The Issue Whether one or more of the following penalties should be imposed on the Respondent: revocation or suspension of the Respondent's license as a registered nurse, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board of Nursing deems appropriate?
Findings Of Fact At all times relevant hereto, the Respondent was a registered nurse in the State of Florida. The Respondent holds State of Florida license number 16441472. From August, 1985, through July, 1986, the Respondent was employed as a registered nurse by Good Samaritan Home Health Services, Inc. (hereinafter referred to as "Good Samaritan"). The Respondent was fired for failure to make required patient visits. The Respondent was scheduled to visit Dot C. Laliberte, a patient of Good Samaritan, on July 12 and 14, 1986. The Respondent visited Ms. Laliberte on July 13, 1986, but did not visit her on July 12 and 14, 1986. The Respondent completed a lengthy report on July 12, 1986 and one on July 14, 1986, indicating that she had visited Ms. Laliberte on those dates. These reports were knowingly false and were submitted to Good Samaritan. The Respondent's conduct as described in findings of fact 3 and 4 constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent did visit Clara Brooker, another patient of Good Samaritan, but her visits did not exceed five minutes. It was not possible for the Respondent to provide the care she reported had been provided to Ms. Brooker during such a short visit. On at least one visit with Ms. Brooker, the Respondent failed to change dressings on the patient and left the patient soiled. Failure to change Ms. Brooker's dressing constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent failed to visit Elizabeth Hathaway, another patient of Good Samaritan, on July 14, 1986. Her failure constituted unprofessional conduct and was not within minimum standards of acceptable and prevailing nursing practice. The Respondent discharged Ms. Hathaway as a patient over the telephone. She knew that this was improper. Discharge of a patient by telephone was unprofessional conduct and not within the minimum standards of acceptable and prevailing nursing practice. The Respondent submitted a Home Health Supervisory Visit Report concerning Earl Hartfield, a Good Samaritan patient, on May 5, 1986, June 6, 1986, and June 20, 1986. Each of these reports were identical except for the alleged dates of the visits. The Respondent filled out one report, copied it and used it on the other occasions. The Respondent did not make all three of these visits. This conduct constituted unprofessional conduct and was not within minimal standards of acceptable and prevailing nursing practice. The Respondent admitted to the Petitioner's investigator that she did not make all required visits even though she knew it was against the rules and regulations of Good Samaritan. From August 5, 1985 until August 15, 1985, the Respondent was employed at Riverside Hospital in Jacksonville. The Respondent was fired from her employment at Riverside Hospital because it was believed that the Respondent had given inconsistent information on her employment application. The Respondent completed and signed an application for employment as a nurse with Good Samaritan on August 26, 1985. The Respondent declared that the information provided in the application was true and correct to the best of her knowledge. In the application the Respondent was requested to "give accurate, complete full-time and part-time employment record." The Respondent failed to include her employment at Riverside Hospital. The Respondent also indicated that she had been employed at Cardinal Nursing Home and that she had left because of "personal problems." The Respondent admitted to the Petitioner's investigator, however, that she had left Cardinal Nursing Home because she had made medication errors. The Respondent completed and signed an application for employment as a nurse with Medical Personnel Pool (in Jacksonville) on July 25, 1986. In the application the Respondent was requested to list "in order, last or present employer first" her work history. Only four spaces were provided for this information and she was not specifically requested to provide any more than her last four employers. In providing this information, the Respondent should have listed her employment at Good Samaritan, Riverside Hospital, Mayflower Nursing Home (or Kinsley Nursing Home) and Greensprings Manor, in that order, to be consistent with applications for employment filed at Good Samaritan and Riverside Hospital. Instead, the Respondent listed her employment at Good Samaritan, Kingsley Nursing Home, Greenspring Manor and Medical Personnel Pool (of Indiana). The Respondent also indicated that she left Good Samaritan for "personal" reasons and did not admit that she had been fired. The information concerning the Kinsley Nursing Home is similar to the information concerning the Mayflower Nursing Home, which was reported in her applications with Good Samaritan and Riverside Hospital. They appear to be the same entities. Dates of employment at these entities are inconsistent, however. The address of, and dates of employment at, Greenspring Manor are inconsistent with her application at Riverside Hospital. Finally, the dates of her employment with Medical Personnel Pool (in Indiana) are different from the dates she included on the applications at Riverside Hospital and Good Samaritan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of having violated Sections 464.018(1)(d), (f) and (j), Florida Statutes (1986 Supp.). It is further RECOMMENDED that the Respondent's license as a registered nurse be revoked. DONE and ENTERED this 10th day of November, 1987, in Tallahassee Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1612 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection A 1. B 2. C 3-4 and 8. The weight of the evidence did not prove that the Respondent failed to visit and treat a patient by the name of McInnis or a patient by the name of Guerin. The evidence concerning these patients was hearsay. 2. The second sentence is unnecessary. 8 and 11. F 3. 5 and 10. 6-7 and 9. The evidence did not prove that the Respondent "never" changed dressings of Ms. Brooker. I 13. J 14. The last sentence is irrelevant. COPIES FURNISHED: Judie Ritter, Executive Director - Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 Albert H. Mickler, Esquire 5452 Arlington Expressway Jacksonville, Florida 32204 Lillian Poul, pro se 7114 Silver Lake Terrace Jacksonville Florida 32216
