The Issue In its petition, Florida Psychiatric Centers (FPC) alleges that HRS seeks to grant a CON to Florida Residential Treatment Centers, Inc. (FRTC), based on the agency's unpromulgated policy that ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (Petition, page 2, paragraph 6.) FPC argues that the policy is a "rule" and is invalid as a rule because it has not been adopted pursuant to Section 120.54, F.S., and because it conflicts with Sections 381.493, F.S., and 381.494, regarding need criteria. Further, FPC argues the "rule" is arbitrary and violates due process because the agency predetermines need regardless of the availability of like and existing services. HRS and Intervenor, FRTC, argue that the policy is incipient and needs not be promulgated. Further, the policy does not obviate a determination of need. HRS and FRTC claim that FPC lacks standing to bring this action, as its facility is a hospital and not the same as an intensive residential treatment program. HRS admits that the alleged policy has not been promulgated under Section 120.54, F.S. The issues for determination in this proceeding are summarized as follows: Whether FPC has standing to bring this action; Whether HRS has a policy regarding CON approval of intensive residential treatment programs, and whether that policy is a "rule"; and If the policy is a rule, is it an invalid rule?
Findings Of Fact FPC is a partnership which has received CON #2654 to construct a 100- bed psychiatric hospital in the Plantation/Sunrise area of West Broward County. The facility is under construction and will include 80 short-term psychiatric beds (40 geriatric, 15 adolescent, and 25 adult beds) and 20 short-term substance abuse beds. FPC anticipates an average length of stay of approximately 28 days for adults and less than 60 days for adolescents. FRTC is owned by Charter Medical Corporation. It proposes to build and operate a 60-bed intensive residential treatment program for children and adolescents in Broward County. The proposed facility will treat children and adolescents in need of psychiatric services. Its anticipated average length of stay is approximately one year. If it is awarded a certificate of need, FRTC intends to obtain licensing by HRS pursuant to Chapter 395, F.S., and Chapter 10D-28 F.A.C. No other facility licensed as an intensive residential treatment program, as defined in subsection 395.002(8), F.S. (1987), is available in Broward County. On March 11, 1987, HRS issued CON #4851 to FRTC for its 60-bed facility. A challenge to that CON is pending in DOAH consolidated cases #87- 2046/87-2400/87-2401. FPC is a petitioner in the case, with Florida Medical Center and South Broward Hospital District. Section 395.002(8), F.S., defines "Intensive Residential Treatment Programs for Children and Adolescents as: . . . a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. When completed, FPC will be accredited by the Joint Commission on Accreditation of Hospitals; it will provide 24-hour care and will have the primary function of diagnosis and treatment of patients with psychiatric disorders and problems of substance abuse. Unlike the other psychiatric hospitals in Broward County, FPC will have a campus-like setting and separate buildings for the various services. FPC will not be a locked facility. With the exception of the length of stay, the services provided by FPC for its adolescent patients will be essentially the same as an intensive residential treatment program, as defined above. Until recently, HRS has had very few CON applications for intensive residential treatment programs. HRS has considered that these programs must undergo CON review only if they seek licensure as a specialty hospital. In considering need for intensive treatment programs, HRS does not consider unlicensed residential treatment programs to be like and existing services because HRS is not required to review unlicensed facilities; HRS would not have any way of knowing all the programs in operation and would have no control over the services offered. This policy is similar to the policy HRS employed in conducting CON review of ambulatory surgery centers. In those cases, HRS did not consider the outpatient surgery being performed in physicians' offices. Because the legislature has created a special definition of intensive residential treatment facility, and because the State Health Plan seeks a continuum of mental health services, HRS presumes there is a need for a reasonably sized intensive residential treatment facility in each planning district. This presumption can be rebutted with evidence in a given case, such as the fact that the district has few children with mental illnesses, or that such programs have been tried and failed, or that parents in the area prefer to send their children outside the district. Moreover, any applicant for a CON for an intensive residential treatment facility must evidence compliance with the myriad criteria in Section 381.705, F.S. (1987), and in Chapter 10-5, F.A.C. Although there is no specific bed need methodology adopted by HRS for intensive residential treatment facilities, other psychiatric services, such as long-term psychiatric care, are also evaluated without a numeric bed need methodology. HRS has applied its presumption of need policy in intensive residential treatment program CON reviews at least since 1983. One reason why the policy has not been adopted as a rule is that there have been so few applications in that category. In the experience of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor, the first level supervisor for CON review, there were merely three applications of this type prior to a recent batch of three more applications. FPC's Petition to Determine Invalidity of Agency Rule(s) alleges that HRS' policy is ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (paragraph 6) FPC further alleges that HRS construes Chapter 395 as requiring it to ". . . automatically approve at least one residential treatment center in each DHRS health planning district regardless of whether the statutory criteria for need in Section 381.494(b), F.S. [renumbered and amended as Section 381.705, F.S., in 1987] would be met by the applicant." (paragraph #7) These allegations were not proven in this proceeding and are rejected in favor of the less rigid presumption of need policy described in findings of fact #7 and #8, above.
The Issue The ultimate issue in these cases is whether the Petitioners are subject to the regulatory jurisdiction of the Health Care Cost Containment Board pursuant to Chapter 407, Florida Statutes?
Findings Of Fact La Amistad. Standing. By letter dated April 27, 1990, to the Executive Director of the Board, the managing director of La Amistad requested "exemption from HCCCB reporting requirements due to its considerable likeness to Daniel Memorial Hospital, which was exempted in October, 1989." La Amistad's request for exemption was premised on the Board's Final Order in Daniel Memorial Hospital v. Health Care Cost Containment Board, DOAH Case No. 89-1839H, in which Daniel Memorial Hospital was determined by the Board to not be subject to the reporting requirements of Chapter 407, Florida Statutes. By letter dated July 25, 1990, the Executive Director of the Board informed La Amistad that La Amistad's "request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied." The Board informed La Amistad that it could request an administrative hearing pursuant to Section 120.57, Florida Statutes, if La Amistad wished to contest the Board's denial of its request. La Amistad filed a Petition for Formal Hearing dated August 15, 1990, challenging the Board's notice that La Amistad was subject to the requirements of Chapter 407, Florida Statutes. La Amistad's Petition for Formal Hearing alleged that there were disputed issues of material fact in this matter. Therefore, the Board filed La Amistad's Petition with the Division of Administrative Hearings on August 22, 1990, for a formal administrative hearing. There is no provision in Chapter 407, Florida Statutes, which allows persons to request an exemption from the requirements of Chapter 407, Florida Statutes, or authorizes the Board to declare any person to be "exempt" from the requirements of Chapter 407, Florida Statutes. The weight of the evidence failed to prove that the Board had taken or planned to take any immediate action against La Amistad prior to its request for exemption. La Amistad has failed to prove that it has standing to institute the instant proceeding. Certificate of Need. La Amistad Foundation, Inc., the predecessor of La Amistad, was issued by the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), certificate of need number 3064 to operate a 27-bed intensive residential treatment facility for children and adolescents in Maitland, Florida. In agreeing to issue certificate of need number 3064, the Department required La Amistad Foundation, Inc., to apply for licensure of its facility pursuant to the requirements of Rule 10D-28.100, et seq., Florida Administrative Code. A certificate of need is a prerequisite to licensure as a health care facility in Florida. The certificate of need issued to La Amistad and the stipulation upon which it was based do not expressly provide that the facility is a "specialty hospital" or otherwise state that it is a "hospital" under Section 395.002(6), Florida Statutes. Licensure. On August 17, 1988, La Amistad Foundation, Inc., d/b/a La Amistad Psychiatric Treatment Center, was issued a license by the Department to "operate a SPECIAL PSYCHIATRIC hospital with 27 beds." On September 30, 1988, the license issued on August 17, 1988, was replaced by a license to La Amistad to "operate a INTENSIVE RESIDENTIAL TREATMENT hospital with 27 beds." On August 17, 1990, the license issued on September 30, 1988, was replaced by a license to La Amistad to "operate a INTENSIVE RESIDENTIAL TREATMENT-SPECIALTY hospital with 27 INTENSIVE RESIDENTIAL TREATMENT FACILITY beds." La Amistad operates and is surveyed by the Department, the agency responsible for licensing health care facilities in Florida, pursuant to Rules 10D-28.100 through 10D-28.111, Florida Administrative Code. La Amistad's Location and Facilities. La Amistad's facility is located in a residential neighborhood at 201 Alpine Drive, Maitland, Florida. The facility provides a noninstitutional, residential setting and environment. Residents at La Amistad live in one of three small single-story buildings in a family-style atmosphere. The grounds of the facility include a play area and a multipurpose building which is used for recreational activities and therapy. Residents live in individual rooms which do not contain standard hospital equipment. La Amistad's facility does not include any seclusion rooms, restraints, treatment or procedure rooms that are required of general acute care or specialty psychiatric hospitals. There are no locked doors at La Amistad but residents are prohibited from leaving the facility without permission. La Amistad's facility does not have designated areas for diagnostic x- ray, clinical laboratory, surgery or obstetrical services. La Amistad's Residents. Residents at La Amistad are six to eighteen years of age. Residents suffer from a full range of psychiatric illnesses and disorders. The average length of stay at La Amistad is 221 days to one year. Ninety-five percent of the residents of La Amistad are referred from acute care specialty psychiatric or general hospitals. The payer mix at La Amistad is approximately 55% CHAMPUS (a government payer program), 25% from the Department and 25% nongovernment or private insurance. CHAMPUS payments to La Amistad include payments for all services whether provided by La Amistad or by referral. La Amistad's Staff. The full-time staff of La Amistad consists of mental health workers or psychiatric assistants, mental health counselors, registered nurses, marriage and family therapists, occupational therapists and recreational therapists. There is no physician "directly" employed on La Amistad's payroll. La Amistad has four psychiatrists, including a medical director, on its staff. They are independent contractors. Services Provided Directly to Residents. La Amistad provides diagnosis and treatment of psychiatric illnesses and disorders to children and adolescents. Treatment of La Amistad residents is definitive psychiatric medical treatment. Psychiatry is a medical specialty and psychiatric treatment is a form of medical treatment. La Amistad is an intensive residential treatment program for children and adolescents. All residents at La Amistad are admitted only with a psychiatric evaluation and diagnosis of a psychiatric illness or disorder by a psychiatrist. Admitting diagnoses, which are determined by the admitting psychiatrists, run the full range of psychiatric illnesses and disorders. La Amistad does not treat "acutely or extremely suicidal" persons. Although direct psychiatric therapy is not regularly provided by a physician, psychiatric therapy is in fact provided by physicians and through a multi-disciplinary treatment team, which includes the psychiatrist. A psychiatrist is available to provide services twenty-four hours a day. A psychiatrist is ultimately responsible for each resident's care and treatment. Only a psychiatrist may admit or diagnose a resident, prescribe medication, monitor medication and determine when to discharge a resident. The only psychiatrists who can admit to La Amistad are the four independent contractor psychiatrists on La Amistad's staff. Psychiatrists regularly review medical and clinical records of residents at La Amistad to insure proper treatment. Treatment of residents may include the prescription of psychotropic medications, group therapy, recreational therapy and/or occupational therapy. Medications prescribed for residents are dispensed by a nurse, normally at the nurses' station. La Amistad complies with the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code. La Amistad residents attend public schools. The Orange County public school system provides a fully-accredited educational program on-site. La Amistad provides the services referenced in Section 395.002(6)(a), Florida Statutes (1990 Supp.). Other Services. La Amistad does not provide clinical laboratory services on its premises. Although clinical laboratory services are not actually needed on a frequent basis, such services are ordered when necessary by an attending physician and are available through an agreement with an outside provider which provides such services pursuant to an agreement bid on a national basis by La Amistad's parent organization. Samples for clinical laboratory analysis, including blood samples, are collected on the premises. La Amistad does not provide x-ray services on its premises. Although x-ray services are not actually needed on a frequent basis, diagnostic x-ray services are available through a letter of agreement with Florida Hospital, an acute care hospital. La Amistad does not provide treatment facilities for surgery or obstetrical care. No person in need of obstetric services or in need of acute care services normally provided at a general or special acute care hospital, or having a primary diagnosis of drug or chemical dependency or suffering from an acute psychiatric disorder is eligible for residency at La Amistad. La Amistad does not have a pharmacy on its premises or a license to fill prescriptions. La Amistad provides pharmacy services through a "working relationship" with a local pharmacy in Winter Park, Florida, to fill residents' prescriptions. La Amistad provides dental treatment and routine and emergency medical treatment to residents through agreements with outside providers. Emergency medical services for residents are available pursuant to a letter agreement with Florida Hospital. Ultimate responsibility for deciding where a resident of La Amistad receives clinical laboratory services, x-ray services or pharmacy services remains with the parents of residents. If a parent does not exercise his or her right and the services are necessary, La Amistad will insure that the services are provided. Payment for such services are made directly from parents or insurance companies for some residents. The referral agreements between La Amistad and providers do not require that La Amistad make referrals exclusively to that provider. Pediatric diagnostic and treatment services are not regularly made available by La Amistad. Referrals for such services are made by the residents' attending physicians or parents. Accreditation. La Amistad is accredited by the Joint Commission for the Accreditation of Health Care Organizations (hereinafter referred to as "JCAHO"). La Amistad is accredited and surveyed under JCAHO's consolidated standards. JCAHO's consolidated standards are "designed for use by organizations that provide mental health services, alcohol and drug abuse services, and services to mentally retarded/developmentally disabled persons, and in a variety of settings, including forensic facilities and community mental health centers. " Among the eligibility criteria for survey under the consolidation standards is the following: [t]he organization is not eligible for survey as a hospital under the Accreditation Manual for Hospitals. The weight of the evidence failed to prove, however, what constitutes a "hospital" for JCAHO purposes. Additionally, the eligibility criteria under the consolidated standards indicate that an entity which qualifies under the consolidation standards may still constitute a hospital even for JCAHO purposes. The standards provide, in pertinent part, that "the accreditation process is intended primarily for the following types of organizations . . . : . . . Hospitals not eligible for survey under the Accreditation Manual for Hospitals . . . ." [Emphasis added]. Manatee Palms. Standing. By letter dated March 29, 1990, to the Executive Director of the Board, counsel for Manatee Palms requested that a determination be made by the Board that Manatee Palms was "not subject to the regulatory jurisdiction of the HCCCB except for those reporting requirements found in Sections 407.07(1)(b) and 407.13, Florida Statutes, and therefore need not file any budget or actual reports from this point forwards." Manatee Palms' request for exemption was premised on the Board's Final Order in Daniel Memorial. By letter dated July 25, 1990, the Executive Director of the Board informed Manatee Palms that its "request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied." The Board informed Manatee Palms that it could request an administrative hearing pursuant to Section 120.57, Florida Statutes, if Manatee Palms wished to contest the Board's denial of its request. Manatee Palms filed a Petition for Formal Administrative Hearing dated August 15, 1990, challenging the Board's notice that Manatee Palms was subject to the requirements of Chapter 407, Florida Statutes. Manatee Palms' Petition for Formal Administrative Hearing alleged that there were disputed issues of material fact in this matter. Therefore, the Board filed Manatee Palms' Petition with the Division of Administrative Hearings on August 22, 1990, for assignment of a Hearing Officer to conduct a formal administrative hearing. There is no provision in Chapter 407, Florida Statutes, which allows persons to request an exemption from the requirements of Chapter 407, Florida Statutes, or authorizes the Board to declare any person to be "exempt" from the requirements of Chapter 407, Florida Statutes. The weight of the evidence failed to prove that the Board had taken or planned to take any immediate action against Manatee Palms prior to its request for exemption. Manatee Palms has failed to prove that it has standing to institute the instant proceeding. Certificate of Need. Manatee Palms was built in 1986. It opened on or about January 12, 1987, as a 60-bed residential treatment facility for children and adolescents. Manatee Palms was built and opened without obtaining a certificate of need from the Department. Subsequent to its opening, Manatee Palms filed an application for a certificate of need which was issued by the Department on November 29, 1988, for "licensure as a specialty hospital under Chapter 395, Florida Statutes, for a 60-bed intensive residential treatment center for children and adolescents, currently operating as Manatee Palms Residential Treatment Center " Licensure. Manatee Palms was initially licensed by the Department as a "residential child caring" facility and by the Department's Alcohol, Drug Abuse and Mental Health Program office to provide services. In January 1989, Manatee Palms filed an application for licensure with the Department. There was not a category for intensive residential treatment program under the column titled "hospital bed utilization" on the application. Therefore, the initials "IRTF" were hand written on the application with a notation that all 60 beds are used in an intensive residential treatment program. On October 25, 1989, a license was issued by the Department to Manatee Palms "to operate a Intensive Residential Treatment Facility - Specialty hospital with 60 IRTF beds." Manatee Palms is currently operating under this license. Manatee Palms operates and is surveyed by the Department pursuant to Rules 10D-28.100 through 10D-28.111, Florida Administrative Code. Manatee Palms' Location and Facilities. Manatee Palms is located at 1324 37th Avenue, East, Bradenton, Manatee County, Florida. The Manatee Palms facility consists of a single building. Patients at Manatee Palms reside in semiprivate rooms. Manatee Palms' facility is a locked facility. Patients at Manatee Palms cannot leave the facility without permission because of the locked doors. Manatee Palms has seclusion and restraint capabilities because of the type of patients cared for at the facility: "some very, very severely emotionally disturbed children, some of which have come even from the state hospitals." Transcript page 181, lines 20-21. Detoxification facilities for the treatment of substance abuse patients are available at the facility. Manatee Palms' Patients. Patients are six to eighteen years of age. Patients suffer from chemical dependencies and a wide range of psychiatric disorders. Some patients have failed at other facilities and are very aggressive. The average length of stay at Manatee Palms is 97 days. Most of Manatee Palms' patients are referred from other facilities: "[w]e get some kids from other hospitals, acute care hospitals. We get some from therapists in the communities . . . ." Transcript page 180, lines 5-6. Manatee Palms' patients are physically healthy. Manatee Palms' Staff. Manatee Palms' staff consists of psychiatrists, nurses, social workers, recreational therapists, psychologists and teachers. There are six psychiatrists who provide treatment planning and care at Manatee Palms. Services Provided Directly to Patients. Manatee Palms provides diagnosis and twenty-four hour a day treatment of psychiatric illnesses and disorders to children and adolescents. Manatee Palms is an intensive residential treatment program for children and adolescents. A psychiatrist must approve every admission to Manatee Palms. Patients are admitted only upon an order of a medical doctor and upon a diagnosis of a psychiatric disorder. Although the facility administrator must ultimately decide whether a patient is admitted, the weight of the evidence failed to prove that the facility administrator may veto or modify the medical decision of a psychiatrist to admit a patient. Within twenty-four hours of admission, a psychiatrist completes a psychiatric evaluation of each patient. Psychiatric care is provided to patients through an interdisciplinary team composed of a psychiatrist, nurses, social workers, recreational therapists, psychologists and teachers. The team identifies each patient's problems and develops a