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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about July 3, 1962, respondent was issued Osteopathic Physician and Surgeon license No. 20A-2834 by the Board of Osteopathic Examiners in the State of California. On July 14, 1962, respondent elected to use the designation "M.D." rather than "D.O.", and thereby submitted himself to the jurisdiction of the Board of Medical Quality Assurance in the State of California. On August 10, 1978, the Board of Medical Quality Assurance in the State of California revoked respondent's California license No. 20A-2834 effective September 11, 1978. By Order dated August 18, 1982, the effective date of that decision providing for revocation was changed to September 17, 1982. A Complaint Analyst with the Department of Professional Regulation, State of Florida, received documentation from the Board of Medical Quality Assurance, State of California, indicating that respondent's license No. 20A- 2834 had been revoked in California. She thereupon forwarded such documents to the legal section of the Department of Professional Regulation. On December 29, 1982, the Department of Professional Regulation filed an Administrative Complaint seeking to "revoke, suspend or take other disciplinary action against the Respondent as licensee and against his license as an osteopathic physician under the laws of the State of Florida." It is alleged that respondent is guilty of having a license to practice osteopathic medicine revoked, suspended or otherwise acted against by the licensing authority of another state, in violation of Section 459.015(1)(b), Florida Statutes (1981). No evidence was presented in this proceeding as to whether the Department of Professional Regulation (DPR) submitted an investigative report to the probable cause panel of a regulatory board. No evidence was presented as to whether a probable cause panel of a regulatory board or the DPR found probable cause to exist. The Board of Osteopathic Medical Examiners is not named as a petitioner in the Administrative Complaint. No evidence was presented in this proceeding as to whether the respondent is licensed to practice osteopathic medicine in the State of Florida. Petitioner made no attempt to introduce evidence of any character to demonstrate whether respondent is licensed by the State of Florida to practice osteopathic medicine or any other profession falling within the purview of the Department of Professional Regulation.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent dated December 29, 1982, be DISMISSED. Respectfully submitted and entered this 31st day of August, 1983. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bertram Morris Rettner 998 Via Palo Alto Aptos, California 95003 Ms. Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, the following relevant facts are found: HRS District VIII includes Sarasota, DeSoto, Charlotte, Glades, Lee, Hendry and Collier Counties. There are presently no existing and operating osteopathic hospitals within District VIII. However, there are two applications now pending for new for new osteopathic facilities within the District. One is in Sarasota and one is on behalf of the intervenor Doctors' Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Inc. (Gulf Coast), which seeks to build and operate a 120-bed acute care osteopathic hospital to be located in south lee County. That application has proceeded through the administrative hearing process, received a Recommended Order for approval of 120 beds, a Final Order for approval of 60 beds and is currently on appeal. The intervenor Naples Community Hospital is an existing allopathic acute care hospital located in Collier County, which is immediately south of Lee County. The intervenor Lee Memorial Hospital is an existing allopathic acute care hospital located in Lee County and has approval to construct and operate a satellite facility in south Lee County. The petitioner Family Center Hospital Osteopathic, Inc., proposes to construct and operate a 100-bed full service, osteopathic teaching hospital in southwest Lee County. A particular site has not yet been selected or acquired. If the proposed facility was established, it would be in competition with allopathic hospitals for patients and staffing. The petitioner's original application for a Certificate of Need was submitted to HRS in the summer of 1982. That application was prepared by a health planning consulting firm, no member of which testified in this proceeding. The original application was amended prior to the hearing with regard to the need for osteopathic beds in the area, the financial projections and the architectural design of the facility. Petitioner intends to retain a full-time management firm to be responsible for managing the proposed facility. No firm commitments have been made and no tentative price quotations have been received for such an arrangement. Petitioner proposes to construct a two-story 90,000 square foot building with ancillary services on the first floor and patient areas on the second floor. The patient areas include a 15-bed obstetrical until, a 10-bed pediatrics unit, an 8-bed ICU/CCU and the remaining beds would be medical- surgical beds. The architect had no knowledge of the location of the site proposed, and thus no site plan has been developed. While the average construction cost per square foot of a health care facility in Florida is approximately $115 or $120, that cost can vary depending upon site development requirements, construction materials, floor coverings, wall coverings and the like. These details have not yet been determined The fact that the proposed facility is to be teaching hospital was not taken into account in the schematic design. An accountant, who had no prior experience with projecting financial feasibility for a health care facility was retained by the petitioner to prepare a projected financial statement for the proposed facility. His opinion that the project would be financially feasible within the second year of operation was based primarily upon occupancy projections made by a health planner, the itemization and costs associated with manpower, salaries, equipment, supplies, etc., as projected in the original application and conversations with a "Mr. Becker" relating to bond financing. He compared his estimates and projections with other Certificate of Need applications in the Lee County area. The accountant was unaware of whether nor not the applications relied upon for comparison purposes had been update or revised at some subsequent time. He also received data concerning revenues of a "select group" of hospitals as published in a Hospital Cost Containment Board report for 1984, but made no determination of that Board's grouping of hospitals for comparative purposes. No independent investigation of the accuracy of the contents of the original application was performed by the accountant or anyone on his behalf. Although the accountant adjusted the manpower requirements as originally projected to conform with his perception of the occupancy projections, he was unaware of the minimum staffing requirements imposed upon hospitals by state and/or federal regulations. The witness candidly admitted that he did not consider it within his expertise to determine the manpower or equipment requirements for the proposed facility. He is unaware of whether or not the bond financing proposed for this project is available. There was no showing that petitioner had sufficient funds available to make expenditures for project development or other pre-opening expenses, estimated to be over $400,000.00. His revenue projections did not take into account the existence of other osteopathic beds in the area. By utilizing alternative methodologies which took into account both statewide and district wide statistics regarding osteopathic utilization rates, the number and distribution of osteopathic physicians, and population projections; the petitioner's health care planner concluded that there is a gross need in the year 1991 for 144 osteopathic acute care hospital beds in District VIII. Assuming that there are no other osteopathic hospitals in District VIII, the health care planner was of the opinion that there is a net need for the same number of beds in that District. She further concludes that the proposed osteopathic hospital would obtain 90% of the osteopathic patients of Lee County, 50% of the osteopathic patients in other District VIII Counties and an occupancy rate of approximately 73% for the second year of operation. She admits that if Gulf Coast is awarded a Certificate of Need for 60 beds or 120 beds and/or if the Sarasota applicant is awarded a Certificate of Need, the net bed need of 144 would be reduced accordingly and the projected market share and occupancy rates would be affected. Petitioner presented no evidence concerning its ability to adequately staff its proposed facility. Likewise, no evidence was presented as to petitioner's ability to obtain funds for capital expenditures or for the operation of the facility. The impact of the proposed project upon the cost of providing health services was not addressed by the petitioner. There is a need for research and educational facilities to train doctors of osteopathic medicine at the student, internship and residency levels. Both Manasota Osteopathic General Hospital in Sarasota and Gulf Coast Hospital in fort Myers have indicated their desires to become teaching facilities.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for a Certificate of Need be DENIED. Respectfully submitted and entered this 7th day of May 1986 in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 7th day of May 1986. APPENDIX The proposed joint findings of fact submitted by Doctors' Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Inc., and Naples Community Hospital have been approved and/or incorporated in this Recommended Order, except as noted below. Paragraph 7: Rejected as unnecessary to the issues in this proceeding. Many of the proposed findings of fact contain recitations of a lack of evidence regarding certain criteria. Where these have not been included in the factual findings, they are included in the Conclusions of Law, where pertinent. COPIES FURNISHED: Claude H. Tison, Jr., Esquire MCFARLANE, FERGUSON, ALLISON & KELLY Post Office Box 1531 Tampa, Florida 33601 R. Sam Power, Esquire Office of General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32301 John D. C. Newton, II, Esquire CARSON & LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 W. David Watkins, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Ivan Wood, Jr., Esquire WOOD, LUCKSINGER & ESPTEIN One Houston Center Suite 1600 Houston, Texas 77010 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent, Alexandra Konowal, D.O., violated Subsections 459.015(1)(x) and (o), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed osteopathic physician in the State of Florida, having been issued license number OS 7169. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.42, Florida Statutes. On July 20, 1998, Respondent first saw Patient B. M., a 75-year-old female, at Eye Health of Fort Myers, for a complaint of poor vision and cataracts. Respondent scheduled cataract surgery for July 30, 1998, at an outpatient surgery center. On Thursday, July 30, 1998, at approximately 10:30 a.m., Respondent performed the surgery, removing the lens of Patient B. M.