Findings Of Fact "[HRS] has adopted a Rule 10-5.08, F.A.C., which makes provision for the review of CON applications in specific time sequences, known as "batching cycles." The purpose of this rule was to implement the statutory mandate of ss. 381.494(5), Florida Statutes, which required that: The Department by rule shall provide for the applications to be submitted on a timetable or cycle basis, provide for review on a timely basis; and provide for all completed applications pertaining to similar types of services, facilities, or equipment affecting the same service district to be considered in relation to each other no less often than four times a year. Rule 10-5.08, F.A.C., states that the letter of intent and application schedules were established "[i]n order that applications pertaining to similar types of services, facilities, or equipment affecting the same service district may be considered in relation to each other for purposes of competitive review. "Under Rule 10-5.08, F.A.C., June 15, 1984, was the beginning of a batching cycle for "hospital projects" that included certificate of need requests by hospitals for cardiac catheterization laboratories and open heart surgery programs. To enter a batching cycle, an applicant must first have filed a letter of intent ("LOI") with [HRS] and the Local Health Council at least thirty (30) days prior to filing an application. The LOI deadline for the June 15, 1984, batching cycle was thus May 16, 1984. There was, however, one exception to this requirement of filing an LOI thirty (30) days in advance. This exception, known as the "grace provision," was found at Rule 10 5.08(e), F.A.C. In cases where a letter of intent was filed within five working days of the letter of intent deadline, a grace period of 10 days from the deadline date for receipt of letters of intent shall be established to provide an opportunity for a competing applicant to file a letter of intent. "On or about May 14, 1984, St. Mary's Hospital in West Palm Beach submitted a letter of intent to file a CON application for a cardiac catheterization laboratory and an open heart surgery program. St. Marys' [sic] LOI was for entry in the June 15, 1984, batching cycle. This date of Nay 14, 1984, was within five (5) working days of the LOI deadline for the June 15, 1984, batching cycle. "Boca Raton Community Hospital [also] filed a letter of intent to apply for a CON for cardiac catheterization and open heart surgery. Boca Raton's LOI was filed in April of 1954, a time period greater than five (5) working days prior to the LOI deadline. "On May 29, 1984, Good Samaritan filed with [HRS] and the Local Health Council a letter of intent to establish cardiac catheterization and an open heart surgery program in order to compete for CON approval with the similar services proposed by St. Marys [sic]. Good Samaritan's May 29, 1984, LOI sought entry into the June 15, 1984, batching cycle. "May 29, 1984, was within ten (10) days from the deadline date for receipt of letters of intent for the June 15, 1984, batching cycle. "Good Samaritan does not view itself as directly competing with Boca Raton Community Hospital for patients or services due to the distance between these facilities. Good Samaritan does view itself to be in direct competition with St. Marys [sic]. All three hospitals are, however, in the same HRS Service District and [HRS] reviews CON applications for cardiac catheterization laboratories and open heart surgery on the basis of whether there is a need for such laboratories or programs in the service district. "On June 15, 1984, Good Samaritan submitted its [CON] application to [HRS], together with the required Four Thousand Dollar ($4,000.00) application fee. [HRS] refused to accept this application for review in its June 15, 1984, batching cycle and returned the application and the filing fee to Good Samaritan. [HRS] advised Good Samaritan that the next batching cycle it could enter for this application would be the October 15, 1984, batching cycle. "Good Samaritan timely filed a request for formal proceedings pursuant to ss. 120.57, Florida Statutes (1983), regarding [HRS's] refusal to accept its application in the June 15, 1984, batching cycle. The Division of Administrative Hearings has jurisdiction over the parties and over the subject matter of this proceeding. "Effective September 6, 1984, and subsequent to the Department's refusal to accept Good Samaritan's application for the June 15, 1984, batching cycle, [HRS] amended Rule 10-5.08(e). The new rule, as amended, reflects the requirements that the Department contends are applicable to Good Samaritan in this case prior to the amendment. "[HRS's] refusal to accept Good Samaritan's application in the June 15, 1984, batching cycle prevents Good Samaritan from having its proposed project reviewed comparatively and competitively with St. Marys' [sic] or Boca Raton's similar proposals, because [HRS] does not review CON applications comparatively and competitively unless they are filed in the same batching cycle. "[HRS] approved in part [sic] both St. Marys' [sic] and Boca Raton's CON applications. CON #3367 was issued to St. Marys [sic] for a cardiac catheterization laboratory and CON #3366 was issued to Boca Raton for a cardiac catheterization laboratory. These actions by [HRS], however, have not yet become final and are subject to formal administrative hearings requested by Good Samaritan. "[HRS] takes the position that the approvals of the cardiac catheterization laboratories at St. Marys [sic] and Boca Raton count against the need for an additional cardiac catheterization laboratory as proposed by Good Samaritan if Good Samaritan's application is considered in a later batching cycle."