treatment plan for each patient. A psychiatrist meets with each patient for approximately one-half to one hour a week; more if required by a patient. The psychiatrist also meets with the treatment team once a week to evaluate a patient's progress and adjust treatment as needed. The multi-disciplinary team provides care and nurturing in a group setting designed to enhance the patient's experiences in the areas in which he or she is not successful. Treatment includes counseling, psychotropic medications, adjunctive therapies and schooling. Most patients attend school at the facility. School is conducted by teachers from the Manatee County School Board. Patients at Manatee Palms are considered to be in treatment from the moment they wake up to the moment they go to bed at night. A psychiatrist prescribes and monitors the use of psychotropic medications. Such medications are administered at the facility by a nurse. Registered nurses are at the facility twenty-four hours a day, seven days a week. A psychiatrist is always on call to deal with emergencies. Manatee Palms is able to provide detoxification treatment for patients. Manatee Palms complies with the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code. Manatee Palms provides the services referenced in Section 395.002(6)(a), Florida Statutes (1990 Supp.). Other Services. Manatee Palms does not provide clinical laboratory services on its premises. Blood and urine samples are, however, taken by Manatee Palms personnel upon admission and from time to time after admission upon a physician's orders. Clinical laboratory services are available through an agreement with a non- affiliated laboratory. Manatee Palms provides diagnostic x-ray services through an agreement with Quality X-Ray of Sarasota, Inc., a non-affiliated provider. X-ray services are typically provided off-site but are also provided at Manatee Palms' facility through portable equipment. Manatee Palms does not provide treatment facilities for surgery or obstetrical care at its facility. Manatee Palms has a contract with a pharmacist. The pharmacist fills prescriptions at the facility. Emergency medical services are provided off-site to patients through Manatee Memorial Hospital, a non-affiliated hospital. Manatee Palms has a referral agreement with the hospital. Manatee Palms has an agreement with a group of family practice physicians. These physicians conduct physicals upon admission of a patient and when medically indicated. Manatee Palms projected in a 1990 budget filed with the Board that it would have the following approximate revenues: a. $108,000.00 from laboratory services; b. $350,000.00 from drug sales; and c. $17,000.00 from diagnostic radiology services. Manatee Palms also projected in the 1990 budget the following approximate expenditures: a. $50,000.00 for laboratory services; b. $61,000.00 for drug sales; and c. $16,000.00 from diagnostic radiology services. I. Accreditation. Manatee Palms is accredited by JCAHO. Manatee Palms is accredited and surveyed under JCAHO's consolidated standards. RTCPB. Standing. By letter dated March 29, 1990, to the Executive Director of the Board, counsel for RTCPB requested that a determination be made by the Board that RTCPB was "not subject to the regulatory jurisdiction of the HCCCB except for those reporting requirements found in Sections 407.07(1)(b) and 407.13, Florida Statutes, and therefore need not file any budget or actual reports from this point forwards." RTCPB's request for exemption was premised on the Board's Final Order in Daniel Memorial. By letter dated July 25, 1990, the Executive Director of the Board informed RTCPB that its "request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied." The Board informed RTCPB that it could request an administrative hearing pursuant to Section 120.57, Florida Statutes, if RTCPB wished to contest the Board's denial of its request. RTCPB filed a Petition for Formal Administrative Hearing dated August 15, 1990, challenging the Board's notice that RTCPB was subject to the requirements of Chapter 407, Florida Statutes. RTCPB's Petition for Formal Administrative Hearing alleged that there were disputed issues of material facts in this matter. Therefore, the Board filed RTCPB's Petition with the Division of Administrative Hearings on August 22, 1990, for assignment of a Hearing Officer to conduct a formal administrative hearing. There is no provision in Chapter 407, Florida Statutes, which allows persons to request an exemption from the requirements of Chapter 407, Florida Statutes, or authorizes the Board to declare any person to be "exempt" from the requirements of Chapter 407, Florida Statutes. The weight of the evidence failed to prove that the Board had taken or planned to take any immediate action against RTCPB prior to its request for exemption. RTCPB has failed to prove that it has standing to institute the instant proceeding. Certificate of Need. RTCPB was built in 1986-1987. It opened on or about June 1, 1987, as a 40-bed residential treatment facility for adolescents. RTCPB was built and opened without obtaining a certificate of need from the Department. Subsequent to its opening, RTCPB filed an application for a certificate of need which was issued by the Department on November 29, 1988, for "establishment of a licensed 40-bed intensive residential treatment facility in Palm Beach County . . . . Licensure. RTCPB was initially licensed by the Department as a "residential child care agency" and by the Department's Alcohol, Drug Abuse and Mental Health Program office to provide services. In May 1989, RTCPB filed an application for licensure with the Department. There was not a category for intensive residential treatment program under the column titled "hospital bed utilization" on the application. Therefore, the initials "IRTF" were hand written on the application with a notation that all 40 beds are used in an intensive residential treatment program. On May 29, 1990, a license was issued by the Department to RTCPB "to operate a Specialty Intensive Residential Treatment Facility hospital with 40 Intensive Residential Treatment Facility beds." RTCPB is currently operating under this license. RTCPB operates and is surveyed by the Department pursuant to Rules 10D-28.100 through 10D-28.111, Florida Administrative Code. RTCPB's Location and Facilities. RTCPB is located at 1720 Fourth Avenue, North, Lake Worth, Palm Beach County, Florida. The RTCPB facility consists of a single building. The facility is divided into two 20-bed wings. Boys reside on one wing and girls reside on the other wing. Patients at RTCPB reside in semiprivate rooms. There are no private rooms. RTCPB is a locked facility. Patients are not allowed to leave the facility without permission. RTCPB has seclusion and restraint capabilities because of the type of patients cared for at the facility. Detoxification facilities for the treatment of substance abuse patients are available at the facility. RTCPB's Patients. Patients are six to eighteen years of age. RTCPB patients suffer from chemical dependencies and a wide range or psychiatric disorders, including schizophrenia, conduct disorders and attention deficit disorders. For the fiscal year ending May 31, 1990, the average length of stay at RTCPB was 218 days. RTCPB routinely treats patients referred by the Department. For the fiscal year ending May 31, 1990, 24% of total patient days were provided to patients referred by the Department. Ninety-five percent of all patients admitted to RTCPB are patients who were previously treated in an acute psychiatric care setting. RTCPB patients are physically healthy. RTCPB's Staff. RTCPB's staff consists of psychiatrists, nurses, social workers, recreational therapists, psychologists and teachers. Services Provided Directly to Patients. RTCPB provides diagnosis and twenty-four hour a day treatment of psychiatric illnesses and disorders to children and adolescents. RTCPB is an intensive residential treatment program for children and adolescents. Patients are admitted to the facility by a director of admissions and an admissions committee. A psychiatrist provides a diagnosis justifying admission. Psychiatric care is provided to patients through an interdisciplinary team composed of a psychiatrist, nurses, social workers, recreational therapists, psychologists and teachers. The team reviews the background, psychiatric and psychological assessment, and social history of each patient and develops a treatment plan for each patient. A psychiatrist meets with each patient for a few minutes each day, five days a week. The psychiatrist also meets with the treatment team for approximately one and one-half hours a day, four days a week. The multi-disciplinary treatment team provides care and nurturing in a variety of therapies provided in a highly structured setting. Treatment includes counseling, psychotropic medications, adjunctive therapies and schooling. School is conducted at the facility by teachers from the Palm Beach County School Board. A psychiatrist prescribes and monitors the use of psychotropic medications. Such medications are administered at the facility by a nurse. Registered nurses are at the facility twenty-four hours a day, seven days a week. A psychiatrist is always on call to deal with emergencies. Detoxification treatment is available at the facility. RTCPB complies with the requirements of Rules 10D-28.100 through 10D- 28.111, Florida Administrative Code. RTCPB provides the services referenced in Section 395.002(6)(a), Florida Statutes (1990 Supp.). Other Services. RTCPB does not provide clinical laboratory services on its premises. Blood and urine samples are, however, taken by RTCPB personnel upon admission and from time to time after admission upon a physician's orders. Clinical laboratory services are available through an agreement with a non- affiliated laboratory. RTCPB provides diagnostic x-ray services and dental services by referring the patient to an off-site provider. RTCPB does not provide treatment facilities for surgery or obstetrical care at its facility. Emergency medical services are provided off-site to patients through non-affiliated hospitals. RTCPB has a referral agreement with Bethesda Memorial Hospital. RTCPB has an agreement with a group of family practice physicians. These physicians conduct physicals upon admission of a patient and when medically indicated. RTCPB projected in a 1990 budget filed with the Board that it would have the following approximate revenues: a. $131,000.00 from laboratory services; b. $176,000.00 from drug sales; c. $6,000.00 from diagnostic radiology services; d. $11,000.00 for CT scanner services; and e. $3,600.00 for electrocardiography services. RTCPB also projected in the 1990 budget the following approximate expenditures: a. $46,000.00 for laboratory services; b. $22,000.00 for drug sales; c. $2,500.00 for diagnostic radiology services; d. $400.00 for CT scanner services; and e. $1,600.00 for electrocardiography services. I. Accreditation. RTCPB is accredited by JCAHO. RTCPB is accredited and surveyed under JCAHO's consolidated standards. Daniel Memorial. On October 26, 1989, a Recommended Order was issued in Daniel Memorial. In the Conclusions of Law in Daniel Memorial, the Hearing Officer concluded that a medical facility is subject to most of the requirements of Chapter 407, Florida Statutes, only if it is a "hospital" as defined in Section 407.002(13), Florida Statutes, which in turn incorporates the definition of "hospital" contained in Section 395.002(6), Florida Statutes. The Hearing Officer also concluded that Daniel Memorial Hospital was not a "hospital" as defined in Section 395.002(6), Florida Statutes, and, therefore, was not subject to most of the requirements of Chapter 407, Florida Statutes. The Hearing Officer in Daniel Memorial made the following conclusion of law: To meet the provisions of Subsection 396.002(6) [sic], supra, Daniel Memorial would have to provide the services set forth in both Subparagraphs (a) and (b), above. Because Daniel Memorial does not regularly provide the services defined in Subparagraph (b), above, it is not a hospital with[in] the scope of Subsection 396.002(6) [sic], supra. However, Subsection 395.002(8), supra, defines Intensive Residential Treatment Programs (IRTP's) as specialty hospitals without reference to the provisions of Subsection 395.002(6), supra. It is under Subsection 395.002(8), supra, that Daniel Memorial specifically is licensed. Its beds are excluded specifically from consideration under Subsections (6) and (14) of Section 395.002, supra. It is concluded that IRTP's are not specialty hospitals defined by Subsection 395.002(14), supra. The staff of the Board filed exceptions to the Recommended Order in Daniel Memorial. The exceptions filed by the staff of the Board were rejected by the Board in a Final Order issued on March 1, 1990. In the Final Order issued in Daniel Memorial, the Board adopted the Recommended Order issued by the Hearing Officer in its entirety. The Final Order issued in Daniel Memorial has not been appealed or overturned. All of the Petitioners in these cases requested that the Board declare them exempt from most of the requirements of Chapter 407, Florida Statutes, because of their similarity to Daniel Memorial Hospital. Counsel for Manatee Palms and RTCPB also suggested that those facilities were exempt under the holding in Daniel Memorial simply because they are "intensive residential treatment programs." In a memorandum to the Board dated July 11, 1990, the Executive Director of the Board informed the Board of his action with regard to requests from entities like the Petitioners which had suggested that they were similarly situated to Daniel Memorial Hospital. In pertinent part, the Executive Director stated that "we are responding negatively to requests for exemption from these facilities for the reasons outlined." The reasons referred to by the Executive Director were set out in a memorandum dated June 25, 1990, from the Senior Attorney of the Board to the Executive Director. In essence, the Senior Attorney concluded that the "operation and licensure" of each entity seeking treatment similar to the treatment afforded Daniel Memorial Hospital should be reviewed to determine whether that entity constituted a "hospital" under Chapter 407, Florida Statutes. The Senior Attorney recommended the following: Accordingly, I recommend that this agency deny any specialty hospital IRTP's request to be relieved of Chapter 407 requirements and recommend that administrative complaints be filed against those which fail to comply with Chapter 407, Florida Statutes. The Board has not, however, taken any action against the Petitioners. In denying the Petitioners' request for exemption, the Executive Director of the Board indicated the following: The information you have provided is insufficient to establish that your facility falls within the narrow exception from reporting requirements afforded Daniel Memorial Hospital. Accordingly, your facility's request for an exemption from the reporting requirements of Chapter 407, Florida Statutes, is denied. The Board has failed to enunciate how, if at all, the Petitioners differ in their operation from Daniel Memorial Hospital. The Board did not take any action against the Petitioners inconsistently applying its Final Order in Daniel Memorial. The Board took the position during these proceedings that any medical facility which is licensed by the Department pursuant to Chapter 395, Florida Statutes, is a "hospital" under Section 407.002(13), Florida Statutes. The Board's Position. The Department's Interpretation of Relevant Sections of Chapter 395, Florida Statutes. The Department is charged with the responsibility of licensing "hospitals" pursuant to Chapter 395, Florida Statutes. The term "hospital" is defined by Section 395.002(6), Florida Statutes (1990 Supp.). The terms "specialty hospital" are defined by Section 395.002(14), Florida Statutes (1990 Supp.). This definition incorporates by reference the definition of "hospital" contained in Section 395.002(6), Florida Statutes (1990 Supp.). The terms "intensive residential treatment program" are defined by Section 395.002(8), Florida Statutes (1990 Supp.). The Department interprets the terms "specialty hospital" as used in Section 395.002(8), Florida Statutes (1990 Supp.), to mean "specialty hospital" as used in Section 395.002(14), Florida Statutes (1990 Supp.). The Department interprets Chapter 395, Florida Statutes, to allow an intensive residential treatment program to be licensed as a "specialty hospital" if it meets the requirements of Rules 10D-28.100 through 10D-28.111, Florida Administrative Code. It is the Department's position that Rules 10D-28.100 through 10D- 28.111, Florida Administrative Code, require as a condition of licensure that intensive residential treatment programs provide services consistent with the services required to be provided by a "hospital" pursuant to Section 395.002(6), Florida Statutes (1990 Supp.). It is the Department's position that all intensive residential treatment programs licensed pursuant to Chapter 395, Florida Statutes, are "hospital's" as defined in Section 395.002(6), Florida Statutes (1990 Supp.). It is the Department's position that the Petitioners must continue to meet the definition of a "hospital" pursuant to Section 395.002(6), Florida Statutes (1990 Supp.), to be entitled to continued licensure by the Department. The Board's Reliance on the Department's Licensure of a Facility. It has been the position of the Board that the fact that a facility is licensed by the Department pursuant to Chapter 395, Florida Statutes, constitutes the best evidence of whether the facility constitutes a "hospital" as defined in Section 407.002(13), Florida Statutes. The Board did not adequately explicate its policy of relying upon the Department's licensure action under Chapter 395, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board issue a Final Order dismissing the Petitions in these cases because of the failure of the Petitioners to prove that they have been substantially affected by any action of the Board; or That the Board, if it rejects recommendation number 1, issue a Final Order dismissing the Petitions in these cases because the Petitioners have failed to prove they are not "hospitals" under the definition of Section 407.002(13), Florida Statutes. DONE and ENTERED this 10th day of April, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of April, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. La Amistad's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 I.B.1. 2 I.B.2. 3 I.B.1. 4 I.B.3. 5 I.B.4. I.C.1. The Department's action was consistent with the stipulation between the Department and La Amistad. Not relevant. 8 I.C.2. 9 I.A.1. 10 I.A.1-2. Not relevant. Not supported by the weight of the evidence or not relevant. IV.7. and hereby accepted. The Executive Director's memorandum was sent in July instead of June. 14 I.A.3. 15 Not supported by the weight of the evidence or not relevant. 16 I.A.3. 17-18 Hereby accepted. 19 See V.B.1. 20-22 Hereby accepted. 23 Not supported by the weight of the evidence or not relevant. 24 I.G.1. 25 I.D.1. 26 I.D.2. 27 I.E.3. 28 I.D.4. 29 I.E.4. See I.D.5. See I.F.1. See I.G.2. The last sentence is not supported by the weight of the evidence. 33 I.E.5. 34 Not relevant. 35 I.G.9. 36 I.H.10. 37 I.H.6. 38 I.H.4. 39 I.H.3. Not relevant. See I.H.1. The weight of the evidence failed to prove that La Amistad "does not regularly make available clinical laboratory services to its residents." Hereby accepted. 43 I.H.8. 44 I.H.9. The last sentence is not relevant. 45 I.H.8. 46-47 I.H.5. 48 Not supported by the weight of the evidence. 49 I.I.2. 50-51 See I.I.3. Hereby accepted. Not supported by the weight of the evidence. See I.H.1-10. Hereby accepted. Conclusion of law. Not relevant. Conclusion of law. La Amistad failed to prove exactly what the agreement with Florida Hospital was. Not supported by the weight of the evidence. Hereby accepted. The failure of the Board to provide such evidence does not preclude a proper application of unambiguous statutory law. Manatee Palms' and RTCPB's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 III.B.1. 3 III.C.1. 4 III.B.2. 5-6 III.B.3. 7 III.C.2. 8 III.C.3. and D.1. 9 III.G.1. 10 III.I.1. and I.I.2-3. 11 III.G.3. 12 III.E.5. 13 III.E.6. 14 III.G.5. 15-16 III.G.6. III.G.8. III.H.6. III.G.2. and 9. The second sentence is not supported by the weight of the evidence. The suggestion that "individual psychiatric treatment is not routinely provided" is not supported by the weight of the evidence. 20 III.H.1-2. III.H.3. and 5. III.H.3. III.H.4. The suggestion that "other definitive medical treatment of similar extent" is not provided is not supported by the weight of the evidence. Not relevant. 25-27 III.E.4. 28-30 Hereby accepted. The last sentence of 30 is not supported by the weight of the evidence. III.A.1. III.A.3. Not supported by the weight of the evidence; too speculative. II.B.1. and II.D.1. 35 II.B.1. 36 II.C.1. 37 II.B.2. 38-39 II.B.3. 40 II.C.2. 41 II.C.3. 42 II.G.1. 43 II.I.1. and I.I.2-3. 44 II.G.4. 45 II.E.4. 46 II.E.5. 47 II.G.6. 48-49 II.G.7. 50 II.G.10. II.H.7. The last sentence is not relevant. II.G.2. and 11. The second sentence is not supported by the weight of the evidence. The suggestion that "individual psychiatric treatment is not routinely provided" is not supported by the weight of the evidence. 53 II.H.1-2. II.H.6. The first sentence is not supported by the weight of the evidence. See II.H.3. II.H.4. The suggestion that "other definitive medical treatment of similar extent" is not provided is not supported by the weight of the evidence. Not relevant. Hereby accepted. 59 II.E.3. 60-62 Hereby accepted. 63 Not relevant. 64 II.A.1. 65 II.A.3. Not supported by the weight of the evidence; too speculative. IV.1. See IV.2. The Hearing Officers' comment concerning whether all intensive residential treatment programs are not hospitals is dicta. IV.3. The last sentence is not supported by the weight of the evidence. 69 IV.4. 70 IV.5. 71-72 Hereby accepted. Not relevant. Cumulative. 75-81 Hereby accepted. 82-83 Not supported by the weight of the evidence or not relevant. 84 V.A.3. 85 Not relevant. 86-87 Hereby accepted. 88 Not relevant. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 I.C.1. 2 I.G.1. 3 I.G.2. 4-5 I.G.3. 6 I.E.3. 7 I.E.4. 8 I.G.1. 9 I.H.1-9. 10 I.G.7. 11 I.G.8. 12 I.I.1. III.C.3. III.G.1. III.G.2. III.E.2. See III.D.5. III.G.3. III.G.4. and 7. III.D.6-7. and III.G.6. III.E.3. III.E.5. See III.H.1-5. III.H.7. 25 III.H.11. 26 III.I.1. 27 II.C.3. 28 II.G.1. 29 II.G.2. 30 II.D.5. and II.E.2. 31 II.D.4-5. 32 II.D.6. 33 II.F.1. and II.G.2. and 4. 34 II.G.2. and 4-5. 35 II.G.9. 36 II.E.3. 37 See II.H.1-6. 38 II.H.8. 39 II.G.13. 40 II.I.1. 41 V.A.1. and 6. 42 V.A.5. 43 V.A.7. 44 V.B.1. The Intervenor's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Not supported by the weight of the evidence or a correct conclusion of law. Not relevant. 3 I.C.1., II.C.3. and III.C.3. 4 V.A.5. 5-6 Law. 7 I.A.1., II.A.1. and III.A.1. 8 IV.7-8. 9, 11, 16, 18, 30, 32-33, 41, 43, 46-47, 51 and 64 These proposed findings of fact are generally true. They are only relevant, however, as they relate to one or more of the Petitioners. 10-11 I.G.1. 13 I.G.3. I.G.3, II.G.2. and III.G.3. I.G.6, II.G.7. and III.G.6. 17 Hereby accepted. 19 I.D.2., II.D.2-3. and III.D.2-3. Hereby accepted. II.D.4. and III.D.5. III.D.4. III.D.3. Hereby accepted. 25 I.D.4. II.D.5. and III.D.6. Hereby accepted. II.D.6. and III.D.7. 29 I.C.2. 31 II.D.4. and III.D.5. 34 I.G.3. 35 II.G.8. 36 I.G.7. 37 I.G.7. and I.H.6. 38-39 I.F.3. 40 I.G.2., II.G.2. and III.G.2. 42 Law. 44 I.G.2-5. 45 I.G.1. 48-50 Law. 52 I.G.2-5. 53 Law. 54 I.E.5. 55 I.G.5. 56-61 Hereby accepted. 62-63 V.A.5. 65 Not relevant. 66 V.A.8. 67 V.A.1. 68 V.A.9. See V.A.9. Hereby accepted. See V.A.9. 72 I.C.1., II.C.3. and III.C.3. 73 Not relevant. 74 I.A.4., II.A.4. and III.A.4. 75 Not relevant. COPIES FURNISHED: Robert D. Newell, Jr., Esquire 817 North Gadsden Street Tallahassee, Florida 32303-6313 Michael J. Glazer, Esquire Post Office Box 391 Tallahassee, Florida 32302 Julia P. Forrester General Counsel Health Care Cost Containment Board 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303 Jack Shreve Public Counsel Stephen M. Presnell Associate Public Counsel Peter Schwarz Associate Public Counsel c/o The Florida Legislature 111 West Madison Street Room 812 Tallahassee, Florida 32399-1400
