The Issue The issue in this case is whether Morton Plant Hospital, Baycare (Morton Plant Hospital or Respondent), committed an unlawful employment 1 All statutory references are to Florida Statutes (2019). Relevant provisions of chapter 760, Florida Statutes, have been unchanged since 2015, prior to any allegedly discriminatory acts. practice against Marlena Seenaught (Ms. Seenaught or Petitioner), on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Morton Plant Hospital is a hospital located in Clearwater, Florida. Morton Plant Hospital is part of the greater BayCare Health System. Ms. Seenaught is a woman. She was hired at Morton Plant Hospital as a respiratory therapist in a “pool” position in the respiratory care department on November 13, 2017. Morton Plant Hospital hired Ms. Seenaught right out of school. Ms. Seenaught remained in the respiratory therapist pool position throughout her time at Morton Plant Hospital. By all accounts, Ms. Seenaught was an excellent respiratory therapist. Colleagues described her as a “go-getter” who eagerly sought to learn and grow in her position. Prior to her termination, Ms. Seenaught had never been subject to any discipline by Morton Plant Hospital. At all times relevant to Ms. Seenaught’s allegations, Heather Hayes served as her supervisor. Sean Christensen served as her manager, and the manager of all respiratory therapists. Georda Finnegan served as her “charge” respiratory therapist. Charge respiratory therapists are not technically supervisors; however, they serve an important supervisor-like function. The charge respiratory therapist is responsible for organizing and overseeing the daily workflows and evaluating and handling any issues that come up during a shift, in addition to other tasks. Charge respiratory therapists are also the first point of contact for other respiratory therapists if they have problems, complaints, or suggestions. The Events of September 21, 2018 On a Friday evening, September 21, 2018, Ms. Seenaught attended an after-work birthday celebration at a bar with several of her Morton Plant Hospital co-workers. Mr. Bill Kapusta was in attendance. Mr. Kapusta worked at Morton Plant Hospital as a respiratory therapist. He was primarily assigned to the emergency department (ED) and had been with that department for several years. Mr. Kapusta was well liked and respected by the physicians in the ED. The unrefuted credible testimony of Ms. Seenaught established that, while at the bar, Mr. Kapusta grabbed her buttocks without her permission. Despite her effort to dissuade his advances, Mr. Kapusta repeatedly asked her to have sex with him. Ms. Seenaught shared what happened to her with several of her co- workers, including Anthony O’Donnell, who was also present that night. Mr. O’Donnell testified that he saw Mr. Kapusta touch Ms. Seenaught on the back and approach her various times that evening. He also testified that Ms. Seenaught complained to him that Mr. Kapusta was hitting on her, touching her, and generally making her feel uncomfortable. Reporting the Sexual Harassment The following Thursday (September 27, 2018), Ms. Seenaught reported the sexual harassment incident to her charge respiratory therapist, Georda Finnegan. As Ms. Seenaught’s charge respiratory therapist, Ms. Finnegan served as the person Ms. Seenaught directly reported to during her work shift. Ms. Seenaught told Ms. Finnegan that Mr. Kapusta sexually harassed her at the birthday celebration over the weekend. Ms. Finnegan told Ms. Seenaught that since the harassment occurred outside of work, nothing could be done. At all times relevant, Morton Plant Hospital had a sexual harassment policy in place. The policy set forth that Morton Plant Hospital prohibits harassing, retaliatory, and discriminatory behavior in the workplace, pursuant to its Harassment-Free Workplace Policy. Should harassment occur, the policy explains who should report it and how it should be reported. It states, in pertinent part: Team members who believe that they have been harassed and/or discriminated against have a responsibility to report such behavior immediately to Team Resources, the department manager/director, Administration or by calling the Corporate Responsibility Hotline at 1-877-OUR- DUTY. As well, all known incidents of harassment and/or discrimination must be reported to Team Resources, department manager/director or administration. Team Resources is Morton Plant Hospital’s human resources department. Morton Plant Hospital’s policies, including the Harassment-Free Workplace Policy and the Hotline information, are readily available and accessible to employees on Morton Plant Hospital’s intranet. It is not unusual that Ms. Seenaught would report the sexual harassment she endured to Ms. Finnegan as her charge respiratory therapist. According to Morton Plant Hospital’s policy, Respiratory Care Department Expectations, charge respiratory therapists are the first point of contact for other respiratory therapists if they have problems, complaints, or suggestions. However, Ms. Finnegan, as a charge respiratory therapist, is not one of the individuals identified in the Harassment-Free Workplace Policy as someone who alleged harassment should be reported to. According to Morton Plant Hospital’s Harassment-Free Workplace Policy, Ms. Seenaught was required to report the incident to a supervisor, administration, or Team Resources. The Events of October 27, 2018 After reporting the sexual harassment incident to Ms. Finnegan, Ms. Seenaught avoided all contact with Mr. Kapusta. This was not difficult to do