administrative Complaint be dismissed. DONE and ENTERED THIS 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: James B. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 JulieAnn Ricco, Esquire 1655 Palm Beach Lakes Boulevard Suite 106, Forum III West Palm Beach, Florida 33401 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent has been licensed as an osteopathic physician in Florida since 1952 and currently holds License Number 959 issued by Petitioner (stipulation, testimony of Respondent). On June 15, 1972 Respondent was convicted of three counts of violation of the Drug, Device and Cosmetic Act of 1961, Section 4, Laws of Pennsylvania. As a result of these convictions, Respondent was incarcerated for a two-year period from 1972 to 1974. He was released on bond and again incarcerated from the Spring of 1977 until September, 1977 (stipulation, testimony of Respondent). Subsequent to his release from confinement on parole, Respondent taught several night school courses at Duquesne University, Pittsburgh, Pennsylvania and also was employed by VISTA for approximately one year. In November, 1978, he commenced an osteopathic practice in St. Petersburg, Florida (testimony of Respondent, Respondent's Exhibit 2). On November 8, 1973, the Pennsylvania State Board of Osteopathic Examiners revoked Respondent's license to practice osteopathic medicine and surgery in Pennsylvania based on his criminal convictions (stipulation, petitioner's Exhibit 1). In February, 1979, parole supervision of Respondent was transferred from the State of Pennsylvania to the State of Florida. The parole and probation office in St. Petersburg files periodic reports to parole authorities in Pennsylvania. During the period of Florida parole supervision, Respondent has been cooperative with his parole and probation officer and has not been difficult to supervise. The maximum expiration date of Respondent's parole status is September 5, 1983. Release from such status will be determined by the State of Pennsylvania. In April, 1979, Respondent received a hearing before the Pennsylvania Board of Pardons based upon his application for commutation of sentence, but has not received a decision on the application at this time (testimony of Ferriter, Respondent, Respondent's Exhibit 3). Respondent entered into a brief "physician assistance agreement" with the St. Petersburg Osteopathic Hospital after his arrival in Florida which provided for mutual under-takings designed to assist Respondent in establishing a practice. This arrangement however, lasted only approximately three and one half months. A number of Respondent's current patients or their relatives testified as to his competence and satisfaction in his methods of treatment. Additionally, Respondent submitted various documents concerning lectures he has made on medical hypnosis to various organizations, and letters from Pennsylvania residents and physicians expressing belief that he is rehabilitated and has contributed by social work in the community. A St. Petersburg pharmacist who is located near Respondent's present office and handles his prescriptions, testified that, to his knowledge, Respondent had not prescribed controlled substances with the possible exception of Valium (testimony of Brown, Lewis, Drake, Bishop, Beville, Hodges, Penvel, Respondent's Exhibits 1-3). In June, 1979, Respondent voluntarily took a polygraph examination from a private examiner in St. Petersburg. Although Respondent was under some tension at the time, he was capable of being tested. The results of the examination indicated deception on the part of Respondent in denying his guilt of the offenses for which he had been convicted in Pennsylvania. The results of the polygraph examination were received in evidence at the hearing by stipulation of the parties (testimony of Liens). Respondent testified as a witness at the hearing. He stated that his practice currently consists of natural and preventive medicine, including ortho molecular therapy. He further testified that he does not prescribe controlled substances since his patients do not need the same due to his natural healing methods. He seeks to maintain his license as a practitioner under a supervised probationary period. His practice is small at the present time and he has only one or two patients a day (testimony of Respondent).
Recommendation That Petitioner revoke the license of Respondent, Maurice L. Kaye to practice osteopathic medicine, but that the operation of such revocation be suspended for the period and in the manner stated in Paragraph 8 of the foregoing Conclusions of Law. DONE and ENTERED this 15th day of August, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Maurice L. Kaye, D. O. Post Office Box 14202 St. Petersburg, Florida 33733
The Issue The issue to be resolved in this proceeding concerns whether the licensure examination taken by the Petitioner qualifies him under Section 459.007(3), Florida Statutes, for licensure as an osteopathic physician in the State of Florida.
Findings Of Fact The Petitioner, Lawrence Edward Suess, is an osteopathic physician licensed by the Boards of Medical Examiners in Texas, Alabama, and Kentucky. He seeks licensure in Florida, pursuant to Section 459.007(3), Florida Statutes. He is also licensed in Arizona and Texas as a registered nurse, holds BS and MS degrees in child development and nursing and a Ph.D. in nursing. The Respondent, the Board of Osteopathic Medicine (Board), is an agency of the State of Florida, charged with regulating the admission to practice and the practice and licensure standards of osteopathic physicians licensed or seeking to be licensed in the State of Florida. The Board issued an order, as corrected, on November 9, 1995, granting application of licensure to the Petitioner upon the condition that within one year, he successfully complete Part III of the NBOME examination for purposes of licensure in the State of Florida, and not for diplomate status. The Board found in that order that the Petitioner had not passed all three parts of the NBOME examination and had submitted certification of passage of only Parts I and II. The Board found that the “FLEX” examination was not a substantially-similar examination to the required NBOME examination since the FLEX examination did not contain an osteopathic medicine component. The Board also found that the completion by the Petitioner of a Board certification examination was not substantially similar to the NBOME examination because it tested only a single subject matter and not the broad principles contained in Part III of the NBOME examination. On November 13, 1995, a Petition for Formal Hearing was filed by the Petitioner disputing the decision of the Board which precluded him from obtaining licensure to practice medicine in the State of Florida because of failure to complete Part III of the NBOME examination. He contended that he was outside the time period in which he would be allowed to take Part III. He further contended that the FLEX examination was a substantially-similar examination to the NBOME examination. The Petitioner contends that taking the FLEX examination should be sufficient to justify licensure, although he also acknowledged that Part III of the NBOME examination tests osteopathic philosophy and principle; and he acknowledged that the FLEX examination does not, although he was attempting to testify and argue that the FLEX examination was substantially similar to the NBOME examination. He provided no testimony or evidence, however, to establish that the FLEX examination tests osteopathic philosophy and principle. The Respondent presented the testimony of Joseph Smoley, Ph.D. by deposition. Dr. Smoley holds a Ph.D. in educational measurement and has served for ten of the last eleven years as Executive Director of the NBOME. The NBOME is an organization that develops an examination that is independent of the osteopathic medical schools to evaluate osteopathic physicians who are either currently in undergraduate or in graduate medical programs. The NBOME’s main mission is to provide state licensing examinations with an independent assessment of the knowledge base of candidate osteopathic physicians. Dr. Smoley oversees NBOME policy and supervises educational measurement within the osteopathic profession. His oversight responsibilities include the examination section of the NBOME. He provides a constant review of the process of testing for the Board of Directors. The NBOME developed its examination by having questions drafted by faculty members and osteopathic physicians in independent practice. Faculty members may be D.O.’s or Ph.D.’s in the various basic sciences, and there is a multi-tiered process for preparing and reviewing questions. A copy of the bulletin of information concerning the NBOME examinations was attached to and made part of the deposition. Dr. Smoley testified that typically the candidates take Part I as a sophomore during medical school, Part II as a senior, and Part III as an intern in their first post-graduate year. He established that the purpose behind that examination is “the integration of osteopathic principles and practices as well as the philosophy of osteopathic medicine.” No allopathic physicians are involved in the grading process of that examination. Some allopathic physicians associated with osteopathic colleges may submit questions that, after the review process, may be used on the examination. The purpose of the NBOME examination, as shown by Dr. Smoley, is to make sure that each question integrates osteopathic principles and practices in some way and that the entire examination is reflective of the practice of osteopathic medicine. Dr. Smoley is also familiar with the FLEX examination, as well as the current licensure examination for allopathic physicians, the USMLE. The Federation of State Medical Boards (FSMB) does not prepare any complete examination or any additional components for its regular examination concerning manipulation or osteopathic practice and principles. According to Dr. Smoley, there has never been an official comparison or analysis between the NBOME examination and the FLEX examination. Based upon his experience and educational measurement, he has determined that if one examination, the NBOME, contains osteopathic principles and practice and the other examination, the FLEX, does not incorporate those principles and practices, then the two examinations could not be considered equivalent. The NBOME examination is more extensive because it integrates osteopathic principles and practice throughout its content. This osteopathic examination is not simply one that tests manipulation. Therefore, it is not asserted to be appropriate for chiropractors or M.D.’s who have been trained in manipulation but only for persons who have received an osteopathic medical education. The Respondent also presented the testimony by deposition of James R. Winn, M.D. He is Executive Vice President of the FSMB. The FSMB assists state medical boards in conducting their evaluation