‘s left eye and replacing it with an implant. Patient B. M. was discharged from the surgery center at 11:17 a.m., with instructions to go to Eye Health of Fort Myers for follow-up examination that afternoon. On Saturday, August 1, 1998, Patient B. M. telephoned Eye Health early in the morning complaining of inability to see from the left eye and severe pain in the left eye. At about 9:00 a.m., August 1, 1998, Patient B. M. was examined at Eye Health of Fort Myers by James Campbell, an optometrist with Eye Health. Dr. Campbell found residual cortex in the left eye, with corneal edema, but observed no pus in the eye. Dr. Campbell changed the antibiotic eye drops for the patient. At approximately 10:00 a.m., on August 1, 1998, Dr. Campbell had a telephone conference with Respondent and Dr. Franz to discuss the symptoms of Patient B. M. At approximately 4:45 p.m., on August 1, 1998, Patient B. M. again called Eye Health complaining of unbearable pain. Dr. Campbell, in turn, called Respondent at approximately 5:00 p.m. to advise her of Patient B. M.’s complaints. During the 5:00 p.m. telephone call from Dr. Campbell to Respondent, Dr. Campbell discussed the possible diagnosis of endophthalmitis. At 5:36 p.m., August 1, 1998, Respondent spoke with Patient B. M. on the telephone for nine minutes. During the 5:36 p.m. telephone call, Patient B. M. reported shooting pains in her eye and that her vision was bad. During the 5:36 p.m. telephone call, Respondent advised Patient B. M. that she needed to be evaluated. When Patient B. M. said she could not come in, Respondent advised of the possible risks including damage to the optic nerve from excessive pressure and infection. Respondent suggested going to the emergency room and offered to provide transportation, but Patient B. M. refused. During the 5:36 p.m. telephone call, Respondent recommended that Patient B. M. take Percocet that the Patient already had for the pain; Respondent would call in a prescription for erythromycin ointment and told the patient to call back if the eye didn’t improve. Following the 5:36 p.m. telephone call, Respondent did phone in a prescription for erythromycin to a Walgreens Pharmacy near Patient B. M.'s residence. It appears the patient did not pick up this prescription. The "standard of care" expert witness offered by Petitioner found it "difficult to answer" a hypothetical question directed to the "standard of care" of Respondent's care of Patient B. M., incorporating all relevant facts set forth hereinabove in these Findings of Facts and, essentially, failed to render an opinion incorporating all relevant facts; therefore, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as alleged in this matter. Respondent prepared an office note dated August 1, 1998, 7:30 p.m., as a record of Respondent’s telephone call to Patient B. M. This note was, in fact, prepared on the morning of August 3, 1998. The note reads in its entirety: 8/1/98 7:30 PM Spoke with patient. States having pain in left eye. Recommended artificial tears for shooting pain, and continue using Ocuflox and Pred Forte. Patient states she has been taking Percocet every four hours with no relief, but she takes Percocet regularly for neuropathy. Told to use two every four hours and call if no improvement. While the August 1, 1998, office note records a great deal of relevant information, Respondent's testimony revealed it does not reflect Patient B. M.'s refusal to come in for evaluation, Respondent's warnings regarding the risks of not being evaluated, an offer of transportation to an emergency room, or a prescription order for Erythromycin. Petitioner's expert witness testified on deposition that, "I'm not sure what the standard of care is" for charting weekend telephone calls. When he receives a telephone call at home from a patient, he makes notes on "a scrap of paper" and later records the note in the patient's record. Respondent testified that she now keeps a book at home in which she records every conversation when patients call her at home; she then brings the book to her office for reference in recording the entire conversation in the patient's record. However, she does not believe that anyone in her practice does it the way she now does. There is no standard procedure in the practice of osteopathic medicine for memorializing conversations in the patient's record between a physician and patient which occur outside the office or hospital setting. On August 3, 1998, Patient B. M. returned to Respondent’s office complaining of no vision and sharp pain. Respondent’s examination revealed Patient B. M.’s left eye to be swollen and with hypopyon (internal pus). Respondent diagnosed endophthalmitis and immediately referred Patient B. M. to a retinal specialist. On August 3, 1998, Patient B. M. was seen by the retinal specialist who found near total hypopyon, so that neither the iris nor any posterior detail could be visualized. Ultrasound showed dense mobile vitreal opacities, primarily anteriorly. The specialist recommended a vitrectomy with injection of antibiotics, and discussed at length the possibility of loss of vision, loss of the eye and uncertainty of any visual benefit. He performed the surgery for Patient B. M. the night of August 3, 1998. Endophthalmitis is a recognized complication of cataract surgery that occurs in less than one percent of patients, but does not presumptively indicate a departure from the standard of care. The standard of care required Respondent see Patient B. M. and treat her for endophthalmitis on August 1, 1998, or to warn Patient B. M. on August 1, 1998, of the serious consequences of endophthalmitis if Patient B. M. did not have an examination. The evidence revealed that Respondent warned Patient B. M. of the serious consequences of her failure to go to the clinic or an emergency room for treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, that the Department of Health, Board of Osteopathy, enter a final order finding that Respondent, Alexandra Konowal, D.O., is not guilty of violating Subsections 459.015(1)(x) and (o), Florida Statutes, and dismissing the Administrative Complaint filed in this matter. DONE AND ENTERED this 18th day of December, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2001. COPIES FURNISHED: Bruce A. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39A Tallahassee, Florida 32399-0450 Bruce M. Stanley, Jr., Esquire Henderson, Franklin, Starnes & Holt 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902-0280 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact South Dade Osteopathic Medical Center, Inc., d/b/a Suburban Medical Center is an outpatient office facility in South Dade County, Florida. Suburban Medical Ambulatory Surgical Center (the "Am/Surg Center") is a licensed ambulatory surgical center which is operating out of the same building. (Together these entities will hereinafter be referred to as the "Outpatient Center.") The Outpatient Center currently provides outpatient services including ambulatory surgical, diagnostic, radiologic, and laboratory services. The existing building which houses the Outpatient Center was completed in approximately 1980. The building has two floors. The AM/Surg surgical center occupies the second floor of the building. The Outpatient Center currently has approximately 6,000 open patient files and has serviced approximately 12,000 patients since it opened in or about 1980. The license to operate the AM/Surg Center was obtained in approximately 1988. The Outpatient Center operates as an osteopathic facility. However, it does have allopathic physicians on staff. Dr. Jules G. Minkes is an osteopathic physician who owns and controls the Outpatient Center. Dr. Minkes is also the sole owner of Suburban Medical Hospital, Inc. ("Suburban" or the "Applicant"), the applicant in this case. On March 29, 1989, Suburban filed an application for a Certificate of Need to convert the existing Outpatient Center into a 36-bed osteopathic acute care hospital. The Application was assigned CON #5868. The Executive Summary contained in the Application summarizes the project as follows: The proposal is to convert the 26 ambulatory surgical recovery beds into hospital beds. The surgi-center and 26 beds are on the second floor of the facility which was constructed in accordance with hospital code specifications. Thus, conversation of the center into a hospital will primarily involve certain struc- tural changes on the first floor of the center to meet code specifications. The project will also require additional construction for ten ICU/CCU beds, a cafeteria, and certain engi- neering equipment. The Center will continue to offer its current out-patient services. The evidence at the hearing created some confusion and questions as to the Applicant's intended operation of the proposed project. At the hearing, Dr. Minkes testified that the AM/Surg Center will continue to exist and operate in the same physical structure as the proposed hospital. The plan for continuing the AM/Surg Center is not detailed in the Application. It is not clear where the ambulatory surgical center would be located in the converted facility and what equipment and/or space would be shared. Furthermore, it is not clear to what extent the revenues and expenses for the ambulatory surgical center are included within the projections set forth in the Application. It should be noted that, under existing law, an ambulatory surgical center cannot be part of a hospital. See, Section 395.002(2)(a), Florida Statutes (1989). (This issue is discussed in more detail in the Conclusions of Law below.) As noted in Gulf Coast Hospital v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. 1st DCA, 1982), osteopathy and allopathy are two primary and separate schools of medicine which differ substantially in philosophy and practice. Doctors of medicine are licensed under Chapter 458, Florida Statutes. Osteopathic physicians are licensed under Chapter 459, Florida Statutes. The practice of medicine is defined in Section 458.305, Florida Statutes as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition." Allopathy is defined in Webster's Third New International Dictionary as "a system of medical practice that aims to combat disease by use of remedies producing effects different from those produced by the special disease treated." 424 So.2d at 89 n.8. Section 459.003(3), Florida Statutes, (1989) defines osteopathic medicine as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or any other physical or mental condition which practice is based in part upon educational standards and requirements which emphasis the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health." Osteopathic medicine places great emphasis upon the health of the musculoskeletal system as a condition of healing, and employs techniques of manipulation of muscles and joints in the process of therapy for illness. As explained by Dr. Minkes, osteopathic medicine is a distinct school of practice that embodies a philosophy based on a holistic approach that integrates the biomechanical and structural aspects of the body's function in all aspects of the functioning of the body. Dr. Minkes testified that it is his intention to seek accreditation for the proposed facility from the American Osteopathic Association and to operate the proposed hospital as an osteopathic hospital. Suburban intends to locate its proposed facility in conjunction with the existing Outpatient Center at the intersection of U.S. 1 and S.W. 97th Avenue. This location lies within Subdistrict 4 of HRS Health Planning District XI near the dividing line between Subdistricts 4 and 5. Baptist and South Miami are general acute care hospitals located in southern Dade County, Florida. The primary service area proposed by Suburban overlaps the primary service areas of Baptist and South Miami. Suburban's proposed service area is "bounded by S.W. 88th Street (Kendall Drive) and Homestead, Florida City and the upper Keys on the north and south; Biscayne Bay and the Everglades on the east and west: Subdistrict 4 from Kendall Drive south, subdistrict 5a, northern subdistrict 5(b)." There is an existing osteopathic hospital in District XI. That hospital, Westchester General Hospital ("Westchester"), is also located in Subdistrict 4. Currently, Westchester is licensed for 100 beds. It is an approved osteopathic teaching hospital and intern training hospital. Until 1989, there was another osteopathic hospital located in District XI. Southeastern Medical Center ("Southeastern") was a 224 bed facility that was approved for delicensure by HRS as of May 9, 1989. Southeastern was located in North Miami Beach Florida, close to the Broward County line. In 1983, South Dade Osteopathic Medical Center, Inc., one of the corporations owned and controlled by Dr. Jules Minkes, filed a Certificate of Need Application for a 150 bed osteopathic teaching hospital at the same site as the current Suburban proposal. The prior application was subsequently amended to 100 beds. After HRS denied that prior application, a hearing was held leading to the entry of a Final Order dated October 11, 1985 denying the application. See, South Dade Osteopathic Medical Center, Inc., d/b/a Suburban Medical Center vs. DHRS, 7 FALR 5686. (This case will hereinafter be referred to as the "South Dade" case.) In denying the prior application for a 100-bed osteopathic hospital, the Hearing Officer in the South Dade case noted the existence of the two osteopathic facilities in the district (Westchester and Southeastern) and found their occupancy rates had been significantly lower than capacity in the immediate years preceeding that application. He also noted that those occupancy rates were very similar to the occupancy rates for allopathic hospitals in the area. In 1981, the occupancy for all acute care hospitals in District XI was 67.4 percent. The occupancy rate for Westchester was 67.8 percent and Southeastern's occupancy rate was 61.3. In 1982, the overall occupancy for all District XI hospitals was 66.6 percent, Westchester's occupancy dropped to 65.8 percent and Southeastern's occupancy rate dropped to 58.4 percent. The Hearing Officer in the South Dade case noted that, in 1984, the occupancy rate for osteopathic beds had decreased even further. Based upon this evidence, the Hearing Officer found that there was an excess number of osteopathic beds in District XI in the years preceding that hearing. In the Recommended Order denying South Dade's application, the Hearing Officer noted: ...The cause of these lower use rates have been causes that apply equally to osteopathic and allopathic hospitals, thus leading to the conclusion that the lack of need shown by the above data will