because they did not work in the same department, and generally did not come in regular contact with each other. Her first direct contact with Mr. Kapusta, after the night at the bar, occurred on October 27, 2018. On that day, Ms. Finnegan assigned Ms. Seenaught to work alongside Mr. Kapusta as part of an ED orientation. Since joining Morton Plant Hospital, Ms. Seenaught had been eager to participate in orientation. Orientation is, essentially, a process in which a respiratory therapist is assigned a preceptor who trains the respiratory therapist in a particular task/department. A respiratory therapist who successfully completes a critical care orientation, which includes ED orientation, receives an increase in pay. Ms. Seenaught began her first day of ED orientation with Mr. Kapusta on October 27, 2018. That morning, when Ms. Seenaught arrived to work, Ms. Finnegan asked her to first report to “the floors”—that is, her regular work—to provide respiratory care, because the department was understaffed and she was needed. Ms. Seenaught stayed on the floors for most of the morning, before heading down to the ED for orientation later that day. She spent the afternoon going back and forth between the floors and the ED. At some point that afternoon, Petitioner voluntarily accompanied Mr. Kapusta and another co-worker to lunch. Ms. Seenaught testified that nothing inappropriate happened at lunch. Towards the end of Ms. Seenaught’s shift, at approximately 5:45 or 6:00 p.m., the ED received notice that a code blue patient would be arriving in approximately five minutes. A code blue indicates that the patient is experiencing cardiac arrest or some other condition affecting the patient’s ability to breathe. The patient required intubation. This particular patient was the father-in-law of one of the hospital’s doctors. As a result, the hospital staff prioritized this patient and “wanted to make sure everything was going to run smoothly.” Several employees entered and exited the intubation room, helping to prepare for this emergency procedure. Setting up the room for the intubation took several minutes while the actual intubation took seconds to complete. As part of her ED orientation, Ms. Seenaught was required to participate in the intubation procedure with Mr. Kapusta as her guide. There were approximately 15 persons in the room during the procedure. This included a physician, who was the person immediately responsible for the intubation. Ms. Seenaught testified that during part of the procedure, Mr. Kapusta stood very close behind her. She alleges that she could feel his breath on her neck and that he “must have been bending down” for this to happen as he was about a foot taller than she is. Ms. Seenaught claims Mr. Kapusta stood behind her for about 30 to 40 seconds. At the onset of the intubation, Ms. Seenaught helped the physician, by passing him necessary equipment. She was not standing in the correct position to allow for her to easily pass the equipment, so the physician became frustrated with her. Mr. Kapusta quickly took over and assisted with the rest of the procedure. Ms. Seenaught could not have assisted with the intubation for more than a few seconds, as the entire procedure took less than one minute. During the procedure, Mr. Kapusta did not say anything inappropriate to Ms. Seenaught or touch her inappropriately. Ms. Seenaught did not report to Ms. Finnegan or anyone else that Mr. Kapusta acted inappropriately during the intubation by standing too closely to her. Also, even though Ms. Seenaught was assigned to continue her ED orientation with Mr. Kapusta the following day, she did not ask Ms. Finnegan or anyone else to be reassigned. Instead, she finished the ED orientation that evening and went home. After leaving work that day, Ms. Seenaught vented to her co-worker, Krista, through a series of text messages. Ms. Seenaught complained that she was “just feeling disappointed” with how the orientation went. She complained about her interactions with the physician, who she recalled “snatched” something out of her hand. She described the nurses as “rude” and stated that the personnel in the ED “aren’t nice to new faces.” She made no mention to Krista, who she referred to as her “work mommy,” that Mr. Kapusta engaged in any inappropriate behavior that day. The undersigned does not find credible Ms. Seenaught’s testimony that Mr. Kapusta sexually harassed her during the intubation on October 27, 2018. Events of October 28, 2018 On October 28, 2018, Ms. Seenaught was scheduled to continue her orientation in the ED from the previous day with Mr. Kapusta. However, as on the previous day, her regular department was significantly understaffed. There were nine respiratory therapists available, but the workload required Ms. Finnegan asked Ms. Seenaught to again start off by working on the floors. To help coordinate the workflow, Ms. Seenaught was assigned a work phone, which she was expected to carry with her at all times. The department assigned work phones, as needed, to coordinate assignments and call respiratory therapists in the event of an emergency and to dole out for emergencies and reassignments. Respiratory therapists also used the work phones to contact other respiratory therapists to see if they needed assistance. Ms. Seenaught was also assigned a workstation on wheels (WOW device). Later that morning, Ms. Finnegan approached Ms. Seenaught and directed her to join Mr. Kapusta in the ED to continue her orientation. Ms. Seenaught refused. Ms. Seenaught walked away from Ms. Finnegan and entered an