of physicians regarding their fitness to practice medicine. The FSMB developed examinations which are administered by state boards. Dr. Winn serves as the supervisor for the examination services section of the FSMB. Those examinations are developed in cooperation with the National Board of Medical Examiners. The current examination available from the FSMB is the United States Medical Licensing Examination (USMLE) used since 1992. Prior to that time, the FSMB administered the FLEX examination, which was for the evaluation of all physicians requesting licensure. The FLEX examination did not have a section on osteopathic practice, as shown by Dr. Winn. The FSMB allows all physicians seeking licensure in the United States to take that examination, including graduates of osteopathic medical schools and graduates of foreign medical schools. With the FLEX examination, unlike the NBOME examination, medical students are not eligible, only graduates of medical schools are eligible to take the examination. Dr. Winn is familiar with the examination of the NBOME and its purpose. He is not aware of any side-by-side comparison between the two examinations to determine equivalency. In his expert opinion, there would have to be such an evaluation in order to determine whether the examinations are equivalent. The testimony of Drs. Smoley and Winn was elaborated upon and corroborated by Dr. Morton Morris. Dr. Morris is a licensed osteopathic physician in the State of Florida and is board certified in osteopathic surgery by the American Osteopathic Board of Orthopedic Surgery. He is also certified by the American Board of Quality Medical Assurance and is a fellow of the American College of Legal Medicine. He is Vice-Chancellor for academic affairs in the health professions division at Nova Southeastern University, a Florida osteopathic medical school. Additionally, Dr. Morris is a licensed, practicing attorney in the State of Florida. He practices in the areas of medical malpractice, general health law and administrative law. Dr. Morris is familiar with the NBOME examination, having served as a test item writer for the NBOME. He recognizes Dr. Smoley as one who helps develop the philosophy of the examinations in question. The philosophy of the NBOME is that content concerning osteopathic practice and principles permeates the entire examination. Even when certain questions on their face are not osteopathically oriented, the evaluation and the grading of the responses is carried out from an osteopathic viewpoint and philosophy. The test item writers are directed to draft test questions which include osteopathic philosophy. In the past, the NBOME has agreed to allow a candidate to take only Part III or an equivalent examination and receive the score from the NBOME. In fact, Dr. Morris represented that person in his capacity as an attorney. He worked out the arrangements whereby that candidate could take and pass Part III of the NBOME examination in order to obtain a Florida osteopathic medical license, as the Petitioner seeks herein, even though, since he would not have taken Part III within the required seven years, he could not receive diplomate status with the NBOME. The Board’s order in this case specifically requires passage of Part III of that examination, but it does not require diplomate status. Such an arrangement would thus seem to provide a means to alleviate the Petitioner’s predicament in the instant situation. The Petitioner, in questioning Dr. Morris upon cross- examination, inquired about the possibility of a person taking all three parts of the NBOME examination, even if he had already taken Parts I and II. Dr. Morris stated that that was possible. Page 7 of the Bulletin of Information, in evidence in Respondent’s Exhibit 1, although stating that the candidate cannot take the examination “to attempt to improve his score”, states nothing to indicate preclusion of a candidate taking the entire examination for any other purpose. Dr. Morris stated that the Petitioner could take Part III of the examination and that the NBOME would make arrangements to allow him to do that, with the understanding that if he passed Part III, he would not be able to receive diplomate status from the NBOME (because of passage of time before taking Part III). In making comparisons between osteopathic medical education and allopathic medical education, Dr. Morris acknowledged that in some cases, osteopathic medical colleges use the same textbooks as used by allopathic medical schools. That does not, however, make them similar professions. Although anatomy and physiology may not be different, the philosophy of treating the whole patient is different. Responding to the Petitioner’s contention that having obtained board certification in his specialty area should count as equivalency to the entry level examination, Dr. Morris pointed out that all that the board certification accomplishes is to show that an osteopathic physician is recognized by his or her peers as competent to practice a specialty. It does not mean that the person is osteopathically oriented enough to be eligible for licensure and to be able to pass a minimum competency examination. The Petitioner contends that having passed Parts I and II of the NBOME examination, FLEX should quality him for osteopathic licensure in the State of Florida, in lieu of taking Part III of the NBOME examination, because anything of an osteopathic nature would have already been tested on Parts I and II. Dr. Morris established to the contrary, however, that Part III is the clinical testing, the testing of how the individual puts to use his clinical evaluation in treatment of patients. It is the ultimate test of whether an individual has developed and is able to apply a philosophy of practice sufficient to show that he is competent to be an osteopathic physician. Parts I and II of the NBOME examination do not test clinical skills. The FLEX does test clinical skills, but it does not test for osteopathic practices as to clinical skills. The NBOME requires that a person take Part III within seven years of having taken Part I, if that person wishes to be a diplomate of the NBOME. There is no apparent preclusion, however, in a person arranging to take only Part III, simply for purposes of state licensure. The record is not clear whether a person could take Parts I, II and III within the period of one year. It does seem apparent, however, that the Petitioner could take Part III within a one-year time period, which is all that is required in the Board’s order. Further, the statute requires that a person take all parts of the NBOME examination or a substantially-equivalent examination. What the Petitioner attempts to do is to take two parts of the NBOME examination and then substitute a different examination (FLEX) for Part III. This does not constitute a substantially-equivalent examination for the above reasons. A substantially-equivalent examination would have to be equivalent to all three parts of the NBOME examination. During discussion of the difference between osteopathic and allopathic schools of medicine, Dr. Morris pointed out that many osteopathic physicians use the same modalities that allopathic physicians use. It is just that they also use osteopathic modalities. He gave the example of a cardiac patient whom an osteopathic physician would treat just as a medical doctor would treat the basic condition with appropriate drugs but then would incorporate osteopathic philosophy, such as the “lymphatic pump”, meaning that the osteopathic physician would incorporate muscle techniques of stretching and passive manipulation in order to help the patient. The osteopathic physician would possibly use manipulative techniques on the lymphatic system and not just use drugs or other allopathic techniques. In the context of the NBOME examination, a question might reference a cardiac patient. Although the question would not mention the lymphatic pump, a proper answer might entail a clinical response that would consider that modality of treatment. In orthopedics, Dr. Morris’ specialty, an osteopathic physician can make significant use of manipulative techniques, as well as general surgery, casting and other modalities normally used by allopathic physicians. Use of the FLEX examination, rather than the NBOME examination, would not lower standards for osteopathic physicians. Rather, the FLEX examination simply embodies a different standard than the one used to test for competency in osteopathic principles and medicine. The Petitioner acknowledged that he could have taken Part III of the NBOME examination but chose not to because it was then more convenient for him to take the FLEX examination to continue his training in the State of Texas which required passage of the FLEX examination for osteopathic licensure. The Petitioner contended that if he applied for a Florida osteopathic medical faculty certificate (MFC), the FLEX examination would be acceptable and he would be eligible. That fact, he contends, by analogy, establishes that he is qualified to practice osteopathic medicine in the State of Florida. He has never applied for such a certificate nor has he been offered an osteopathic medical faculty position in the State of Florida. Thus, determination of that issue is not before this tribunal. Even if it were, there are significant differences between a full license to practice osteopathic medicine indefinitely and a medical faculty certificate. With the MFC, the Petitioner would not be allowed to be engaged in private practice of osteopathic medicine and the MFC would only allow him to practice in the academic realm for only two years. Finally, the statutory requirements for an MFC do not require the passage of any licensure examination. Accordingly, to the extent that the Petitioner’s argument and testimony implies some analogy or equivalency between eligibility for the MFC and eligibility for full licensure, such equivalency is not borne out by the greater weight of the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of the Petitioner, Lawrence Edward Suess, D.O., for licensure as an osteopathic physician, without conditions, is denied on the basis that the FLEX examination has not been shown to be substantially similar to the NBOME examination.DONE AND ENTERED this 28th day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of February, 1997. COPIES FURNISHED: Lawrence E. Suess, D.O., Ph.D. Owensboro Psychiatric Institute 1700 Frederica Street, Suite 106 Owensboro, Kentucky 42301 M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Room PL-01 Tallahassee, Florida 32399-1050 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0757 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact At all times relevant hereto Lawrence D. Urban was a licensed osteopathic physician in Florida having been issued license number OS 001232. From January 1983 through at least March 17, 1984, Respondent maintained offices in Clearwater and Zephyrhills. He practiced in the Clearwater office on Monday, Wednesday