Recommendation Based on the foregoing, it is RECOMMENDED: That HRS enter a final order requiring that Good Samaritan's CON application be reviewed in the June 15, 1984 batching cycle. DONE and ORDERED this 13th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1985.
Findings Of Fact Good Samaritan Hospital, Inc. d/b/a Good Samaritan Medical Center ("Good Samaritan") is a 341 bed not-for-profit community hospital in West Palm Beach, established over 73 years ago. West Palm Beach is located in Agency for Health Care Administration ("AHCA") District 9. Its services include obstetrics and neonatal, medical and pediatric intensive care. Good Samaritan also opened an outpatient cardiac catheterization ("cath") laboratory of 1399 gross square feet, approximately two weeks prior to the start of the final hearing in this case. The establishment of an outpatient laboratory does not require a certificate of need. At the time the final hearing commenced, two procedures had been performed in the Good Samaritan outpatient cath lab. Written protocals exist for transfers to facilities with open heart surgery programs. Here, Good Samaritan is an applicant for a certificate of need ("CON") to provide adult inpatient cardiac cath services in the same cath lab. AHCA is the state agency which administers CON laws in Florida. AHCA published, on August 7, 1992, a fixed need pool showing a net need for two additional cardiac cath programs in AHCA District 9. On January 11, 1993, AHCA issued a State Agency Action Report ("SAAR") preliminarily approving Good Samaritan's CON. St. Mary's Hospital, Inc. ("St. Mary's") is a 430 bed hospital with acute care, psychiatric, and Levels II and III neonatal intensive care beds, located in West Palm Beach, Florida in AHCA District 9. St. Mary's is located 3 miles, or a 5 to 7 minute drive from Good Samaritan, and is an existing provider of adult inpatient cardiac cath services. Open heart surgery services are not available at St. Mary's. Palm Beach Gardens Community Hospital, Inc. ("Palm Beach Gardens") also in AHCA District 9, is located approximately a 25 minute drive from St. Mary's. Palm Beach Gardens' services include adult inpatient cardiac cath in a two room laboratory, and open heart surgery. There are eleven cath labs in District 9. Palm Beach Regional, Lawnwood in St. Lucie County, and a doctor in Martin County operate outpatient facilities. Five hospitals serve inpatients and outpatients - Boca Raton, St. Mary's, Martin Memorial, Bethesda, and Indian River. Three others, Palm Beach Gardens, JFK Medical Center and Delray Community Hospital, have cardiac cath labs at hospitals which also provide open heart surgery services. By prehearing stipulation, the parties agreed that the historical quality of care at Good Samaritan is not at issue. Palm Beach Gardens asserts that Good Samaritan's application was incomplete. Application Content Submitted with the Good Samaritan application was a certificate of the custodian of its records which relied on an April 20, 1989 resolution of Good Samaritan's Board of Directors as authorization for the filing of ". . . an application as described in the Letter of Intent." On August 25, 1989, Good Samaritan filed a letter of intent, with the Board's April 20, 1989 resolution, announcing its intent to apply on September 27, 1989, to establish inpatient cardiac cath and open heart surgery services, and to convert ten medical/surgical beds to intensive care beds for an estimated capital cost of $4,950,000. The 1989 resolution has not been withdrawn. The President of Good Samaritan, William J. Byron, testified that Good Samaritan never filed a joint application for cardiac cath, open heart surgery and intensive care beds, as described in the 1989 letter of intent. Good Samaritan also, he testified, never filed an application for cardiac cath services in 1989, but did file cardiac cath applications in 1990, and 1991 and the one at issue, in 1992. In February 1991, Good Samaritan's Board passed a resolution authorizing the filing of a CON application for inpatient cardiac cath services. Mr. Byron considered that resolution a reaffirmation of the 1989 resolution and decided to file the 1989 resolution with this application. The predecessor of AHCA initially notified Good Samaritan that the 1989 letter of intent for combined services was rejected. Subsequently, in November 1989, Good Samaritan was notified that the initial rejection applied to open heart surgery, because these were competing applicants, but that it would extend a grace period to apply for cardiac cath services to October 27, 1989, due to the absence of any competing applicants. What was intended in the letter which postdated the date it gave for the grace period was not established. Mr. Byron testified that Good Samaritan filed the February 1990 application, referencing the 1989 resolution, in accordance