probably persist for several years into the future. All acute care hospitals have lost patients due to growth of alternatives to inpatient care, such as nursing homes, rehabilitation centers, outpatient surgical centers, and the like. Additionally, medicare policy changes have reduced the length of stay at all acute care hospitals. There is no compelling evidence on this record that osteopathic hospitals will not suffer from diminished need from these market forces in the same way that allopathic hospitals have suffered...7 FALR at 5698. The South Dade Recommended Order predicted that the lack of need for new acute care facilities of any affiliation was destined to continue for several years into the future. That prediction has proven to be correct. The evidence in this proceeding demonstrated that many of the same forces that caused reduced occupancy at both allopathic and osteopathic hospitals in 1984 continue to influence occupancy at both allopathic and osteopathic facilities. Without question, the overall occupancy rates and number of patient days in District XI acute care facilities has been declining significantly since 1984. The average annual occupancy rate for all acute care facilities in District XI was approximately 51 percent in 1988. The occupancy in Dade County alone was approximately 47 percent. These figures are well below the 80 percent efficiency standard established by HRS for an acute care facility. This decline can be attributed to a number a factors including the development of diagnostic related groups ("DRG's") for Medicare reimbursement. Osteopathic facilities have not been immune to this decline. Indeed, since 1984, the occupancy for the two existing osteopathic facilities in District XI decreased at a significantly greater rate than occupancy in allopathic facilities. In 1984, Westchester's occupancy was 46.7 percent. Westchester's average occupancy in 1987 was approximately 30.5 percent. By the end of the calendar year 1988, that occupancy had declined to 27 percent. Similarly, Southeastern Medical Center experienced declining occupancies from 1984 until its closure. Occupancy at Southeastern in 1984 was approximately 60 percent. Southeastern's average utilization rate for 1988 was only 20.3 percent. These trends are consistent with the statewide occupancy of osteopathic facilities which has been dropping at a rate equal to, if not greater, than, that of allopathic facilities. Suburban attempted to explain the closure of Southeastern through the testimony of several witnesses who were affiliated with that facility. Petitioner contends that the decline and eventual closing of Southeastern was the result of a conscious decision on the part of the owner of that facility, AMI, to focus its resources and efforts on the development of a nearby allopathic hospital which it also owned. While management decisions and/or problems may have contributed to the declining occupancy and ultimate closure of Southeastern, it is clear that the facility was also impacted by many of the factors that have contributed to the overall decline in occupancy at acute care facilities throughout the District. Based on the evidence presented at the hearing, it is concluded that there was an excess number of licensed osteopathic beds in the District at least prior to the time of the delicensure of Southeastern. With the delicensure of Southeastern, there are now 100 licensed osteopathic beds in the District, all of which are located at Westchester in the same Subdistrict as the proposed project. Petitioner presented extensive testimony regarding the perceived inadequacy of Westchester to meet the need for osteopathic services in the District. That testimony indicates that some osteopathic physicians are unhappy with the management philosophy of Westchester and they feel they are unable to provide quality osteopathic care in that facility. Most of the complaints about the care and treatment at Westchester were voiced by Dr. Minkes and Dr. Hershmann. Both of these physicians are expected to have a significant financial investment in the proposed facility. Several osteopathic physicians who do not have an interest in the proposed project testified that they did not have a problem with the quality of care at Westchester. Thus, while there may be some minor and/or individual problems with Westchester, the evidence was not sufficiently compelling to establish that the occupancy problems at Westchester are due to problems and/or inadequacies that facility. In other words, while some osteopathic physicians may prefer to treat their patients in a new, more modern facility, Westchester has not been shown to be so inadequate that it should be replaced or supplemented by the proposed project. The HRS Office of Licensure and Certification has not received any complaints against Westchester regarding the facility's physical plant or quality of care. Furthermore, Westchester's license is in good standing and it is accredited by the JCAH and the AOA. Petitioner presented hearsay evidence suggesting that a number of the beds at Westchester are not being utilized because of space limitations and that a number of the beds are contained in undesirable four bed rooms. As a result, Petitioner suggests that Westchester's functional bed count should be considered in the neighborhood of 50 rather than 100 beds. If this argument is accepted, Westchester's occupancy rates would not appear nearly as dismal. However, the evidence was insufficient to justify this conclusion. Westchester is presently licensed for 100 beds and no evidence was presented to establish that the hospital is not trying to fill all those beds. Petitioner also contends that Westchester has ceased functioning as a distinct osteopathic facility. The evidence was insufficient to support this conclusion. The testimony from several osteopathic physicians indicated that they still admit patients to Westchester. Similar contentions regarding Westchester were made in the South Dade case. In that earlier proceeding, the Hearing Officer found: ...While the foregoing is evidence that there are problems at Westchester for the physicians who testified, these problems were not proven with sufficient specificity and have not been shown to be such for this Hearing Officer to conclude that Westchester is so inadequate that it should be replaced by the hospital proposed by Petitioner. Nor is the evidence sufficient for the Hearing Officer to conclude that the low use rate at Westchester is due solely to inadequate health care at Westchester. As stated above, the record evidence indicates that the use rate at Westchester is quite similar to the use rates at allopathic hospitals in the District, which is consistent with the conclusion that the lower use rate at Westchester is caused by the same diminished need. Further, the use rate at Westchester is quite similar to the use rate at Southeastern Medical Center. On this record, there is no indication that Southeastern Medical Center is other than an adequate health care facility. The similarity in use rates, therefore, leads one to the conclusion that the use rate at Westchester is driven primarily by the same force that drives the use rate at Southeastern; lack of need or demand by osteopathic patients. 7 FALR 5702 The evidence in this case was similarly insufficient to attribute the low occupancy at Westchester to other than market forces. While the low occupancy rates at Westchester may be due in part to problems with that facility and reluctance on the part of some osteopathic physicians to utilize that hospital, the evidence indicates that both Southeastern and Westchester have experienced declining enrollments for many of the same reasons that all acute care facilities in District XI have. The evidence did establish that osteopathic physicians experience some difficulties in practicing osteopathy in allopathic facilities and that the facilities of many allopathic institutions are not conducive to osteopathic treatment. Most physical therapists at allopathic facilities are not trained to provide osteopathic treatment. In addition, few osteopathic specialists have obtained staff privileges at allopathic facilities. On the other hand, it appears that many of the difficulties and barriers that osteopathic physicians have historically experienced are being eroded. Virtually all of the osteopathic physicians who testified had staff privileges at several allopathic facilities and regularly admit patients to those facilities. Several of the osteopathic physicians who testified are practicing in partnership with or in association with allopathic physicians. Suburban presented the testimony of several osteopathic physicians who testified that additional osteopathic hospitals are needed in the District in order to enhance the survivability of osteopathy as a distinct approach to health care. Such facilities enable osteopathic physicians to learn and practice together and consult with osteopathic specialists in a forum that is supportive of osteopathy. The evidence established that approval of the proposed facility would, to some degree, enhance the survivability of osteopathy as a distinct and separate alternative treatment mode in the District. However, no evidence was presented to demonstrate that individuals seeking osteopathic care are currently being denied such services. While a significant number of osteopathic physicians have indicated an intention to use the proposed facility if it is approved (even though many of them do not use the existing osteopathic facility in the District, Westchester,) the evidence was insufficient to establish the need for an additional 36 osteopathic beds in the District. Moreover, as discussed in more detail below, the evidence did not establish that Suburban's Application satisfies the remaining criteria necessary for the issuance of a CON. Section 381.704(1), Florida Statutes (1989), recognizes that the review of CON applications includes consideration of the state and local Health Plans. Neither the Local Health Plan nor the State Health Plan specifically address osteopathic facilities. Therefore, Petitioner contends that the State and Local Health Plans are largely irrelevant to this case. This legal argument is addressed in the Conclusions of Law below. The Local Health Plan for District XI is prepared by the Health Council of South Florida. Linda Quick, Executive Director of the Health Council of South Florida testified that the Health Council does not support the construction of any new hospitals in the District. The Health Council opposes the construction of any new hospitals regardless of whether they are osteopathic or allopathic. The Health Council has prepared a booklet entitled District XI CON Allocation Factors Report for 1989. That booklet does not contain any CON allocation factors for osteopathic facilities. There are approximately thirty-two acute care facilities in the District. Utilizing the state's bed need methodology, the Health Council has concluded that there are nearly two thousand too many acute care hospital beds in the District through 1993. This determination does not differentiate between osteopathic and allopathic acute care beds. Because of the existing excess number of beds in the District, Linda Quick emphasized the need to fully explore alternatives to the construction of a new acute care facility. Such alternatives could include the acquisition of an existing facility, establishing a working relationship with an existing provider, increasing utilization at Westchester or arranging a joint venture with a licensed hospital. The Petitioner's failure to fully explore these alternatives weighs against approval of Suburban's Application. The purpose of the Local Health Plan is to describe the existing health care system, the existing population and its health status. The Plan also establishes goals and objectives for the growth, development and change of the local health system. The Local Health Plan sets forth general criteria and policies regarding health planning for services to individuals within the area. One of those goals is for the District to have a licensed bed capacity of no more than five beds per one thousand population by 1993. The State Health Plan calls for an even lower ratio. Currently, the ratio of acute care beds to the population is well in excess of five per one thousand. Approval of Suburban's Application would increase the number of acute care beds and, therefore, would be contrary to this goal of the Local Health Plan. However, it should be noted that this goal does not differentiate between osteopathic and allopathic acute care beds. Another pertinent goal of the Local Health Plan for District XI is to make services in the community geographically and financially accessible to all segments of the resident population. Because the proposed facility is located in the same Subdistrict as Westchester, it does not appear that the proposed project would significantly improve geographic accessibility to osteopathic services. Similarly, because of the large number