and Friday of each week and in the Zephyrhills office on Tuesday, Thursday and Saturday. Respondent employed Wendell Bloom to work in the Zephyrhills office as a business manager and assistant to Respondent. Bloom had no medically related license such as physician's assistant, nurse, technician, etc. As an assistant to Respondent, Bloom drew blood, performed vascular analyses, mixed IV solutions, and administered IV solutions. He worked at the Zephyrhills office Monday through Friday. Bloom had standing orders from Respondent that if a new patient came in Bloom would draw a blood sample, send it to the lab for analysis and make an appointment for the patient to see Respondent when the results of the blood analysis was received. Respondent described his practice in Zephyrhills as holistic, involving nutrition, chelation, and cancer therapy using laetril. Chelation treatment involves the intravenous injections of solutions containing EDTA (Ethylenadiaminetetracetic acid), vitamins, including B12, B complex and C, and the minerals, calcium and magnesium. On many occasions Bloom commenced IV chelation injections containing EDTA before Respondent arrived at the office and completed some of these after Respondent had left the office. On at least five (5) occasions Bloom injected patients with IV solutions containing EDTA without Respondent being present any time during the procedure. Drawing blood without a doctor present in the office constitutes the practice of medicine. Injecting IV solutions in patients constitutes the practice of medicine without a doctor present. In the Zephyrhills office Respondent referred to Bloom as Dr. Bloom in the presence of patients. No sign or disclaimer was posted in the office that Bloom had no prior medical training and was not licensed in any medically related health professional field in Florida. Respondent knew that patients might believe Bloom to be a medical doctor. In administering an IV solution to a patient there is always a danger of an allergic reaction or an anaphylactic reaction, even if a patient has previously tolerated the treatment. Respondent acknowledged that serious side affects would result to a patient receiving an IV solution containing EDTA if the patient suffered kidney failure. Bloom also operated the vascular analyzer machine in the office. As described by Bloom, by attaching clips from the machine to the fingers and toes the machine will tell you if there is any kind of clotting or obstruction any place within the cardiovascular system. Further, by putting transmission gel on the clip and holding it over an artery, transmissions from the clip with the return echo is transformed onto a chart which will denote the elasticity of the artery. This machine is not universally accepted in the medical profession. By Final Order entered August 26, 1983 (Exhibit 1) the Florida Board of Osteopathic Medical Examiners found Respondent guilty of filing false reports, fee splitting, and abetting an unlicensed person to practice osteopathic medicine. He was sentenced to a reprimand, placed on probation for six (6) months and directed to report to the Board at the end of the probationary period. If, at this time, Respondent's report on the status of his practice satisfies the Board that the financial aspects of his practice is in accordance with the law, the reprimand will be withdrawn. Terms and conditions of the probation were not delineated. Respondent appeared before the Board at its March 17, 1984 meeting. After Respondent reported that the financial aspects of his practice were poor, but in conformity with the law, one of the Board members inquired if Respondent was working with any non-osteopathic physicians in his practice, which was one of the accusations for which he was reprimanded and placed on probation. At this point Respondent told the Board that he had a helper who was a "non- anything" who was drawing blood, doing vascular analyses of patients, giving IVs to patients undergoing chelation therapy and whatever Respondent told him to do. (Exhibit 2) After hearing these disturbing facts the Board voted to extend the Respondent's probation while an investigation of his practice was conducted. The charges considered at this hearing were those resulting from that investigation.
The Issue The issues in this case are whether Respondent's license or authority to practice osteopathic medicine was acted against by the licensing authority of another jurisdiction, in violation of section 459.015(1)(b), Florida Statutes (2016)1; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes. 2 Respondent's Exhibits A through D were also initially offered into evidence and admitted. However, during the hearing, the parties noted that Respondent's Exhibits A through D duplicated Petitioner's Exhibits A, B, J, and M, except that Petitioner's versions of these exhibits contained redactions. After the hearing, the parties filed a joint motion to allow Respondent to adopt Petitioner's Exhibits A, B, J, and M and withdraw Respondent's Exhibits A through D. The joint motion was granted. Accordingly, the record does not include Respondent's withdrawn Exhibits A through D. 3 By agreeing to an extended deadline of more than ten days after the filing of the transcript for filing PROs, the parties waived the 30-day time period for issuing the Recommended Order. See Fla. Admin. Code R. 28-106.216. Respondent is licensed to practice osteopathic medicine in Florida, having been issued license number OS 10315 on or about March 4, 2008. Although Respondent has been licensed to practice osteopathic medicine in Florida since 2008, including at all times relevant to the Complaint, he testified that he did not practice osteopathic medicine in Florida until sometime after December 14, 2016. Currently, Respondent does not hold any other active licenses to practice osteopathic medicine in other states. Previously, he held licenses in Ohio, Missouri, and Kansas. The factual allegation in the Complaint that is the predicate for the charge against Respondent is as follows: On or about December 14, 2016, the State Medical Board of Ohio issued an Entry of Order permanently revoking the license of Respondent to practice osteopathic medicine and surgery in the State of Ohio. (Complaint at 2, ¶ 5). The parties stipulated that the Ohio Board is the licensing authority of the practice of osteopathic medicine in the state of Ohio. The parties also stipulated to the following: On December 14, 2016, in case number 16-CRF- 0055 and in accordance with chapter 119, Ohio Revised Code, the State Medical Board of Ohio entered an order which permanently revoked Respondent's certificate to practice osteopathic medicine and surgery in Ohio. (Amended Jt. Pre- hrg. Stip. Part E (Stipulated Facts), ¶ 10). Respondent disputed the Complaint's allegation quoted above, notwithstanding the stipulations, based on the argument that the word "license" in the Complaint is different from the word "certificate" in the stipulation. Respondent attempted to argue that the "certificate" that was permanently revoked was not a form of authority to practice osteopathic medicine and surgery. Respondent offered various possibilities, such as that the permanently revoked "certificate" must have been the "training certificate" that he believed he was given in 2004 to participate in a training program before licensure, or that it was some other kind of "certificate." Respondent's argument is not credible, is inconsistent with the words following "certificate"—"to practice osteopathic medicine and surgery"—and is wholly unsupported by the evidence. Ohio Licensure History In late December 2003, Respondent applied for osteopathic medical licensure in Ohio via an application for a Certificate to Practice Osteopathic Medicine and Surgery (Ohio Application) submitted to the Ohio Board.4 The application was not deemed officially received for processing until January 29, 2004, because Respondent's initial submission was not accompanied by the required $335.00 fee and he did not pay the fee until January 29, 2004. See Pet. Ex. 1, Bates p. 28, 3, and 18. The Ohio Application form asked whether the applicant was, or intended to be, in an accredited training program in Ohio. Respondent answered that he intended to be in an accredited training program. He identified the training program as Doctor's Hospital/Anesthesiology in Columbus, Ohio, with a planned start date of June 30, 2004. On January 30, 2004, the Ohio Board sent Respondent its "Acknowledgement of Application for Certificate to Practice Medicine and Surgery or Osteopathic Medicine and Surgery" (Acknowledgement), notifying Respondent that his application for a certificate to practice osteopathic medicine and surgery was received by the Board on January 29, 2004. The Acknowledgement also notified Respondent that he was authorized to 4 Respondent's entire licensure file, certified as complete by the Ohio Board, is in evidence, with Bates page numbers added in red. It is apparent that the pages representing Respondent's application for licensure to practice osteopathic medicine and surgery are not in order, perhaps because his initial submission in late December 2003 was incomplete and supplemented with various revised answers and additional documentation between 2004 and early 2005. participate in the training program identified in his application: "Please be advised that you are hereby authorized to begin participation in the training program to which you have been appointed … while your application is being processed." (Pet. Ex. 1, Bates p. 18). Respondent claimed that the Acknowledgement notified him that he was granted a "training certificate" so he could participate in the residency program while his application for a license to practice osteopathic medicine and surgery was being processed. The Acknowledgement says no such thing. Respondent's argument to the contrary is rejected. No evidence was offered to prove that a training certificate was ever issued to Respondent. Respondent's "training certificate" argument was part of his broader attempt to argue that in Ohio, the terms "certificate" and "license" refer to distinct items, and that a "license" is the form of authority to practice osteopathic medicine and surgery. Here too, Respondent's argument is contradicted by the record evidence and by Ohio law. Beginning with Respondent's initial submission, date-stamped by the Ohio Board on December 23, 2003, it is clear that the specific phrase used to describe the form of authority to practice osteopathic medicine and surgery in Ohio was a "certificate to practice osteopathic medicine and surgery," although the umbrella term "license" was frequently used interchangeably with "certificate."5 The interchangeable use of "license" and "certificate," prefacing the phrase "to practice osteopathic medicine and surgery," is replete throughout Respondent's Ohio licensure file. The interchangeable use of these terms is evident perhaps nowhere more clearly than in the Ohio Board's form "Affidavit