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED on this the Ov. O* say ot Ascateh 2013, in Tallahassee, Leon County, Florida. Agency for Health Care Administration Filed August 23, 2013 10:42 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies Furnished to: Joseph S. Speicher, CEO South County Mental Health Center, Inc. 16158 South Military Trail Delray Beach, Florida 33484 Jeffries H. Duvall, Assistant General Counsel Agency for Health Care Administration Eric W. Miller, Inspector General Agency for Health Care Administration Richard Zenuch, Bureau Chief Medicaid Program Integrity Finance & Accounting HQA (via email) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served to the above nd 1, named addresses by mail or interoffice mail this Z Z day of 2013. 2727 Mahan Drive, Bldg. 3, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue The issue presented is whether Respondent HealthSouth Corporation engaged in an unlawful employment practice as to Petitioner Mary A. King, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact Petitioner Mary A. King is a black female born on April 5, 1952. Respondent HealthSouth Corporation operates HealthSouth Rehabilitation Hospital of Tallahassee, located in Tallahassee, Florida. Petitioner was initially employed by HealthSouth in 1995 as a nurse tech or certified nursing assistant (CNA) in the nursing department. In 1998 she suffered a back injury while performing her regular CNA duties. She received treatment for the injury and returned to work with lifting limitations placed on her by her doctor. The limitations were inconsistent with her duties as a CNA and are still in effect. In 1999 Petitioner requested a transfer to the position of patient transporter aide due to her lifting limitations and concerns over her back injury. Her transfer request was granted, and she began to work as a patient transporter in the physical therapy department. She was pleased with the transfer. As a patient transporter, Petitioner was responsible for transporting patients to and from the locations in the hospital where they received treatment. She was not directly involved in the administration of treatment to patients. Subsequently, Petitioner was transferred from the physical therapy department to the occupational therapy department. Her position and job duties remained the same; the only change was in the types of patients Petitioner transported. On September 1, 2004, new federal regulations went into effect. These regulations directly impacted all in-patient rehabilitation hospitals, limiting the types of patients that HealthSouth could accept. The new regulations had a severe impact on HealthSouth, causing a dramatic drop in the patient census. The 76-bed facility had an average daily census of 65, and occasionally up to 76, prior to the effective date, but only a patient census in the 30s and 40s after the effective date of the new regulations. With the dramatic drop in patient census, HealthSouth had to dramatically reduce costs. Lynn Streetman, Administrator of HealthSouth Rehabilitation Hospital of Tallahassee, looked at a variety of ways in which costs could be reduced, including re- structuring contracts with outside vendors, reducing orders of medical supplies, reducing or substituting pharmaceutical orders, discontinuing the use of P.R.N. or as-needed staff, and, ultimately, reducing the workforce at the hospital. Streetman began reducing the workforce through attrition. As positions at the hospital became vacant, they were not filled if they were not critical to the functioning of the hospital and if there would not be a negative impact on patient care. Although reducing the workforce through attrition helped, more workforce reductions were necessary to respond to the hospital's declining patient census. In order to determine what positions to eliminate, Streetman preliminarily reviewed all positions throughout the facility and developed a list of positions she thought could be eliminated with minimal impact on the hospital's operations. The criteria she used included whether the position was a clinical or non-clinical position, whether the position was essential to the operation of the hospital or merely a luxury position, whether the duties of the position could be effectively absorbed by other positions in the hospital, and what impact the elimination of the position would have on patient care. Streetman next met individually with members of the hospital's senior management team to discuss the positions in their respective departments that she had preliminarily identified as appropriate for elimination. She obtained input from the team members as to whether it would be appropriate to eliminate those positions and what impact their elimination would have on the functioning of their respective departments. After she met with the team members to discuss the reduction in force and consider their input, Streetman made the decision to eliminate 13 positions at the hospital in December 2004 and January 2005. Three positions were eliminated in December, and ten were eliminated in January. Streetman was the person responsible for making the final decision about which positions to eliminate. Of those employees affected by the reduction in force, 6 were black and 7 were white. Of those employees affected by the reduction in force, 6 were over 40 years of age, and 7 were under 40 years of age. Each employee whose position was eliminated as a part of the reduction in force was informed that he or she would be eligible to purchase insurance benefits through COBRA for up to 18 months after his or her employment with the hospital ended, each was paid for any accrued paid time off, and each eligible employee received severance benefits in accordance with an identical formula: one week of pay for every year of service up to a maximum of ten years. With the exception of a part-time employee who was not eligible, all employees affected by the reduction in force received benefits, paid time off payments, or severance payments in accordance with these policies. One of the positions selected for elimination was that of patient transporter. When Streetman was employed by HealthSouth, there had been three patient transporters. Two of the three positions had already been eliminated through attrition, and Petitioner was the only remaining patient transporter. Since Petitioner's position was eliminated, HealthSouth has not hired anyone as a patient transporter. Petitioner's position was selected for elimination because it was not essential to the operation of the hospital, was not responsible for any direct patient care, and was a luxury position for the facility. As verification that the elimination of Petitioner's position would not have a negative impact on the level of patient care at the hospital, Streetman considered that therapists at the hospital had already been assisting in the transportation of patients to and from treatment and that the previous reduction of two patient transporters through attrition did not negatively impact patient care at the hospital. Petitioner's job duties were absorbed into the daily work routine of therapists in the outpatient therapy department. Therapists simply transported their own patients rather than have Petitioner (and the other transporters who had previously been phased out through attrition) perform this function for them. Petitioner was informed of the decision to eliminate her position on November 30, 2004, by Donna Crawford, Director of Clinical Services, and Cindy Cox, Occupational Therapy Team Leader. Crawford informed Petitioner that Petitioner's position was being eliminated, that Petitioner would receive severance pay in accordance with her years of service, that Petitioner would be paid for all of her accrued paid time off, and that Petitioner was welcome to apply for any other open position at the hospital for which she was qualified. Crawford also told her that Petitioner was welcome to discuss any open positions with Jackie Chaires, Human Resources Director at the hospital. Petitioner was paid 360 hours of severance pay (nine weeks pay for nine years of service), was compensated for all accrued paid time off, and was sent a letter informing her of her right to purchase insurance under COBRA for up to 18 months after her employment with Respondent had ended. Petitioner also applied for and received unemployment benefits as a result of her job being eliminated. After Crawford advised her that her position had been eliminated, Petitioner went to talk with Jackie Chaires, a black female. Petitioner told Chaires that she did not understand why she had been laid off and asked about any available positions. During that conversation, in an attempt to console Petitioner according to Chaires' affidavit but as an act of discrimination according to Petitioner's testimony, Chaires suggested that Petitioner could also retire and let Petitioner's husband take care of her. At no time did Chaires suggest that Petitioner's husband's situation, his income, or Petitioner's age were factors in HealthSouth's decision to eliminate her position as part of its reduction in force. Moreover, Chaires was not involved in any way in the selection of Petitioner's position for elimination. At some point after being informed that their positions were eliminated, Petitioner, along with Kim Spencer, another employee affected by the reduction in workforce, inquired as to whether there were positions available in the nursing department. However, there were no positions available in that department, and both Petitioner and Spencer were informed that their requests could not be accommodated. Spencer is a white female. HealthSouth has a written policy prohibiting employees from giving letters of recommendation. At some point after being informed that her position was eliminated, Petitioner asked Cynthia Cox, her direct supervisor, for a letter of recommendation. Cox agreed to give her one even though she was uncertain as to the correct procedure, but after ascertaining from the human resources department that a recommendation would be against corporate policy, Cox told Petitioner she could not give her the letter and told Petitioner that it was against corporate policy. That policy is clearly stated in the hospital's employee handbook, which Petitioner had been given. At no time prior to her filing her charge of discrimination with the Florida Commission on Human Relations did Petitioner inform any of her supervisors that she felt she was being discriminated against in any way based on either her race or her age. Patsy Kitchens is a white female who is the same age as Petitioner. HealthSouth terminated her employment at the same time as it terminated Petitioner's employment as part of the same reduction in force.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 24th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary King 1039 Idlewild Drive Tallahassee, Florida 32311 L. Traywick Duffie, Esquire Wesley E. Stockard, Esquire Hunton & Williams, LLP Suite 4100 600 Peachtree Street, Northeast Atlanta, Georgia 30308-2216
The Issue Whether there is a need for an additional 31 short-term psychiatric beds for Broward County?
Findings Of Fact I. General. History of Case. In June of 1984, the Petitioner filed an application with the Respondent for a certificate of need to add 31 short- term psychiatric beds to its existing facility. The certificate of need sought by the Petitioner was assigned certificate of need #3372 by the Respondent. The Respondent denied the Petitioner's application for certificate of need #3372. On October 25, 1984, the Petitioner filed a Petition for Formal Administrative Hearing with the Respondent challenging its proposed denial of the Petitioner's application. The Petition was filed with the Division of Administrative Hearings by the Respondent and was assigned case number 84-4037. Biscayne, Memorial and Charter were granted leave to intervene by Orders dated January 28, 1985, April 26, 1985 and July 9, 1985, respectively. The final hearing was held on November 19 and 21, 1985 in Ft. Lauderdale, Florida and February 24 and 25, 1986 in Tallahassee, Florida. The Petitioner's Proposal. The Petitioner originally sought to add 31 short-term psychiatric beds to its existing facility. If approved, the additional beds would have increased its current licensed beds from 334 to 365 beds. The Petitioner proposed to meet projected need for short-term psychiatric beds in Broward County for 1989. In its original application, the Petitioner proposed to provide services to children, adolescents, adults and the elderly. No distinct psychiatric units were proposed. The total cost of the original proposal was estimated to be $209,368.00. At the final hearing, the Petitioner proposed to relinquish 31 medical/surgical beds and to add 31 short-term psychiatric beds to meet projected need for short-term psychiatric beds in Broward County for 1989. The Petitioner will end up with a total of 334 licensed beds, the same number it now has, if its application is approved. The total cost of the proposal presented at the final hearing was $337,169.00, which is accurate and reasonable. The 31 proposed beds will be divided into a 15-bed dedicated adolescent unit and a 16-bed dedicated geropsychiatric unit. Adults will generally not be treated by the Petitioner. Involuntary admissions will be treated by the Petitioner, although there was some evidence to the contrary. The sixth floor of the Petitioner's existing facility will be converted into space for the new psychiatric units. The Petitioner changed the estimated staffing for its proposal between the time it filed its original application and the final hearing. The changes were not significant. During the 1985 legislative session, the Florida Legislature enacted Section 394.4785(1)(b), Florida Statutes (1985). This,, Section requires that most adolescents be separated from other patients for purposes of psychiatric treatment. Some of the modifications of the Petitioner's application which were made at the final hearing were made in order to conform with this Section. The changes in the Petitioner's proposal which were made between the time it filed its original application with the Respondent and the time of the final hearing are not substantial enough to require that the Petitioner's application, as modified, be remanded to the Respondent for further consideration. The Parties; Standing. The Petitioner is a 334-bed, for-profit, general acute-care hospital. The Petitioner is a full service hospital providing general medical services. The Petitioner has a medical staff of more than 400 physicians, including a department of psychiatry. The Petitioner is owned by National Medical Enterprises, one of the largest health care providers in the country. The Petitioner is located in Hollywood, Florida, which is located in the southern portion of Broward County, Florida. Broward County is the only County in the Respondent's service district 10. The Petitioner's primary service area consist of the southern portion of Broward County from State Road 84 in the North to the Broward-Dade County line in the South. Memorial is a not-for-profit general acute care hospital located in southern Broward County. Memorial holds License #1737, issued on June 1, 1985, which authorizes Memorial to operate 74 short-term psychiatric beds. This license is valid for the period June 1, 1985 to May 31, 1987. Memorial was also authorized to operate 74 short-term psychiatric beds in its license issued for the 2-year period prior to June 1, 1985. Memorial is located a short distance from where the Petitioner is located in southern Broward County. Memorial and the Petitioner share the same general primary service area. Most of the physicians on the staff at Memorial are also on the Petitioner's staff. Memorial is subsidized by tax revenues for providing indigent care for southern Broward County. About 17 percent of Memorial's revenue is attributable to bad debt and indigent care. If the Petitioner's application is approved it is likely that the Petitioner will take patients from Memorial. It is also likely that the patients taken from Memorial will be other than indigent patients. If the Petitioner were to achieve a 75 percent occupancy rate and 50 percent of its patients come from Memorial, Memorial would lose a little over $1,000,000.00 in terms of 1985 dollars. It is unlikely, however, that the Petitioner will achieve an occupancy rate of 75 percent and, more importantly, it is unlikely that 50 percent of the Petitioner's patients will come from Memorial. The loss of patients from Memorial which would be caused by approval of the Petitioner's application will, however, result in a financial loss to Memorial which may effect its ability to provide quality care. Additionally, the loss in paying patients could increase the percentage of indigent patients at Memorial and, because a portion of the cost of caring for indigents is covered by paying patients at Memorial, could result in a further loss in revenue and an increase in tax support. The public may have difficulty accepting a public hospital, such as Memorial, as a high-quality hospital if the public hospital is perceived to be a charity hospital. It is therefore important for a public hospital to attract a significant number of paying patients to its facility to avoid such an image. It is unlikely that the number of patients which may be lost to the Petitioner by Memorial is sufficient to cause the public to perceive that Memorial is a charity hospital. Biscayne is a 458-bed, general acute-care hospital located on U.S. 1 in northern Dade County, Florida, just south of the Broward County line. Biscayne's facility is located within about 5 miles of the Petitioner's facility. Biscayne is about a 5 to 10 minute drive from the Petitioner. Dade County is not in service district 10. It is in service district 11. Of the 458 licensed beds at Biscayne, 24 are licensed as short-term psychiatric beds and 24 are licensed as substance abuse beds. The rest are licensed as medical/surgical beds. Ten of the medical/surgical beds at Biscayne are used as a dedicated 10-bed eating disorder (anoxeria nervosa and bulimirexia) unit. These 10 beds are not licensed for such use. A separate support staff is used for the 10-bed eating disorder unit. Approximately 60 percent of Biscayne's medical staff of approximately 400 physicians are residents of Broward County. Most of these physicians are also on the medical staff of other hospitals, principally the Petitioner, Memorial and Parkway Regional Medical Center, which is located in northern Dade County. Most of its staff have their business offices in southern Broward County. Biscayne's service area includes southern Broward County and northern Dade County. Approximately 60 percent of Biscayne's patients are residents of southern Broward County. Biscayne markets its services in southern Broward County. Eighty percent of Biscayne's psychiatric patients are elderly. Many types of psychotic and psychiatric disorders are treated at Biscayne. Biscayne offers psycho-diagnostic services, crisis stabilization services, shock therapy services, individual therapy services and group therapy services. Biscayne has had difficulty in recruiting qualified staff for its psychiatric unit. Biscayne currently has 4 vacancies for registered nurses, 4 vacancies for mental health assistants and 1 vacancy for an occupational therapist in its psychiatric unit. Biscayne recruits nurses who are certified in mental health nursing. They have not always been successful in finding such nurses. Therefore, Biscayne provides educational programs to help train its nursing staff. These programs are necessary because of the unavailability of experienced nurses for its psychiatric unit. The Petitioner has projected that most of its patients for its proposed psychiatric units will come from southern Broward County, where Biscayne gets approximately 60 percent of its patients. The Petitioner plans to try to convince psychiatrists currently using existing providers, except Hollywood Pavilion, to refer their patients to the proposed psychiatric units. Since Biscayne and the Petitioner share some of the same physicians, it is likely that many of the patients cared-for by the Petitioner will come form Biscayne and other providers in southern Broward County, including Memorial. The loss of patients at Biscayne, if the Petitioner's proposal is approved, will result in a loss of revenue to Biscayne which may affect its ability to provide quality care. Charter was an applicant for a certificate of need to construct a free-standing psychiatric facility in Broward County. In its application Charter sought approval of long-term and short-term psychiatric beds. Charter's application was filed with the Respondent in August of 1983. It was filed for review by the Respondent in a batching cycle which preceded the batching cycle in which the Petitioner's application was filed. In December of 1983, the Respondent proposed to approve Charter's application and authorize a project consisting of 16 short-term adolescent psychiatric beds, 16 long-term adolescent psychiatric beds, 16 long-term substance abuse beds and 12 long-term children's psychiatric beds. The Respondent's proposed approval of Charter's application was challenged. Following an administrative hearing, it was recommended that Charter's application be denied. Final agency action had not been taken as of the commencement of the hearing in this case. Subsequent to the date on which the final hearing of this case commenced, the Respondent issued a Final Order denying Charter's certificate of need application. This Final Order is presently pending on appeal to the First District Court of Appeal. Charter does not have an existing facility offering services similar to those proposed by the Petitioner in Broward County or anywhere near the Petitioner's facility. When the Orders allowing Memorial, Biscayne and Charter to intervene were issued by Hearing Officer Sherrill, Mr. Sherrill determined that if the Intervenor's could prove the facts alleged in their Petition to Intervene they would have standing to participate in this case. Memorial and Biscayne have in fact proved the allegations contained in their Petitions to Intervene. Based upon all of the evidence, it is therefore concluded that Memorial and Biscayne have standing to participate in this proceeding. Both Memorial and Biscayne will probably lose patients to the Petitioner if its proposal is approved resulting in a loss of revenue. This loss could affect quality of care at Memorial and Biscayne. Also, it is possible that both would lose some of their specialized nursing personnel to ;the Petitioner to staff its proposed psychiatric units. Charter has failed to establish that it has standing to participate in this proceeding. The potential injury to Charter is too speculative. II. Rule 10-5.11(25), F.A.C. A. General. Whether a certificate of need for short-term psychiatric beds should be approved for Broward County is to be determined under the provisions of Section 381.494(6)(c), Florida Statutes (1985), and the Respondent's rules promulgated thereunder. In particular, Rule 10-5.11(25), F.A.C., governs