of hospitals in the District, it does not appear that this proposed project would measurably improve the accessibility to acute care services. Section 381.705, Florida Statutes, sets forth the specific criteria to be considered in the review of a CON application. The first criteria to be considered under Section 381.705(1)(a) is the need for the proposed project in relation to the State and Local Health Plans. In assessing need, it is necessary to also consider the provisions of Section 381.713(2), Florida Statutes which provides that the need for an osteopathic hospital "shall be determined on the basis of the need for and availability of osteopathic services and osteopathic acute care hospitals in the District..." The Application cites the First District Court of Appeal's decision in Gulf Coast Hospital v. Department of Health and Rehabilitative Services, 424 So.2d 86, for the assumption that approximately ten percent of the population of the United States prefers to be treated by osteopathic physicians. Based upon this assumption and the most recent population estimate for Dade County (1.829 million as of 1987), Petitioner suggests in its Application that there should actually be 750 osteopathic beds in Dade County. No evidence was presented to support the assumption that ten percent of the population in the District prefers to be treated by osteopathic physicians. Indeed, the evidence of occupancy at osteopathic facilities in Dade County indicates that the ten percent assumption is vastly overstated. In 1985, only 2.4 percent of the total patient days for all hospitals in District XI were in osteopathic facilities. In 1986, that number decreased to 2.1 percent and in 1987 it decreased to 1.8 percent. These rates coincide with the declining occupancy rates at the existing osteopathic facilities in the District during this period. These facts indicate that the assumption that ten percent of the patients prefer osteopathic facilities is not accurate, at least in District XI. HRS has not adopted a rule or an official methodology to calculate osteopathic bed need. The need methodology set forth in Rule 10-5.011(1)(m) for calculating acute care bed need is not applicable to osteopathic facilities. The Application does not present any methodology to demonstrate osteopathic need in the District. At the hearing in this case, Suburban attempted to demonstrate the need for additional osteopathic beds in Dade and Monroe counties through the testimony of Dr. Howard Fagin, who was accepted as an expert in health planning, bed need methodology development and health economics. Dr. Fagin presented several calculations of "need" which Petitioner contends support the conclusion of need set forth in the Application. None of Dr. Fagin's calculations were included in the Application. Dr. Fagin's calculations used current hospital and physician utilization data and, by applying certain assumptions, attempt to project osteopathic need and/or demand in the District for five years into the future. In other words, Dr. Fagin attempted to develope a methodology specifically geared to calculate osteopathic need over a five-year planning horizon. Dr. Fagin set forth five different approaches for calculating osteopathic need. Most of these approaches had been considered and rejected by HRS in connection with other applications for osteopathic facilities. Intervenors and Respondent have painstakingly pointed out the deficiencies in Dr. Fagin's testimony. While their criticisms have merit, the shortcomings in the methodologies submitted by Dr. Fagin must be considered in the context of Section 381.713(2), Florida Statutes, and the lack of an approved and/or workable methodology for determining osteopathic need. It does not appear that there is a reasonably identifiable osteopathic unit of service for planning purposes. It is extremely difficult, if not impossible, to measure osteopathic need in accordance with the usual "normative" methodologies used to determine need for discreet services. However, the burden is on the Applicant to overcome these obstacles and present persuasive evidence of the need for the proposed project. Insufficient evidence was presented to accomplish this task. Intervenors and Respondents suggest that only those patients who receive osteopathic manipulative therapy during their stay in the hospital should be considered in determining "osteopathic patient days." They contend that such manipulative therapy is the only specific procedure measurable and monitored as distinctly osteopathic. The Hospital Cost Containment Board's data indicates that only two percent of the patients discharged from "osteopathic" hospitals received osteopathic manipulative therapy during their hospital stay. However, the evidence established that osteopathic care includes more than manipulative therapy. Thus, utilizing this unit of measure would significantly understate osteopathic need. All of the projections prepared by Dr. Fagin rely upon an assumption that "osteopathic patient days" are an identifiable unit of service which can be distinguished from allopathic patient days. There are several problems with this assumption. Dr. Fagin obtained the number of "osteopathic patient days" by simply taking the number of days in osteopathic designated facilities. However, not all patient days in an osteopathic hospital are "osteopathic patient days." There are clearly a number of allopathic physicians who admit and treat patients in osteopathic facilities. Indeed, at some osteopathic facilities, allopathic physicians constitute a majority of the staff. While Dr. Fagin contends that the number of allopathic admissions to osteopathic hospitals is a "wash" with the number of osteopathic admissions to allopathic hospitals, no evidence was presented to support this assumption. Patient days is a generally recognized unit of service for inpatient care and acute care beds. Typically, patient days are broken down into discreet units of service, i.e., obstetrical, psychiatric, pediatric, etc., relating to the underlying epidemiology of the population. Osteopathy is an approach to the practice of medicine rather than a specific clinical service. Osteopathy can not be measured in the same manner as a clinical service. Mixed staff hospitals and the inability to isolate a discreet unit of measurement such as an osteopathic patient day make it virtually impossible to quantify need for an osteopathic facility utilizing a traditional "normative" approach to planning. A "normative" approach provides a projection based on an estimate of the number of units of service or resources that should be in place. It is based on a number of unit of services related to an underlying need of the population. Dr. Fagin's forecast of "osteopathic patient days" includes the "need" for osteopathic beds to provide patient services in several specialized areas of care which will not be offered in the proposed project. For example, the proposed project will not offer obstetrics, psychiatry, pediatrics, tertiary care services, or cardiac catheterization. "Osteopathic patient days" as utilized by Dr. Fagin includes all of these services because he did not isolate those services that will be offered by the proposed facility. At best, Dr. Fagin's calculations show how many beds would be utilized at an osteopathic hospital if it achieved the average utilization of other osteopathic facilities. There was no showing that the average utilization at other osteopathic hospitals is appropriate or reflective of need. Thus, these methodologies do not measure need or demand for osteopathic services in the true sense of the word. In making his calculations, Dr. Fagin relied upon population figures published by the Executive Office of the Governor on May 15, 1989. The Intervenors and Respondent objected to the testimony and contended that only the population projections which had been released at the time the Application was filed could be used in connection with this Application. The earlier projection figures were released on January 1, 1989. These objections are discussed in more detail in the Conclusions of Law below. The evidence indicates that there would be no material changes in Dr. Fagin's conclusions regardless of whether the January 1st or May 15th projections are used. From 1980-1989, District XI experienced a population growth of approximately 14.6 percent and from 1990 through 1994 the projected increase is 22.1 percent. Thus, the population in the District is growing significantly. There is less than a one percent difference in the January and May population projections. In addition to the general limitations set forth above, there are several specific flaws contained in certain of the calculations performed by Dr. Fagin. The first methodology employed by Dr. Fagin was referred to as Florida Osteopathic Utilization Based Bed Need. This methodology divided the 1988 Florida population by the number of "osteopathic patient days" in the state that year to obtain a rate of 31.62 patient days per one thousand population. "Osteopathic patient days" was determined from the Florida Health Care Cost Containment Board, 1988 Hospital Budget Data. The rate of 31.62 osteopathic patient days was then multiplied by the projected 1994 District XI population, resulting in a projection of 65,192 osteopathic patient days in District XI in 1994. The projected number of osteopathic beds needed in District XI to accommodate these patient days was accomplished by dividing the projected patient days by 365 to arrive at an average daily census of 179. The average daily census was then divided by the HRS standard of eighty percent occupancy for efficient operations, resulting in a projected need of 223 osteopathic beds in District XI in 1994. Subtracting the 100 licensed beds at Westchester, this methodology results in a projected need of 123 additional osteopathic beds by the year 1994. This first methodology suffers from the deficiencies noted in Findings of Fact 53-58 above. In addition, the state wide total of osteopathic patient days for purposes of this first methodology was obtained from fourteen "osteopathic" hospitals. However, the evidence raises serious doubt as to the reliability of this data. At least one of those hospitals is no longer osteopathic and another one of the hospitals includes a utilization rate of ninety-five percent for a service (psychiatric) which will not be offered by the proposed facility. The next methodology submitted by Dr. Fagin was entitled Florida Osteopathic Physician Based Bed Need. This method calculated patient days per osteopathic physician in the State of Florida by dividing the 1988 "osteopathic patient days" by the number of osteopathic physicians in 1989. Patient days per osteopathic physician was then multiplied by the projected number of osteopathic physicians in District XI in 1994 to arrive at a projection of 66,544 osteopathic patient days in District XI in 1994. The projected patient days were then divided by 365 to arrive at an average daily census of 182. Applying the occupancy standard of eighty percent, this method projects 228 osteopathic beds will be needed in District XI in 1994. Again, subtracting the beds at Westchester, Dr. Fagin concludes that there is a net bed need of 128 beds. In addition to the overall problems noted above with respect to identification of "osteopathic patient days," this calculation includes an overly optimistic assumption of the number of osteopathic physicians that can be expected in District XI. In making this calculation, Dr. Fagin assumed a thirty percent increase in the number of osteopathic physicians in District XI from 1989 to 1994. This assumption is predicated on an expectation that a large number of graduates from Southeastern College of Osteopathic Medicine ("SECOM") would remain in the area and there would also be an influx of practicing osteopaths moving into the area. Dr. Fagin based his assumption, in part, on data provided by the Florida Health Care Atlas which showed that there were 198 osteopathic physicians in District XI in 1986, 180 in 1987, and 256 in 1989. Dr. Fagin attributes the apparent increase in osteopathic physicians in the District from 1987 to 1989 on the influx of the first graduating class from the SECOM in 1988. However, the 1986 and 1987 data reflected only active osteopathic physicians whereas the 1989 data reflected all licensed osteopaths. In other words, the 1986 and 1987 data did not include retired and inactive physicians whereas the 1989 data did. No reliable evidence was presented to compare the number of active osteopathic physicians to any year subsequent to 1987. Furthermore, SECOM's first graduating class actually occurred in 1985, not 1988. Additional classes also graduated in 1986 and 1987. Therefore, Dr. Fagin's assumption that SECOM graduates will increase the ranks of osteopathic physicians in the district is not necessarily correct. In addition, these projections assume new physicians in the area will be as productive as established physicians, which is unlikely to be the case. In