elevator. Surprised, as she had never had another employee blatantly refuse an assignment, Ms. Finnegan tried to ask Ms. Seenaught why. Ms. Seenuaght allowed the elevator doors to close while Ms. Finnegan was still trying to ask the question. As a result, Ms. Finnegan was given no explanation for why Ms. Seenaught refused to report to the ED. Instead of reporting to the ED, Ms. Seenaught continued to provide patient care on the floors, despite the fact that her charge respiratory therapist had given her a different assignment. Ms. Finnegan repeatedly attempted to contact Ms. Seenaught by calling her on her assigned work phone. Ms. Seenaught did not answer any of the calls. Ms. Seenaught did, however, use her work phone to call Mr. Kapusta to tell him that she would not be joining him in the ED and would remain on the floors. Ms. Seenaught testified that Mr. Kapusta said that he was okay with her not returning to the ED, as it was “dead.” Ms. Finnegan, as charge respiratory therapist, had the authority to decide Ms. Seenaught’s work assignment for the rest of her shift. Mr. Kapusta had no such authority. Approximately 45 minutes after Ms. Seenaught evaded Ms. Finnegan’s question by letting the elevator doors close, Ms. Finnegan found Ms. Seenaught in a patient’s room on Witt 5. Ms. Finnegan had been searching for Ms. Seenaught the entire time. Ms. Finnegan told Ms. Seenaught that she had been looking for her and asked why she turned her phone off. Although Ms. Seenaught had just used her phone to call Mr. Kapusta, Ms. Seenaught claimed that her phone had died and that she had not received any calls from Ms. Finnegan during the 45-minute period. Ms. Finnegan again told Ms. Seenaught that she should go to the ED to resume her orientation. And again, Ms. Seenaught refused without offering any explanation. Ms. Finnegan asked her if something happened during orientation and Ms. Seenaught said “no.” Ms. Seenaught told Ms. Finnegan that she wanted to remain on the floors. When Ms. Finnegan continued to direct Ms. Seenaught to return to the ED, Ms. Seenaught told her she was going to cancel her orientation, and that she was going to talk to Mr. Christensen. Ms. Seenaught was aware that Ms. Finnegan was the authority on whether or not she could continue to work the floors or return to the ED. Ms. Seenaught testified that Ms. Finnegan “would have the last say-so unless Sean or Heather were present.” After announcing she was going to cancel her orientation, Ms. Seenaught began to cry and asked Ms. Finnegan if she could remain on the floors instead of returning to the ED. Ms. Finnegan denied Ms. Seenaught’s request but offered her a break to compose herself, after which she needed to report to the ED. Ms. Seenaught declined the offer; she told Ms. Finnegan that she was leaving. She said she was calling her mother to pick her up and would be contacting Mr. Christensen. Ms. Seenaught exited the building, leaving her assigned phone and WOW device unattended on Witt 5. She sent a message via Facebook Messenger to her co-worker, Lolita Diaz, asking Ms. Diaz to retrieve the phone and WOW device from Witt 5 and return them to the department. Per Morton Plant Hospital’s Respiratory Department Expectations policy, a respiratory therapist is required to complete a detailed report for the next shift if the charge respiratory therapist approves a respiratory therapist’s request to leave early. This detailed report serves to inform the respiratory therapist taking over on the next shift about any patient care or other issues occuring during the prior shift. Prior to leaving the hospital, Ms. Seenaught also contacted Mr. Christensen by email to inform him that she was leaving. As Mr. Christensen was not on duty that day, he did not immediately receive Ms. Seenaught’s email and did not realize she emailed him until the next day. Although Ms. Finnegan claims she did not know that Ms. Seenaught left the hospital with no intention of returning that day, the undersigned does not find her testimony on this point credible. Ms. Seenaught refused to follow Ms. Finnegan’s work assignment, announced she was leaving (even though her shift was not over), calling her mother to pick her up, and telling Mr. Christensen. Regardless, Ms. Finnegan did not give Ms. Seenaught permission to leave early, as Ms. Seenaught admits. Even more importantly, Ms. Seenaught never told Ms. Finnegan that anything happened during her shift that day, that she endured any sexual harassment the day before, or that she felt uncomfortable with her orientation placement with Mr. Kapusta. Ms. Finnegan believed that Ms. Seenaught refused to go to the ED and ultimately left work because she was frustrated about not getting the full 12 hours of ED orientation on Saturday and Sunday that she was initially scheduled for. This is supported by the totality of the credible evidence in the record. Ms. Seenaught was frustrated that her orientation had already been pushed back three times and she was upset about having to go back and forth between the floors and the ED. Although in her hearing testimony, she claimed that she was uncomfortable being assigned to work with Mr. Kapusta for ED orientation, this claim is contradicted by her actions and not supported by evidence. As she did the evening before, Ms. Seenaught turned to her co-worker and “work mommy,” Krista, to vent about the day’s events. In text messages sent after she left work, Ms. Seenaught wrote the following to Krista: Oh Krista. I think I’m having not a bad day but a bad month. We are staffed with 9 people for the weekend and I’ve