this case. Under Rule 10-5.11(25)(c), F.A.C., a favorable determination will "not normally" be given on applications for short-term psychiatric care facilities unless bed need exists under Rule 10-5.11(25)(d), F.A.C. B. Rule 10-5.11(25)(d) , F.A.C. Pursuant to Rule 10-5.11(25)(d)3, F.A.C., bed need is determined 5 years into the future. In this case, the Petitioner filed its application with the Respondent in 1984, seeking approval of additional short-term psychiatric beds for 1989. The Petitioner did not change this position prior to or during the final hearing. Therefore, the planning horizon for purposes of this case is 1989. Under Rule 10-5.11(25)(d)3, F.A.C., bed need is determined by subtracting the number of "existing and approved" beds in the service district from the number of beds for the planning year based upon a ratio of .35 beds per 1,000 population projected for the planning year in the service district. The population projection is to be based on the latest mid-range projections published by the Bureau of Economic and Business Research at the University of Florida. Bed need is determined under the Respondent's rules on a district-wide basis unless the service district has been sub- divided by the Respondent. District 10 has not been subdivided by the Respondent. Therefore, bed need for purposes of this case under Rule 10-5.11(25)(d), F.A.C., is to be determined based upon the population projections for all of Broward County for 1989. The projected population for Broward County for 1989 is 1,228,334 people. Based upon the projected population for Broward County for 1989, there will be a need for 430 short-term psychiatric beds in Broward County in 1989. The evidence at the final hearing proved that there are currently 427 licensed short-term psychiatric beds in Broward County. During the portion of the final hearing held in November of 1985, evidence was offered that proved that there were also 16 approved short-term psychiatric beds for Broward County. These short-term beds were part of the application for the certificate of need sought by Charter. Subsequently, however, a Final Order was issued by the Respondent denying Charter's application. Therefore, the 16 short-term psychiatric beds sought by Charter do not constitute "existing and approved" short-term psychiatric beds in Broward County for purposes of this case. Subsequent to the conclusion of the final hearing in this case, the First District Court of Appeal reversed a Final Order of the Respondent denying an application for a certificate of need for a free-standing 10 -bed psychiatric facility, including 80 additional short-term psychiatric beds, for Broward County. Balsam v. Department of Health and Rehabilitative Services, So.2d (Fla. 1st DCA 1986). As indicated in Finding of Fact 23, Memorial is licensed to operate 74 short-term psychiatric beds. Memorial is in fact operating all 74 of these licensed beds. Memorial filed an application with the Respondent for certificate of need #1953 in October of 1981 in which Memorial indicated that it planned to reduce the number of short-term psychiatric beds it had available by 24 beds. Memorial's certificate of need application involved an expenditure of capital and did not specifically involve an application for a change in bed inventory at Memorial. Memorial also represented that it would reduce the number of its available short-term psychiatric beds by 24 in a bond prospectus it issued in September of 1983. The Respondent approved Memorial's certificate of need application. Despite Memorial's representations that it would reduce its short-term psychiatric bed inventory, the beds are still in use in Broward County. Memorial has no plans to close any beds and the Respondent does not plan to take any action against Memorial to require it to stop using 24 of its short-term psychiatric beds. Hollywood Pavilion is licensed to operate 46 short- term psychiatric beds in Broward County. In 1985, 475 patients were admitted to Hollywood Pavilion and its occupancy rate was 62.3 percent. In fact, Hollywood Pavilion had more admissions than Florida Medical Center had to its psychiatric unit. It therefore appears that other physicians find Hollywood Pavilion acceptable. Hollywood Pavilion is accredited by the Joint Commission on Accreditation of Hospitals. The Petitioner presented the testimony of a few physicians who questioned the quality of care at Hollywood Pavilion. These physicians indicated that they did not use Hollywood Pavilion. At least one of the physicians indicated, however, that he did refer patients to other physicians whom he knew admitted patients to Hollywood Pavilion despite his feeling that the quality of care at Hollywood Pavilion was poor. This action is inconsistent with that physician's opinion as to the lack of quality of care at Hollywood Pavilion. His opinion is therefore rejected. The other physicians' opinions are also rejected because very little evidence was offered in support of their opinions and because of the contrary evidence. Based upon a consideration of all of the evidence concerning the quality of care at Hollywood Pavilion, it is concluded that the Petitioner failed to prove that the 46 short-term psychiatric beds licensed for use and available for use at Hollywood Pavilion should not be counted as existing short- term psychiatric beds in Broward County. Coral Ridge Hospital is licensed to operate 74 short- term psychiatric beds in Broward County. The average length of stay at Coral Ridge Hospital during 1984 and 1985 was almost 80 days. The average length of stay at Coral Ridge Hospital has been in excess of 40 days since 1980 and in excess of 60 days since 1983. The average length of stay at Coral Ridge Hospital is in excess of the average length of stay for which short-term psychiatric beds are to be used under the Respondent's rules. Rule 10-5.11(25)(a), F.A.C., provides that short-term beds are those used for an average length of stay of 30 days or less for adults and 60 days or less for children and adolescents under 18 years of age. Rule 10-5.11(26)(a), F.A.C., provides that long-term beds are those used for an average length of stay of 90 days or more. The psychiatric beds at Coral Ridge Hospital, based upon an average length of stay for all of its beds, falls between the average length of stay for short-term beds and long-term beds. The occupancy rate at Coral Ridge Hospital for 1985 was between 40 percent and 50 percent. Therefore, it is possible that a few patients at Coral Ridge Hospital with a very long length of stay could cause the overall average length of stay of the facility to be as long as it is. Coral Ridge Hospital will probably take short-term psychiatric patients because of its low occupancy rate. Therefore, there are at least 29 to 37 short-term psychiatric beds available for use as short-term psychiatric beds at Coral Ridge Hospital. The Petitioner failed to prove how many of the licensed short-term psychiatric beds at Coral Ridge Hospital are not being used for, and are not available for use by, short-term psychiatric patients in Broward County. It cannot, therefore, be determined how many, if any, of the licensed short-term beds at Coral Ridge Hospital should not be treated as existing short-term psychiatric beds in Broward County. Based upon the foregoing, the 427 licensed short-term psychiatric beds in Broward County should be treated as "existing" beds for purposes of determining the need for short- term psychiatric beds under Rule 10-5.11(25)(d), F.A.C. There is a net need for short-term psychiatric beds in Broward County for 1989 of only 3 additional beds under Rule 10- 5.11(25)(d)3, F.A.C. If the 80 short-term psychiatric beds approved by the First District Court of Appeal in Balsam are taken into account, there will be a surplus of 77 short-term psychiatric beds in Broward County for 1989 under Rule 10- 5.11(25)(d)3, F.A.C. Based upon an application of Rule 10-5.11(25)(d)3, F.A.C., there is no need for the additional 31 short-term psychiatric beds sought by the Petitioner. Rule 10-5.11(25)(d)1, F.A.C., provides that a minimum of .15 beds per 1,000 population should be located in hospitals holding a general license to ensure access to needed services for persons with multiple health problems. Some patients who need psychiatric care also need other medical services which can better be obtained in an acute care hospital. This fact is taken into account by the requirement of Rule 10-5.11(25)(d)1, F.A.C. Based upon the projected population for Broward County in 1989, there should be a minimum of 184-short-term psychiatric beds in hospitals holding a general license in Broward County. There are currently 243 short-term psychiatric beds in hospitals holding a general license in Broward County. Therefore, the standard of Rule 10-5.11(25)(d)1, F.A.C., has been met without approval of the Petitioner's proposal. There is no need for additional short-term psychiatric beds in general hospitals in Broward County for 1989. Rule 10-5.11(25)(d)4, F.A.C., provides that applicants for short-term psychiatric beds must be able to project an occupancy rate of 70 percent for its adult psychiatric beds and 60 percent for its adolescent and children's psychiatric beds in the second year of operation. For the third year of operation, the applicant must be able to project an 80 percent adult occupancy rate and a 70 percent adolescent and children's occupancy rate. The beds sought by the Petitioner will be managed by a professional psychiatric management company: Psychiatric Management Services (hereinafter referred to as "PMS"). PMS is owned by Psychiatric Institutes of America, a subsidiary of National Medical Enterprises. Because of the lack of need for additional short-term psychiatric beds in Broward County, it is doubtful that the Petitioner can achieve its projected occupancy rates as required by Rule 10-5.11(25)(d)4, F.A.C. Rules 10-5.11(25)(d)5 and 6, F.A.C., require that certain occupancy rates normally must have been met in the preceding 12 months before additional short-term psychiatric beds will be approved. The facts do not prove whether the occupancy rates provided by Rule 10-5.11(25)(d)5, F.A.C., have been met because the statistics necessary to make such a determination are not available. The evidence failed to prove that the occupancy rates of Rule 10- 5.11(25)(d)6, F.A.C. have been met. The average occupancy rate for short-term psychiatric beds in Broward County for 1985 was between 64.8 percent and 68.4 percent. Occupancy rates in Broward County for short-term psychiatric beds have not reached 71 percent since 1982. These rates are well below the 75 percent occupancy rate provided for in Rule 10-5.11(25)(d)6, F.A.C. This finding is not refuted by the fact that Florida Medical Center added 59 beds in 1984 and the fact that occupancy rates at most general hospitals exceeded 75 percent in 1985. Based upon the average occupancy rate in Broward County for 1985, there were approximately 100 empty short-term psychiatric beds in Broward County on any day. Rule 10-5.11(25)(d)7, F.A.C. requires that short-term psychiatric services provided at an inpatient psychiatric hospital should have at least 15 designated beds in order to assure specialized staff and services at a reasonable cost. The Petitioner's proposal to add 31 short-term psychiatric beds meets this requirement of the rule. C. Rule 10-5.11(25)(e), F.A.C. Rule 1O-5.11(25)(e)1, F.A.C., requires that an applicant prove that its proposal is consistent with the needs in the community as set out in the Local Health Council plans, local Mental Health District Board plans, State Mental Health Plan and needs assessment data. The Petitioner has failed to meet this requirement. The Petitioner's proposal is inconsistent with the District 10 Local Health Plan, the Florida State Health Plan and State and Local Mental Health Plans. In particular, the Petitioner's proposal is inconsistent with the following: The District 10 Local Health Plan's recommendation that applications not be approved if approval would result in an excess number of beds under the Respondent's bed need methodology; The District 10 Local Health Plan's recommendation concerning occupancy standards for the district (75 percent during the past 12 months); The position of the Florida State Health Plan that inpatient psychiatric services are a setting of last resort; The recommendation of the District 10 Mental Health Plan that alternatives to hospitalization for psychiatric services should be encouraged; and The recommendation of the Florida State Mental Health Plan that less restrictive treatment alternatives should be encouraged. Rule 10-5.11(25)(e)3, F.A.C., requires that applicants indicate the amount of care to be provided to underserved groups. The Petitioner's representations concerning its plans to provide indigent care contained in its application are misleading, in that the Petitioner represented that it would not turn away indigents. At the final hearing, the Petitioner indicated that it will generally provide care to indigents only on an emergency basis. Patients who need indigent care on a non-emergency basis will be referred to Memorial. Also, once an indigent patient who needs emergency care has stabilized, that patient will be transferred to Memorial for care. The Petitioner accepts few Medicaid and indigent patients. During 1985, the Petitioner treated 21 Medicaid patients out of a total of 6,800 patients. Only 1.5 percent of its total revenue was for uncompensated care. During 1984, the Petitioner treated 22 Medicaid patients out of a total of 7,321 patients. Only 1.2 percent of its total gross revenue was for uncompensated care. Memorial is subsidized by tax revenues for providing indigent care, or southern Broward County. Because Memorial provides indigent care, indigent patients are usually referred to Memorial if they do not need emergency care or are transferred to Memorial after they stabilize if they do need emergency care. There are other hospitals in northern Broward County which provide similar indigent care. It is therefore common practice to refer patients to those hospitals. Rule 10-5.11(25)(e)5, F.A.C., provides that development of new short- term psychiatric beds should be through the conversion of underutilized beds in other hospital services. The Petitioner's proposal to convert 31 medical/surgical beds for use as short-term psychiatric beds meets this provision. Rule 10-5.11(25)(e)7, F.A.C., provides that short- term psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of the service area's population. There is no geographic access problem in Broward County. At least 90 percent of the population of Broward County is within a maximum of 45 minutes driving time under average driving conditions to existing short-term psychiatric services in Broward County. The Petitioner's proposal will not significantly enhance geographic access in Broward County. III. Statutory Criteria. Need for Services. The Respondent has approved two certificates of need authorizing the addition of a total of 135 long-term psychiatric beds for Broward County. The addition of 135 long-term beds probably means that additional short-term beds in Broward County which have been used for patients requiring longer treatment will be available. If the additional long-term beds free up short-term beds, the occupancy rate of short-term psychiatric beds in Broward County would be even less than it has been during the past 12 months, if other things remain equal. Both Memorial and Florida Medical Center have been using short-term psychiatric beds for the care of long-term patients. Once the new long-term psychiatric beds are operational, more short-term psychiatric beds will be available in Broward County. Existing Providers. In addition to the short-term psychiatric beds available at Coral Ridge Hospital and Hollywood Pavilion, short- term psychiatric beds are available at the following existing facilities in the service district: Ft. Lauderdale Hospital: 64 beds Florida Medical Center: 74 beds Imperial Point: 47 beds Broward General Medical Center: 48 beds There is no geographic distribution problem in district 10. Generally, the Petitioner did not prove that existing short-term psychiatric beds in Broward County are not available, efficient, appropriate, accessible, adequate or providing quality of care. The Petitioner also did not prove that existing facilities are over-utilized. No new services are proposed by the Petitioner. The evidence did prove that there is usually a waiting list for short-term psychiatric beds at Memorial and that physicians have resorted to various devices to get their patients into short-term psychiatric beds at Memorial. Specialized adolescent psychiatric services are available in the service district at Ft. Lauderdale Hospital and at Florida Medical Center. Ft. Lauderdale Hospital has 24 short- term psychiatric beds dedicated to the treatment of adolescents. Florida Medical Center has 20 short-term psychiatric beds dedicated to the treatment of adolescents. Broward General Medical Center and Imperial Point also provide children/adolescent services. Treatment for eating disorders is provided and available at Imperial Point and Florida Medical Center. Florida Medical Center solicits patients from all parts of the service district. Geropsychiatric short-term psychiatric beds are available in the service district at Hollywood Pavilion, Imperial Point and Ft. Lauderdale Hospital. Florida Medical Center has a closed adult psychiatric unit and often treats persons over 60 years of age. It also has a 26-bed adult short-term psychiatric unit with 2 specialized treatment programs: one for eating disorders and the other for stress and pain management. The Petitioner has proposed to provide a dedicated geropsychiatric unit to meet the needs of geriatric patients which are different from those of adults generally. Although there are no such dedicated geropsychiatric units in the service district, the Petitioner failed to prove that geriatrics are not receiving adequate care from existing providers. Quality of Care. The Petitioner is accredited by the Joint Commission on Accreditation of Hospitals. The Petitioner has established adequate quality control procedures, including educational programs and a quality assurance department. These quality control procedures will also be used to insure quality of care in the proposed psychiatric units. The psychiatric units will be managed by PMS. PMS specializes in the management of psychiatric units in acute care hospitals. PMS has programs for adolescents and geriatrics. These programs will be available for use in the proposed psychiatric units. PMS also has a large variety of programs, services and specialists available to establish and maintain quality of care at the Petitioner. The Petitioner will be able to provide quality of care. Alternatives. The Petitioner did not prove that available and adequate facilities which may serve as an alternative to the services it is proposing do not exist in Broward County. Economies of Scale. The Petitioner's parent corporation, National Medical Enterprises has purchasing contracts available for use by the Petitioner in purchasing items needed for the proposed psychiatric units. These contracts can result in a reduction of costs for the proposed project. Staff Resources. PMS will help in recruiting staff for the proposed psychiatric units. Recruiting will be done locally but the Petitioner also has the ability to recruit specialized staff on a broader geographic scale. There is a shortage of nursing personnel for psychiatric services in southern Broward County and northern Dade County. Since the Petitioner plans to recruit locally, this could cause existing providers to lose specialized nursing personnel to the Petitioner. If the Petitioner causes vacancies at existing facilities, this could adversely affect quality of care. Financial Feasibility. The total projected cost of the project ($337,169.00) can easily be provided by National Medical Enterprises, the parent corporation of the Petitioner. The Petitioner's financial projections are unrealistic to the extent of the projected utilization and revenue for the proposed psychiatric units. Based upon the projected need of only 3 short-term psychiatric beds (or possibly a surplus of 77 beds) for 1989, the Petitioner's projected utilization and revenue for its proposal is rejected. The Petitioner has proved immediate financial feasibility but has failed to prove the proposal is financially feasible in the long-term. Impact of Proposal. The Petitioner's proposal could adversely effect the costs of providing health services in Broward County. This is especially true in light of the lack of need for additional short-term psychiatric beds in Broward County. Because of the high quality of the services the Petitioner proposes to provide, competition in Broward County could be enhanced and ultimately benefit consumers, if there was a need for the proposed additional beds. If a hospital has an image of being a charity hospital serving the needs of underserved groups, the hospital can experience difficulty in attracting paying patients and have difficulty in getting consumers to accept the high quality of the services of the hospital. Although it is likely that the Petitioner will take paying patients away from Memorial, it is unlikely that the number of patients lost could substantially affect the public's image of Memorial. The effect the Petitioner's proposal will have on Memorial is limited by the fact that the Petitioner is only seeking 31 beds and they are only short-term psychiatric beds. Memorial provides a variety of services and psychiatric services are only a small part of those services. I. Construction. It the Petitioner's proposal is approved, 11,500 square feet on the sixth floor of the Petitioner's hospital will be renovated and converted for use for the two proposed psychiatric units. The renovations can be made quickly. There will be space for 16 beds in a geropsychiatric unit and 15 beds in an adolescent unit. There will be a separate lobby for the psychiatric units and the elevators to the lobby will be strictly controlled. The two units will be separated and adequate security precautions will be taken to keep the two units separate. The ceilings in both units will be modified to insure security. Nurse stations will be provided for both units. Visibility from the nurse stations will be fair. Space is provided for a dayroom for each unit and there will be a class room and four rooms for therapy. These spaces will barely be adequate to meet the various needs of patients. With adequate planning and coordination, patients' needs can be met. There is inadequate space in the proposed facility for physical activities for patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certificate of need application filed by the Petitioner for certificate of need #3372 should be denied. DONE and ENTERED this 15th day of May, 1986, 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 15th day of May, 1986. COPIES FURNISHED: Michael J. Glazer, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR Post Office Box 391 Tallahassee, Florida 32302 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services Building One, Suite 407 1323 Winewood Boulevard Tallahassee, Florida 32301 James C. Hauser, Esquire MESSER, VICHERS, CAPARELLO, FRENCH & MADSEN Post Office Box 1876 Tallahassee, Florida 32302 Kenneth G. Oertel, Esquire Eleanor A. Joseph, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32313-6507 Cynthia S. Tunnicliff, Esquire CARLTON, FIELDS, WARD, EMMANUEL SMITH & CUTLER, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Which, if any, of the four certificate of need applications for short-term psychiatric beds in Department of Health and Rehabilitative Services District 9 should be approved.