sum, Dr. Fagin's assumptions as to the expected growth and the number of osteopathic physicians in District XI during the next five years is predicated on several erroneous assumptions. The next methodology presented by Dr. Fagin was entitled District XI Osteopathic Utilization Based Bed Need. Dr. Fagin projected a minimum and maximum number of expected osteopathic patient days in 1994 in the District based upon the actual utilization of existing osteopathic facilities in the District (Westchester and Southeastern) in 1986 and 1987. He calculated the number of "osteopathic patient days" in the District in those years and divided it into the District population to obtain rates of 24.67 and 19.72 patient days per one thousand population. These rates were multiplied by the projected District population in 1994, then divided by 365 and achieved an average daily census of between 139 and 111. Applying the eighty percent occupancy standard, Dr. Fagin calculated that there would be a need in District XI for between 174 and 139 osteopathic beds. After subtracting the existing beds at Westchester, he calculated the net bed need in 1994 to be between 74 and 39 beds. In addition to suffering from the general defects noted above, this approach is unnecessarily narrow. This methodology does not include any years prior to 1986 because Dr. Fagin did not feel that DRG's fully impacted on occupancy rates prior to that time. Dr. Fagin eliminated any years after 1987 on the grounds that the impending closure of Southeastern introduced too many variables into the equation. By eliminating all other years, this methodology provides a limited view of actual utilization and ignores the continuing decline in the utilization rate of osteopathic facilities in the District dating back to the 1970's. Dr. Fagin's next methodology was entitled Osteopathic Physician Based Bed Need. The "osteopathic patient days" from the existing facilities in District XI in 1986 and 1987 were divided by the number of osteopathic physicians in the District. The patient days per physician were then multiplied by the projected number of osteopathic physicians in the District in 1994 to arrive at an estimate of maximum and minimum patient days in 1994. Dividing by 365, an average daily census of between 210 and 188 was projected. Applying the eighty percent occupancy standard, Dr. Fagin concluded there would be a need for between 263 and 235 osteopathic beds in District XI in 1994. After the 100 beds at Westchester were subtracted, a net need of 163 and 135 beds was calculated. This methodology suffers from the same deficiencies as those noted in Findings of Fact 53 through 59 and 63 through 65 above. Dr. Fagin's final projections were based on the relationship of the overall bed need in District XI to Osteopathic Bed Need. In 1986, osteopathic facilities in the District accounted for 2.1 percent of the total patient days. This figure was 1.8 percent in 1987. Applying these percentages to HRS' projected total bed need for the District in 1994, Dr. Fagin concluded that a minimum of 159 to 137 osteopathic beds were needed. After subtracting the beds at Westchester, he calculated a net need of between 59 and 37 beds. This approach suffers from the deficiencies noted in Findings of Fact 55 through 59 above. In addition, it does not account for the continuing decline in occupancy at osteopathic facilities in the District. Suburban's Application includes over 2,000 signatures from members of the community indicating their support for the proposed project. Those petitions do not specifically indicate support for an osteopathic facility. Instead, the petitions include the following statement: "I support the establishment of Suburban Medical Hospital in the Perrine/Cutler Ridge area." It is clear from the evidence that the desire of osteopathic physicians to have a new facility in the area and the reputation of Dr. Minkes will attract a number of admissions to the proposed project. Suburban presented extensive testimony from osteopathic physicians regarding their interest in the project and their intent to refer patients to the proposed facility if it is built. Physician referral plays a large role in determining where a patient is admitted. Thus, it does appear that the proposed project can be expected to achieve a higher occupancy rate than Westchester or other acute care facilities in the area. However, this expected occupancy does not in and of itself establish need. The second review criteria set forth in Section 381.705(1), deals with the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the district. For purposes of reviewing applications for osteopathic acute care facilities, HRS has interpreted "like and existing health care services" to include all acute care facilities irrespective of their orientation towards osteopathic or allopathic care. In evaluating this criteria, the goals of the local Health Plan are pertinent. One of the goals set forth in the local Health Plan is an access standard that an acute care hospital should be available to all residents of the District within 30 minutes average driving time. The Plan does not set forth a goal for access to osteopathic facilities. The existing hospitals in the District are sufficient to satisfy this criteria without the need to add another hospital. In accordance with the State Health Plan, HRS has concluded that the efficient level of utilization for acute care services is eighty percent occupancy. The utilization rate for osteopathic beds in Dade County is twenty- seven percent. Thus, the effective utilization standard is not met regardless of whether it is applied to all acute care hospitals or only osteopathic hospitals. Section 381.705(1)(c), Florida Statutes, requires a consideration of the Applicant's ability to provide quality care. HRS did not dispute Suburban's ability to provide quality osteopathic medical care. The Intervenors and Respondents have questioned whether quality care could be provided in the project as it is currently planned since the physical layout of the proposed facility does not meet hospital code requirements. Those deficiencies are discussed in more detail in Findings of Fact 97 through 101 below. Certainly, if those deficiencies are not corrected, the quality of care could be affected. Although the parties stipulated that Section 381.705(1)(e), Florida Statutes, remained at issue in this proceeding, no evidence was presented with respect to this criteria. Suburban's Application does not involve joint, cooperative, or shared health care resources and, therefore, there are no probable economies or improvements in service that may be derrived from its proposal. Section 381.705(1)(g), Florida Statutes, requires a consideration of the need for research and educational facilities. The existing Outpatient Center currently provides externship training for SECOM students. While the proposed facility may provide some additional training opportunities for osteopathic students, the evidence did not demonstrate that any such additional benefits would be significant. Section 381.705(h) requires a consideration of the availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. It also requires a consideration of the effects the project will have on clinical needs of health professional training programs in the District and the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities. Finally, this Section requires a consideration of the availability of alternative uses of the resources for the provision of other health services and the extent to which the proposed services will be accessible to all residents of the District. The evidence indicates that there is a current shortage in the District of nurses and skilled hospital personnel, such as physical therapists, laboratory technicians, radiation therapy technicians, respiratory therapists and pharmacists. This shortage of available health care personnel is ongoing and long standing. While a number of existing employees of the Outpatient Center have indicated a willingness to become employees of the proposed project at the salary stated in the Application, they constitute only 35% of the projected staff for the proposed project. It does not appear that any of the existing staff are required to work weekends and nights on a regular basis. Such positions are likely to be the most difficult to fill. Petitioner has not demonstrated an ability to recruit and hire the additional skilled staff necessary to run a hospital on a full-time basis. Approval of this project is likely to exacerbate the existing shortage. It is also not clear from the Application whether Suburban intends to hire a hospital administrator. No such position is reflected on the tables in the Application setting forth "manpower requirements." The evidence presented at the hearing was very sketchy as to the availability of funds for capital and operating expenditures. Suburban's audited financial statements only show $10,000.00 cash on hand, all of which was donated by Dr. Minkes. Thus, Suburban has virtually no capital resources except to the extent that it might be able to borrow funds for capital expenditures and operating expenses. The Applicant does not own the property on which the proposed project will be located. No evidence was presented to establish the basis upon which the proposed project will be occupying the land and existing facility. The existing Outpatient Center and the land on which it is located is owned by Dr. Minkes and subject to a first mortgage of 1.5 million dollars. Monthly interest payments on this mortgage currently run between $25,000 and $35,000. The proposed project budget does not provide for the payoff of this mortgage. Dr. Minkes contended that the interest/amortization figures on the long-term feasibility table contained in the Application included the funds necessary to service the underlying mortgage on the property. However, no specific breakdown of this figure was provided. Furthermore, no clear explanation was given as to the basis upon which the proposed hospital would occupy the land and existing facility. Thus, it is not clear whether the existing mortgage would be paid off, some lease arrangement would be entered into between Suburban and Dr. Minkes as owner of the property, or whether some other arrangement would be made. It is not clear from the initial Application whether Suburban intends to finance 100% of this project. Lending institutions typically are not willing to assume all of the risk for a proposed project and, therefore, will usually only lend between 60 to 70% of the project cost. While the Applicant suggests that private investors may participate in the financing of the project, the only evidence introduced to support this contention was the testimony of Dr. Minkes that he had talked with various osteopathic physicians who had indicated an interest in participating as private investors and the testimony of Dr. Hershman who indicated that he was willing to commit $100,000.00 to the project. These statements do not provide a sufficient basis to conclude that Suburban has the resources available to meet the initial capital expenditures for this project. Dr. Minkes suggested that one possible way to raise funds for the project would be through a limited partnership offering or a private placement. However, the estimated project costs in the Application does not provide for the cost of registering a limited partnership or otherwise raising money through private investment. As part of its Application, Suburban submitted a letter from a real estate investment banking firm, Sonnenblick-Goldman Southeast Corp., indicating an "interest in exploring arranging financing" for 4.1 million dollars for the proposed project. At the hearing, Petitioner also proffered another "letter of interest" from James F. Perry of Professional Bancorp Mortgage indicating an interest in processing a loan application for the project. This letter was not part of the Application and does not provide any additional proof that the resources are available to complete this project. Both letters merely reflect an interest in seeking a loan on behalf of Suburban. Neither of these letters establishes that Suburban has secured sufficient funds to finance the proposed capital expenditure. The Application indicates that the proposed facility would treat all patients requiring medical care regardless of ability to pay and would implement payment schedules based on the patient's ability. The Application contains a projected distribution of fifty percent Medicare patients, ten percent Medicaid patients, and three percent indigent. However, no competent evidence was presented to support the reasonableness of this projected patient mix. The issues related to training are discussed in Findings of Fact 75 above. Section 381.705(1)(j), Florida Statutes, requires a consideration of the immediate and long-term financial feasibility of the proposal. As set forth in Findings of Fact 76 through 82 above, Petitioner has not demonstrated that it has the resources available to