with the agency's grant of a grace period. Need For the Subject Project In August 1992, AHCA published its finding that a numeric need exists for two additional adult inpatient cardiac cath programs in District 9, by July 1995. The 1990-1991 local health plan for District 9 includes two factors for determining need and for allocating CONs for cardiac cath and open heart surgery services. The first District 9 factor favors facilities with an historical record of or commitment to serving Medicaid and indigent, handicapped or other underserved population groups. Good Samaritan's service to Medicaid patients increased from .2 percent in 1985 to 1.1 percent in 1989, then from 5.0 percent in 1990 to 11.2 percent of total admissions in 1992. Mr. Jay Cushman testified that the Medicaid commitment and record may be evaluated by comparing Good Samaritan to St. Mary's because they share a medical service area. Medicaid admissions to St. Mary's were 7.7 percent in 1985, 17.5 percent in 1989, 19.7 percent in 1990, and 32.0 percent in 1992. Therefore, as Mr. Cushman observed, the widening gap in the same service area is not indicative of Good Samaritan's historical record or present commitment to serve Medicaid patients. The District 9 plan also gives priority to applicants who propose to establish inpatient cardiac cath and open heart surgery services at the same facility when both are needed. The preference is inapplicable to the review of this application cycle, because no need was published for additional open heart surgery services in the district. There was testimony that Good Samaritan was, at the time of hearing, an applicant for an open heart surgery CON, having applied in March 1993, and had been preliminarily denied. The preference statement that an applicant "would not be expected to have to apply for both" describes the situation at the time of Good Samaritan's application. Therefore, the preference neither supports nor detracts from this application. The 1989 State Health Plan contains a similar preference for an applicant proposing both cardiac cath and open heart surgery services in response to a publication of the need for both. To have any practical effect in a comparative review process, avoiding speculation on the outcome of other pending administrative cases, the preference has to be understood to favor an applicant for cardiac cath and open heart surgery over an applicant for only cardiac cath in the same batching cycle. Therefore, the preference is inapplicable to this application for cardiac cath services, despite evidence of an open heart surgery application in a subsequent batching cycle. The state preference for the establishment of a new cardiac cath program in a county without such programs is not met. See, Findings of Fact 5. The state plan preference for disproportionate share charity care and Medicaid providers does not support approval of the Good Samaritan application. See, Finding of Facts 16, supra. The state preference for hospitals which accept patients regardless of ability to pay is met by Good Samaritan. On balance, there is no showing of the need for Good Samaritan's proposal to advance the special interests identified in the state and District 9 health plans. Good Samaritan argues that its inpatients should have access to its new, state-of-the-art cath lab to avoid costs and disruptions associated with unnecessary transfers. The argument is rejected as inconsistent with the regulatory scheme and need criteria established by statutes and rules. Testifying about AHCA's preliminary approval of Good Samaritan's application, Good Samaritan's expert, Ronald Luke, Ph.D., described the objective as improving access to care for the underserved, meaning uninsured, because ". . . there is no question - - no question - - that there is sufficient physical capacity in the market to perform the projected number of caths . . ." Transcript, Vol. 9, p. 1154. At hearing, David Musgrave, Good Samaritan's financial officer, and Dr. Luke asserted that Good Samaritan would perform caths on 100 more indigents than originally represented in the application. The application projected 3 percent indigent and 2 percent Medicaid payer categories. In the pro forma marked as exhibit 39, Good Samaritan projected 2.7 percent indigent care. There is no credible evidence to demonstrate that Good Samaritan can recruit an additional 100 indigent cardiac cath patients, through contacts with public health agencies. Utilization Projections Two major issues in dispute, which partially depend on the accuracy of utilization projections, are the requirements of Rule 59C-1.032(8)(b) that an applicant reasonably project 300 cath lab visits within two years of operation, and the long-term financial feasibility of the proposal. According to Dr. Luke, the 300 minimum annual procedures for a cath lab and 150 for invasive cardiologists who perform caths are standards set by the American College of Cardiology and American Heart Association Guidelines for Cardiac Catherization and Cardiac Catheterization Laboratories. The standards are set to insure that sufficient numbers of procedures are performed to maintain staff and cardiologists' proficiency. Good Samaritan's application includes projections of 270 caths in year one and 360 in year two. Initially, a minimum of 119 caths is reasonably expected, based on that number of inpatients transferred in 1992 from Good Samaritan for cath inpatient procedures at other hospitals. The experts for Good Samaritan compare its proposal to the operations of the cath lab at Boca Raton Community Hospital ("Boca Raton"), which has no open heart surgery services and a closed in-house cathing staff. A "closed staff" limits those