Findings Of Fact Description of the Parties The Department of Health and Rehabilitative Services ("HRS") is the agency charged under Chapter 381, Florida Statutes (1991), to make decisions regarding certificate of need ("CON") applications. HRS issued its intent to approve the CON applications of Glenbeigh Hospital of Palm Beach, Inc. ("Glenbeigh"), for 45 beds, and Boca Raton Community Hospital, Inc. ("Boca"), for 15 beds, pursuant to a published fixed need for 67 beds for HRS District IX. HRS also issued its intent to deny the CON applications of Wellington Regional Medical Center, Incorporation ("Wellington") to convert 15 acute care beds to 15 short term adult psychiatric beds, and Savannas Hospital Limited Partnership ("Savannas") to convert 20 substance abuse beds to 20 short term adult psychiatric beds and to add 10 new short term adult beds. District IX includes Palm Beach, Martin, St. Lucie, Okeechobee and Indian River Counties. As a result of Glenbeigh's Notice of Withdrawal filed on April 6, 1993, CON No. 6438 is no longer under consideration in this case. Boca is an existing 394-bed acute care hospital, located one mile north of the Broward County line, and is the applicant for CON No. 6442, to convert 15 medical/surgical beds to 15 adult psychiatric beds, and to delicense an additional 6 medical/surgical beds. Wellington is an existing acute care hospital in Palm Beach County, with 104 acute care medical/surgical beds and 16 substance abuse beds, and is the applicant for CON No. 6441 to convert 15 acute care beds to 15 short term adult psychiatric beds. Savannas is an existing 70 bed child/adolescent and adult psychiatric and substance abuse hospital in St. Lucie County, about 40 miles north of Palm Beach, and is the applicant for CON No. 6444, to convert its 20 substance abuse beds to 20 adult short-term psychiatric beds, and to add 10 new adult short-term psychiatric beds. Lake Hospital and Clinic, Inc., d/b/a Lake Hospital of the Palm Beaches ("Lake"), at the time of hearing, was a 98-bed psychiatric and substance abuse hospital, with 46 adult psychiatric beds, 36 child/adolescent psychiatric beds and 16 substance abuse beds, located in Lake Worth, Palm Beach County, between Boca Raton and West Palm Beach. The parties stipulated that Lake had standing to challenge the Boca application. Community Hospital of the Palm Beaches, Inc., d/b/a Humana Hospital Palm Beaches ("Humana") is an existing 250-bed acute care hospital, with 61 adult and 27 child/adolescent psychiatric beds, and is a Baker Act receiving facility, located directly across the street from Glenbeigh in Palm Beach. Florida Residential Treatment Centers, Inc., d/b/a Charter Hospital of West Palm Beach ("Charter") is an existing 60-bed psychiatric hospital with 20 beds for children and 40 beds for adolescents, located approximately 15 minutes travel time from Glenbeigh. Martin H.M.A., Inc., d/b/a SandyPines Hospital ("SandyPines") is an existing 60 bed child and adolescent psychiatric hospital, and a Baker Act receiving facility, located in Martin County, less than one mile north of the Palm Beach County line. By prehearing stipulation, the parties agreed that the statutory review criteria applicable to the CON application of Boca are those listed in Subsections 381.705(1)(a), (b), (d), (f), (i) - (l) and (n). If Rule 10- 5.011(1)(o) is applicable, the parties stipulated that the disputed criteria are those in Subsections 4.g. and 5.g. Background and Applicability of HRS Rules and Florida Statutes Rule 10-5.011(o) and (p), Florida Administrative Code, was in effect at the time HRS published the fixed need pool and received the applications at issue in this proceeding, the September 1990 batching cycle. The rule distinguished between inpatient psychiatric services based on whether the services were provided on a short-term or long-term basis. Similarly, Rule 10- 5.011(q), Florida Administrative Code, distinguished between short-term and long-term hospital inpatient substance abuse services. On August 10, 1990, HRS published a fixed need pool for 19 short-term psychiatric beds in HRS District IX, with notice of the right to seek an administrative hearing to challenge the correctness of the fixed need pool number. See, Vol. 16, No. 32, Florida Administrative Weekly. On August 17, 1990, HRS published a revised fixed need pool for a net need of 67 additional short-term hospital inpatient psychiatric beds in HRS District IX, based on the denial of a certificate of need application, subsequent to the deadline for submission of the August 10th publication. The local health plan formula, which has not been adopted by rule, allocates 62 of the additional 67 beds needed to the Palm Beach County subdistrict. The revised pool publication did not include notice of the right to an administrative hearing to challenge the revised pool number. See, Vol. 16, No. 33, Florida Administrative Weekly. There were no challenges filed to either the original or revised fixed need pool numbers. On December 23, 1990, HRS published new psychiatric and substance abuse rules, subsequently renumbered as Rule 10-5.040 and 10-5.041, Florida Administrative Code. These new rules abolished the distinction between short- term and long-term services, and instead distinguished psychiatric and substance abuse services by the age of the patient. Pursuant to Section 14 of the new psychiatric rule, that rule does not apply to applications pending final agency action on the effective date of the new rule. HRS will, however, license any applicant approved from the September 1990 batching cycle to provide services to adults or children and adolescents, using the categories in the new rule, not based on the distinction between short and long term services which existed at the time the application was filed. Approved providers will receive separate CONs for adult and child/adolescent services. Rule 10-5.008(2)(a), Florida Administrative Code, provides that the fixed need pool shall be published in the Florida Administrative Weekly at least 15 days prior to the letter of intent deadline and . . . shall not be changed or adjusted in the future regardless of any future changes in need methodologies, population estimates, bed inventories, or other factors which would lead to different projections of need, if retroactively applied. Humana, Lake, Charter and SandyPines allege that HRS incorrectly determined need under the old rule, by failing to examine occupancy rates pursuant to that rule. The rule provided, in relevant part, No additional short term inpatient hospital adult psychiatric beds shall normally be approved unless the average annual occupancy rate for all existing adult short term inpatient psychiatric beds in a service district is at or exceeds 75 percent for the preceding 12 month period. No additional beds for adolescents and children under 18 years of age shall normally be approved unless the average annual occupancy rate for all existing adolescent and children short term hospital inpatient psychiatric beds in the Department district is at or exceeds 70 percent for the preceding 12 month period. Hospitals seeking additional short term inpatient psychiatric beds must show evidence that the occupancy standard defined in paragraph six is met and that the number of designated short term psychiatric beds have had an occupancy rate of 75 percent or greater for the preceding year. (Emphasis added.) Rule 10-5.011(o)4(e), Florida Administrative Code. HRS' expert witness, Elizabeth Dudek, testified that the fixed need pool for 67 additional short term inpatient psychiatric beds was calculated pursuant to the formula in Rule 10-5.011(l)(o), Florida Administrative Code. Ms. Dudek also testified that since calculation resulted in a positive number, according to HRS policy, the publication of the fixed need pool indicates that the occupancy prerequisites must have also been met. To the contrary, the State Agency Action Report and the deposition of Lloyd Tribley, the HRS Health Facilities consultant who collected the data to support the publication of the fixed need pool, indicate that he did not determine existing occupancy separately for adults and for children/adolescents, as required by subsection (e) of the old rule. Rather, he determined, pursuant to subsection (f), that overall occupancy rates for licensed short-term psychiatric beds exceeded 75 percent. With the August 10, 1990 publication of the need for 19 additional short-term inpatient psychiatric beds, HRS provided a point of entry to challenge the published need, including the agency's apparent failure to make a determination of existing occupancy rates for separate age categories. No challenge was filed. In the August 17, 1990 publication, HRS failed to provide a point of entry, when it added 48 more beds to the pool as a result of the issuance of a final order denying a prior CON application. The August 10th publication of numeric need, according to HRS' representative should have been based on an analysis of separate and combined occupancy rates. There was no challenge to that publication, therefore the number of beds in the fixed need pool is not at issue in this proceeding. Like and Existing Facilities Humana, Lake and Charter assert that, as a result of the new rule abolishing separate licensure categories for short-term and long-term beds, all psychiatric providers within an applicant's service district are like and existing facilities. These parties also assert that there was not, even under the old rule, any practical difference between these categories of providers, particularly for children/adolescents. In support of this position, the evidence demonstrated that the average lengths of stay in short-term and long- term adolescent psychiatric beds in 1989 were 48.1 days and 53.02 days, respectively. In 1990, the average lengths of stay in short and long-term beds were 41.8 days and 41.9 days, respectively. The parties asserting that the effect of the new rule is to create an additional group of like and existing providers point to HRS' response to the application of Indian River Memorial Hospital in Vero Beach, Florida ("Indian River"). According to the testimony of HRS expert witness Elizabeth Dudek, Indian River was another District 9 applicant in this same batching cycle. Indian River applied for a CON to convert long-term psychiatric beds to short- term psychiatric beds. HRS denied the CON application of Indian River because, under the new rule, which had taken effect before the decisions on the batch were made, Indian River would receive a new license permitting it to treat psychiatric patients regardless of their projected lengths of stay. Glenbeigh asserted that the numeric need for 67 additional short term psychiatric beds cannot be challenged in this proceeding based on the failure of any party timely to challenge the August 10, 1990, publication of need. Similarly, Glenbeigh asserted that the comparison of "like and existing" facilities must be limited to those used in the inventory to compute need. Glenbeigh relied generally on Florida Administrative Code Rule 10-5.011(o), the old rule governing short term hospital inpatient psychiatric services, for the proposition that "like and existing" in Subsection 381.705(1)(b), Florida Statutes, is equivalent to the inventory of licensed and approved beds for short term psychiatric services, which was used in the computation of need. However, the rule also provides, in a list of "other standards and criteria to be considered in determining approval of a certificate of need application for short term hospital inpatient psychiatric beds," the following, Applicants shall indicate the availability of other inpatient psychiatric services in the proposed service area, including the number of beds available in crisis stabilization units, short term residential treatment programs, and other inpatient beds whether licensed as a hospital facility or not. In light of the rule directive that the consideration of like and existing services is not limited to licensed provider hospitals, Glenbeigh's assertion that the statutory review criteria is more restrictive and limited to the licensed and approved beds that were used to compute numeric need is rejected. The like and existing facilities are the hospitals or freestanding facilities which are authorized to provide the same psychiatric services, as the applicants seek to provide as a result of this proceeding. It was established at hearing that the following list of District 9 facilities provide psychiatric services comparable to those which the three remaining applicants seek to provide in these consolidated cases: DISTRICT 9 Hospital PSYCHIATRIC BEDS SUBSTANCE ABUSE BEDS Adult Child and Adult Child and Adolescent Adolescent Lic. App. Lic. App. Lic. App. Lic. App. Bethesda Hospital 20 0 0 0 0 0 0 0 Charter Palm (IRTF) 0 0 60 0 0 0 0 0 Fair Oaks 36 0 49 0 14 0 3 0 Forty Fifth Street 44 0 0 0 0 0 0 0 Glenbeigh Palm Beach 0 0 0 0 30 0 30 0 Humana Palm Beach 61 0 27 15 0 0 0 0 Humana Sebastian 0 0 0 0 16 0 0 0 Indian River Mem. 16 0 38 0 0 0 0 0 J.F. Kennedy Mem. 14 0 0 0 22 0 0 0 Lake Hospital 46 0 36 0 16 0 0 0 Lawnwood Regional 36 Res. Treat. Palm 0 24 0 0 0 0 0 (IRTF) 0 0 40 0 0 0 0 0 Sandy Pines 0 0 60 0 0 0 0 0 Savannas 35 0 15 0 20 0 0 0 St. Mary Hospital 0 40 0 0 0 0 0 0 Wellington Regional 0 0 0 0 16 0 0 0 Vol. 16, No. 52, Florida Administrative Weekly, (December 28, 1990) (Humana Exhibit 26). Need For Additional Beds An analysis of need beyond that of the numeric need, requires an analysis of the availability and accessibility of the like and existing facilties. One reliable indicator of need is the occupancy levels in the like and existing facilities. In addition to providing guidelines for the publication of need, Rule 10-5.011(o)(4)(e) also mandates a consideration of occupancy levels to determine if applicants are or are not required to demonstrate "not normal circumstances" necessitating the issuance of a CON. For all child/adolescent psychiatric programs in District 9, the expert for Lake and Humana calculated total average occupancy rates at 57.6 percent in 1988, 64.2 percent in 1989, and 53.2 percent in 1990. In support of the accuracy of the expert's calculations, the District 9 Annual Report for 1990 (Lake Exhibit 4) shows occupancy at 46.80 percent in general hospitals, 88.22 percent in specialty hospitals then categorized as short term and 38.22 percent in specialty hospitals then categorized as long term. In addition, during this same period of time, average lengths of stay in District 9 child/adolescent beds also declined by approximately 10 percent. Using the guidelines of the old rule, new short term psychiatric beds should not normally be approved when the child/adolescent rate is below 70 percent. In the new rule, child/adolescent beds should not normally be approved if occupancy is below 75 percent. Therefore, under either rule, applicants who will be licensed for child/adolescent beds, must demonstrate not normal circumstances for their CON applications to be approved. The expert for Lake and Humana, also computed the adult occupancy rates for 1988-1990 in District 9 as follows: 1988- 66.5 percent; 1989 - 73.1 percent; 1990 - 68.5 percent. The occupancy rates for adult beds for the 12- month period ending March, 1990 was 70.6 percent and 69.2 percent for the twelve months ending June, 1990. In evaluating the accuracy of the expert's calculations of occupancy rates for adult beds, a comparison can be made to the District 9 Annual Report for 1990 (Lake Exhibit 4). Occupancy rates were 57.75 percent in general hospitals and 79.45 percent in specialty hospitals. This data does not include Indian River Memorial or Lawnwood Regional which were also listed on the December 1990 inventory of licensed adult beds, nor St. Mary's Hospital which was listed as having 40 approved adult beds. The comparison indicates the accuracy of concluding that the highest occupancy level for District 9 adult psychiatric beds during the period 1988 to 1990 was approximately 70 percent. Using the guidelines of the old rule, 75 percent occupancy is required before new adult beds can be approved unless there is a not normal circumstance. Boca's Proposal Boca Raton Community Hospital ("Boca") is a 394-bed not-for-profit acute care hospital, accredited by the Joint Commission for the Accreditation of Hospitals and Health Organizations, which proposes to convert 21 of its medical/surgical to 15 adult psychiatric beds and to delicense an additional 6 acute care beds. Boca's CON would be conditioned on the provision of 10.8 percent total annual patient days to Medicaid patients and a minimum of 5 percent gross revenues generated, or 2 percent total annual patient days to medically indigent patients. Boca has proposed this alternative so that, if it fails to provide direct care to indigents, it may donate the revenues to further the objectives of the state and district mental health councils. Boca Raton Community Hospital Corporation has control and manages the Boca's property, policies and funds. The Boca Raton Community Hospital Foundation raises funds for Boca and has the funds necessary to accomplish the proposed project at a cost of $932,531. Boca's application asserts that a not normal circumstance exists in the need to serve Medicaid patients in the district, and that a need exists to serve geriatric psychiatric patients in an acute care hospital, due to their general medical condition. Medicaid reimbursement for psychiatric care is only available in acute care hospitals. Boca Historically serves in excess of 70 percent Medicare (geriatric) patients. In 1990, 72 percent of Medicaid psychiatric patients residing in Boca's service area sought psychiatric services outside District 9, as compared to the outmigration of 14.7 percent Medicare patients, and 11 percent commercial insurance patients. Boca supported its proposed 10.8 percent Medicaid CON condition, with evidence that 10.8 percent of all psychiatric discharges in its market area were for Medicaid patients. Boca's opponents dispute the claim that a disproportionate outmigration of District 9 Medicaid patients is, in and of itself, a not normal circumstance. Using the travel time standard for inpatient psychiatric services of 45 minutes under average driving conditions, the opponents argue that District 10 facilities should be considered as available alternatives to additional psychiatric beds in District 9. In fact, the parties stipulated that there are no geographic access problems in District 9. In contrast to the opponents position, Subsections 381.705(a), (b)(, (d), (f) and (h), Florida Statutes (1991), indicate that need, available alternatives and accessibility are evaluated within a district, as defined by Subsection 381.702(5). Therefore, using the statutory criteria as indicative of the situation which is normal, the disproportionate outmigration of medicaid patients can be considered a not normal circumstance with a showing of access hardships for this payor group. Boca's opponents also assert general acute care adult beds are adequate. In August 1991, the occupancy rate was 56.9 percent in the 171 licensed adult psychiatric beds in District 9 general acute care hospitals which are eligible for Medicaid reimbursement. Finally, Boca's opponents argue that Boca historically has not, and will not serve Medicaid patients in sufficient number to alter the outmigration. In 1990, Boca reported 671 Medicaid inpatient days from a total of 99,955. That is equivalent to 92 of the 16,170 admissions. Because Boca has a closed medical staff, only the psychiatrists on staff would be able to admit patients to a psychiatric unit. From the testimony and depositions received in evidence, Boca's psychiatrists who discussed their service to Medicaid patients treated less than 12 Medicaid patients a year. One psychiatrist, who had previously treated Medicaid patients at a mental health center, has been in private practice since 1983-84, but was not sure he had treated a Medicaid patient in his private practice and has received a new Medicaid provider number a few weeks prior to hearing. One Boca psychiatrist does not treat Medicaid patients on an inpatient basis. Two other Boca psychiatrists reported seeing 10 and "a couple" of Medicaid patients a year, respectively. The latter of these described the Medicaid billing procedure as cumbersome. Given the unavailability of Medicaid eligible beds in the District and the nature of the practices of its closed staff of psychiatrists, Boca has failed to establish that its CON application will alleviate the outmigration for psychiatric services of District 9 Medicaid patients. This conclusion is not altered by the subsequent closure of Lake's 46 adult psychiatric beds, because Medicaid reimbursement would not have been available at Lake which was not an acute care hospital. In fact, HRS takes the position that there are no not normal circumstances in this case. Wellington's Proposal Wellington, a 120 bed hospital in West Palm Beach, Florida, proposed to convert 15 acute care beds to 15 short term adult psychiatric beds which, if approved, will be licensed as adult psychiatric beds. Wellington's acute care beds are only 28 percent occupied. Wellington is located in the western portion of Palm Beach County, where no other inpatient psychiatric facilities are located. Wellington is a wholly owned subsidiary of Universal Health Services, Inc. ("UHS"), accredited by the Joint Commission for the Accreditation of Hospitals and Health Organizations (JCAHO) and the American Osteopathic Association (AOA), and offers clinical experience for students of the Southeastern College of Osteopathic Medicine (SECOM). Internships and externships for osteopathic students are also provided at Humana's psychiatric pavilion. Wellington proposes to fund the total project cost of $920,000 from funds available to UHS and intends to become a Baker Act receiving facility. Wellington is not a disproportionate share hospital, and projects 1 percent Medicaid service in its payor mix. Wellington proposes to serve adult psychiatric patients in 15 beds, and projects 53.3 percent and 70 percent occupancy in those beds in years one and two, but does not make a third year projection of at least 80 percent occupancy as required by Paragraph 4(d) of Rule 10-5.011(o). Because the average annual adult occupancy rate in the district is less than 75 percent, any applicant proposing to serve adults must demonstrate that a not normal circumstance exists for approval of its CON application. In addition, there appears to be no shortage of psychiatric beds in acute care hospitals in District 9. See Finding of Fact 39, supra. Not Normal Circumstance Wellington has not alleged nor demonstrated that any of the factors related to its current operations, location or proposed services are not normal circumstances in support of its CON application. Absent the showing of a not normal circumstance, Wellington's proposal cannot be approved, pursuant to Paragraph 4(e) and Rule 10-5.011(o), Florida Administrative Code. Savannas Proposal Savannas Hospital Limited partnership d/b/a Savannas Hospital ("Savannas") is a JCAHO accredited 70 bed psychiatric and substance abuse hospital located in Port St. Lucie, St. Lucie County, Florida, approximately 40 miles north of Palm Beach. Savannas, a Baker Act facility, proposes to convert all 20 of its licensed substance abuse beds to psychiatric beds and to add 10 new psychiatric beds, at a total project cost of $1,444,818. Savannas also proposes to commit to providing 7 percent indigent care. While not specifically describing its circumstances as not normal, Savannas does indicate that it is (1) the only applicant in the northern sub- district of District 9, and (2) could readmit to a segregated unit low functioning neurogeriatric patients of the type it previously served. Savannas also indicated that Medicare reimbursement is not available for patients who have substance abuse, rather than psychiatric primary diagnoses. As a freestanding provider, Savannas is not eligible for Medicaid reimbursement. Savannas demonstrates what services it would provide, if its CON is approved, but fails to identify a need for the services by District 9 psychiatric patients. Within the northern sub-district, the only other facility in St. Lucie County, Lawnwood, reported an occupancy rate of 65 percent in 1989. AHCA also argued that the substance abuse beds at Savannas are needed and should not be converted to psychiatric beds. That position is supported by the fact that Savannas substance abuse beds had a higher occupancy level than its psychiatric beds in 1989. Savannas' application and the evidence presented do not support the need for the services proposed by Savannas, nor does Savannas assert that any not normal circumstances exist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Certificate of Need Number 6438 to Glenbeigh Hospital of Palm Beach, Inc.; Certificate of Need Number 6442 to Boca Raton Community Hospital, Inc.; Certificate of Need Number 6441 to Wellington Regional Medical Center, Inc.; and Certificate of Need Number 6444 to Savannas Hospital Limited Partnership. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of June 1993. 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 18th day of June 1993. APPENDIX The following rulings are made on the parties' proposed findings of fact: Humana Adopted in Finding of Fact 1. Subordinate to Finding of Fact 2. 3-6. Issues not addressed. 7-8. Adopted in Findings of Fact 3 and 4. Subordinate to Findings of Fact 44 and 46. Subordinate to Finding of Fact 10. 11-12. Adopted in Findings of Fact 6 and 7. 13-15. Subordinate to Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 45. Subordinate to Findings of Fact 27 & 29. Issue not addressed. 20-21. Subordinate to Finding of Fact 25. 22. Issue not addressed. 23-24. Adopted in Findings of Fact 8 and 9. Accepted in relevant part in Finding of Fact 11. Accepted in relevant part in Finding of Fact 10. Subordinate to Finding of Fact 12 and Conclusions of Law 4. Subordinate to Finding of Fact 1. Adopted in Finding of Fact 22. Rejected in Finding of Fact 20. Rejected in Findings of Fact 12 and 18. Adopted in Findings of Fact 15 and 17. Rejected in Finding of Fact 38. Adopted in Findings of Fact 16 and 17. Adopted in Finding of Fact 26. Issue not addressed. Adopted in Finding of Fact 47. 38-47. Issues not addressed. Adopted in Findings of Fact 44 and 47. Issue not addressed. Rejected in Finding of Fact 46. Issue not addressed. 52-54. Adopted in Findings of Fact 46 and 47. 55-57. Issues not addressed. Adopted in Finding of Fact Issue not addressed. Adopted in Finding of Fact 46. Issue not addressed. Accepted in relevant part in Finding of Fact 21. Accepted in relevant part in Finding of Fact 22. Accepted in relevant part in Finding of Fact 21. Subordinate to Finding of Fact 25. Accepted in relevant part in Finding of Fact 25. Subordinate to Finding of Fact 25. Accepted in relevant part in Finding of Fact 25. Accepted in relevant part in Finding of Fact 54 Accepted in relevant part in Findings of Fact 26, 38, 39, 42, 43, 47, 48, 54, 55 and 57. Accepted in relevant part in Finding of Fact 26. Rejected in Findings of Fact 21 and 22. Accepted in relevant part in Finding of Fact 26. 74-75. Accepted in relevant part in Finding of Fact 27. 76-77. Subordinate to Finding of Fact 27. Subordinate to Finding of Fact 30. Subordinate to Findings of Fact 27 and 30. Subordinate to Finding of Fact 28. Subordinate to Finding of Fact 31. Accepted in relevant part in Finding of Fact 82. Subordinate to Finding of Fact 82. Accepted in relevant part in Finding of Fact 37. Accepted in relevant part in Finding of Fact 39. Issue not addressed. Subordinate to Finding of Fact 27 and 30. Accepted in relevant part in Findings of Fact 27, 29 and 30. Subordinate to Findings of Fact 27 and 30. Accepted in relevant part in Finding of Fact 31. Accepted in relevant part in Finding of Fact 42. Issue not addressed. Addressed in Preliminary Statement. Accepted in relevant part in Finding of Fact 1. 95-99. Issues not addressed Accepted in relevant part in Finding of Fact 10. Accepted in relevant part in Finding of Fact 25. 102-114. Issues not addressed Accepted in relevant part in Findings of Fact 27 and 30. Issue not addressed. Subordinate to Finding of Fact 25. Accepted in relevant part in Finding of Fact 37. Issue not addressed. Accepted in relevant part in Finding of Fact 10. 121-122. Issues not addressed. Accepted in relevant part in Findings of Fact 4 and 47. Issue not addressed. Irrlevant. Issue not addressed. Accepted in relevant part in Finding of Fact 10 Accepted in relevant part in Findings of Fact 10, 25, 47 and 48. Subordinate to Finding of Fact 11. Issue not addressed. Accepted in relevant part in Findings of Fact 47, 48 and 49. Accepted in relevant part in Finding of Fact 45. Accepted in relevant part in Finding of Fact 46. Issue not addressed. Accepted in relevant part in Findings of Fact 47 and 48. Issue not addressed. Accepted in relevant part in Findings of Fact 47 and 48. Accepted in relevant part in Finding of Fact 15. Accepted in relevant part in Findings of Fact 47, 48 and 49. Accepted in relevant part in Finding of Fact 11. Lake Adopted in Finding of Fact 1. Subordinate to Finding of Fact 1. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Findings of Fact 6 and 43. 11-12. Issues not addressed. 13-19. Subordinate to Findings of Fact 27-43. 20-21. Issues not addressed. 22. Adopted in Finding of Fact 10. 23. Adopted in Finding of Fact 11. 24. Adopted in Finding of Fact 12. 25-26. Adopted in Finding of Fact 13. 27-28. Adopted in Finding of Fact 1. 29-31. Adopted in Finding of Fact 22. 32. Rejected in relevant part in Finding of Fact 13. 33. Issue not addressed. 34. Accepted in relevant part in Finding of Fact 25. 35. Subordinate to Finding of Fact 25. 36-37. Accepted in relevant part in Finding of Fact 25. 38-39. Subordinate to Finding of Fact 27. 40. Accepted in relevant part in Finding of Fact 25. 41. Accepted in relevant part in Finding of Fact 30. 42-43. Subordinate to Finding of Fact 30. 44. Accepted in relevant part in Finding of Fact 25. 45. Subordinate to Findings of Fact 27 and 30. 46-47. Issues not addressed. 48. Accepted in relevant part in Findings of Fact 27 and 30. 49-52. Issues not addressed. 53. Subordinate to Finding of Fact 42. 54-56. Issues not addressed. 57. Accepted in relevant part in Conclusions of Law 4. 58-59. Accepted in relevant part in Finding of Fact 26 and in Conclusions of Law 4. Accepted in relevant part in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 15. Subordinate to Finding of Fact 1. Subordinate to Finding of Fact 17. 65-66. Adopted in Finding of Fact 17. Adopted in Findings of Fact 18, 27 and 30. Adopted in Finding of Fact 17. Adopted in Findings of Fact 27 and 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Findings of Fact 28 and 31. Adopted in Finding of Fact 38. Adopted in Findings of Fact 27, 39 and 42. Adopted in Finding of Fact 43. Adopted in Finding of Fact 38. Adopted in Finding of Fact 35. Adopted in Findings of Fact 37, 39 and 42. Adopted in Finding of Fact 42. Adopted in Findings of Fact 47, 48, 49, 53 and 57. Adopted in Finding of Fact 47. Adopted in Finding of Fact 1. 84-89. Issues not addressed. Adopted in Findings of Fact 27 and 30. Subordinate to Findings of Fact 27 and 30. 92-97. Issues not addressed. Subordinate to Finding of Fact 41. Subordinate to Finding of Fact 37. 100-102. Issues not addressed. Adopted in Findings of Fact 47 and 48. Adopted in Finding of Fact 26. Adopted in Finding of Fact 25. Subordinate to Finding of Fact 25. Adopted in Finding of Fact 30. Adopted in Finding of Fact 27. Subordinate to Finding of Fact 27. Adopted in Finding of Fact 27. 111-113. Subordinate to Finding of Fact 27. Subordinate to Finding of Fact 30. Adopted in Finding of Fact 29. Issue not addressed. Accepted in relevant part in Findings of Fact 27 and 30. Adopted. Adopted. Accepted in relevant part. Issue not addressed. Accepted in relevant part in Findings of Fact 3 and 32. Subordinate to Finding of Fact 3. Accepted in relevant part in Finding of Fact 41. Adopted in Finding of Fact 42. Subordinate to Finding of Fact 41. Issue not addressed. 128-132. Subordinate to Finding of Fact 32. 133-135. Issues not addressed. Adopted in Findings of Fact 32 and 41. Adopted in Finding of Fact 32. Subordinate to Finding of Fact 32. Issue not addressed. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 30. Adopted in Finding of Fact 44. Subordinate to Finding of Fact 45. Subordinate to Finding of Fact 47. Adopted in Finding of Fact 46. Subordinate to Finding of Fact 47. Adopted in Finding of Fact 44. 150-151. Adopted in Finding of Fact 46. 152-156. Issues not addressed. 157-158. Adopted in Finding of Fact 10. 159. Adopted in Findings of Fact 48 and 49. 160. Adopted in Finding of Fact 5. 161. Adopted in Finding of Fact 5. 162. Adopted in Finding of Fact 56. 163. Adopted in Finding of Fact 57. 164. Adopted in Finding of Fact 10. 165. Adopted in Finding of Fact 10. 166. Charter Adopted in Finding of Fact 57. 1. Accepted in relevant part in Finding of Fact 1. 2-3. Adopted. 4-10. Accepted in Preliminary Statement. 11. Adopted in Finding of Fact 1. 12-15. Issues not addressed. 16. Adopted in Finding of Fact 12. 17. Adopted in Finding of Fact 7. 18-19. Issues not addressed. 20. Adopted in Finding of Fact 8. 21-25. Subordinate to Finding of Fact 8. 26-38. Issues not addressed 39-40. Adopted in Finding of Fact 10. Subordinate to Finding of Fact 13. Adopted in Finding of Fact 13. 43-44. Adopted in Finding of Fact 22. Adopted in Finding of Fact 13. Adoped in Conclusion of Law 3. Adopted in Finding of Fact 13. Subordinate to Finding of Fact 25. Adopted in Findings of Fact 25 and 26. Adopted in Finding of Fact 23. Issue not addressed. 52-53. Adopted in Finding of Fact 25. 54-55. Issues not addressed. Adopted in Finding of Fact 26. Adopted in Finding of Fact 24. 58-73. Issues not addressed. Adopted in Finding of Fact 23. Adopted in Finding of Fact 38. Adopted in Finding of Fact 27. Adopted in Findings of Fact 27 and 30. 78-79. Subordinate to Findings of Fact 27 and 30. Subordinate to Finding of Fact 27. Issue not addressed. Adopted in Findings of Fact 27 and 30. Adopted in Finding of Fact 37. Adopted in Finding of Fact 39. Adopted in Finding of Fact 25. 86-94. Issues not addressed. Adopted in Finding of Fact 26. Issue not addressed. Adopted in Finding of Fact 15. Adopted in Findings of Fact 37, 39 and 42. 99-101. Issues not addressed. 102. Adopted in Finding of Fact 1. 103-134. Issues not addressed. 135. Adopted in Finding of Fact 4. 136-140. Issues not addressed. Boca Adopted in Finding of Fact 12. Adopted in Finding of Fact 11. Subordinate to Finding of Fact 11. Adopted in Finding of Fact 1. Adopted in Preliminary Statement. Adopted in Findings of Fact 3 and 32. Adopted in Finding of Fact 33. Subordinate to Finding of Fact 3. Adopted in Finding of Fact 32. 10. Subordinate to Finding of Fact 32. 11. Adopted in Finding of Fact 41. 12. Subordinate to Finding of Fact 32. 13. Adopted in Finding of Fact 32. 14. Adopted. 15-16. Subordinate to Finding of Fact 32. 17. Adopted in Finding of Fact 34. 18. Subordinate to Finding of Fact 32. 19. Issue not addressed. 20-21. Adopted in Finding of Fact 32. 22. Rejected in Finding of Fact 39. 23. Subordinate to Finding of Fact 32. 24. Adopted in Finding of Fact 32. 25. Subordinate to Finding of Fact 32. 26-27. Adopted in Finding of Fact 41. 28-30. Subordinate to Finding of Fact 41. 31. Adopted in Finding of Fact 34. 32. Adopted in Finding of Fact 39. 33. Subordinate to Finding of Fact 34. 34. Adopted in Finding of Fact 39. 35. Adopted in Finding of Fact 34. 36. Rejected in Finding of Fact 39. 37-42. Adopted in Finding of Fact 41. 43-47. Issues not addressed. 48. Subordinate to Finding of Fact 30. 49-50. Issues not addressed. Accepted in relevant part in Findings of Fact 27 and 30. Issue not addressed. 53-54. Rejected in Finding of Fact 30. 55-56. Issues not addressed. 57. Adopted in Finding of Fact 12. 58-59. Issues not addressed. Rejected in Findings of Fact 39 and 42. Adopted in Finding of Fact 12. Issue not addressed. Adopted in Finding of Fact 32. 64-65. Issues not addressed. Adopted in Findings of Fact 32, 35 and 38. Adopted in Finding of Fact 36. Adopted. Issue not addressed. Adopted in Finding of Fact 32. Adopted in Finding of Fact 12. Subordinate to Finding of Fact 32. Issue not addressed. Accepted in relevant part in Finding of Fact 34. Issue not addressed. Issue not addressed. Adopted in Finding of Fact 15. Issue not addressed. Adopted. Adopted in Finding of Fact 32. 81-82. Rejected in Finding of Fact 42. Issue not addressed. Adopted in Finding of Fact 32. Adopted in Finding of Fact 37. Rejected in Findings of Fact 25 and 42. Issue not addressed. Adopted in Finding of Fact 6. 89-97. Issues not addressed. Subordinate to Finding of Fact 25. Rejected in Finding of Fact 42. Issue not addressed. Adopted in Findings of Fact 25 and 26. Adopted in Finding of Fact 6. Sandy Pines 1. Issue not addressed. 2-3. Subordinate to Finding of Fact 1. 4. Issue not addressed. 5. Subordinate to Finding of Fact 9. 6-8. Adopted in Finding of Fact 9. 9-13. Subordinate to Finding of Fact 25. 14. Adopted in Finding of Fact 9. 15. Subordinate to Finding of Fact 9. Adopted in Finding of Fact 25. Adopted in Finding of Fact 27. Adopted in Finding of Fact 25. Adopted in Finding of Fact 27. 20-24. Subordinate to Finding of Fact 27. 25. Subordinate to Finding of Fact 9. 26-29. Issues not addressed. 30. Adopted. 31-33. Issues not addressed. Adopted in Findings of Fact 42, 43, 48, 49 and 54. Issue not addressed. Accepted in relevant part in Findings of Fact 27 and 30. Subordinate to Findings of Fact 28 and 31. Issue not addressed. 39-40. Subordinate to Findings of Fact 27 and 30. 41-42. Issues not addressed. Accepted in relevant part in Finding of Fact 12. Accepted in relevant part in Findings of Fact 12 and 17. Accepted in relevant part in Finding of Fact 17. 46-47. Accepted in relevant part in Finding of Fact 26. 48. Subordinate to Findings of Fact 25 and 26. 49-50. Issues not addressed. Adopted. Adopted. Accepted in relevant part in Finding of Fact 7. Accepted in relevant part in Finding of Fact 42. 55-56. Issues not addressed. 57. Adopted. 58-59. Issues not addressed. Accepted in relevant part in Conclusion of Law 3. Accepted in relevant part in Finding of Fact 26. 62-64. Accepted in relevant part in Finding of Fact 25. Accepted in relevant part in Findings of Fact 27 and 30. Subordinate to Findings of Fact 27 and 30. 67. Accepted in relevant part in Finding of Fact 22. 68-69. Accepted in relevant part in Finding of Fact 21. 70. Accepted in relevant part in Finding of Fact 26. 71. Accepted in relevant part in Finding of Fact 26 and in 72. Conclusion of Law 3. Accepted in relevant part in Findings of Fact 26 and 73. 38. Accepted in relevant part in Findings of Fact 25, 27 and 30. 74-75. Not legible. 76. Subordinate to Finding of Fact 25. 77-80. Subordinate to Finding of Fact 27. 81. Subordinate to Finding of Fact 25. 82-83. Subordinate to Finding of Fact 27. 84-95. Issues not addressed. Wellington 1-2. Adopted in Findings of Fact 4 and 44. Adopted in Finding of Fact 45. Adopted in Finding of Fact 44. Subordinate to Findings of Fact 4 and 44. Adopted in Finding of Fact 44. Adopted in Finding of Fact 45. 8-10. Subordinate to Finding of Fact 45. 11-12. Adopted in Finding of Fact 45. 13-19. Subordinate to Findings of Fact 4 and 44. 20. Adopted in Findings of Fact 4 and 46. 21-22. Adopted in Findings of Fact 4 and 44. Adopted in Finding of Fact 45. Subordinate to Findings of Fact 44 and 46. Subordinate to Findings of Fact 4 and 44. Subordinate to Finding of Fact 46. 27-28. Adopted in Finding of Fact 46. Adopted in Finding of Fact 30. Adopted in Finding of Fact 46. 31-32. Issues not addressed. Subordinate to Finding of Fact 25. Adopted. Issue not addressed. 36-37. Adopted in Finding of Fact 45. 38-42. Issues not addressed. 43. Adopted in Findings of Fact 34, 42 and 47. 44-63. Issues not addressed. 64-65. Subordinate to Finding of Fact 46. 66-67. Issues not addressed. 68. Adopted in Finding of Fact 10. 69-91. Issues not addressed. Accepted in relevant part in Finding of Fact 47. Accepted in relevant part in Finding of Fact 12. 94-103. Issues not addressed. Accepted in relevant part in Findings of Fact 1 and 44. Accepted in relevant part in Finding of Fact 45. 106-111. Issues not addressed 112. Rejected in Findings of Fact 25, 27 and 30. 113-115. Accepted in relevant part in Finding of Fact 45. Savannas Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 7. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Findings of Fact 5 and 50. Subordinate to Finding of Fact 5. Adopted in Finding of Fact 53. Subordinate to Finding of Fact 53. Subordinate to Finding of Fact 56. Subordinate to Findings of Fact 5 and 50. Adopted. Issue not addressed. Adopted in Finding of Fact 56. Issue not addressed. Adopted in Finding of Fact 53. Rejected in Finding of Fact 56. Issue not addressed. Adopted in Finding of Fact 51. Adopted in Finding of Fact 50. Issue not addressed. Adopted in Findings of Fact 5 and 51. Subordinate to Finding of Fact 51. Adopted in Finding of Fact 53. Subordinate to Finding of Fact 1. 30-33. Subordinate to Finding of Fact 12. 34. Adopted in Finding of Fact 12. 35-37. Issues not addressed. Adopted in Finding of Fact 53. Issue not addressed. 40-42. Rejected in Finding of Fact 54. 43. Adopted in Finding of Fact 50. 44-48. Subordinate to Finding of Fact 50. 49-51. Rejected in Findings of Fact 53 and 57. Adopted in Finding of Fact 53. Rejected in Findings of Fact 53 and 57. Adopted. Adopted. 56-57. Subordinate to Finding of Fact 50 Rejected in Findings of Fact 53 and 57. Issue not addressed. 60-61. Rejected in Findings of Fact 53 and 57. 62-63. Issues not addressed. 64. Adopted in Finding of Fact 56. 65-66. Issues not addressed. 67. Rejected in Findings of Fact 53 and 57. 68-70. Issues not addressed. 71. Adopted in Finding of Fact 52. 72-77. Issues not addressed 78. Adopted in Finding of Fact 1. 79-100. Issues not addressed. HRS Adopted in Finding of Fact 1. Adopted in Finding of Fact 11. Adopted in Finding of Fact 13. Adopted in Finding of Fact 12. Accepted in relevant part in Finding of Fact 16 and rejected in part in Finding of Fact 17. Adopted in Finding of Fact 16. Subordinate to Finding of Fact 16. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. 10-11. Subordinate to Finding of Fact 12. Accepted in relevant part in Finding of Fact 12. Issue not addressed. Accepted in relevant part in Finding of Fact 12. Subordinate to Finding of Fact 12. 16-17. Issues not addressed. Adopted in Finding of Fact 1. Subordinate to Findings of Fact 32, 46 and 52. Adopted in Finding of Fact 20. 21. Subordinate to Finding of Fact 1. 22. Subordinate to Finding of Fact 2. 23-33. Issues not addressed. 34. Adopted in Finding of Fact 3. 35-36. Subordinate to Finding of Fact 3. 37. Accepted in relevant part in Finding of Fact 32. 38. Subordinate to Finding of Fact 32. 39. Rejected in Findings of Fact 40, 41 and 42. 40. Adopted in Finding of Fact 32. 41. Issue not addressed. 42. Adopted in Finding of Fact 42. 43. Adopted in Finding of Fact 32. 44. Issue not addressed. 45-46. Adopted in Finding of Fact 32. 47. Adopted in Finding of Fact 47. 48. Accepted in relevant part in Finding of Fact 44. 49. Issue not addressed. 50. Accepted in relevant part in Finding of Fact 46. 51. Subordinate to Finding of Fact 47. 52. Accepted in relevant part in Finding of Fact 46. 53-54. Accepted in relevant part in Finding of Fact 45. 55. Issue not addressed. 56-57. Subordinate to Finding of Fact 46. 58. Subordinate to Finding of Fact 47. 59-61. Issues not addressed. 62-64. Adopted in Findings of Fact 50 and 51. 65. Subordinate to Finding of Fact 65. 66-68. Issues not addressed. 69. Accepted in relevant part in Finding of Fact 52. 70-71. Issues not addressed. 72. Accepted in relevant part in Finding of Fact 53. 73. Accepted in relevant part in Finding of Fact 53. 74. Adopted in Finding of Fact 56. 75-77. Subordinate to Finding of Fact 56. 78-80. Issues not addressed. 81-82. Subordinate to Finding of Fact 56. 83-89. Issues not addressed. COPIES FURNISHED: Thomas Cooper, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 William B. Wiley, Esquire McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. Post Office Box 2174 Tallahassee, Florida 32316-2174 James C. Hauser, Esquire Foley & Lardner Post Office Box 508 Tallahassee, Florida 32302 Michael J. Cherniga, Esquire David C. Ashburn, Esquire Roberts, Baggett, LaFace & Richard Post Office Drawer 1838 Tallahassee, Florida 32301 Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Michael J. Glazer, Esquire C. Gary Williams, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Robert S. Cohen, Esquire John F. Gilroy, III, Esquire Haben, Culpepper, Dunbar & French, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Charles H. Hood, Jr., Esquire MONACO, SMITH, HOOD, PERKINS, ORFINGER & STOUT 444 Seabreeze Boulevard, #900 Post Office Box 15200 Daytona Beach, Florida 32115 R. S. Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from his disqualifying offenses, and if so, whether Respondent would abuse its discretion in denying his request for an exemption from disqualification from employment. 1 All references to Florida Statutes are to the 2020 codification.