complete the project. Therefore, there are significant questions regarding the short-term feasibility of the project. In addition, as set forth in Findings of Fact 91 through 101, below, there are significant questions as to whether the project can be completed within the budgeted cost of $4,085,780 and still meet hospital code requirements. The long term financial feasibility and the pro forma projections contained in the Application were not verified by any direct testimony at the final hearing. Suburban's financial feasibility expert, Mr. Darrell Lumpkin, did not prepare the pro formas contained in the Application. Mr. Lumpkin was not hired by Suburban until several months after the Application was filed and shortly before the hearing in this cause. Suburban conceded that Mr. Lumpkin did not base his financial feasibility analysis on the Application filed by Suburban and that he would not testify regarding the figures contained in the Application. Mr. Lumpkin prepared a feasibility study generally applicable to any 36-bed proprietary hospital in the State. His study utilizes occupancy rates of 50% for year one and 60% for year two. In presenting his testimony concerning operating expenses, Mr. Lumpkin looked only to the average charges, average deductions from revenue, average contractual allowances, etc., from all proprietary hospitals in Florida. He did not adjust these average figures to reflect the payor mix anticipated at Suburban or to compensate for the small size of Suburban. He was provided with occupancy figures and salary costs to use in making his projections. However, the reasonableness of these figures was never established. While Petitioner contended that Mr. Lumpkin's study confirmed the reasonableness of the pro formas contained in the Application, there were several significant differences between Mr. Lumpkin's study and the information contained in the Application. For example, the Application assumes a first year occupancy of 38%; Mr. Lumpkin's study assumes a first year occupancy of 50%. Furthermore, Mr. Lumpkin's first year revenue projections and average daily charges were significantly higher than the figures contained in the Application. The reasonableness of the figures used by Mr. Lumpkin are also questionable. He used HCCB data which contained consolidated information from all proprietary hospitals rather than utilizing information that was more closely tailored to the proposed project. In determining revenue deductions, he utilized statewide averages which contain many variables. In sum, Mr. Lumpkin's study is of minimal help in evaluating the financial feasibility of this project. The evidence did not establish the reasonableness of the income and expense projections contained in the Application. Moreover, there are several areas where the Application omits or understates expected operating costs. For example, the benefits to be provided to employees, as stated in the pro forma projections, are only 8% of salaries. This percentage would be insufficient to cover the cost of the statutorily mandated benefits of Social Security and unemployment insurance. Furthermore, this benefit level would not cover Workers' Compensation, health insurance, disability insurance, retirement benefits or life insurance. While Suburban suggested that some or all these costs were built into the salary figures rather then the benefit numbers, no specific evidence was presented to support or explain this position. The Application assumes that financing can be obtained at a 10% interest rate. However, the evidence suggests that, at the time the Application was filed and as of the date of the hearing, this rate was probably overly optimistic. It is possible, indeed likely, that Suburban will have to borrow money at a rate in excess of 10%. Therefore, the monthly principal and interest payments may be higher than allotted. The evidence was unclear as to exactly what equipment would be purchased and/or leased for the Project. The Application contains no provision for the purchase of anything other than medical equipment. While a $600,000 contingency is provided, it does not appear that serious consideration has been given to the expected costs for day-to-day items such as furniture, televisions for patient rooms, and similar such items. In addition, it was unclear as to exactly what medical equipment would be required, whether it would be purchased or leased, what equipment in the existing Outpatient Center could be utilized, and whether there would be costs associated with such utilization. Much of the existing equipment serves as security for indebtedness of the Outpatient Center. The Application does not provide for the cost of security or a dietician, both of which are required at an acute care hospital. In sum, Suburban has not proven that the costs set forth in the Application are a reliable estimate of the costs that will necessarily be incurred to open the proposed hospital. The Application provides for ten ICU beds and 26 acute care beds. This bed configuration makes it unlikely that the facility will be able to achieve the utilization rate set forth in the Application. Thus, it is not clear that the projected revenues are reasonable. Section 381.705(1)(l), Florida Statutes, requires a consideration of the "probable impact of the proposed project on the cost of providing health services proposed by the Applicant, ... including... the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost-effectiveness." It is not clear whether osteopathic health services should be distinguished from allopathic health services in applying this criteria. No evidence was presented as to the probable impact of the proposed project on the cost of providing osteopathic services. Suburban contends that it will be offering health care services at lower cost than allopathic facilities in the area and, therefore, will have a positive effect on the cost of health care in the area and enhance competition to the benefit of health care consumers. To support this contention, Suburban argues that its per diem charges will be less than the Intervenors' and other allopathic facilities per diem charges. However, as indicated above, the evidence was insufficient to establish the reasonableness of the projected costs set forth in the Application. Furthermore, Suburban will not be providing some of the more costly services provided by larger hospitals. Suburban did not present any evidence comparing its charges with facilities providing similar services and/or with small hospitals. A comparison of Suburban's proposed patient charges with the average charges of larger hospitals does not reflect whether Suburban will be a cost-effective provider of acute care services. Finally, the proposed project may somewhat increase the demand for nurses and other skilled health care personnel which could exacerbate existing shortages in the District and lead to higher costs. Section 381.705(1)(m), Florida Statutes, requires a consideration of the costs and methods of the proposed construction. Suburban is proposing to convert an existing outpatient center to an acute care hospital. The Application projects a total project cost of $4,085,780. The total construction costs are estimated at $2,173,600. This sum includes a construction contingency of $190,000. In addition, the total project costs include a working capital reserve of $600,000. Schematic plans of the proposed project to 1/16th inch scale are required to be submitted with the CON Application. The Application is also required to contain certain tables that indicate the functional spaces, square footage per space, and construction cost per square foot for various areas. HRS conducts an architectural review of the submitted plans to determine whether the state requirements for the planned facility can be met. The physical plant requirements for general hospitals in this state are set forth in Rule 10D-28.081, Florida Administrative Code. As noted below, the plans submitted by Suburban fell short of these requirements in many areas. The evidence demonstrates that the proposed project could not be licensed without significant modifications to the submitted architectural plans. Such modifications will necessarily impact upon the cost of the project and, unless rectified, may also impact upon the quality of care rendered in the new facility. The uncertainty surrounding the changes needed to the architectural plans weighs heavily against approving the Application. When the existing building was constructed, Suburban attempted to build it to the then-existing hospital codes. Many aspects of those code requirements have changed and several aspects of the building do not meet the new standards. While Suburban has suggested that, because there is an existing building in place, it may not have to meet all of the current standards, no persuasive evidence or legal precedent was presented to indicate that HRS can or will waive those standards. Bernard Horovitz, the architect who prepared the plans for Petitioner, testified that the plans submitted were conceptual in nature and were not intended as final plans to be held to code standards. According to Mr. Horovitz, the development and refinement of the plans is an ongoing process with HRS that continues even after a Certificate of Need is issued. While Mr. Horovitz felt that the project could be completed in accordance with the applicable code requirements at a price that was not significantly different than the cost estimate set forth in the initial Application, the extent of the deficiencies detailed below raises considerable doubt as to this conclusion. During the review of Suburban's plans, James Gregory, the HRS Architectural Supervisor for the Office of Plans and Construction, discovered that certain essential functions were missing or not indicated in the plans. Some of the omissions and/or deficiencies in the plans submitted with the Application were as follows: Emergency room- The plans indicate that the emergency room is to be constructed in the area of the existing outpatient clinic. The evidence was unclear as to how or whether the outpatient clinic would continue to operate. Moreover, while the Application indicates that the facility would be operating an emergency room on a 24 hour basis, Dr. Minkes' testimony at the hearing raised some question as to whether the proposed hospital would have a fully- staffed emergency room. In any event, the plans provide no clear layout as to how the emergency room and out-patient clinic would be mixed. The plans contain no emergency grade level entrance for ambulance entry, parking or emergency room entry as required by Rule 10D-28.081(12), Florida Administrative Code. There was no reception and control area for the emergency room shown on the plans. Such a reception and control area is required by Rule 10D-28.081.(12)(b). Mr. Gregory testified that during his review he scaled the plans and discovered that the examination and treatment rooms were not large enough to meet the 100 square foot requirement set forth in Rule 10D-28.081(12)(e). Furthermore, Suburban's plans show a corridor running through the emergency room contrary to Rule 10D- 28.081(12)(m). While the cost estimates in the Application indicate extensive remodeling will be done in the area of the outpatient clinic, it is not clear that the remodeling could be completed and the emergency room brought up to code standards within the costs allocated. Furthermore, the evidence was unclear as to the Applicant's intentions with respect to jointly operating an emergency room and an outpatient clinic. Dietary and Dining Facilities - While the Application indicates the conversion of the existing building will include a cafeteria, the evidence at the hearing indicates that a final decision has not been made as to whether Suburban will operate a cafeteria for employees and visitors. In any event, the plans provide for only 720 square feet for the hospital's dietary and dining facilities. This area is too small to meet the functional requirements of Rule 10D-28.081(21). Storage Areas - Suburban's plans only allocate 1,260 square feet for general stores and central service areas. Rule 10D-28.081(25) requires the general storage area of a hospital to contain 20 square feet of storage per patient. In order to meet the general stores requirement, Suburban will only have 540 square feet of storage for central services. This remaining storage area would have to include a decontamination receiving room, a clean workroom to clean medical supplies used in the hospital, storage for clean medical supplies, storage for equipment used in delivery of patient care and a storage room for distribution carts. Furthermore, the plans did not provide for a body holding room as required by Rule 10D-28.081(19)(f). It is unlikely that all of these functions could be fit in the allocated area. Operating rooms - Rule 10D-28.081(10) sets forth a minimum size requirement of 360 square feet for operating rooms. The surgery rooms reflected on the plans do not meet this requirement. Moreover, the