who perform cath lab procedures to invasive cardiologists based at the facility. After opening in October 1987, Boca Raton has had the following number of cath procedures performed at its hospital: 1988 1989 1990 1991 1992 621 658 644 530 487 Like Boca Raton, Good Samaritan also proposes to have a closed lab. It will be headed by a hospital-employed physician. An agreement with the medical school at Duke University will allow the staff cathing physician to maintain the necessary personal clinical skills by performing sufficient numbers of additional procedures at Duke. Good Samaritan shares its medical staff and medical service area with St. Mary's. St. Mary's experts project that Good Samaritan would be another low volume provider in the area, primarily due to the lack of back-up open heart surgery services. Volumes of cath procedures reported at St. Mary's, which opened in February 1988, are as follows: 1988 1989 1990 1991 1992 229 292 323 381 359 St. Mary's has an open cathing staff. Its lab is used by a number of different invasive cardiologists, who also practice primarily at other hospitals which have open heart surgery services available. Palm Beach Gardens also has an open cardiac cath staff, although a number of the cathing physicians are based at the hospital. However, Palm Beach Gardens also has open heart surgery services. It's volumes from 1988-1992 were as follows: 1988 1989 1990 1991 1992 1598 1392 1587 1824 1750 Clearly, both the presence or absence of open heart surgery and the internal operations of a lab affect the volumes of procedures performed at any cardiac cath lab. The greater weight of the evidence suggests that the presence of open heart surgery is more determinative of cath lab utilization than the internal operations of the cath lab. Despite evidence of increasing use rates in District 9, Good Samaritan has failed to demonstrate that its projected utilization is reasonable. All of the growth in volume in Palm Beach County in 1992 is attributable to JFK Medical Center and Delray Community Hospital, both of which have open heart surgery and to Bethesda, with a new program in 1992 and 249 procedures. Declines in volume occurred at both mature inpatient programs without open heart surgery in Palm Beach County, St. Mary's and Boca Raton. The suggestion that 1992 is an aberration in this regard, is rejected. See, Findings of Facts 28 and 30. Impact On Existing Providers The highest reasonable expectation of volumes for St. Mary's cath lab in 1993 is 330 visits. From October 1, 1991 through September 30, 1992, Good Samaritan transferred 13 to 14 inpatients to St. Mary's for cardiac caths. Subsequently, in December 1992, a group of internists sold their practices to Good Samaritan. The patient volume of that group, one internist estimated, will result in the referral of 150 to 200 patients for cardiac caths over the next year or two. Based on their staff affiliations, it is reasonable to expect that a significant number of their referrals will be diverted from St. Mary's. One doctor in a group of invasive cardiologists, which has performed approximately 150 cardiac caths a year at St. Mary's, expects 75 to 90 of the cases would have been done at a Good Samaritan inpatient lab, if that alternative had existed. It is reasonable to expect that an inpatient cardiac cath program at Good Samaritan will result in a loss of up to 80 visits to the St. Mary's cath lab in 1995 and 1996. As a result, the St. Mary's program would be below 300 procedures (visits) a year minimum quality of care standard, with no assurance that Good Samaritan could exceed the standard. Good Samaritan describes the financial impact on St. Mary's of an inpatient cath lab as relatively insignificant, because the more detrimental impact will occur as a result of the already established outpatient lab. Good Samaritan estimates, however, that 70 percent of its cardiac cath patients will be inpatient and 30 percent will be outpatients. St. Mary's financial loss would be $188,000 if Good Samaritan reaches 480 procedures, according to Good Samaritan's expert. Good Samaritan concedes that St. Mary's is at risk of performing less than 300 procedures and, therefore, that the quality of care in the St. Mary's cath lab would decline. However, as Good Samaritan notes the decrease in volumes below 300 may occur whether or not Good Samaritan's proposal is approved. Cardiac cath volumes are declining at mature inpatient programs which do not have open heart surgery services. The establishment of a program at Good Samaritan would accelerate that trend at St. Mary's. See, Finding of Facts 33. When Good Samaritan's cardiac cath volumes reach 240 visits, Palm Beach Gardens expects to lose 44 cardiac cath visits and $134,000 pre-tax revenue in Good Samaritan's second and third year of operation. If, as projected by Good Samaritan, its volumes reached 480 visits, a loss of 88 cardiac caths or approximately $250,000 to $270,000 is projected. Good Samaritan contends that a loss of $250,000 to $270,000 pre-taxes for Palm Beach Gardens is relatively insubstantial. After taxes, the loss is $80,000 when Good Samaritan reaches 240 cases, or $160,000 if Good Samaritan reaches 480 cases. Revenues at Palm Beach Gardens, in 1992, were approximately $8 million pre-taxes, or $5 to $6 million after taxes. Good Samaritan's contention that the loss to Palm Beach Gardens is relatively insubstantial is supported by the evidence in this case. Financial Feasibility Good Samaritan has already constructed an outpatient cardiac cath lab, which is adequately staffed and capable of serving inpatients of the facility. The immediate financial feasibility of the proposal has been established. The long