Findings Of Fact The Parties Petitioner is a 62-year-old male who seeks an exemption from disqualification from employment from positions that require compliance with level II background screening requirements under section 435.04, Florida Statutes. Specifically, Petitioner is seeking to become the owner and administrator of a facility that would provide housing and related services for persons who are in isolation due to having been infected with the virus that causes Covid-19. Because such facilities are subject to regulation by Respondent, pursuant to section 435.06, Petitioner is subject to the background screening requirements and restrictions of section 435.04 regarding his employment in positions of trust working with individuals who would be temporarily residing in such facilities. Respondent is the agency responsible for conducting background screening under section 435.04 for persons seeking to become employed in a position of trust in connection with assisted living facilities, such as that sought to be established by Petitioner. Evidence Presented at Final Hearing As more fully discussed below, section 435.04(2) establishes a list of criminal offenses that are considered "disqualifying offenses" for purposes of disqualifying persons who have been convicted of, or pled nolo contendere to, the listed offenses, from being employed in a position involving contact with vulnerable persons.2 Between 1992 and 2015, Petitioner was arrested 25 times. The competent substantial evidence establishes that Petitioner was convicted of, or pled nolo contendere to, six disqualifying offenses. Petitioner's six disqualifying offenses are as follows: dealing in stolen property, in violation of section 812.019, Florida Statutes, committed on February 12, 1982; burglary and aggravated assault with a deadly weapon, in violation of sections 810.02 and 784.021, Florida Statutes, committed on November 18, 1992; possession of cocaine, in violation of section 893.13, Florida Statutes, committed on November 3, 1993; sale of cocaine, in violation of section 893.13, committed on November 3, 1998; and resisting officer with violence, in violation of section 843.01, Florida Statutes, committed on November 3, 1998. Petitioner was incarcerated for approximately 11 years, and was released from incarceration in or about 2009. Although Petitioner has been arrested 11 times since he committed his last disqualifying offense in 1998, all but one of those arrests were disposed of by the criminal charges being abandoned, or by nolle prosequi, which means that the charges were dropped.3 Of the arrests subsequent to Petitioner's most recent disqualifying offense, the great majority of them stemmed directly from a difficult personal relationship in which Petitioner's then—now former—girlfriend would frequently call the police when they argued, resulting in Petitioner being 2 "Vulnerable person" is defined in section 435.02 as a minor or a vulnerable adult. A "minor" is a person who has not attained the age of 18 years. § 1.01(13), Fla. Stat. A "vulnerable adult" is a person 18 years of age or older whose ability to perform the normal activities of daily living or provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. § 415.102(28), Fla. Stat. 3 A nolle prosequi ends a criminal proceeding. Wilkins v. State, 90 So. 3d 305, 306 (Fla. 1st DCA 2012), citing State v. Aguilar, 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008). arrested. Importantly, a review of the documentation of these arrests reveals that all of the charges related to these incidents were dropped or abandoned. Petitioner testified, credibly, that his former girlfriend was incarcerated for filing false reports with police, and that he obtained an injunction requiring her to stay away from him. Importantly, Petitioner testified, credibly and persuasively, that he no longer is in a relationship with this individual. It has been approximately six years since Petitioner's most recent arrest. He has completed all court-ordered requirements and has fully paid all related fines and fees. Petitioner's only conviction since his most recent disqualifying offense was in May 2014, for possession of marijuana. At the final hearing, Petitioner testified, credibly and persuasively, that he was wrongfully charged with marijuana possession in connection with police having been called by neighbors to investigate him for burglary of his own dwelling. Petitioner credibly testified that he was counseled by his lawyer, Dean Mosley, not to contest the charges because if he went to trial and was convicted, he could be sentenced to a year in jail. Consequently, Petitioner pled guilty and was fined $227.00, plus court costs. Mosley, who testified on behalf of Petitioner at the final hearing, confirmed Petitioner's testimony regarding this incident. Petitioner obtained a bachelor's degree from Florida Agricultural and Mechanical University in 1983, and a technical degree in Computer and Engineering Technology from Tampa Technical Institute in 1984. Petitioner also completed the adult congregate living facility Extended Congregate Care Program provided by the Department of Health and Rehabilitative Services, Respondent's predecessor agency, in 1995, and completed a course in HIV/AIDS exposure to bloodborne pathogens provided by Emergency Medical Consultants, Inc., in 1998. Between 1994 and 1996, Petitioner served as co-administrator for Bowe's Retirement Home, Inc., a licensed assisted living facility owned and operated by his mother. Although he no longer is a co-administrator for this facility, he currently serves as its marketing executive. Additionally, Petitioner owns and operates Bowes Restorative Care/Services, through which he provides transitional housing for persons who are homeless and HIV-positive, in conjunction with the Department of Health and the Mental Health Court of St. Lucie County, Florida. Petitioner's transitional housing facility was the first in the Treasure Coast region of Florida to be approved by the U.S. Veterans Administration, and provides a transitional residential facility setting for homeless veterans as they transition into an independent residential living arrangement. Petitioner has owned and successfully operated his transitional housing facility since 2011. Petitioner testified, credibly, that he has not used drugs for at least 20 years, and that he does not drink alcohol. Petitioner has applied for the exemption at issue in this proceeding because he desires to own and operate a Covid-19 isolation facility, which would provide transitional residential housing for persons who are isolating from others while recovering from Covid-19. Petitioner also noted that he eventually would like to assume operation of his mother's retirement home business, and pass it on to his children to operate as a family business. Petitioner submitted numerous character references and letters of recommendation prepared on his behalf to Respondent as part of his exemption application package. Laura Saputo, a mental health court case worker with the Indian River County Sheriff's Office, wrote a character reference letter, dated March 10, 2020, on behalf of Petitioner. Saputo stated that in working in the community, Petitioner demonstrates empathy, compassion, caring, a strong positive belief system, and a true desire to assist people, all of which are vital characteristics for helping those in need better their lives. She also stated that Petitioner works well with the Mental Health Court in Indian River County, has a great rapport with group home clients, and conducts himself in a calm, professional manner, even when dealing with difficult clients. Based on her experiences in working with Petitioner, Saputo stated that she has a great deal of faith in Petitioner and places her trust in him. Karleen Russ, a mental health counselor, also wrote a letter of recommendation on behalf of Petitioner regarding his request for an exemption. Specifically, Russ stated that she has known Petitioner for many years and that, in her experience, he has always exhibited a professional demeanor, and character, and high moral standard as a mental healthcare provider; and that he has worked diligently with clients having serious and persistent mental health, substance abuse, geriatric, and criminal issues. She recommended that he be granted the approval necessary to enable him to continue his work in the community. Daniel Bin, a certified behavioral health case manager, also wrote a letter of recommendation on behalf of Petitioner. Bin stated that he has worked with Petitioner in a professional setting, and that Petitioner exhibits preparation, skill in successfully completing complex tasks, follow-up efforts, dedication to perfection, professionalism, and a superb work ethic. He noted that any company would be improved by having Petitioner as an employee. Eric Eschmann, a Florida registered professional guardian, wrote two letters of recommendation on Petitioner's behalf. Eschmann stated that Petitioner took on the responsibility of housing and caring, for five years, for a particularly high maintenance ward who received care due to mental incapacity, and that Petitioner accurately and proficiently manages the ward's diet, medications, appointments, and shopping, while assuring that the ward is well-fed; does not elope; does not harass or assault others; and is housed in a clean and safe environment. Bin also praised Petitioner's communication in keeping him (Bin) apprised of developments regarding the ward requiring his attention, while proficiently handling the matters that do not require Bin's involvement. He highly recommended Petitioner for any role having to do with the management or care of persons requiring assistance. Morgan Libbey, a court-appointed professional guardian and executive of the Public Guardianship Program of Indian River County, Inc., provided a statement that she has worked with Petitioner for approximately two years through her organization's client services program. She stated that Petitioner has provided excellent care and oversight of a ward of the court, and that in doing so, provided crucial services for the community, while demonstrating honesty and compassion for others. Florida Representative Larry Lee, Jr., also wrote a character reference letter on Petitioner's behalf. Based on his more than 30 years of friendship with Petitioner, Lee described Petitioner as a very caring and committed person, determined to help others. He also noted that Petitioner "made choices that were not advantageous early in life," but that he had accepted responsibility for his mistakes and learned from them. Lee recognized and commended Petitioner for his work in the community, and appealed "to any organization that can assist him" to help him continue his work. Colleen Barnes, a realtor with Sun Group Realty, Inc., wrote a character reference letter for Petitioner. She stated that she has known Petitioner in a professional capacity for approximately five years, and she characterized him as warm, compassionate, personable, highly motivated, and "capable of achieving any goal he sets his mind to." She commended him for his cool composure and confidence, which enables him to keep situations under control while working with many diverse personalities in his profession. Petitioner also presented the testimony of three character witnesses at the final hearing. Barry Mitchell, a certified public accountant who has been Petitioner's friend for over 60 years, testified at the final hearing and also wrote a letter of recommendation that was included in Petitioner's application package. In his letter, Mitchell characterized Petitioner as being a caring, productive person who has "rolled up his sleeves and gone to work for the community" in caring for physically and mentally challenged persons in his home. He also noted that Petitioner works with his mother to assist her in operating her retirement living facility, and that he is a "thinker and a doer." At the final hearing, Mitchell testified that Petitioner is a hard-working, caring individual with a vision of making his community a better place. In Mitchell's view, Petitioner's talent, hard work, and potential to help his community far outweigh his criminal record, and he urged that Petitioner be granted the exemption, so that he can have the opportunity to contribute to his community in a healthcare provision setting. Arthur Lewis Baker also testified at the final hearing on Petitioner's behalf. Baker is a certified peer recovery specialist who is employed with New Horizons, a community mental health and substance abuse provider, in St. Lucie County. Baker has known and worked with Petitioner for approximately four years in connection with placement, by the Indian River Mental Health Court, of clients in Petitioner's transitional residential facility. Baker testified that Petitioner has worked with extraordinary needs clients who have schizophrenia or bipolar disorder, and provides excellent, compassionate care for these individuals. Specifically, Baker testified that Petitioner always exhibits a calm demeanor when interacting with mental health clients, and ensures that they are well-fed, given their medications, taken to doctor's appointments, and are otherwise well-cared for. Dean Mosley, an attorney who has personally known Petitioner for more than 40 years, testified at the final hearing and also wrote a character reference letter that was included in Petitioner's exemption application package. Mosley particularly noted Petitioner's sense of empathy; strong work ethic; extensive knowledge of assisted living facilities; and dedication to continuing, and ultimately operating, his mother's business. Respondent did not present any competent substantial evidence showing that it considered Petitioner's character reference letters as part of its review and decision-making regarding Petitioner's application for exemption. To this point, Respondent's witness, Vanessa Risch, testified that she did not know whether Respondent considered or verified the references included in Petitioner's application in reviewing Petitioner's exemption request.4 Petitioner testified, credibly and persuasively, that he is very remorseful regarding his criminal offenses over the years. He presented compelling testimony to the effect that he understands and takes responsibility for his actions, and that he has taken substantial steps to change the circumstances in his life that led to him committing crimes. As more extensively discussed above, Petitioner's actions in successfully and safely operating a transitional residential facility while not having been arrested in six years, and not having been convicted of a crime in seven years, bear out Petitioner's testimony that he has changed his life. Petitioner testified, credibly and persuasively, that he is committed to taking whatever actions are necessary to enable him to own and operate the Covid-19 isolation facility for which he seeks the exemption, including not committing criminal offenses. Importantly, Petitioner understands that if he were again to commit a criminal offense, any exemption that he may be granted could be revoked. As Petitioner put it, he is asking for a second chance in order to be able to work in an area to which he is dedicated, and in which he has extensive knowledge and successful experience. 4 The pertinent testimony regarding Respondent's consideration of Petitioner's references as part of its decision-making process regarding his exemption request was as follows: "Q: Well, was that [considering and contacting Petitioner's character references] done, to your knowledge? A: I . . . I don't make the decision, I'm not sure." Findings of Ultimate Fact Upon consideration of the competent substantial evidence in the record, it is determined that Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from his disqualifying offenses.5 Under section 435.07(3)(a), matters that are relevant to demonstrating rehabilitation include the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, the history of the employee since the incident, and other evidence indicating that the employee will not present a danger if employment is allowed. Additionally, under section 435.07(3)(b), the agency may consider, as part of its deliberations regarding an applicant's rehabilitation, arrests or convictions of the applicant subsequent to the conviction for the disqualifying offense, even if arrest or conviction is for a crime that is not a disqualifying offense. As discussed above, it has been over 20 years since Petitioner committed his last disqualifying offense. Although Petitioner has been arrested multiple times since that disqualifying offense, all but one of those arrests resulted from a now-former girlfriend calling law enforcement during arguments with Petitioner, resulting in Petitioner being arrested. Crucially, the charges for each of those arrests were dropped. Petitioner has exhibited the sound judgment to extricate himself from that relationship, and since doing so, has not been arrested. Moreover, his only conviction since his last disqualifying offense, for possession of marijuana, was the result of having pled guilty at the advice of counsel in order to avoid risking a potentially lengthy jail sentence. Petitioner's conduct over the past six years since his last arrest is most probative in demonstrating that he is rehabilitated. 5 See J.D. v. Dep't of Child. and Fams., 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013)(whether an applicant for an exemption has demonstrated rehabilitation is an ultimate issue of fact). Specifically, as discussed in detail above, Petitioner has successfully operated, for the past several years, a transitional residential facility for veterans and other individuals in need of a stable, caring environmental while they transition into permanent living arrangements. Importantly, Petitioner is currently engaged in precisely the kind of activity, in the same type of residential setting, in which he would continue to work if he is granted the exemption. That he has successfully worked with vulnerable individuals for several years, without any problems whatsoever, is strong evidence that Petitioner is rehabilitated and will not present a danger or threat to vulnerable individuals staying in his facility. Furthermore, the fact that the Mental Health Court of Indian River County has placed individuals in Petitioner's care at his transitional residential facility is particularly strong evidence that Petitioner will not present a danger or threat to vulnerable individuals residing in his residential care facility. To this point, the fact that the judicial branch— which obviously is fully privy to the information regarding Petitioner's background—has deemed Petitioner sufficiently rehabilitated and trustworthy to place vulnerable individuals in his care constitutes compelling evidence that Petitioner is rehabilitated from his disqualifying offenses and will not present a danger to vulnerable individuals entrusted to his care. As discussed above, Petitioner presented numerous character references, including letters from, and the in-person testimony of, persons who have worked with Petitioner regarding vulnerable individuals placed in Petitioner's facility through the mental health court program. To a person, each of these references attested to Petitioner's dedication, compassion, and trustworthiness in working with, and providing a safe, stable environment for, the individuals entrusted to his care. Additionally, Petitioner presented the compelling, persuasive testimony of additional witnesses at the final hearing, further attesting to his trustworthiness, diligence, compassion, energy, and dedication in providing a safe, stable transitional residential environment for vulnerable individuals. Respondent did not present any competent evidence showing that it considered Petitioner's character reference letters in reviewing his request for an exemption, and it did not provide any specific evidence at the final hearing showing that, notwithstanding Petitioner's six-plus years of exemplary conduct during which he has successfully operated a facility in which he has provided care to vulnerable individuals placed in his facility by the court, he is not rehabilitated and, thus, may present a threat to vulnerable individuals such that his exemption request should be denied. In sum, the competent, persuasive evidence clearly and convincingly establishes that Petitioner is rehabilitated from his disqualifying offenses such that he should be granted an exemption from employment disqualification in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Petitioner's request for an exemption from disqualification. DONE AND ENTERED this 11th day of March, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2021. COPIES FURNISHED: Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Simone Marstiller, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Garnett Dwayne Bowe 2208 Avenue East Fort Pierce, Florida 34947 Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue The issue in these consolidated cases is whether proposed amendments to Rule 10-5.011(1)(o), and (p) F.A.C. relating to certificates of need for hospital inpatient general psychiatric services, are invalid exercises of delegated legislative authority, as defined in Section 120.52(8), F.S.