and Release of Applicant [-] Medicine or Osteopathic 5 Pursuant to the Ohio Administrative Procedure Act, just as under the Florida Administrative Procedure Act, "license" is an umbrella term defined to mean "any license, permit, certificate, commission, or charter issued by any agency." § 119.01(b), Ohio Rev. Code; compare § 120.52(10), Fla. Stat. (defining "license" as "a franchise, permit, certification, registration, charger, or similar form of authorization required by law[.]"). Medicine"6 executed by Respondent and submitted as part of the Ohio Application bearing the Ohio Board's "received" stamp dated December 26, 2003. By the executed affidavit, Respondent certified under oath: that I am the person named in this application for a license to practice medicine or osteopathic medicine in the State of Ohio … and that all documents, forms or copies thereof furnished or to be furnished with respect to my application are strictly true in every respect. … I further understand that the issuance of a certificate to practice medicine or osteopathic medicine in Ohio will be considered based on the truth of the statements and documents contained herein or to be furnished[.] (Pet. Ex. 1, Bates p. 26, emphasis added). Respondent's Ohio Application contained multiple deficiencies and required several rounds of requests for omitted information/documentation followed by submissions that attempted to respond to the requests. This process, documented in Respondent's complete Ohio licensure file in evidence, spanned from early 2004 through early 2005. On April 13, 2005, the Ohio Board gave Respondent notice that it intended to determine whether to refuse to grant his certificate to practice osteopathic medicine and surgery, for reasons set forth in a detailed three- page letter. The gist of the reasons was that Respondent allegedly made false, fraudulent, deceptive, or misleading statements to the Acting Director of Medical Education for Respondent's residency program in Missouri pertaining to Respondent's failure to appear or respond to pages when he was on call. Respondent was informed of his right to a hearing. Respondent requested a hearing, which was held before a hearing examiner for the Ohio Board on August 24, 2005. The hearing examiner's report and recommendation in evidence sets forth a summary of the evidence 6 The title of this form is on two lines: the first line is "Affidavit and Release of Applicant"; the second line, immediately below the first, is "Medicine or Osteopathic Medicine." The dash has been inserted to denote separation between the two lines of the title, for clarity. (including Respondent's testimony at the hearing), findings of fact, and conclusions of law. (Pet. Ex. B, Bates p. 71-80). The findings were that Respondent had failed to report to work when he was scheduled to be the resident on call, and failed to respond to several pages from the emergency department. He met with the Acting Director, and after the meeting, a determination was made to terminate Respondent from the residency program for "grievous dereliction of duty and subsequent imminent risk to quality patient care." (Pet. Ex. B, Bates p. 77). Respondent appealed the termination. Shortly thereafter, upon questioning by the Acting Director, Respondent falsely reported that he had been at the hospital, on duty that night, and received no pages. Respondent said that he had been in the hospital library and had used the computer. The Acting Director asked Respondent three times if he had used the computer at the library, and Respondent said yes. But the Acting Director verified with library staff that the computers had remained inactive during the time in question. Caught in the lie, Respondent ultimately admitted to the Acting Director that he had failed to report to duty. Instead, he had taken cold medicine and slept the entire night at home. Respondent "admitted that he had used very poor judgment and had been dishonest." (Pet. Ex. B, Bates p. 77). Respondent's termination from the residency program was upheld on appeal. The hearing examiner concluded that Respondent's conduct violated section 4731.22(B)(5), Ohio Revised Code (making false, fraudulent, deceptive, or misleading statements in relation to the practice of osteopathic medicine and surgery), but did not demonstrate a current failure to prove good moral character. The hearing examiner elaborated on these conclusions: Dr. Hall issued a series of deceitful and self-serving misstatements during the course of his practice. Such conduct would justify permanent denial of his certificate to practice in this state. Nevertheless, Dr. Hall admitted his misconduct and deceit within a short time of their occurrence. Moreover, Dr. Hall was forthcoming in his application for licensure in Ohio. Therefore the evidence suggests that Dr. Hall has learned from his mistakes and will be more cautious and forthcoming in the future. (Pet. Ex. B, Bates p. 78, emphasis added). Based on the hearing examiner's findings and conclusions, her proposed order was that Respondent's application "for a certificate to practice osteopathic medicine and surgery" in Ohio be granted, "provided that he otherwise meets all statutory and regulatory requirements." If so, the "certificate" should be issued on the effective date of the order. However, the "certificate" should be immediately suspended for 30 days, then reinstated subject to a number of probationary terms for a period of at least two years. The hearing examiner's proposed order concluded with a provision addressing when the order would become effective: "This Order shall become effective thirty days after mailing of notification of approval by the Board." (Pet. Ex. B, Bates p. 78-80, emphasis added). At a meeting of the Ohio Board on December 14, 2005, the hearing examiner's proposed findings of fact, conclusions, and order were approved. A letter dated December 14, 2005, notifying Respondent that the Ohio Board had approved the hearing examiner's recommendations, bears a notation that it was mailed December 16, 2005. Respondent was required to update certain components of his licensure application. By letter dated December 29, 2005, Respondent was given notice as "a follow-up to your application for Ohio licensure" that he had to update his resume of activities from July 2004 forward; update the listing of licensure activity in other states; and execute another notarized Affidavit and Release of Applicant. (Pet. Ex. A, Bates p. 89, emphasis added). Respondent executed another Affidavit and Release on January 13, 2006; the form appears unchanged from the one he signed in 2003, continuing to use the terms "certificate" and "license" to practice osteopathic medicine and surgery interchangeably (Pet. Ex. A, Bates p. 25). Other updates to his application also were submitted on or shortly after January 13, 2006, including a letter from Doctors Hospital verifying that Respondent was in the anesthesia residency program, having begun February 2, 2004, and was anticipated to complete the program February 1, 2007. The submission of the required update items on or shortly after January 13, 2006, resulted in Respondent's certificate (a/k/a license) to practice osteopathic medicine and surgery being issued on January 17, 2006, two days after it otherwise could have been consistent with the provisions of the hearing examiner's proposed order. Also in accordance with the hearing examiner's proposed order, approved by the Ohio Board, Respondent's certificate to practice osteopathic medicine and surgery was immediately suspended for 30 days, which included the day that the certificate was issued. The 30-day suspension ran from January 17, 2006, through February 15, 2006. Respondent was permitted to practice osteopathic medicine pursuant to his certificate beginning February 16, 2006, subject to the terms of probation for at least two years. Less than six months after Respondent's first suspension was over, Respondent self-reported to the Ohio Board that he was terminated from the anesthesia residency program for diverting a drug he had prescribed to a patient for his own use. One month after the self-report, on August 30, 2006, Respondent signed a Step I Consent Agreement (Step I Agreement) with the Ohio Board. The Step I Agreement included the following stipulations and admissions: Dr. Hall admits that the Board ordered him to submit to a three-day examination at The Woods at Parkside [Parkside], a Board-approved treatment provider in Columbus Ohio, on or about July 31, 2006, based upon his self-report that he was terminated from his anesthesia residency program with Doctors Hospital in Columbus, Ohio, because he diverted for self-use Celestone, a corticosteroid, that he prescribed for a patient; and that he had diverted Kenalog, another corticosteroid, in the past. Dr. Hall further admits that during this examination, he was diagnosed with substance abuse and Bipolar Disorder with mixed anxiety and that he entered Parkside for further treatment, including 28-day residential treatment. Dr. Hall further admits that due to his substance abuse he currently is impaired in his ability to practice osteopathic medicine and surgery according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice and an inability to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor, or perceptive skills, due to his Bipolar Disorder with mixed anxiety. (Pet. Ex. B, Bates p. 57). The Step I Agreement provided that, based on the stipulations and admissions, Respondent's certificate to practice osteopathic medicine and surgery was suspended indefinitely. A series of requirements and conditions were imposed, which had to be met before the Ohio Board would "consider reinstatement of Dr. Hall's certificate to practice osteopathic medicine and surgery." (Pet. Ex. B, Bates p. 60). The Step I Agreement took effect September 13, 2006, when signed on behalf of the Ohio Board. (Pet. Ex. B, Bates p. 63). Six months later, on March 14, 2007, Respondent and the Ohio Board entered into the Step II Consent Agreement (Step II Agreement). Pursuant to the Step II Agreement, the indefinite suspension was lifted and Respondent's certificate to practice osteopathic medicine and surgery was conditionally reinstated under new probationary terms set forth in the Step II Agreement. The Step II Agreement contained additional stipulations and admissions agreed to by Respondent, including: C. Dr. Hall is applying for reinstatement of his license to practice osteopathic medicine and surgery in the state of Ohio, which was indefinitely suspended pursuant to the terms of the [Step I Agreement]. * * * E. Dr. Hall admits that he initially entered inpatient treatment for cortical steroid abuse, at the Woods at Parkside [Parkside], a Board- approved treatment provider in Columbus, Ohio, on or about July 31, 2006, that he transitioned to out- patient treatment on or about August 28, 2006, and that he was subsequently discharged, treatment complete, on or about September 5, 2006. Dr. Hall further admits that in