been doing floor treatments while trying to orient yesterday so I didn’t even bother going to the ER today. They had since May to schedule me appropriately and I’m always getting screwed over or at least that’s how I feel I’m not finishing my orientation which I’m sure they’ll be pissed about. I’m over management. They hired so many new people telling me that’s the true reason I got pushed back 3 times and out of the 8 or 9 new people there’s not even enough people on our weekend and we are losing Tanya soon I normally don’t get upset too easily but as of late I think everything has been bothering me. * * * Well I left work and sure I will get written up and Georda made a big deal about me trying to help the floor and unit people and told me go back to the ER even though she asked me to help this morning and said she will have to tell Sean so I told her go ahead and tell Sean because I’m trying to help everyone they need the help I don’t see what I did wrong and she got all ballistic so I’m turning off my phone. Ms. Seenaught made it clear that she was unhappy with how her orientation was playing out. She was frustrated at having to split her time between orientation and working on the floors. Ms. Seenaught did not include a single reference to Mr. Kapusta in her complaints to her “work mommy” about all that went wrong at work. She said nothing about Mr. Kapusta or any discomfort she had working with him in the ED orientation. Ms. Seenaught’s Termination On October 29, 2018, Mr. Christensen sent a text message to Ms. Seenaught to inform her that she was being removed from the schedule pending an investigation into the events that occurred on October 28, 2018. In response, Ms. Seenaught again turned to Krista. She told her about being removed from the schedule and expressed how hurt she was by it. Ms. Seenaught told Krista that she wanted to do orientation at a later time when she did not “have to be back and forth between floors and orientation.” During this conversation on October 29, 2018, Ms. Seenaught mentioned to Krista, for the first time, that Mr. Kapusta grabbed her buttocks and asked her to have sex while they were at a bar for a party in September. Ms. Seenaught told Krista that although Mr. Kapusta was not behaving unprofessionally during the orientation, she did not feel that he was properly orienting her, that he seemed uncomfortable, and that it felt “awkward.” On October 29, 2018, Ms. Hayes, Mr. Christensen, and Ms. Seenaught met to discuss Ms. Seenaught leaving work early without Ms. Finnegan’s permission on October 28, 2018. During the meeting, Ms. Seenaught explained that she expressed to Ms. Finnegan that she wanted to cancel her orientation and remain on the floors. She left the hospital when Ms. Finnegan denied her request to stay on the floors. She also expressed that she felt uncomfortable working with Mr. Kapusta and revealed to Mr. Christensen that Mr. Kapusta had sexually harassed her at a bar the previous month. Mr. Christensen had not heard of this until that moment. Mr. Christensen asked Ms. Seenaught if Mr. Kapusta had ever done anything at work to make her feel uncomfortable. Ms. Seenaught said no. Following the meeting, Mr. Christensen and Ms. Hayes contacted Team Member Relations Coordinator Anjanette Dickey to discuss Ms. Seenaught’s actions on October 28, 2018, and the allegations regarding Mr. Kapusta. On November 1, 2018, Mr. Christensen, Ms. Hayes, and Ms. Dickey met with Ms. Seenaught and provided her with a termination form that set forth the following: On Sunday 10/28/2018. You left work unauthorized before completing your shift without handing your phone off or appropriately notifying leadership, which is in violation of policy MPH_130. You left your phone and your WOW on Witt 5, and did not return it to the appropriate area. When discussed with you, you stated you texted your co-workers you were leaving, but, you did not ask or advise leadership that you wanted to leave, because you were not happy with your assignment. Already being short staffed during this day your actions resulted in patient abandonment and goes against the BayCare Code of Conduct- Doing the Right Thing. You were hired on an as needed basis (Pool) by BayCare on 11/13/2017. Per BayCare Policy 212 Pool/PRN you are not subject to the progressive discipline process. BayCare does not believe it would be beneficial for either party to continue your employment based on the event that occurred. Ms. Seenaught told Ms. Finnegan that she intended to leave work. She did not ask for permission to leave early, nor did she receive permission to do so. The reasons stated in the termination form were well-founded. Ms. Seenaught testified that she believed Ms. Finnegan had the authority to cancel her orientation or not. But Ms. Seenaught certainly had no authority to dictate her assignment to Ms. Finnegan. Ms. Seenaught refused her assignment and abandoned her post without permission to do so. Ms. Seenaught could have made a request to a higher authority to cancel her orientation, or, in the alterative, request permission from a higher authority to leave work for the day. She initiated such a procedure when she contacted Mr. Christensen by email, but did not await an answer or authorization from him to cancel her orientation or leave work early. Nor did she submit a similar request to her other supervisor, Ms. Hayes. Ms. Seenaught repeatedly testified that Ms. Finnegan had a responsibility to escalate her desire to cancel her orientation. While there may have been other options for Ms. Seenaught to explore canceling