surgical area set forth in the plans contains only 75% of the required functions specified in the rule. The area lacked a storage room for splint and traction equipment and a sink for plaster work as required by Rule 10D-28.081(10)(b) if orthopedic surgery is to be performed. The proposed recovery room did not provide for an isolation room with an anteroom for infected patients, a medication administrative station, a supervisor's office, a nurses station, two scrub stations for each operating room, an equipment storage room of at least 100 square feet, a soiled workroom for the exclusive use of the operating staff, a storage room, an out-patient change area, (which is required if out-patient surgery is to be provided,) a stretcher alcove and a storage area for portable x-ray equipment as required under Rule 10D-28.081(10)(d) and (e). ICU/CCU - The ICU area was only generally laid out on the plans and there was no indication where the isolation room, emergency cardio-pulmonary resuscitation cart storage, soiled utility room, clean linen storage, equipment storage, staff toilets, staff lounge, waiting room, conference room, and nurses station would be located within this unit. All of these functions are required by Rule 10D-28.081(6). The ICU area functions cannot be shared with the general medical/surgical and nurses stations. The proposed ICU area does not appear to be large enough to accommodate the proposed ten ICU beds. This lack of space exists whether the rooms are arranged in a corridor or suite arrangement. The area where the ICU is proposed to be located has only one means of exit/access. Therefore, the ICU units will have to be set up in corridor system rather than a suite arrangement. Such an arrangement will reduce the usable square footage by approximately 800 feet. The loss of this 800 square feet further exacerbates the problem of lack of area. Nursing Care Unit - The nursing care unit shown on the plans does not have enough area to include all of the required functions set forth in Rule 10D- 28.081(5). Among the functions required to be located in the nursing care unit are a medication room of at least 50 square feet, a workroom and a storage room of at least 60 square feet, an equipment storage room and an alcove for stretchers. The plans submitted by Suburban failed to appropriately represent that the proposed project would meet the minimum standards set forth in Chapter 10D-28, Florida Administrative Code. While Suburban contends that the plans were not intended to be final and many of the issues could be addressed with HRS during the licensure process, the extent of the deficiencies raises serious questions as to whether this project could be completed within the budget set forth in the Application. A major redesign of the project will be necessary in order for it to meet code requirements. Suburban's contentions that these modifications could be made within the existing budget (including contingencies) and/or that waivers of certain elements could be obtained during the licensure process were not supported by persuasive evidence. Section 381.705(1)(n) requires a consideration of the applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent. As indicated above, no competent evidence was presented to establish the reasonableness of the patient mix set forth in the Application. Since Suburban has not begun operations, it has no historical record regarding provision of services to Medicaid and indigent patients. Dr. Minkes testified that the existing Outpatient Center treats all patients regardless of ability to pay and that the proposed project will operate on a similar basis. The existing Outpatient Center has entered into a contract with the State of Florida to provide primary care to Medicaid patients on a prepaid basis. Dr. Minkes anticipates that the proposed project would be used to provide hospital care to a large portion of the patients who enroll in the program. If that contract is implemented, the proposed project should provide some increased access for Medicaid patients. Section 381.705(2)(a) requires a consideration of the availability of less costly, more efficient or more appropriate alternatives to the proposal. Alternatives to new construction include purchasing an existing acute care hospital, working in conjunction with an existing acute care hospital in a joint venture or shared facility arrangement or increasing the utilization of Westchester. All of these alternatives could further the osteopathic presence in the District and Subdistrict without the need for additional construction and the addition of new acute care beds. While Dr. Minkes indicated that he did not feel any of these alternatives were viable, it does not appear that any serious efforts were undertaken to explore these alternatives. Section 381.705(2)(b) requires a consideration of the utilization of existing facilities providing inpatient service similar to those proposed. As set forth in Findings of Fact 14 through 19 above, Westchester, which is located in the same subdistrict as the proposed facility, has been operating at approximately 27% occupancy. This occupancy level has been steadily decreasing for several years. It must be anticipated that the approval of this Application would further deteriorate the efficient use of Westchester. For purposes of this Section, HRS interprets "similar services" to osteopathic acute care bed applications to include allopathic facilities which provide osteopathic services within the service area. If this interpretation is accepted, it is clear that there is a great excess of acute care beds in the District and the addition of the proposed beds would only diminish the potential for their efficient use of the existing beds. Section 381.705(2)(d) requires a consideration of whether patients will experience problems in obtaining inpatient care of the type proposed in the absence of the proposed new service. While there are only one hundred licensed osteopathic beds in the District, the evidence did not indicate that any individuals seeking osteopathic care were being denied such services. Section 381.705(2)(c) Florida Statutes, requires that, in the case of new construction, alternatives to new construction such as modernization or sharing arrangements, be considered and implemented to the maximum extent possible. As set forth in Findings of Fact 41 and 104 above, the evidence did not indicate that the modernization of Westchester or shared arrangements with other facilities have been fully explored. Baptist and South Miami are general acute care hospitals located in South Dade County. The primary service area for the proposed project overlaps the primary service areas of Baptist and South Miami. The evidence indicated that both intervenors are likely to loose some admissions and will probably experience some difficulties in obtaining skilled staff if this Application is approved. Both of the intervenor hospitals have a substantial number of vacant positions for which Suburban would be competing. If the Application is approved, Suburban will be seeking to fill its skilled staff positions from an already limited pool. One expected result would be an increase in salary structure for both Baptist and South Miami. Petitioner challenged the accuracy of the zip code analysis prepared by Mr. Cushman which attempted to estimate the number of lost admissions that each of the Intervenors could expect. While the zip code analysis does have many flaws, the evidence was sufficient to establish that both South Miami and Baptist will loose some admissions if the proposed facility is opened. Established programs at Baptist and South Miami could be substantially affected by the increase in salaries and lost admissions that are likely to occur if the proposal project is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, recommended that HRS enter a final order denying Suburban Medical Hospital, Inc.'s application for Certificate of Need #5868 to convert an existing outpatient surgery center to an osteopathic acute care hospital by conversion and new construction. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of March, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4445 All four parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1.-2. Adopted in substance in the Preliminary Statement. Adopted in substance in Findings of Fact 1 and 3. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4 and 10. Adopted in pertinent part in Findings of Fact 8 and 10. Adopted in pertinent part in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 14 and 15. Adopted in substance in Findings of Fact 48. Subordinate to Findings of Fact 50-58. Subordinate to Findings of Fact 59. 12. Subordinate to Findings of Fact 63 and 64. 13. Subordinate to Findings of Fact 52 and 53. 14. Subordinate to Findings of Fact 61 and 62. 15. Subordinate to Findings of Fact 63 and 64. 16. Subordinate to Findings of Fact 65. 17. Subordinate to Findings of Fact 66. 18. Subordinate to Findings of Fact 67. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 58. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 53 and 56. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 55 and 65. Subordinate to Findings of Fact 69, 33 and 34. Rejected as a summary of testimony rather than a finding of fact. Subordinate to Findings of Fact 68. Adopted in substance in Findings of Fact 44 and in the Preliminary Statement. 26. Subordinate to Findings of Fact 37-42. 27. Subordinate to Findings of Fact 37 and 42. 28. Subordinate to Findings of Fact 37. 29. Subordinate to Findings of Fact 26. 30. Subordinate to Findings of Fact 27. 31. Subordinate to Findings of Fact 24-30. 32. Subordinate to Findings of Fact 24. 33. Subordinate to Findings of Fact 24 and 28. Rejected as vague, overbroad and irrelevant. Subordinate to Findings of Fact 26 and 30. Adopted in substance in Findings of Fact 15. Rejected as constituting a summary of testimony rather than a finding of fact because it is irrelevant to the conclusions reached in the Recommended Order. Subordinate to Findings of Fact 21-23. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 21-23. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject area is addressed in Findings of Fact 41, 70, 94 and 106. Subordinate to Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 75. Subordinate to Findings of Fact 79-81 and 90. Rejected as irrelevant. This subject matter is addressed in Findings of Fact 76. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 81 and 82. Rejected as unnecessary and irrelevant. Subordinate to Findings of Fact 13 and 83. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject matter is addressed in Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 85. Subordinate to Findings of Fact 82. Subordinate to Findings of Fact 86-93. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 93. Rejected as constituting a summary of testimony and argument rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 73. Subordinate to Findings of Fact 80 and 89. Subordinate to Findings of Fact 80. Subordinate to Findings of Fact 86 and 87. Subordinate to Findings of Fact 86-93. Subordinate to Findings of Fact 86-92. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 93 and 98-100. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject matter is addressed in Finding of Fact 86 and 87. 70-72. Subordinate to Findings of Fact 94 and 105. 70.(sic) Rejected as unnecessary. A related issue is addressed in Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 100. Subordinate to Findings of Fact 100. Rejected as unnecessary. Subordinate to Findings of Fact 90. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 96-101. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 96-101. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 100. Subordinate to Findings of Fact 102. Subordinate to Findings of Fact 103. Subordinate to Findings of Fact 104. See the rulings on proposed findings 29-40 above. Subordinate to Findings of Fact 108. Subordinate to Findings of Fact 26 and 27. Subordinate to Findings of Fact 31. Suburban has submitted eleven proposed findings with respect to the standing issue. Those proposals are subordinate to Findings of Fact 109-112. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 5. 2.-3. Adopted in substance in Findings of Fact 1. 4. Adopted in substance in Findings of Fact 5. 5.-6. Subordinate to Findings of Fact 7. 7.-8. Adopted in substance in Findings of Fact 36 and 42. Addressed in Findings of Fact 36, 42, 43 and 71. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 15 and 21. Subordinate to Findings of Fact 43. Subordinate to Findings of Fact 71. Adopted in substance in Findings of Fact 33. Adopted in substance in Findings of Fact 24 and 25. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 41-43 and 71. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 72. 24.-25. Adopted in pertinent part in Findings of Fact 21. Adopted in substance in Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 20. 28. Subordinate to Findings of Fact 40. 