addition to his abuse of corticosteroids, in the past he also self-medicated with Elavil and Ultram, and excessively consumed alcohol to the point of having blackout events. Dr. Hall further admits that during his treatment at Parkside, he received an additional diagnosis of Bipolar Disorder for which he was prescribed medication. * * * G. … Dr. Hall states … that Victoria Sanelli, M.D., a psychiatrist who was approved by the Board to provide an assessment of Dr. Hall, evaluated Dr. Hall and submitted a report to the Board … in which she stated that Dr. Hall's diagnoses include steroid dependence in early sustained remission, and that although Dr. Hall has been recently diagnosed with possible Bipolar Disorder, it was Dr. Sanelli's opinion as an addiction psychiatrist that it is extremely difficult to assign an Axis I diagnosis to someone who has recently been involved in substance abuse. … Dr. Sanelli further opined that Dr. Hall has a Mood Disorder, which may be depressed mood or Bipolar Disorder, and that Dr. Hall's ability to practice osteopathic medicine and surgery has been assessed, and he is capable of practicing according to acceptable and prevailing standards of care so long as certain treatment and monitoring requirements are in place. The Step II Agreement provided that reinstatement of Respondent's license would be subject to a probationary term of at least five years from March 14, 2007, with numerous conditions and limitations imposed, including the treatment and monitoring requirements deemed necessary to ensure Respondent remained capable of practicing according to acceptable standards of care. The terms of Respondent's probation included random drug and alcohol tests, evaluations, restrictions on travel outside the state, use of a monitoring physician to monitor Respondent's practice of osteopathic medicine and surgery, and submission of quarterly reports to the Ohio Board in which Respondent attested under oath to full compliance with all conditions of the Step II Agreement. Respondent testified that, at the beginning, he complied with the probationary terms he agreed to. For example, with regard to the travel restrictions, in 2007, when Respondent decided on the spur of the moment to travel to Alabama to visit a friend, he requested and obtained last-minute permission from the Ohio Board for the trip with the proviso that he continue to be subject to random screenings and go to meetings there. However, in or about September 2008, after the Step II Agreement had been in place for only a year and a half, Respondent decided he could no longer comply with the agreement he entered into. When his brothers, who lived in Florida, asked him to travel with them to Italy and Lebanon for a vacation, for which the brothers would pay, Respondent agreed. The brothers coordinated the travel dates to work with Respondent's schedule. Respondent testified that he could not recall how long the trip was, but it was more than one week and possibly less than two weeks. Even though this longer trip was planned, rather than spontaneous like the Alabama trip for which Respondent had obtained Ohio Board approval, this time Respondent did not request approval. This was no accident. Instead, Respondent schemed to leave "clean" urine samples and slips filled out to submit with the samples to the lab, and left them behind with an employee who kept the samples in a freezer and submitted one or more samples while Respondent was out of the country. Respondent devised this scheme to cover up his unauthorized travel, and to give the impression that the samples were being given contemporaneously with their submission to the lab. Instead, Respondent went unmonitored during his unauthorized trip abroad. This was a blatant and devious affront to the terms of the Step II Agreement Respondent promised to abide by. At the hearing, Respondent attempted to explain several different times why he carried out a scheme to circumvent the Step II Agreement's monitoring requirements and cover up his unauthorized travel: Because I had no control in my life. I was doing everything that the board had asked; I had gone to meetings, two, three, sometimes four times a week as required; I was doing random urine drug screens for almost two years; and I had done everything that was asked, and I felt I had no control of my life. I wasn't getting anywhere with this board program. I felt that they were completely inflexible and had a total lack of understanding. And I thought that the suspension—I'm sorry; the impairment diagnosis for basically prednisone, which is an anti-inflammatory drug, was cruel. … [W]hen the program in Ohio said that I had an [impairment], based on the use of drug that in literature is used for inflammatory conditions, it blew my mind. I was still being required to test like a drug addict for over two years and I was labeled a drug addict for two-plus years at that point, and the board didn't want to listen to my protest or my concerns. And there was just a total lack of understanding on the part of the board. And I—and I got—I got overwhelmed emotionally. And just said I had enough of being controlled by somebody who didn't—who didn't have any of my interests at heart. They only wanted to punish. (Tr. 135-136). * * * I was put in a vice like a grape and crushed. (Tr. 142). * * * I don't know that I thought it was okay [to circumvent the Step Two Agreement]. … At the time, like I said, I was under the impairment agreement; I was hoping there would be some benefits to asking for help for mental health issues, and like I said, rolling in the drug portion. But as time went on, there was no positive affect on my life. I couldn't travel to see family. Family is important. Family is who we turn to in times of stress. I couldn't see them without the board's approval. I couldn't find work because of the scarlet letter that was on me. I couldn't find work because I didn't finish the residency. You know, I think when we tell patients by the way, we have a treatment for your problem, but it's going to kill you, most people would say, well, screw that, I'm not going to do it. And you know, I don't think any of the downside was anticipated by me. (Tr. 144). I didn't foresee all of the negative repercussions that would come through in my life. And I was—I was adhering to everything they that they asked of me, meetings, urine drug screens. This—you know, when you have to do a urine drug screen, you have to basically strip for them and someone has to look at you. And it's intrusive. And I was doing that. I was more than willing to work within their system, and do back flips and front flips. If they said, you know, stand on one leg, I would have said yes, sir, for how long, sir? But at the same time, you could only get beaten and put into a corner for so long and say what in the hell is this program designed to do except excommunicate people from a profession? … And so I broke. After a certain amount of time, I broke. It was too much. I—I know I did something stupid. I know I did. And I regret it every day of my life. And I look at it and kick myself and wish I would have never done it. But all I can say is I'm sorry. … So, you know, that's all I can say. I know I screwed up and I took the punishment for it, and I'm here today to say, I am not that person from 12 years ago. (Tr. 145-146). * * * In 2008, like I said, I had been compliant with the board's ruling since '06, since August of '06. I think it was August of '06. And now we're looking at two years later and despite having done everything the board asked, I'm getting—I'm getting nowhere. I'm just feeling like I'm spinning my wheels and there's no end in sight to this—to this situation. And so I threw my hands up. (Tr. 149). No evidence was offered to substantiate Respondent's dramatic claims that the Ohio Board showed inflexibility, a lack of understanding, or an unwillingness to consider any protests or concerns submitted by Respondent. No evidence was offered to show that the Ohio Board ever denied a request by Respondent to travel; the only evidence was that Respondent's single last- minute request was granted and Respondent was allowed to meet his monitoring and treatment requirements while traveling. As Respondent acknowledged, the Step II Agreement that he signed was for a minimum of five years, beginning March 2007. Before March 2007, Respondent was subject to the Step I Agreement, which he also signed. These agreements included stipulations and admissions agreed to by Respondent, and imposed terms and conditions that he accepted. Respondent's characterization at the hearing of the terms he had agreed to as cruel, and his explanation at the hearing that he could not abide by the Step II Agreement because he decided he needed to take back control, after less than one-third of the five-year minimum term had passed, are very troubling current-day admissions. Respondent attempted to refute his admissions in the Step I and Step II Agreements, disputing the substance abuse characterizations and claiming that he admitted to them as a means to have his license reinstated. Without any evidentiary basis to contradict his own admissions in the Step I and Step II Agreements, it is sufficient for purposes of this proceeding to simply point out that Respondent's admissions speak for themselves, and Respondent is not painted in a favorable light, whether he admitted to facts he did not believe as a means to the end of having his suspended license reinstated or whether he admitted to facts that were true. Respondent's claims of oppression and torture (i.e., being put in a vice like a grape and crushed) to explain the backdrop to the Ohio Board's action permanently revoking his certificate to practice osteopathic medicine cause concern. Respondent overly dramatizes the simple fact that he chose to enter into the Step I and Step II Agreements, regardless of his rationalizations for having done so. Also of concern is that for all of his dramatic expressions at the hearing, Respondent ignored a troubling series of admissions. In the Step II Agreement, Respondent admitted to diverting the hospital's prescription medication that he had prescribed for a patient for his own use, and he also admitted to having diverted other medication for his own use in the past. His diversion of hospital medication that he prescribed for a patient for his own use instead was essentially theft, resulting in his termination from the hospital's residency program. Respondent admitted to drug diversion on more than one occasion, in addition to self-medicating, and those admissions were predicates for the conditions imposed by the Step II Agreement. At the hearing, Respondent never addressed this dishonest conduct. That makes Respondent's attempted explanation for why he could no longer abide by the Step II Agreement, with three and a half years left to the agreement he entered into, wholly unsatisfactory. Respondent seemingly has not recognized that these underlying dishonest dealings in medication played a part