or restructuring her orientation, such as asking Ms. Finnegan to check with supervisors, in the meantime, Ms. Seenaught was responsible for doing her job and following the assignment she was given. Indeed, whether Ms. Seenaught was in orientation or not, Ms. Seenaught did not have permission to leave; and even if she did, she did not follow the proper protocols for leaving early (which included returning your phone and WOW device and giving a detailed report). As a pool employee, Ms. Seenaught was not entitled to Morton Plant Hospital’s progressive discipline or appeal processes. Ms. Seenaught sought to appeal her termination. Deborah Pasqua mistakenly told her, at first, that she could do so, because Ms. Pasqua did not realize that Ms. Seenaught was a pool employee. When Ms. Pasqua determined Ms. Seenaught was a pool employee, she informed Ms. Seenaught that she was not entitled to the appeal process, but that she could submit a written statement for inclusion in her personnel file. Ms. Pasqua also offered Ms. Seenaught the opportunity to meet with Director Michelle Maher regarding her concerns. Ms. Seenaught asked to bring a representative with her to the meeting with Director Maher. Morton Plant Hospital’s Appeal Policy explicitly states that “[a] team member is not permitted to be represented by a third party (e.g. legal counsel, relative, friend, etc.) during the appeal process.” When Ms. Seenaught was told that she would not be able to be accompanied by a representative, she declined the meeting, but still submitted her written statement. Ultimate Findings of Fact Mr. Kapusta sexually harassed Ms. Seenaught on one occasion at an after-work social gathering at a bar. Ms. Seenaught reported the incident to Ms. Finnegan. Ms. Finnegan did not to escalate the complaint because the incident occurred outside of the workplace. Ms. Seenaught’s testimony that Mr. Kapusta breathed on her neck during an intubation procedure, thereby sexually harassing her again, is not credible. Ms. Seenaught failed to prove that she was subjected to a hostile work environment based on an isolated incident at a single after-work social gathering at a bar. Ms. Seenaught failed to prove that Mr. Kapusta sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated because she complained about the harassment. Accordingly, Ms. Seenaught failed to meet her burden of proving that Morton Plant Hospital committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Seenaught’s Petition for Relief. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Marlena Jacinta Seenaught 6201 Hillside Avenue Seminole, Florida 33772 (eServed) Ashley A. Tinsley, Esquire Johnson Jackson PLLC 100 North Tampa Street, Suite 2310 Tampa, Florida 33602 (eServed) Kevin D. Johnson, Esquire Johnson Jackson PLLC 100 North Tampa Street, Suite 2310 Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether MDT Technology's bid for Invitation to Bid No. 96-NFRC-0001 RC was unresponsive and therefore, whether the Department of Corrections erred in its intent to award the contract to MDT Technology.
Findings Of Fact On February 2, 1996, the Department issued an Invitation to Bid, Bid Number 96-NFRC-0001 RC, titled "Vacuum Steam Sterilizer." The sterilizer was to be furnished for use at the North Florida Reception Center. North Florida Reception Center is a prison facility operated by the Department in rural Lake Butler, Florida. The facility houses a prison hospital that provides secondary or minor surgeries to inmates. The facility does not provide any surgeries relating to life-threatening conditions. A vacuum steam sterilizer is an integral and necessary part of the operation of a hospital. The purpose of a vacuum steam sterilizer is to sterilize equipment used in hospital operating rooms including sheets, linens, gowns, surgical instruments, and surgical utensils. The sterilizer operates at high temperatures and uses steam and pressure as the sterilizing agents. Prior to issuing an invitation to bid for Bid No. 96-NFRC-0001 RC, the Department solicited assistance in developing its bid specifications from various sterilizer manufacturers including AMSCO. The sterilizer specifications ultimately adopted by the Department closely paralleled the specifications of the AMSCO line of sterilizers. No protest challenging the terms and conditions of the ITB were filed. The ITB contained a description of the equipment to be furnished, the required contents of the proposals to be submitted, and the expectations for the prevailing offeror. Bid packages were sent to nine venders and the Department received two bids. Bids were submitted by AMSCO and MDT Technology. The seven other venders did not respond to the ITB. MDT Technology submitted the lowest bid at $48,516.00. AMSCO submitted a bid at $66,761.00. Subsequently, the Department issued its intent to award the bid to MDT Technology. On March 14, 1996, AMSCO timely filed a protest to the award to MDT Technology asserting that the MDT proposal was unresponsive because it did not comply with the mandatory requirements of the ITB. Subsequently, the Department filed a Motion to Dismiss or in the Alternative A Motion for More Definite Statement. On April 17, 1996, AMSCO, in response to the Motion to Dismiss, submitted a more detailed protest asserting the allegations of non-compliance. (AMSCO's Exhibit 1). AMSCO raised nine areas where it alleged that the MDT Technology bid did not comply with the specifications of the ITB. The first issue raised by AMSCO related to the door of the sterilizer. AMSCO asserted that the MDT Technology