29. Subordinate 106. to Findings of Fact 105 and 30. Subordinate 49. to Findings of Fact 46 and 31. Subordinate 49. to Findings of Fact 46 and Adopted in substance in Findings of Fact 50. Subordinate to Findings of Fact 51. Subordinate to Findings of Fact 59. Subordinate to Findings of Fact 53. Subordinate to Findings of Fact 53. Subordinate to Findings of Fact 53 and 55. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 8, 10 and 56. 39. Subordinate to Findings of Fact 58. 40. Subordinate to Findings of Fact 62. Subordinate Subordinate to Findings of to Findings of Fact Fact 57. 53 and 57. 43. Subordinate to Findings of Fact 55. 44. Subordinate to Findings of Fact 53-55. 45. Subordinate to Findings of Fact 54. 46. Subordinate to Findings of Fact 65. Subordinate Subordinate to Findings of to Findings of Fact Fact 65. 63 and 66. Subordinate Subordinate to Findings of to Findings of Fact Fact 64 and 64. 66. Subordinate to Findings of Fact 55 and 64. Subordinate to Findings of Fact 67. Adopted in pertinent part in Findings of Fact 53. 54. Subordinate to Findings of Fact 85-93. 55. Subordinate to Findings of Fact 85-93. 56. Subordinate to Findings of Fact 86 and 87. 57. Subordinate to Findings of Fact 87. 58. Subordinate to Findings of Fact 86 and 87. 59. Subordinate to Findings of Fact 87. 60. Subordinate to Findings of Fact 87. 61. Subordinate to Findings of Fact 87. Addressed in pertinent part in Findings of Fact 86. This subject matter is also addressed in the Preliminary Statement and the Conclusions of Law. Subordinate to Findings of Fact 86 and 87. This subject is also addressed in paragraphs 17 of the Conclusions of Law. Addressed in paragraphs 17 of the Conclusions of Law. Addressed in pertinent part in Findings of Fact 65. 66. Subordinate to Findings of Fact 82. 67. Subordinate to Findings of Fact 81. 68. Subordinate to Findings of Fact 81. 69. Subordinate to Findings of Fact 81. 70. Subordinate to Findings of Fact 78 and 81. 71. Subordinate to Findings of Fact 86-93. 72. Subordinate to Findings of Fact 86-93. 73.-74. Addressed in pertinent part in Findings of Fact 86 and 88. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 101. 80.-101. Adopted in substance in Findings of Fact 101. Subordinate to Findings of Fact 100 and 102. Subordinate to Findings of Fact 98, 100 and 102. Rejected as a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 71. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 20. Subordinate to Findings of Fact 42, 43 and 107. Adopted in substance in Findings of Fact 107. Subordinate to Findings of Fact 31, 33, 42, 43 and 70-73. Adopted in substance in Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 70 and 106. 111. Subordinate 101. to Findings of Fact 73 and 97- 112. Subordinate and 108. to Findings of Fact 45, 104 113. Subordinate and 108. to Findings of Fact 45, 104 Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 45, 104 and 108. Rejected as unnecessary. Furthermore, there is considerable confusion as to how this per diem calculation was made. 116.-117. Subordinate to Findings of Fact 105-106. The Intervenor's Proposed Findings of Fact (Baptist Hospital) Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1.-7. Subordinate to Findings of Fact 109-112. This subject matter is addressed in paragraph 2 of the Conclusions of Law. 8.-14. Subordinate to Findings of Fact 50-67. Subordinate to Findings of Fact 15 and 17- 23. Adopted in pertinent part in Findings of Fact 17, 21, 30, 65 and 69. This proposal consists largely of legal argument and is addressed in the Conclusions of Law. Pertinent portions of the proposal are addressed in Findings of Fact 14 and 18. Subordinate 37. to Findings of Fact 42. 19. Subordinate and 108. to Findings of Fact 41, 104 20. Subordinate to Findings of Fact 71 and 83. 21. Subordinate 71-73. to Findings of Fact 24-33 and 22. Subordinate to Findings of Fact 71. 23. Subordinate 71-73. to Findings of Fact 37-43 and 24. Subordinate 72. to Findings of Fact 20, 42 and 25. Much of this proposal consists of legal argument. The pertinent factual provisions are addressed in Findings of Fact 70 and 106. 26. Subordinate to Findings of Fact 106. 42 and 27. Subordinate to Findings of Fact 105. 42 and 28.-29. The pertinent portions of these proposals are addressed in Findings of Fact 73. The remainder of these proposals are rejected as irrelevant. Subordinate to Findings of Fact 71. Adopted in pertinent part in Findings of Fact 14 and 75. 32. Subordinate to Findings of Fact 76. 33. Subordinate to Findings of Fact 77. 34. Subordinate to Findings of Fact 78-81. 35. Subordinate to Findings of Fact 75. 36. Subordinate and 108. to Findings of Fact 41, 104 37. Subordinate 103. to Findings of Fact 83 and 38. Subordinate 85. to Findings of Fact 76-82 and 39. Subordinate to Findings of Fact 85-102. 40. Subordinate 93. to Findings of Fact 86-88 and 41. Subordinate to Findings of Fact 86-102. 42. Subordinate to Findings of Fact 94. This proposal consists largely of legal argument. Pertinent factual issues are addressed in Findings of Fact 20 and 21, 76 and 94. Subordinate to Findings of Fact 95-102. Subordinate to Findings of Fact 83 and 103. Much of this proposal consists of legal argument and/or speculation. Pertinent factual issues are addressed in Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 105 and 106. Subordinate to Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 69. The Intervenor's Proposed Findings of Fact (South Miami Hospital) Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. 4.-6. Subordinate to Findings of Fact 16-19. Adopted in substance in Findings of Fact 15, 20 and 21. The first sentence is adopted in substance in Findings of Fact 48. The remainder is rejected as constituting legal argument. Adopted in pertinent part in Findings of Fact 49 and 50. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 101. Adopted in substance in Findings of Fact 79. Adopted in substance in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 101. Subordinate to Findings of Fact 100. Included in the Preliminary Statement. Subordinate to Findings of Fact 73. Adopted in pertinent part in Findings of Fact 96. Adopted in substance in Findings of Fact 101. Subordinate to Findings of Fact 101. Subordinate to Findings of Fact 98-100. Subordinate to Findings of Fact 100 and 102. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 98-102. Adopted in substance in Findings of Fact 44 and in the Preliminary Statement. Adopted in substance in Findings of Fact 44 and 45. Adopted in substance in Findings of Fact 45. Adopted in pertinent part in Findings of Fact 48 and 49. Rejected as irrelevant. Subordinate to Findings of Fact 70 and 106. Adopted in pertinent part in Findings of Fact 20 and 21. Rejected as vague. This subject matter is addressed in Findings of Fact 20 and 21. Subordinate to Findings of Fact 33 and 35. Subordinate to Findings of Fact 20, 21 and 42. Subordinate to Findings of Fact 23 and 30. Adopted in substance in Findings of 25. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 24 and 30. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 23. Addressed in pertinent part in Findings of Fact 20 and 21. 42.-43. Rejected as overly broad. This subject matter is addressed in Findings of Fact 31. 44. Subordinate to Findings of Fact 40 and 42. 45. Subordinate to Findings of Fact 73. 46. Subordinate to Findings of Fact 35. 47.-51. Subordinate to Findings of Fact 49-67. 52. Subordinate to Findings of Fact 35. 53.-55. Subordinate to Findings of Fact 109-112. 56. Subordinate to Findings of Fact 85-93. 57. Subordinate to Findings of Fact 69. 58. Subordinate to Findings of Fact 69 and 93. Rejected as overly broad. This subject matter is addressed in Findings of Fact 35 and 73-109. Rejected as unnecessary. COPIES FURNISHED: Daniel C. Minkes, Esquire 17615 S.W. 97th Avenue Miami, Florida 33157 Silvio Amico, Esquire 6401 S.W. 87th Avenue Suite 114 Miami, Florida 33173 Thomas R. Cooper, Esquire Edward Labrador, Esquire Suite 103 2727 Mahan Drive Tallahassee, Florida 32308 Kyle Saxon, Esquire Catlin, Saxon, Tuttle & Evans 1700 Alfred I. Dupont Building 169 East Flagler Street Miami, Florida 33131 Jay Adams, Esquire 1519 Big Sky Way Tallahassee, Florida 32301 Jean Laramore, Esquire 7007 McBride Pointe Tallahassee, Florida 32312 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether disciplinary action should be taken against the Respondent's license based on the alleged violations of Section 459.015(1), Florida Statutes, and Rule 21R-20, Florida Administrative Code, as set forth in the Administrative Complaint: By fraudulently misrepresenting that he met the criteria for exemption from demonstrating financial responsibility. By failing to demonstrate his financial responsibility to pay claims for medical care. By falsely swearing on his Physician's License Renewal form. By violating a term of the Final Order of the Board of Osteopathic Medical Examiners dated August 22, 1988.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001663. Respondent's practice is in Tampa, Florida. Respondent was employed, in his capacity as an osteopathic physician, as an independent contractor at a walk-in clinic owned and operated by Dr. J. Eloian followed by Mitchell D. Checkver, D.O., which office is currently located at 7211 N. Dale Mabry, #100, Tampa, Florida, from 1984 through 1990. Respondent's license to practice osteopathic medicine was in a probationary status from August of 1988, until June 15, 1990, pursuant to a Final Order filed by the Board of Osteopathic Medical Examiners (Board) on August 2, 1988, regarding case numbers 0055173, 0038979 and 00372994. As a condition of probation Respondent was to comply with all state and federal statutes, rules and regulations pertaining to the practice of osteopathic, including Chapters 455 and 459, Florida Statutes and the Florida Administrative Code. As a condition of probation, Respondent was to pay the Board a total administrative fine of $3,000, which was said. About a year before Dr. John Eloian retired in August 1988, he discussed the possibility of utilizing the exemption for part time physicians (in Section 459.0085, Florida Statute) with other doctors in his office, including Respondent. A condition of renewing an active license to practice osteopathic medicine in the State of Florida, is compliance with Section 459.0085, Florida Statutes. The licensee must demonstrate financial responsibility or meet the criteria for exemption. Two years later, on November 6, 1989, Respondent submitted a Board of Osteopathic Medical Examiners' Physician's License Renewal Form, and signed a sworn affidavit as to the veracity of the information provided therein. A sign was posted announcing to the patients that no malpractice insurance was carried by Respondent and Dr. Eloian. Within the License Renewal Form, Respondent represented that he was exempt from demonstrating financial responsibility based on his meeting all of the criteria listed. The exemption which the Respondent attempted to utilize had criteria which included the condition that the Respondent has not been subject, within the past ten (10) years of practice, to a fine of $500.00 or more for a violation of Section 459, Florida Statutes. The form specifies that a regulatory agency's acceptance of a stipulation, in response to filing of administrative charges against a licensee, shall be construed as action against a licensee. The exemption also had criteria which specified that the Respondent had maintained a part time practice of no more than 1,000 patient contact hours per year. Based on Respondent's submission to the Board of Osteopathic Medical Examiners of this Physician's Licensure Renewal Form in November 1989, and the information given therein, his license to practice osteopathic medicine was renewed through 1991. Subsequently, Respondent acknowledged he was ineligible for the exemption and obtained medical malpractice insurance, effective July 1, 1990. Respondent read, or should have read, the Physician's License Renewal form sufficiently to be aware of the language therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(a), Florida Statutes. As punishment therefore Respondent should pay a fine of $1,000, and he should be placed on probation by the Board of Osteopathic Medical Examiners with such reasonable terms and conditions as the Board may require. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0395 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,3,4,5,6,7,8,9,10,11,12,13, 14,18 Rejected as irrelevant or as argument: paragraphs 2,15,16,17 Respondent's proposed findings of fact: Accepted in substance: paragraphs 1 (in part), 4 (in part), 7 (in part), 9 Rejected: paragraphs 2 (in part, as against the greater weight of the evidence and as a conclusion of law), 3 (conclusion of law), 5 (irrelevant), 6 (irrelevant), 7 (in part), 8 (irrelevant) 10 (irrelevant) COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John R. Feegel, Esquire Thomas Sabella, Jr., Esquire 401 South Albany Avenue Tampa, FL 33606 Bill Buckhalt Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