in his being "painted with a scarlet letter." Whether he recognized it or not, he certainly expressed no remorse. Respondent's scheme to violate the Step II Agreement and cover up his violation succeeded, initially, and for several years thereafter. Respondent made it to the end of his five-year probation, falsely representing under oath to the Ohio Board in quarterly reports that he complied with the terms the entire time. Respondent's probation was lifted under false presences, based on the false impression given by Respondent to the Ohio Board that as of March 14, 2012, he had complied with the Step II Agreement for the five-year probationary term. From then until April 1, 2013, Respondent's certificate to practice was active and unrestricted for the first time since it was issued. Respondent's scheme came to light after Respondent fired an employee and reported to police that the employee was discovered forging prescriptions to obtain prescription drugs. The employee reciprocated by reporting to the Ohio Board that Respondent had falsified his urine samples to cover up an unauthorized jaunt abroad, during which he evaded the required monitoring. Once again, Respondent's certificate to practice osteopathic medicine in Ohio was immediately and indefinitely suspended by the Ohio Board on April 1, 2013. Criminal charges were brought against Respondent in the fall of 2014, based on his scheme to have an employee submit "clean" urine samples that were kept in a freezer, with slips Respondent filled out ahead of time, to give the appearance that he was providing those samples while he was on his overseas trip. Respondent's Ohio certificate to practice osteopathic medicine was still under indefinite suspension when it came up for biennial renewal in 2014. Respondent chose not to renew the license, so the license became inactive on October 1, 2014, but remained under suspension. Respondent did not surrender his license/certificate to practice osteopathic medicine in 2014 or at any time thereafter. On March 2, 2016, Respondent pled guilty to, and was found guilty of, two felonies: attempted tampering with evidence, a fourth degree felony; and possession of criminal tools, a fifth degree felony. After the felony convictions, on April 13, 2016, the Ohio Board both vacated the summary suspension of his certificate and initiated the disciplinary action against Respondent's certificate, designated case number 16-CRF-0055, notwithstanding that Respondent's certificate was inactive. The notice mailed to Respondent on April 14, 2016, informed Respondent that the Ohio Board "intends to determine whether or not to limit, revoke, permanently revoke, suspend, refuse to register or reinstate your certificate to practice osteopathic medicine and surgery, or to reprimand you or place you on probation" for reasons enumerated in the notice. The reasons included the two felony convictions, Respondent's falsification of his quarterly reports to the Ohio Board attesting to full compliance with the Step II Agreement, and Respondent's violations of the limits placed on his certificate to practice pursuant to the terms of the Step II Agreement. Respondent was informed of his right to a hearing. Respondent asked for a hearing regarding the proposed disciplinary action against his certificate to practice osteopathic medicine and surgery in Ohio. Respondent testified at the hearing in this case that he pursued a hearing before the Ohio Board in the hope that he and his attorneys could persuade the Ohio Board to reinstate his inactive license. In his view, he had been punished enough and deserved something less than the most draconian punishment of permanent revocation. He believed that reinstating his license, likely subject to more conditions, was a possible outcome of the proceeding. Instead, the decision following an evidentiary hearing was to permanently revoke Respondent's certificate to practice osteopathic medicine and surgery in Ohio. The written decision reflects that the basis for the permanent revocation was, in part, Respondent's lack of remorse, downplaying his past crimes for which he pled guilty, and dishonesty displayed at the hearing. After setting forth proposed findings of fact and conclusions of law, the hearing examiner provided a summary to explain why the proposed order recommended permanent revocation: Dr. Hall was dismissed from a residency program at the University of Health Sciences in Independence, Missouri, for sleeping through a shift, then lied about his whereabouts in an effort to regain his position. Before this Board, he testified that he learned his lesson and had come to understand the importance of telling the truth. Yet while working at Doctors Hospital in Columbus, Ohio, he created a false patient record in order to obtain corticosteroids to treat his own pain. Then, in 2008, Dr. Hall devised and employed a scheme to deceive the Board that he remained in Ohio when in fact he was abroad, because he feared his request to travel might be refused. He caused specimens, provided in different times than he had indicated, to be submitted for drug testing, as part of that scheme. He has been under Board supervision his entire tenure in Ohio, up to 2012. It is indeed true that several years have passed since the 2008 conduct at issue in this hearing, and that there have been no proven instances of misconduct or non-compliance with monitoring for the five years between 2008 and 2013, when Dr. Hall's license was summarily suspended, or since early 2016 when Dr. Hall resumed practice in Florida. But his career up to that point in 2008 had consisted of a nearly unbroken chain of deceitful conduct, and for four of the five following years, Dr. Hall had remained under Board supervision on pain of revocation of his license. So the question now is whether Dr. Hall's pattern of lying "under pressure" was situational, caused by pain, depression, and perhaps frustration, the causes of which are largely in his past, or whether this conduct reflects an ingrained character trait. Given his history, if Dr. Hall wished to regain the Board's "trust" and demonstrate a character trait for truthfulness, it was incumbent upon Dr. Hall to testify with complete candor in the proceedings before this Hearing Examiner. This Hearing Examiner did not, however, find Dr. Hall's testimony to be particularly credible as a general matter, based on his demeanor and testimony. Three factors stand out in particular: Dr. Hall attempted to minimize his deceit to [the Acting Director of his Missouri residency program] … . But the Board's prior finding was that Dr. Hall's lie was premeditated; … Dr. Hall repeatedly attempted to minimize the character of his scheme to conceal from the Board his travel outside Ohio, and to submit urine specimens not given at the times indicated … . … Dr. Hall repeatedly resorted to pat phrases to describe, and in all likelihood exaggerate, the level of discomfort he experienced … . The evidence that Dr. Hall's persistent lack of candor is merely a result of past causes, no longer at play in his life, is less than convincing. Accordingly, this Hearing Examiner does not believe that the record reflects mitigating circumstances sufficient to support providing a pathway for Dr. Hall to regain licensure by this Board.[7] (Pet. Ex. B, Bates p. 27-28). 7 The hearing examiner's observation regarding whether mitigating circumstances supported providing a pathway for Respondent to regain licensure confirms Respondent's testimony that the reason he invested time and resources in this hearing was in the hope that the Ohio Board would consider mitigating circumstances, with the possibility of having his license reinstated subject to conditions. This would have been similar to the approach of the Step I and Step II Agreements, whereby in Step I, Respondent's certificate to practice was suspended, and would be considered for reinstatement only after Respondent complied with a series of requirements, followed by Step II, which was treated as an application for reinstatement, and was granted subject to limitations and conditions. This time, Respondent failed to convince the hearing examiner or the Ohio Board to allow another similar pathway. The Ohio Board entered an Order on December 14, 2016, attaching and incorporating the hearing examiner's report and recommendation and ordering as follows: "The certificate of Adam Patrick Hall, D.O., to practice osteopathic medicine and surgery in the State of Ohio shall be permanently revoked." (Pet. Ex. B, Bates p. 3). Just as Respondent's candor was found lacking in the Ohio proceeding, so, too, at the hearing in this case, Respondent was not credible, based on his demeanor and testimony. Instead, he was evasive, dramatizing his personal tribulations to which he attributed his past mistakes, while downplaying the extent and significance of his past wrongdoing. Several months after the Ohio Board permanently revoked Respondent's certificate to practice osteopathic medicine, Respondent's counsel, who had represented him since the Ohio proceedings in 2016, and worked with local Ohio counsel in the 2016 disciplinary proceeding, wrote the following on his behalf as a "self-report" to the Department on April 3, 2017: Please be advised that Adam Hall is represented by Chapman Law Group before the Florida Department of Health ("Department") and Board of Osteopathic Medicine ("Board"). … In November 2016, Dr. Hall submitted his response to the Department's Administrative Complaint. Subsequently, the Ohio Board of Osteopathic Medicine took action against his license. To wit, on December 15, 2016, by an order of the Board, Dr. Halls' [sic] Osteopathic medical license was permanently revoked. Such an order was based on convictions in the Court of Common Pleas of Lawrence County, Ohio in which Dr. Hall pled guilty to Attempted Tampering of Evidence, a fourth degree felony and Possession of Criminal Tools, a fifth degree felony. … Dr. Hall knows that pursuant to Florida Statute, his Ohio Board action constitutes grounds for disciplinary action, as specified in s. 456.072(2). To wit s. 456.015 [sic; 459.015(1)(b)] reads that: Having a license or the authority to practice osteopathic medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority's acceptance of a physician's relinquishment of license, stipulation, consent order, or other settlement offered in response to or in anticipation of the filing of administrative charges against the physician shall be construed as action against the physician's license. Chapman Law Group respectfully submits that no action is needed on the part of either the Department or Board, because Dr. Hall reported this incident to the Department as required by law. (Pet. Ex. E, emphasis added). The letter was submitted on Respondent's behalf by attorneys Steven D. Brownlee and Ronald W. Chapman for the firm. Other Relevant Facts Respondent had a license to practice osteopathic medicine in Missouri at one time. He testified that "Missouri followed the action of Ohio, and