proposal is unresponsive to the ITB because it did not provide for a sterilizer with a hinged door and handwheel. On this issue, section 3.2 of the ITB provides that the door of the sterilizer shall be "[b]earing mounted on stainless steel [hinges]." [emphasis added]. The section further provides that "[t]he door shall be equipped for manual opening and closing [by low-heat-conducting handwheel], and shall be arranged such that the door can be tightened, but not loosened, while chamber is pressurized." [emphasis added]. The door of the MDT Technology sterilizer (Castle Microcomputer Sterilizer, 3600 Series) complies with the specifications to the extent that it is mounted with hinges. The MDT unit does not contain a handwheel for manual opening and closing and therefore violates section 3.2 of the ITB. 3/ The second issue raised by AMSCO relates to safety devices used to warn and to disengage the sterilizer. Specifically, AMSCO asserts that the MDT proposal is unresponsive to the bid because it does not contain a sensor that automatically turns the sterilizer off should water build up in the chamber. The purpose of the level sensor is to warn the operator of the presence of hot water in the chamber. Because normal operation of the sterilizer contemplates the use of steam rather than water, the sensor warns the operator before the door of the sterilizer is opened, thereby averting possible burns or injuries to the operator. On this issue, section 4.0 of the ITB provides that the unit shall "provide sterilizer with sensor to [automaticall] turn the sterilizer off, should water build up in the jacket, to prevent water build up in the chamber." [emphasis added]. The MDT unit contains an alarm that warns of water build up in the chamber. The MDT unit does not provide automatic cutoff, however, and requires operator intervention. With regard to the warning system, the MDT unit does not meet the mandatory requirements of section 4.0 of the ITB. 4/ The third issue raised by AMSCO relates to the control panel on the sterilizer. Specifically, AMSCO asserts that MDT's proposal is unresponsive to the ITB because its control panel is not vertically mounted away from steam. On this issue, section 6.1 of the ITB requires "vertically mounted control on side opposite door hinge away from heat, vapor and condensate to prevent damage. Microprocessor controls may not be located directly above chamber in the path of rising steam." With the MDT unit, the control panel can be mounted either horizontally or vertically. In addition, the panel can be remotely located up to fifty feet from the sterilizer because the panel is joined to the sterilizer by way of a 50 foot cable. The MDT unit meets the requirements of the ITB, and the AMSCO protest on this issue is rejected as not supported by competent evidence. The fourth issue raised by AMSCO relates to the security system contained on the sterilizer. Specifically, AMSCO asserts that MDT's proposal is unresponsive to the ITB because the security system is operated by key rather than by computer access code. On this issue, section 6.2 of the ITB provides that cycle security must be provided by "supervisor set access codes" initiated from the front panel. The function of the security system is to insure that the various temperatures, cycle times, and steam pressures are not changed without proper authority. The MDT unit provides a security system operated by "key lock" rather than a computer access code. Under this system, the operator can select exposure times, drying times, and temperatures for each cycle. Once the times are set, the key lock is provided to "lock-in" the cycle selections. While the Department asserts that the type of security system is up to personal preference, such flexibility was not provided in the ITB. Therefore, the MDT unit does not meet the requirements of section 6.2 of the ITB. The fifth issue raised by AMSCO relates to the a battery backup for a minimum of ten years. Specifically, AMSCO asserts that the MDT system does not meet the ITB because its battery backup is limited to one minute rather than ten years. On this issue, section 6.3 of the ITB provides that the sterilizer "[must] provide battery back up for cycle memory up to [ten years]" and retain cycle memory in case of power failure. [emphasis added]. The purpose of the battery power backup is to preserve the customized settings that an individual customer has placed in the sterilizer. In the event of momentary power failure or power outage, the MDT system contains a battery back-up system that will hold a cycle memory for up to one minute. If control voltage is restored during this one minute, the microcomputer controls will resume operation. If power outage continues longer than one minute, cycles will default to the factory installed computer cycles. The MDT unit, however, does not contain a battery back up for cycle memory up to 10 years and therefore does not comply with section 6.3 of the ITB. The sixth issue raised by AMSCO relates to the manual control of the sterilizer in the event of electrical power failure. AMSCO asserts that the MDT system does not meet the ITB specifications. On this issue, section 6.4 of the ITB provides that the sterilizer must "provide single handwheel manual control" for the purpose of running liquid and gravity cycles without electricity so long as steam is available. The MDT unit is not equipped with the manual control without electricity. In the event of a loss of power, the MDT unit contains a push button that disengages the locking system and allows for manual operation