term financial feasibility of the program has been questioned. The pro forma attached to the application showed a loss of $126,008 in year one, a loss of $26,967 in year two and a gain of $113,224 in year three of operations. Good Samaritan was required to include a two year pro forma in its application. In fact, Palm Beach Gardens' expert believes that profitability must be demonstrated in the second year to establish financial feasibility. Good Samaritan's projections are based on the assumption that case volumes will be 240 cases in 1994, 360 in 1995 and 480 in 1996. The assumption that Good Samaritan can reach 360 procedures in year two, while St. Mary's remains over 300 procedures is rejected. In addition, Good Samaritan's pro forma is prepared as Good Samaritan acknowledges, on a fully allocated cost basis which cannot demonstrate financial feasibility. Good Samaritan's exhibit 39 was described as a sensitivity analysis, and is also based on only slight changes in utilization assumptions caused by rounding to whole numbers. Unlike the pro forma submitted with the application, exhibit 39 clearly is an incremental analysis. Good Samaritan failed to provide AHCA adequate evidence of financial feasibility based on the pro forma included in the application. Palm Beach Gardens asserts that consideration of exhibit 39 constitutes an impermissible, untimely amendment to the application which may not be relied upon to establish financial feasibility. Mr. Musgrave, an expert in hospital financial operations, acknowledged that the information in exhibit 39 was available at the time he prepared the application pro forma. Comparing the two, he testified that among the differences are the use of different data bases, a higher Medicare case weight, a lower managed care discount rate, higher gross charges per admission, and lower indigent care percentages. Good Samaritan also failed to account for certain capital costs. Good Samaritan claims that the project has no capital costs. The State Agency Action Report determined that the $5,000 filing fee is a capital cost. At hearing, there was expert testimony that expenses and equipment required to implement video-conferencing and other direct contacts with Duke University will result in additional costs which have not been adequately considered in Good Samaritan's financial analysis. Mr. Musgrave also testified that 70 percent of the cardiac cath volume is expected to be derived from inpatients, with capital cost reimbursements from Medicare and Medicaid. When asked about Good Samaritan's claim that there are no or minimal capital costs associated with the proposal, Robert P. Maquire of AHCA testified as follows: With regard to outpatient services that are approved by non-reviewability criteria, if later a project is established as an inpatient program and does not require any new construction, those costs - - there's no allocation of costs to the inpatient factor. Transcript, Vol. VIII, p. 1041.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that an order be entered denying the application of Good Samaritan Hospital, Inc. for Certificate of Need 7086 to establish an adult inpatient cardiac catheterization program. DONE AND ENTERED this 2nd day of November, 1994, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 2nd day of November, 1994.
The Issue Whether Respondent, Agency for Health Care Administration (“Respondent” or “AHCA”), has relied on any statements of general applicability regarding reimbursement of Medicaid expenses which are agency rules, as defined in section 120.52(16), Florida Statutes,1/ but have not been adopted as rules in accordance with section 120.54(1)(a), Florida Statutes.
Findings Of Fact Based on the evidence presented at the final hearing and the record in this matter, the following Findings of Fact are made. Parties Covenant is a provider of hospice and end-of-life services and at all times relevant to this matter, the program was an authorized provider of Medicaid services pursuant to a valid Medicaid provider agreement with AHCA. AHCA is the state agency responsible for administering the Florida Medicaid Program. Medicaid is a joint federal/state program to provide health care and related services to qualified individuals, including hospice services. AHCA is authorized to recover Medicaid overpayments, as deemed appropriate. § 409.913, Fla. Stat. Medicaid Audit Process The U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), contracted with Health Integrity, a private vendor, to perform an audit of Covenant. Health Integrity retained a company called Advanced Medical Reviews (“AMR”) to provide peer physician reviews of claims to determine whether an overpayment occurred. On or about December 3, 2013, Health Integrity commenced the audit of Covenant. The scope of the audit was limited to Medicaid recipients that received hospice services from Covenant during the period of January 1, 2011, through December 31, 2012. Generally speaking, the files were identified for review using the following criteria: a) the recipient was not dually eligible (eligible for both Medicaid and Medicare); and b) Covenant provided hospice services for 182 days or longer, based on the recipient’s first and last day of service within the Audit Period. Thus, the objective of the audit was to determine whether certain Medicaid patients were eligible for hospice benefits provided by Covenant. When Health Integrity applied the audit criteria to the Medicaid claims paid by AHCA to Covenant, Health Integrity determined that Covenant had provided hospice services to 62 Medicaid recipients for 182 days or longer during the Audit Period. Covenant provided Health Integrity with medical and related