I lost my license to practice in Missouri." (Tr. 148). Respondent did not provide specific details regarding the basis for the Missouri action to take away Respondent's license to practice in Missouri. Respondent had a license to practice osteopathic medicine in Kansas at one time. Respondent did not provide details regarding what happened to the Kansas license he held at one time. Respondent's Ohio licensure file contains a Kansas license verification form submitted as part of Respondent's application for a license (certificate) to practice osteopathic medicine and surgery in Ohio. The Kansas license verification form dated April 15, 2004, reports that Respondent's "original license date" was April 26, 2003; and the "expiration date" was September 30, 2003. The license status was reported as "cancelled." (Pet. Ex. A, Bates p. 31). No other evidence was offered regarding Respondent's Kansas licensure history, the reason for the short duration of his license, or why his license was "cancelled." As previously noted, Respondent has also been licensed to practice osteopathic medicine in Florida since 2008. However, he testified that he did not begin practicing in Florida until after the Ohio proceedings concluded with the Ohio Board's order of permanent revocation. There is no evidence of any blemishes on his track record practicing in Florida, but the tenure has been relatively short—three and a half years at the time of the hearing.8 Respondent is married, with three children. At the time of his hearing in Ohio that resulted in permanent revocation of his certificate to practice osteopathic medicine, his now-wife was his fiancée and they had a one- month-old child. Respondent testified that his wife is a lawyer. He credited her with coming up with the argument that the permanent revocation of his "certificate" to practice osteopathic medicine in Ohio was arguably something different than a permanent revocation of a "license" to practice osteopathic medicine in Ohio. Respondent noted that she raised this question before the Ohio disciplinary hearing, but the argument was not pursued there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order revoking Respondent, Adam Patrick Hall, D.O.'s, license to practice osteopathic medicine and assessing costs against him for the investigation and prosecution of this matter. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 15th day of October, 2020. COPIES FURNISHED: Michael Jovane Williams, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Ronald W. Chapman, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Lauren Ashley Leikam, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Jamal Burk, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Kama Monroe, Executive Director Board of Osteopathic Medicine Department of Health Bin C-06 4052 Bald Cypress Way Tallahassee, Florida 32399-3257 (eServed) Louise St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By an application filed in late 1981, Sun Coast Hospital, in partnership with Metropolitan General Hospital, sought approval from the respondent HRS for a Certificate of Need to construct an 86-bed acute care hospital facility in the Countryside area of North Pinellas County. The facility is to be known as the Palm Harbor Hospital and is to be located on State Road 584, some 18 to 20 miles from the existing Sun Coast Hospital. The proposed facility is to be a free-standing hospital with 80 medical/surgical beds and 6 intensive care beds. Twenty-six of the beds are to be transferred from Sun Coast Hospital. The total project cost is $10,066,533 to be financed by a bond issue at 15 percent interest for 30 years. It is anticipated that Sun Coast and Metropolitan General will split the initial costs of the Palm Harbor facility. It is proposed that the new facility will have a radiology department, a laboratory, a surgical department and an emergency room. Metropolitan and Sun Coast will serve as back-up facilities for the more complicated procedures. The medical staff at the new facility will be oriented to osteopathic specialties. It is anticipated that the new Palm Harbor Hospital will be a teaching facility for osteopathic medicine. Petitioners project an 80 percent occupancy rate at the proposed facility for its second year of operation. The respondent HRS conducted a comparative analysis of petitioners' application along with four other applications for Certificates of Need for hospitals in North Pinellas County. HRS denied petitioners' application, but granted a Certificate of Need to Mease Hospital and Clinic to construct a 100- bed satellite acute care hospital in North Pinellas County. The Certificate of Need issued to Mease is not being challenged in this proceeding. The petitioners' proposed facility is to be located approximately 2.5 miles from the new Mease facility. Sun Coast and Metropolitan General Hospitals are nonprofit corporations accredited by the American Osteopathic Association (AOA). Metropolitan is located in Pinellas Park and Sun Coast is located in Largo, just north of Ulmerton Road. Sun Coast is one of the largest teaching facilities for osteopathic physicians in the South, and it is the largest teaching facility in Florida. It trains about 30 osteopaths at any given time, and at the time of the hearing, it had 14 interns, 15 externs and 8 residents. Some 95 percent of the physicians on its staff are Doctors of Osteopathy (D.O.). Sun Coast Hospital has 314 licensed beds, with 248 beds staffed and in operation. It intends to transfer 26 beds to the new Palm Harbor facility. The average monthly occupancy at Sun Coast is 180 beds, or 57 percent of its licensed bed capacity. Out of its 248 operating beds, there are generally 68 open and available beds at all times. Sun Coast presently receives approximately 10 percent of its patient census from the Palm Harbor area. Teaching hospitals attract primary care physicians to an area. As part of their education, DOs are required to serve a one-year rotating internship at an AOA accredited hospital. This includes rotating service and training in the areas of general medicine, surgery, OB/GYN, pediatrics, pathology and radiology. In the United States, there are 15 Colleges of Osteopathic Medicine, 8 of which have been established in the last 10 years. While there were only 400 osteopathic graduates five to seven years ago, there are presently 1100 graduates per year. There are approximately 16,000 medical doctors graduating each year. Nationally, approximately 4 percent of all physicians are Doctors of Osteopathy. In Florida, 13 percent of all physicians are Doctors of Osteopathy. In Pinellas County, there are three AOA accredited hospital facilities with a total of 534 beds, or 12 percent of the total licensed beds. In North Pinellas County (north of Ulmerton Road), there are approximately 439 MDs and 92 DOs, or 17.33 percent of all the physicians. The DOs in North Pinellas have 2.27 AOA accredited beds per D.O., as compared to 3.5 non-AOA available beds per M.D. Based upon total licensed bed capacity, the occupancy levels in Pinellas County for allopathic beds is 69 percent and is 56.2 percent for osteopathic beds. In North Pinellas County, the occupancy levels for total allopathic beds is 73.1 percent and for total osteopathic beds is approximately 55 percent. In North Pinellas County, osteopathic patients account for about 12 percent of all hospital admissions. Osteopathic beds account for approximately 18 percent of the total number of licensed beds in North Pinellas County. Pinellas County has more osteopathic beds than other areas in this State. Approximately 30 percent of all osteopathic beds in Florida are in Pinellas County, which has about 7.5 percent of the State's population. HRS has no promulgated or established definition of an osteopathic facility. Some experts testified that a facility had to be AOA accredited to be designated a true "osteopathic" facility, while others were of the opinion that only the "concept" of the facility must be osteopathic. While osteopathic physicians receive somewhat different training and education than allopathic physicians, there was no dispute that there is no major difference between an osteopathic and an allopathic hospital with regard to necessary equipment or technical staff. The main equipment difference is a table upon which manipulative therapy is performed in the osteopathic facility. Also, a structural examination of osteopathic patients is performed and, therefore, space is needed on the hospital chart to record the structural evaluation. There are currently three AOA accredited osteopathic hospitals in Pinellas County--Sun Coast, Metropolitan and Harborside Hospital. University Hospital, which is largely staffed by DOs, but is not AOA certified, also exists in Pinellas County. Located about 25 minutes north of the Countryside or Palm Harbor area is Riverside Hospital in Pasco County. Riverside is owned by American Health Care Enterprises, which also owns Harborside Hospital in St. Petersburg. Riverside was purchased from Pasco County in 1982 and, in the contract of sale, American Health Care made a commitment of its desire to be accredited by the AOA, become an osteopathic teaching facility and be affiliated with the Southeastern College of Osteopathic Medicine in Miami. Riverside has 102 licensed beds, with 100 beds open. Of its total admissions, 56 percent are osteopathic patients. It is operated by a seven member Board of Directors, three of whom are physicians. Two of the three physicians are osteopaths. One of the osteopathic Board members is a trustee of the Southeastern College of Osteopathic Medicine. Riverside's Chief of Medicine is a D.O., as is its Vice- Chief of Staff. Of the 18 family physicians on the staff at Riverside, 14 are DOs. The opening and operation of a new osteopathic facility within a 25 minute drive from Riverside Hospital would harm Riverside financially and would hinder its plans to become an osteopathic teaching facility. The local health systems plan found a need for 95 additional hospital beds in North Pinellas County. Insufficient evidence was presented by the parties that the need for hospital beds, osteopathic or allopathic, in North Pinellas County was any greater than 95. The applicable standard for accessibility is that hospital beds located within 30 minutes driving time be available for 90 percent of an area's population. In determining the bed needs for an area, it is the policy of HRS to consider community needs in terms of historical utilization and shifts in population. Neither physician opinion, beds per physician nor the needs of a limited proposed primary service area (as opposed to community need) are given controlling consideration. The recently approved 100-bed facility of Mease Hospital and Clinic is located about two miles north and 1.5 miles west of the central point of the petitioners' proposed primary service area. The new Mease facility is to be a satellite of the Mease Hospital in Dunedin, which operates at an occupancy level of 74 percent. Mease is not accredited by the AOA and has no separate manipulative therapy department, but it does have 8 osteopathic physicians on its staff. The new Countryside Mease facility plans to have an emergency room, and offer services in radiology, physical therapy and surgery. It is anticipated that two osteopathic physicians will staff the Mease Countryside emergency room. Local law requires that critically ill, emergency patients be transported to the nearest emergency room. The opening and operation of a new osteopathic hospital within two and one half miles of the new Mease Hospital would harm it financially, would divert emergency room patients and inpatients derived there from, and would make it difficult for Mease to adequately staff its new facility.