of the door. MDT asserts that the installation and operation of manual controls circumvents the designed safety features, thereby increasing the potential for injury. With regard to the requirement of operation without electricity, the MDT unit fails to meet the mandatory requirements of section 6.4 of the ITB. 5/ The seventh issue raised by AMSCO relates to the "automatic utilities shutdown." AMSCO asserts that the MDT system does not meet the ITB specifications because the system can not start up automatically. On this issue, section 6.5 of the ITB provides that the sterilizer must provide for "complete shutdown of utilities at the end of a designated cycle or time." The section further provides that the unit should be able to be restarted and returned to normal mode by programmed or manual operator control. The MDT unit contains a seven-day timer to program start up and shut down of the sterilizer. The system shuts off water and steam supplied to the unit, thereby saving energy and preventing after-hours utilities failures. The MDT unit essentially meets the requirements of the ITB, and AMSCO's protest relating to the automatic shutdown is rejected. The eighth issue raised by AMSCO relates to the thermal printer with automatic paper take-up. AMSCO asserts that the MDT system does not meet the ITB because the unit does not contain a paper take-up system. The purpose of the thermal printer is to produce a written record that memorializes the technical elements of the sterilizing process (used for quality control). On this issue, section 6.6 of the ITB provides that the sterilizer must provide a printer that maintains the cycle logs and cycle summaries, as well as provide an automatic paper take-up. The MDT unit contains a "data logger." The data logger documents and records each cycle's performance including minimum and maximum temperatures achieved during exposure, lot control, cycle parameters, and diagnostic codes. To the extent that the MDT unit is not equipped with an automatic paper take-up, it fails to meet the requirements of section 6.6 of the ITB. The ninth issue raised by AMSCO relates to alarms and warnings given to the operator of the sterilizer. Specifically, AMSCO asserts that the MDT system does not meet the ITB because the warnings on the MDT unit are given as codes rather than complete messages. AMSCO further asserts that in time of emergency, an operator of the MDT unit would be required to reference a manual to determine the type of warning or alarm referenced by the code. On this issue, section 6.7 of the ITB provides that the sterilizer must provide alarms that should be "noted as complete messages without cross reference codes." The MDT unit contains a message center that displays cautions and warnings. The messages are displayed in the form of complete sentences or in the form of a code. The MDT unit meets the requirements of the ITB and therefore the AMSCO protest on this issue is rejected as not supported by competent evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting the proposal awarded to MDT Technology, in response to ITB No. 96-NFRC-0001 RC. Department of Corrections should either seek approval to negotiate with AMSCO or reject all bids and seek new proposals. DONE and ENTERED this 26th day of June, 1996, at Tallahassee, Florida. WILLIAM A. BUZZETT, 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 26th day of June, 1996.
The Issue Whether Petitioner, Jupiter Outpatient Surgery Center ("Petitioner"), is entitled to additional reimbursement from the carrier in the amount of $4,210.50 for Rotation Medical surgical implants pursuant to section 440.13, Florida Statutes (2017).
Findings Of Fact Petitioner is a Florida ambulatory surgical center ("ASC") with its principal office located at 2055 North Military Trail, Suite 100, Jupiter, Florida 33458. Lucia Alcira is Petitioner's business office manager. Petitioner is a health care provider as defined in section 440.13(1). Sedgwick Claims Management Services and Ace American Insurance Company are carriers as defined in section 440.13(1). On May 25, 2017, a representative of Rotation Medical, Inc. ("Rotation Medical"), arrived at Petitioner's surgical facility and delivered to Petitioner the Rotation Medical implants that are the subject of this dispute. The implants are described on a Rotation Medical acquisition form (inventory slip) (Dep't Composite Ex. 1, p. 13), provided by the manufacturer representative to Petitioner on the date of surgery. The form describes the Rotation Medical implants in pertinent part, as follows: Rotation Medical Implant Set REF 2516-1, $1,000.00 Rotation Medical Reconstituted Collagan Scaffold-Arthroscopic, Medium, REF 2169-2, $2,600[.] The acquisition form, which is not an invoice, identifies Dr. Ryan Simovitch as the physician, and a service date of May 25, 2017.1/ On May 25, 2017, a patient presented to Dr. Simovitch at Petitioner's facility for a right shoulder rotator cuff arthroscopic surgical repair. Dr. Simovitch performed the surgical repair of the patient's right shoulder on May 25, 2017. Dr. Simovitch's operative report reflects the insertion of "a single 5-5 Cayenne anchor double loaded" into the patient. In addition, an "additional 4.5 mm titanium tipped cayeene knot-less anchor" was utilized. The report further reflects that Dr. Simovitch subsequently "assembled the guide and nitinol wire for the Rotation Medical graft insert." (Emphasis added). According to Dr. Simovitch, "[w]e did this in order to augment the tendon because of the tendinopathy." Dr. Simovitch's report goes