financial records (“Covenant’s Records”) in order to support the eligibility of these 62 patients for Medicaid benefits paid by AHCA. To qualify for the Medicaid hospice program, all recipients must, among other things: a) be certified by a physician as terminally ill with a life expectancy of six months or less if the disease runs its normal course; and b) voluntarily elect hospice care for the terminal illness. See Florida Medicaid Hospice Services Coverage and Limitations Handbook, (January 2007 edition) (“Handbook”) at page 2-3, as adopted by Fla. Admin. Code. R. 59G-4.140 (effective Dec. 24, 2007); see also § 400.6095(2), Fla. Stat., (2010-2012). Health Integrity employs claims analysts who performed an initial review of Covenant’s medical records to determine if the recipients were eligible for Medicaid hospice benefits. All Health Integrity claims analysts are registered nurses. If the Health Integrity claims analyst is able to assess that the patient’s file contains sufficient documentation to justify eligibility for hospice benefits for the entire length of stay under review in the audit, there was no imposition of an overpayment for that file and, thus, the claim is not evaluated further. If the Health Integrity claims analyst is unable to assess whether the patient’s file contains sufficient documentation to determine eligibility for hospice benefits, or if only a portion of the patient’s stay could be justified by the Health Integrity claims analyst, the file is then forwarded to an AMR physician to make the ultimate determination as to eligibility for Medicaid hospice benefits and whether an overpayment is due the Florida Medicaid program. With respect to the Covenant audit, the Health Integrity claims analysts reviewed Covenant’s medical files for the 62 initially identified recipients and determined that no further action was warranted with respect to 10 recipients. As a result, 52 files were referred for physician peer review by AMR. AMR maintains a secure portal (“AMR Portal”) that Health Integrity personnel access to transmit all received provider files to AMR. AMR’s peer review physicians, in turn, use the AMR Portal to review the totality of the provider’s submitted documentation, including all medical case records, and provide their comments. As required by section 409.9131, AHCA referred Petitioner’s records for peer review to determine whether there was a medical necessity for a hospice program. Section 409.9131(2), Florida Statutes, sets forth the following definitions: “Medical necessity” or “medically necessary” means any goods or services necessary to palliate the effects of a terminal condition or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. In making determinations of medical necessity, the agency must, to the maximum extent possible, use a physician in active practice, either employed by or under contract with the agency, of the same specialty or subspecialty as the physician under review. Such determination must be based upon the information available at the time the goods or services were provided. “Peer” means a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice. “Peer review” means an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician’s peers and to recognized health care standards, and, in cases involving determination of medical necessity, to determine whether the documentation in the physician’s records is adequate. Peer Review Each AMR peer reviewer retained to review the respective recipient’s patient records prepared a written report, which was based on the reviewer’s opinion regarding whether the patient had a terminal diagnosis, with a life expectancy of six months or less to live if the recipient’s terminal illness followed its natural course. The peer reviewers formulated their opinions based on their own training, experience, and the generally accepted standards in the medical community within the respective specialty. The factors for formulating an opinion include the terminal diagnosis, comorbidities, and any other factors that provide a complete picture in evaluating the eligibility for the hospice program. After the AMR peer review physicians reviewed the 52 Covenant recipient files loaded into the AMR Portal, the AMR physicians determined that 23 recipients were eligible for Medicaid hospice services and 29 patients were ineligible. On February 12, 2016, Health Integrity presented the Draft Audit Report (“DAR”) to Covenant for comment and response. Covenant provided a response to the DAR, and contested the overpayments for each of the 29 recipients. Covenant’s response was provided to the AMR peer review physicians, who, after reviewing the response, revised their opinions for four recipients. Therefore, the number of recipients in dispute was reduced to 25 patients. Health Integrity then prepared a Revised Draft Audit Report (“RDAR”), which assessed an overpayment amount of $714,518.14, relating to the 25 recipients. Health Integrity presented the RDAR to CMS and AHCA for approval. After the RDAR was approved by CMS and AHCA, Health Integrity prepared and issued the Final Audit Report (“FAR”), upholding the overpayments identified in the RDAR, and submitted it to CMS. CMS provided the FAR to AHCA with instructions for AHCA to initiate the state recovery process and to furnish the FAR to Covenant. The FAR contains the peer review physicians’ basis for determining why each of the 25 recipients at issue was not eligible for Medicaid hospice services. The FAR determined that Petitioner was overpaid $714,518.14 for services provided to the 25 recipients during the Audit Period. The FAR also imposed a fine of $142,903.63 and assessed costs of $131.38. However, the parties have