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sun Coast/Metropolitan General Hospital for a Certificate of Need to construct an 86-bed acute care osteopathic hospital in North Pinellas County be DENIED. Respectfully submitted and entered this 29th day of June, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1983. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. P.O. Drawer 190 Tallahassee, Florida 32302 Robert A. Weiss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John P. Frazer, Esquire Frazer & Hubbard, P.A. P.O. Box 1178 Dunedin, Florida 33528-1178 Kenneth Hoffman, Esquire Oertel & Hoffman, P.A. 646 Lewis State Bank Bldg. Tallahassee, Florida 32301-1879 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On August 1, 1978, a letter of intent to construct an osteopathic hospital in Ft. Myers was filed by Hospital Affiliates International on behalf of the petitioner/applicant Gulf Coast Hospital, Inc. The petitioner is comprised of seven osteopathic physicians practicing in Lee County, Florida. The application seeks approval for the construction and operation of a 116-bed , acute care hospital at a proposed cost of $12,805,000.00. The petitioner's application was reviewed by the South Central Florida Health System Council, Inc. The Board of Directors recommended disapproval of the application by a vote of 21 to 11. The Administrator of the respondent's Office for Community Medical Facilities advised the applicant by letter dated March 14, 1979, that its proposal was not favorably considered. As grounds for this decision, it was found that the project was not consistent with the local Health Systems Plan; that there was no need for the project in terms of availability, accessibility, extent of utilization and adequacy of like and existing facilities and services; and that there are less costly, more appropriate alternatives to the proposed project. Thereafter, the petitioner timely requested an administrative hearing on the denial of its application and the Fort Myers Community Hospital (FMCH) timely moved to intervene in the proceeding. There are four hospitals located in Lee County, with a total of 1,146 beds. Lee Memorial Hospital has 558 beds and operates at an occupancy rate of approximately 59 percent. Over the past twelve months, Lee Memorial averaged 250 empty beds. FMCH has 400 beds and an occupancy rate of 40 percent. It averaged 150 empty beds last year. Cape Coral Hospital has 100 beds with a 74 percent occupancy rate and Lehigh Acres has 88 beds with an occupancy rate of approximately 46 percent. According to the local Health Systems plan, Lee County will still have 265 excess hospital beds in the year 1983. Prior to the time the applicant filed its letter of intent, there was an established practice in the Lee County community of discriminating against osteopathic physicians (D.O.) by excluding them from admittance to the medical staffs of three of the four local hospitals. The only exception to total exclusion was Lehigh Acres which gave one osteopathic physician, Dr. N. Centafont, staff privileges, Dr. Centafont has experienced a coolness in attitude from some of the staff at Lehigh, different requirements with regard to a sponsor were applied to him and he has not been able to perform manipulative medical treatment under anesthesia to his patients at Lehigh. Lehigh has recently rejected the applications of two other D.O.'s, although the grounds for such rejection were not fully clarified at the hearing. Dr. A. J. Piccola, an osteopathic physician and organizer and spokesman for the petitioner/applicant, applied to Fort Myers Community Hospital for staff privileges in 1974. His application was tabled and not acted upon for a period of almost four years. The Board of FMCH made several attempts during this interim period to change the interpretation of its bylaws by vote of the medical staff so as to allow osteopathic physicians to become members of the staff. Several votes were taken on the issue, but each time the issue was defeated. Dr. Piccola also submitted a letter of intent to file an application for membership on FMCH's staff in 1977. However, he never did file another application. In August or September of 1978, after the time that FMCH learned of the petitioner's certificate of need application, the Administrator of FMCH contacted Dr. Piccola and asked him if he wished to have his application for staff membership reactivated. Dr. Piccola informed the Administrator that he did not. Nonetheless, the credentials committee of FMCH unilaterally reactivated Dr. Piccola's 1974 application and, on October 26, 1978, informed Dr. Piccola that he had been appointed an associated member of the Hospital's medical staff. Dr. Piccola has not exercised the privileges extended to him because he does not believe he was properly accepted as a member of the medical staff in accordance with the bylaws of FMCH and because he felt that to do so would jeopardize the petitioner's efforts in obtaining a certificate of need for its own hospital. FMCH considered Dr. Piccola to be a member of its medical staff. Three other osteopathic physicians who were original organizers of the petitioner have been accepted as consulting staff members of the FMCH. At least two of these physicians felt some pressure to join the staff of FMCH after petitioner filed its application for a certificate of need. These three D.O.'s have apparently withdrawn as organizers of petitioner and at least two of the three would remain at FMCH even if petitioner's hospital were built. Other than the four D.O.'s discussed above, no other osteopathic physicians have applied to FMCH for staff privileges. Several of the local D.O.'s testified that they did not apply to FMCH prior to their own application for a certificate of need because they knew it would be a futile effort and that they did not apply afterward because it would hamper the granting of authority to have their own hospital. The Administrator of FMCH testified that it will be the policy of FMCH in the future to admit osteopathic physicians to its staff if they are otherwise qualified, and that FMCH stands ready to purchase equipment necessary for the practice of manipulative medicine if requested to do so by its osteopathic physicians. It was also his testimony that the granting of privileges to local D.O.'s at the same time of their certificate of need application was a coincidence of time and not of intent. At the time of the hearing and at all times prior thereto, the other two hospitals in the area, Lee Memorial and Cape Coral Hospitals, unequivocally denied osteopathic physicians the right to practice in their hospitals. The 1979 Legislature passed a new law which became effective on July 1, 1979. Section 395.035, Florida Statutes, prohibits licensed hospitals from excluding doctors of osteopathy from staff membership or privileges on the sole basis that they are D.O.'s. It further mandates each hospital to set standards and procedures to be applied in considering and acting upon applications for staff privileges and to make the same available for public inspection. This must be accomplished within 180 days of July 1, 1979. As noted above, the petitioner seeks to build and operate a 166-bed acute care hospital. Its application stated that osteopathic physicians presently treat 40,000 patients in the area. This figure was not verified or substantiated by testimony or other evidence during the hearing, nor was there sufficient testimony concerning the number of patients osteopathic physicians were presently admitting to area hospitals. Several of the D.O.'s do practice manipulative medicine. Such treatment requires a specialized straight table. The cost for this equipment was not established, and the testimony indicates that its cost can range from several hundred to several thousand dollars. If petitioner's application is granted, it is proposed that petitioner will have a manipulative medicine department with two treatment rooms and two full-time personnel for this purpose. During the first days of the hearing, it had not yet been determined whether the petitioner would have an open or mixed staff of osteopathic and allopathic doctors. It was originally thought that petitioner would be solely a D.O. hospital, with consulting medical doctors on staff. Because of the new law, petitioner now intends to have a mixed staff. Testimony from witnesses who had had experience with working on mixed staff hospitals established that D.O.'s and M.D.'s can and do work harmoniously together. The only real difference in the physical plants of allopathic and osteopathic hospitals are the treatment rooms for manipulative medicine. Many D.O.'s do not practice manipulative medicine and only ten to fifteen percent of those who do require a hospital setting. There is some small difference in the medical charts used by D.O.'s with regard to a space for the structural examination. Otherwise, there is no substantial difference in the day-to-day function or operation of an osteopathic hospital. There was no conflict in the testimony that Lee County and the Ft. Myers area is presently overbedded by at least 400 beds. The Administrators of FMCH and Lee Memorial Hospital testified that the addition of 116 hospital beds as proposed by petitioner would financially harm their institutions, raise patient charges, and create an even greater excess of hospital beds. They further testified that the staffing of petitioner's facility with 253 employees would create manpower shortages in the area, and cause their facilities to be required to increase salaries for their personnel.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for a certificate of need to construct and operate a 116-bed acute care hospital in Ft. Myers be DENIED. Respectfully submitted and entered this 19th day of September, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jean Laramore Suite 646 Lewis State Bank Building Tallahassee, Florida 32302 Eric J. Haugdahl Assistant General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 E. G. "Dan" Boone Post Office Box 1596 Venice, Florida 33595 Bruce E. Smith 1030 Merchants Plaza-East Tower Indianapolis, Indiana 46204 Art Forehand, Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301