Findings Of Fact Metamorphosis of the Rules Prior to 1983, hospitals were not separately licensed, and certificates of need (CON) were not required for the designation of beds for psychiatric and substance abuse services. In 1983, statutory amendments to Chapter 381, F.S. addressed psychiatric beds as reviewable projects in the CON program. In 1983, HRS adopted rules establishing four new categories of beds, now found in Rules 10-5.011(1)(o), (p), and (q), F.A.C.: Short-term psychiatric, long-term psychiatric, and short and long-term substance abuse. At the time that the categories were created, HRS conducted an inventory of the hospitals, asking how many beds were designated in each category. Based on the responses, published in the Florida Administrative Weekly, future projections of need were made and applications were considered for CONs. Another category of psychiatric beds was not included in the 1983 rules. Intensive residential treatment programs for children and adolescents were created by statute in 1982, and are defined in Section 395.002(8), F.S. as: a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of IS having psychiatric disorders in order to restore such patients to an optimal level of functioning. These facilities, called IRTFs, may become licensed as hospitals pursuant to Section 395.003(2)(f), F.S., but as hospitals they must obtain CON approval pursuant to Sections 381.702(7) and (12), F.S. and Section 381.706(1) (b), F.S. IRTFs have no statutory or regulatory restrictions on length of stay and were approved by HRS at one time under an unwritten policy that there be one such facility available in each HRS planning district, without regard to the availability of other long or short term psychiatric programs. In 1985, HRS proposed a rule amendment which would have eliminated the short and long term distinction, as well as the distinction between psychiatric services and substance abuse services. Six months later, the proposed rule amendment was withdrawn. It was highly controversial; several challenges were filed; objections were made by various local health councils; and a new administrator took over. The agency decided to rework its proposed change~;. The agency next began the process of revision in 1987, and in 1988 convened a workshop group to review an issue paper prepared by agency staff. Another work group met in 1989 to consider the consolidation of psychiatric and substance abuse rules. HRS staff reviewed literature on the subjects of substance abuse and psychiatric services, including literature relating to access by indigent patients and the provision of services to children and adolescents. Staff prepared rule drafts which were circulated in- house, including the alcohol, drug abuse and mental health program office; and to such outside groups as the Association of Voluntary Hospitals of Florida, the Florida Hospital Association and the League of Hospitals. The proposed rule amendments which are the subject of this proceeding were filed on January 19, 1990 (substance abuse), and on January 26, 1990 (inpatient psychiatric services) in the Florida Administrative Weekly. The Parties HRS administers the CON program pursuant to Section 381.701, et seq., F.S. (1989). The CON program regulates entry into the Florida health care market by providers through review and approval of certain capital expenditures, services and beds. The petitioner, Florida League of Hospitals, Inc. is a nonprofit corporation which is organized and maintained for the benefit of investor-owned hospitals which comprise its membership. The remaining petitioners and intervenors are current providers of hospital inpatient psychiatric services, long and short term, and of inpatient substance abuse services, long and short term. The petitioners and intervenors are all substantially affected by the proposed rules and have stipulated to the standing of all parties in this proceeding. Abolishing Distinctions Between Long-Term & Short-Term Psychiatric Beds "Short term hospital inpatient psychiatric services" is defined in existing rule 10-5.011(1)(o)1, FAC, as follows: Short term hospital inpatient psychiatric services means a category of services which provides a 24-hour a day therapeutic milieu for persons suffering from mental health problems which are so severe and acute that they need intensive, full-time care. Acute psychiatric inpatient care is defined as a service not exceeding three months and averaging length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years. "Long term psychiatric services" is defined in existing rule 10- 5.011(1)(p)1., FAC as a category of services which provides hospital based inpatient services averaging a length of stay of 90 days. Neither rule addresses services to adults with an average length of stay (ALOS) of 30-90 days, or services to children and adolescents with a 60-90 day ALOS. Because of this, and the "averaging" process, long term hospitals legitimately serve "short term" patients and short term hospitals may serve "long term" patients. One party has calculated than a long term facility could legally provide short term services for 80% of its patients, and long term services for only 20% of its patients and still have an ALOS of 90 days. Under the existing rules a facility must file a CON application to convert from long term to short term beds, or vice versa, and is subject to sanctions for failure to comply with the designation on its CON. The proposed changes would repeal rule 10-5.011(1) (p), FAC regarding long term services, and would amend rule 10- 5.011(1) (o), FAC to delete the definition of short term services, thereby permitting facilities to serve patients without regard to length of stay. The proposed changes are supported by several factors upon which a reasonable person could rely. Substantial changes have occurred in the last decade in clinical practices and in third party reimbursement to reduce the ALOS for hospital inpatient psychiatric care. Prior to the 1960s, there was no distinction between long and short term care, as all hospital based care was long term with an emphasis on psychoanalytic therapy. Beginning in the 1960s, the concept of community mental health programs evolved with an emphasis on deinstitutionalization of patients in large public "asylums" and with a goal of treatment in the least restrictive environment. In more recent years the trend has spread to the private sector. Improvements in the availability and use of psychiatric drugs, the use of outpatient care or partial hospitalization, and improved follow up care have led to a dramatic decrease in ALOS. Long term care is costly, and whether third party payors have been a driving force, or are merely responding to the trends described above, long term inpatient reimbursement is virtually nonexistent. During the 19805, most insurance companies imposed a 30-day limit on psychiatric inpatient care or imposed monetary limits which would have effectively paid for less than a 90-day term. CHAMPUS, the program providing insurance to military dependents, was providing long term coverage in 1982, but by 1986 its coverage was rarely available for more than 30-60 days, and today, under CHAMPUS' case management system, 30 days is a "luxurious amount". Other large third-party payors such as Blue Cross/Blue Shield have similar limits or aggressively use case management (the close scrutiny of need on a case by case basis) to limit reimbursement for inpatient care. Of the two or three long term facilities in existence at the time that HRS' rules were originally adopted, only one, Anclote Manor still reported an ALOS of over 90 days by 1989, dropping from an ALOS of 477.9 days in 1986 to 145.4 days in 1989. At the same time its occupancy rate dropped below 50%. There is an interesting dialogue among experts as to whether there still exists a clinical distinction between long term and short term inpatient psychiatric care. Studies at the Florida Mental Health Institute found no difference in rate of rehospitalization over a 12 month period between patients who were in a nine week program and patients from Florida State Hospital with a 500 day length of stay. Some mental health practitioners are looking now at treating the chronic psychiatric patient with repeated short term hospital stays and less intensive care between episodes, rather than a single long term inpatient stay. Other practitioners maintain that a long term psychiatric problem is behavioral in nature and requires a total life readjustment and longer length of stay. Whichever practice may be preferable, the facts remain that fewer and fewer mental patients are being treated with long term hospitalization. The proposed rules would not foreclose any facility from providing long term care, if it finds the need. To the extent that a clinical distinction exists between short and long term care, the existing rules do not address that distinction, except from a wholly arbitrary length of stay perspective. The existing rules no longer serve valid health care objectives. Existing providers with short term CONs are concerned that the allowing long term facilities to convert will further glut an underutilized market and will result in an increase in vacant beds and a rise in the cost of health services, contrary to the intent of the CON program. Intensive residential treatment facilities (IRTFs), which will be folded into the need methodology for children and adolescent beds, have no current restrictions on length of stay and may already compete with impunity with the short term providers. Moreover, long term facilities are also providing substantial short term care as a result of the trends discussed above. HRS has not consistently enforced the length of stay restrictions of long term providers' CONs. Whether those CONs were improvidently granted is beside the point. The capital costs have already been incurred; the beds are available; and the beds are being used, in part, for short term services. Abolishing the distinction is a rational approach to current conditions. And in determining that all existing providers would be placed in the same position regarding length of stay, HRS avoids the regulatory nightmare of trying to enforce limitations on existing providers and approving new beds without limitations. Creating a Distinction Between Adult and Children/Adolescent Beds Rule 10-5.011(1)(o)3.c. creates a CON distinction between general psychiatric services for adults, and those services for children and adolescents. Rule 10-5.011(1)(o)4., as proposed, would create separate need criteria for hospital inpatient general psychiatric services for adults and for children/adolescents. Adolescents are defined in Rule 10- 5.011(1)(o)2.a., as persons age 14 through 17 years. Persons over 17 years are adults, and under 14 years are children. There are valid clinical reasons to distinguish between programs fob the separate age groups. Although there is some overlap, differing therapies are appropriate with different ages. The types of services offered to adults are not the same as those which are offered to children. Children, for example, often receive academic educational services while being hospitalized. Adults receive career or vocational counseling and marriage counseling. The required separation by age categories would remove some flexibility from providers. However, this is offset by the Department's valid need to track for planning purposes inpatient services to children and adolescents separately from those provided to adults. Based on anecdotal evidence, HRS' Office of Alcohol, Drug Abuse and Mental Health Program Office is concerned about the possible overutilization of hospital inpatient services for children and adolescents and the potential that when insurance reimbursement expires they are discharged without clinical bases. Taking Inventory Under the proposed rule, in order to separately regulate adult and children/adolescent beds, HRS will fix an inventory of uses as of the time that the rule takes effect. For facilities with CONs which already allocate beds between the two groups, the proposed rule will have no effect. For facilities without a designation, as long as adults and children/adolescents are kept in separate programs, the allocation can now be mixed and changed at will. The rule amendment will freeze that use in place. HRS has conducted a preliminary survey to determine the existing uses of psychiatric, substance abuse and residential treatment program beds. The survey of approximately 120 facilities is complete, but is not intended to limit those facilities unless their CON already provides a limit. A final inventory will be taken after the proposed rules become effective. The inventory will be published, and providers will be given an opportunity to contest its findings. The ultimate outcome will be amended CONs and licenses which reflect each facility's mix of adult and children/adolescent beds. The process is a fair and reasonable means of commencing separate regulation of services to these age groups. The Definitions Proposed rules 10-5.011(1)(o)2.1., 2.p., and 2.t.) define "hospital inpatient general psychiatric services", "psychiatric disorder" and "substance abuse", respectively. Each of these provisions defines the terms by reference to classifications contained in the Diagnostic and Statistical Manual of Mental Diseases (DSM-III-R Manual) and equivalent classifications contained- in the International Classification of Diseases (ICD-9 Codes). The rule as originally proposed included the phrase "or its subsequent revisions", after incorporating the manuals by reference. In testimony, and in the parties second agreement (Hearing Office exhibit 3) the phrase is deleted. However, it still appears in proposed rule 10-5.011(1) (o)2.1., perhaps inadvertently. The DSM-III-R is a generally recognized manual for the classification of mental disorders and is widely used by clinicians and medical records professionals to categorize the conditions of patients. The ICD-9 codes are broader than just mental disorders, but they have a section on mental disorders with numbers that are identical to those in the DSM-III-R. Although the manuals are complex and subject to interpretation, clinicians are accustomed to their use and they provide a reasonable guide as to the services which may be provided in an inpatient substance abuse program, as distinguished from an inpatient psychiatric program. Advertising Limited Proposed rule 10-5.011(1)(o)3.d. (as amended in the parties second agreement, Hearing Officer exhibit #3), provides: D. Advertising of services. The number of beds for adult or for children and adolescent hospital inpatient general psychiatric services shall be indicated on the face of the hospital's license. Beds in intensive residential treatment programs for children and adolescents which are licensed as specialty hospital beds will be indicated as intensive residential treatment program beds on the face of the hospital's license. Only hospitals with separately-licensed hospital inpatient general psychiatric services, including facilities with intensive residential treatment programs for children and adolescents which are licensed as specialty hospitals, can advertise to the public the availability of hospital inpatient general psychiatric services. A hospital with separately licensed hospital inpatient general psychiatric services that does not have a certificate of need for hospital inpatient substance abuse services may advertise that they [sic] provide services for patients with a principal psychiatric diagnosis excluding substance abuse and a secondary substance abuse disorder. The Department does not currently have CON, licensure, or other rules which limit the ability of a health care provider to advertise its services, and has never used advertising as a factor in conducting CON review for any proposed services. HRS included provisions regarding advertising in its proposed rules because it had evidence that existing facilities have used misleading advertisements. The evidence came from other providers, rather than consumers. However, it is the consumer whom the agency feels may be confused by advertising which implies that services are available when such services cannot be legally provided under the facility's license. The advertising provision is prospective in nature, seeking to prevent licensed providers from advertising services for which they are not licensed. The provisions do not relate to CON review, and the staff is unclear as to how the rule would be implemented. Licensing and CON review are two separate functions within the agency. Although the term is not defined in the proposed rule, advertising broadly includes word of mouth referrals and public presentations by professionals in the community, as well as traditional media and written advertisements. Properly utilized, advertising helps consumers exercise choice and gain access to needed services. Improper advertising is subject to the regulation of federal and state agencies other than the department. New Need Methodology, with Preferences Proposed Rule 10-5.011(1)(o)4., deletes the existing population ratio methodology and creates a need formula based upon use rate, for adult and children/adolescent inpatient psychiatric services. Certain preferences are also described. 34. Rule 10-5.011(1) (o)4.e.(III) provides: In order to insure access to hospital inpatient general psychiatric services for Medicaid-eligible and charity care adults, forty percent of the gross bed need allocated to each district for hospital inpatient general psychiatric services for adults should be allocated to general hospitals. The same provision for children and adolescent services is found in rule 10-5.011(1)(o)4.h.(III). Medicaid reimbursement is not available for inpatient services in a specialty hospital. 35. Rule 10-5.011(1)(o)4.i. provides: Preferences Among Competing Applicants for Hospital Inpatient General Psychiatric Services. In weighing and balancing statutory and rule review criteria, preference will be given to applicants who: Provide Medicaid and charity care days as a percentage of its total patient days equal to or greater than the average percentage of Medicaid and charity care patient days of total patient days provided by other hospitals in the district, as determined for the most recent calendar year prior to the year of the application for which data are available from the Health Care Cost Containment Board. Propose to serve the most seriously mentally ill patients (e.g. suicidal patients; patients with acute schizophrenia; patients with severe depression) to the extent that these patients can benefit from a hospital-based organized inpatient treatment program. Propose to service Medicaid-eligible persons. Propose to service individuals without regard to their ability to pay. Provide a continuum of psychiatric services for children and adolescents, including services following discharge. The preferences are similar to those in CON rules relating to other types of health services and are intended to implement, in part, the legislative mandate that the agency consider an applicant's ". . . past and proposed provision of health care services to medicaid patients and the medically indigent." Section 381.705(1) (n), F.S. Under Medicaid reimbursement general hospitals are paid a set per diem based on a variety of services provided to all Medicaid patients, regardless of actual cost of the individual service. As psychiatric services are generally less costly than other services on a per diem basis, hospitals may recoup a greater percentage of their costs in serving Medicaid psychiatric patients. This and the fact that public hospitals receive some governmental subsidies do not obviate the need for incentives in the CON program. Not all of the charity care provided by these hospitals is funded and a large amount is written off. Although Petitioners argue that the preferences are not needed, or are too generous, none provide competent evidence that the facilities who do not enjoy the preferences are unduly prejudiced. The 40% allocation of bed need to general hospitals is a guideline, not a maximum, as applied by the agency, and presumes that there are general hospitals competing in any batch in question. It is not intended to frustrate a separate section of the rule which allows a hospital with at least an 85% occupancy rate to expand regardless of need shown in the formula and the occupancy rate district-wide. See 10- 5.011(1) (o)4.d. and g. "Evaluation of Treatment Outcomes" The proposed rules contain three provisions relating to a hospital's evaluation of its patients' treatment outcomes. Rule 10-5.011(1) (o)3.i, includes among "required services", ". . . an overall program evaluation of the treatment outcomes for discharged patients to determine program effectiveness." Rule 10-5.011(1)(o)8.j., requires in the application, A description of the methods to be used to evaluate the outcome of the treatments provided and to determine the effectiveness of the program, including any summary evaluation outcome results for hospital inpatient psychiatric services provided at other facilities owned or operated by the applicant in Florida and other states. The data shall exclude patient specific information. Rule 10-5.011(1)(o)9.e., imposes a similar additional requirement in applications from providers seeking more beds: A summary description of any treatment outcome evaluation of the hospital inpatient general psychiatric services provided at the facility for which additional beds are requested, for children, adolescents or adults as applicable to the facility for the 12-month period ending six months prior to the beginning date of the quarter of the publication of the fixed bed need pool. The purpose of these requirements, according to HRS, is to insure that hospitals will know whether its patients are better off when they leave than when they were admitted to the program. Most hospitals have such knowledge. The terms, "outcome determination", "summary evaluation outcome results", "summary description of treatment outcome evaluation" and "overall program evaluation of treatment outcomes", are nowhere defined in the proposed rules, and the department intends to leave to each applicant or provider the methodology for determining whether its patients are "better off" for having been in its program. Hospitals do not routinely evaluate their patients after discharge and such follow up would be difficult and costly. Most hospitals do, however, establish a treatment plan upon admission, continue to review and revise that plan as needed throughout treatment, and determine the patients' readiness for discharge based on the goals successfully attained. This is the process described by Florida Hospital's Center of Psychiatry Administrative Director. The rules require no more than a description similar to that provided by Florida Hospital. The rules set no standards and do not dictate that follow- up of discharged patients be accomplished, even though post discharge evaluation may be of value and is generally accepted as the best tool for measuring treatment effectiveness. The measurement of treatment outcome is an inexact process and relies on a series of subjective standards which need to be described. HRS does not intend to set those standards and, other than have its applicants demonstrate that a process is in place, the agency has no idea how the required information will impact its CON review. Without definitions and standards, the agency will have no way of comparing one applicant's information with another's. Without specificity and more guidance the rules fail to apprise the applicant of what is required and will provide no meaningful information to the agency in its CON review function. Miscellaneous Provisions The Non-Physician Director. The proposed definition of "Hospital Inpatient General Psychiatric Services" in Rule 10-5.011(1) (o)2.1. includes services provided under the direction of a psychiatrist or clinical psychologist In drafting this definition, agency staff relied on advice from experts at their workshops and on advice from the agency's own Alcohol, Drug Abuse and Mental Health Program Office, to the effect that professionals, other than physicians, are qualified to direct the units. Interpretation and Application. It is not the intention of HRS that its rules be interpreted to override good medical practice or the sound judgement of treating physicians. Thus, the rules would not prohibit stabilization of a patient who is presented to the emergency room of a hospital without a CON for substance abuse or psychiatric services. Stabilized Alzheimers patients may be housed in nursing homes. Nor do the rules prohibit or subject to sanctions the occasional admission of a psychiatric or substance abuse patient to a non-substance abuse or psychiatric bed so long as this occurs infrequently in a hospital without psychiatric or substance abuse programs. "Scatter" beds are not eliminated. Those beds would continue to be licensed as acute-care beds, as they would not be considered part of an organized program, with staff and protocols, to provide psychiatric or substance abuse services. Proposed rule 10-5.011(1)(o)4.h.(v) provides that applicants for IRTPs for children and adolescents seeking licensing as a specialty hospital must provide documentation that the district's licensed non-hospital IRTPs do not meet the need for the proposed service. The department is not seeking specific utilization data in this regard, as such is not available. General information on the availability of alternatives to inpatient hospital services is obtainable from local health councils and mental health professionals in the community. Quarterly Reports. Proposed rule 10-5.011(1)(o)10. requires: Facilities providing licensed hospital inpatient general psychiatric services shall report to the department or its designee, within 45 days after the end of each calendar quarter, the number of hospital inpatient general psychiatric services admissions and patient days by age and primary diagnosis ICD-9 code. The Health Care Cost Containment Board (HCCCB) is already collecting similar quarterly data from providers. The reporting system is being updated and improved but in the meantime HRS is experiencing problems with the type and accuracy of the data it receives from HCCCB. One problem is that HCCCB collects its data with regard to all discharges in a psychiatric or substance abuse diagnostic category, whereas HRS is interested only in data from a psychiatric or substance abuse program. Until the system improves, HRS needs the information it seeks from the providers in order to plan and apply the need methodology. The agency intends to designate local health councils to collect the data and has already worked with them to set up a system. If reports provided to the HCCCB comply with the proposed requirement, HRS has no problem in receiving a duplicate of those reports. The Economic Impact Statement Pursuant to Section 120.54(2), F.S., HRS prepared an economic impact statement for the proposed rule. It was authored by Elfie Stamm, a Health Services and Facilities Consultant Supervisor with HRS. Ms. Stamm has a Masters degree in psychology and has completed course work for a Ph.D. in psychology. She has been employed by HRS for 13 years, including the last ten years in the Office of Comprehensive Health Planning. She is responsible for developing CON rules, portions of the state health plan, and special health care studies. It was impossible for Ms. Stamm to determine how the rule could impact the public at large. The economic impact statement addresses generally the effect of abolishing the distinction between long and short term services and acknowledges that the rule will increase competition among short term service providers. The impact statement also addresses a positive impact on current long term providers.