since reduced the number of disputed patients from 25 to 17 patients. As a result, AHCA is seeking a revised amount of overpayment in the total amount of $677,023.44, with a corresponding revised fine amount of $135,404.68, for the remaining files in dispute. At the heart of Petitioner’s rule challenge are allegations that AHCA relied on agency statements of general applicability regarding a patient’s eligibility for hospice services. To be eligible for Florida Medicaid hospice services, a recipient must be certified by a physician as terminally ill with a life expectancy of six months or less, if the disease runs its normal course. The Handbook also requires: Documentation to support the terminal prognosis must accompany the initial certification of terminal illness. This documentation must be on file in the recipient’s hospice record. The documentation must include, where applicable, the following: Terminal diagnosis with life expect- ancy of six months or less if the terminal illness progresses at its normal course; Serial physician assessments, laboratory, radiological, or other studies; Clinical progression of the terminal disease; Recent impaired nutritional status related to the terminal process; Recent decline in functional status; and Specific documentation that indicates that the recipient has entered an endstage of a chronic disease. Unadopted Rule Challenge Covenant alleged that AHCA relied on the following three types of statements and alleges that those statements are unadopted rules: 1) certain observations included in the peer review physicians’ reports; 2) anticipated findings in the Audit Test Plan; and 3) the inconsistent application of the phrase “where applicable” as found in the Handbook. Covenant’s Exhibit “A” to its Petition identified what it alleges are the statements relied upon by Covenant peer reviewers when determining whether the disputed patients were eligible for hospice. Covenant alleges the statements are “rules” as defined in section 120.52(16). The statements referenced by Covenant in Exhibit “A” include observations regarding the medical condition of the patients referenced. Based on the medical records for each recipient, the statements made by the peer reviewers were opinions formulated based on their medical expertise and experience. The opinion of a peer reviewer is not a standard used to determine the eligibility of a patient, but rather an opinion based on expertise and experience. Based on the testimony, live or by deposition, of AHCA’s peer review physicians, the peer reviewers use the six criteria set forth in the Handbook to determine the respective patient’s eligibility for hospice services. The observations and comments made by the peer reviewers in their reports were based on the medical records for each terminally diagnosed patient. Petitioner argues that AHCA has not engaged in rulemaking to adopt the expert’s opinions based on medical standards. The documented statements in the peer review physician’s opinions were medical determinations made by AHCA’s peer review physicians. They are not standards used to determine the eligibility of each recipient. The peer review physicians evaluated the presence of disease progression, decline in status, increased symptom burden, or severity of the patient’s illness to determine whether the progression of illness would lead to death within six months. Although Covenant challenged statements offered by peer reviewer, Dr. Ankush Bansal, Dr. Bansal’s claims were re-reviewed and AHCA offered the testimony of the new peer review physician to support its claim of overpayment. Thus, the alleged statements documented by Dr. Bansal are not properly before the undersigned for consideration. Anticipated Findings Health Integrity claims analysts reviewed Covenant’s claims and determined whether the claims should also be reviewed by a peer review physician. If the claims analyst determined that a claim needed further review, they were required to have that claim forwarded to a qualified peer review physician who would make a final determination of eligibility. None of the overpayment claims in the DAR or the FAR, as amended, was the result of any decision made by any Health Integrity claims analyst nurse. There was no evidence offered at hearing to demonstrate that the peer review physicians relied on the anticipated findings in the audit process or thereafter. The peer review physician, not the claims analyst, made the determination regarding eligibility, which was based on the criteria in the Handbook. Covenant offered no evidence at hearing that the observations or comments listed in its Petition were the determinative factor for any peer reviewer’s determination that a patient was ineligible for Medicaid hospice services. AHCA’s peer reviewers relied on factors within the patient’s records to make a determination of eligibility for hospice services. Their reliance on their experience and expertise to evaluate eligibility of each patient does not transform their respective statements into a rule. The statements were specific to the individual patient, not general statements of general applicability. Application of “Where Applicable” Language The third and final type of statement challenged by Covenant is the alleged inconsistent application by the peer review physicians of the phrase “where applicable,” which is found in the Handbook. The evidence offered at hearing demonstrates that each peer review physician applied the criteria from the Handbook to determine a patient’s eligibility for hospice services. According to the record, the peer reviewers applied the six criteria in the Handbook based on the patient records, including medical history and diagnosis.