on to state, in pertinent part: We inserted the pin. We then inserted the gun device in order to deploy the graft. Passing through a 10x3 passport cannula, we deployed the graft. Once we held it, we it with soft tissue staples and accessory superior portal. Multiple soft tissues samples were placed stapling the graft back down to the supraspinatus tendon. Once that was completed, the lateral edge of the graft tensioned over the greater tuberosity and was secured with two PEEK anchors one anterior and one posterior into the bone. The graft showed good tension. We then debrided all soft tissue and bony debris in the subacromial space. We then closed the arthroscopic portals with 3-0 Monocryl inverted subcutaneous followed by Mastisol and Steri-Strips. A sterile compressive dressing was applied. The patient was awakened from anesthesia and transferred to PACU in stable condition. On June 9, 2017, Petitioner submitted its bill charges to the carrier for reimbursement for the Rotation Medical implants, Cayenne implants, disposable items, and services provided to the patient. However, Rotation Medical did not invoice Petitioner for the Rotation Medical implants until June 24, 2017. (Dep't Composite Ex. 1, p. 10). The invoice identifies the Rotation Medical implants by the same item numbers and prices as those in the acquisition form. The invoice required payment by Petitioner within 30 days. On July 5, 2017, the carrier initially denied payment to Petitioner for all of the items requested. On July 14, 2017, Petitioner filed the petition disputing the carrier's denial for reimbursement of the implants. Petitioner timely provided the Rotation Medical invoice and Cayenne implants invoices to the Department in response to a Notice of Deficiency, which the Department considered in making its Reimbursement Dispute Determination. The Department issued its Reimbursement Dispute Determination on August 1, 2017. Out of the total of $6,589.00 that was requested by Petitioner for reimbursement, the Department awarded Petitioner an additional $2,379.00 for the Cayenne implants. The Department awarded Petitioner this amount because it determined Petitioner had provided invoices showing it purchased the Cayenne implants and the operative report specifically referenced them. At hearing, Petitioner acknowledged it is not seeking reimbursement for the disposable items in the amount of $266.76. These disposable items are not reimbursable under the reimbursement manual because they were not on the same invoice as the implants. Consequently, the total amount Petitioner seeks to recover as reimbursement in this proceeding is $4,210.50, for the Rotation Medical implants.2/ The Department contends that reimbursement should be disallowed for the Rotation Medical implants because "there was no substantiation that documented the Rotation Medical implants were, in fact, used" during the surgery of the patient on May 25, 2017. In support of its position, the Department contends the operative report does not specifically note the use of bioinductive implants or an implant set. Although the operative report makes no specific mention of the phrases "bioinductive implants" or "implant set," no specific language in the operative report is required to allow for reimbursement. Page two of the report specifically notes the use of the "the Rotation Medical graft insert" during the surgery. On page one, the graft is specifically described as a "rotational medical allograft." Moreover, Petitioner's Implant Charge Sheet, prepared by a nurse in the operating room at the time of the patient's surgery, specifically identifies the use of the Rotation Medical Implant Set, Ref 2516-1, and Rotation Medical/Reconstituted Collagan Scaffold-Arthroscopic, Medium, Ref 2169-2, during the patient's surgery. (Dep't Composite Ex. 1, p. 6). The persuasive and credible evidence adduced at hearing demonstrates that the Rotation Medical implants were inserted into the patient's body during the May 25, 2017, surgery, with the intent to remain in the patient's body.3/ The Department also contends that reimbursement for the Rotation Medical implants should not be allowed because the billing was not done in accordance with the reimbursement manual. Specifically, the Department argues that the implants were not "purchased" before they were billed to the carrier because Petitioner did not pay for them before the items were billed to the carrier. Petitioner purchased the Rotation Medical implants prior to billing the carrier. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Petitioner is entitled to additional reimbursement in the amount of $4,210.50 for the Rotation Medical surgical implants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order granting Petitioner's request for additional reimbursement from the carrier in the amount of $4,210.50 for the Rotation Medical surgical implants pursuant to section 440.13, Florida Statutes. DONE AND ENTERED this 2nd day of March, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2018.
Findings Of Fact By application dated September 28, 1988 respondent/applicant, Southwest Florida Regional Medical Center, Inc. (SFRMC), filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking the issuance of a certificate of need (CON) authorizing the expenditure of approximately $19.98 million to construct a new three story clinical and ancillary services building at its facility located in Fort Myers, Florida. After the application was filed, and certain additional information was provided by SFRMC, HRS issued proposed agency action in the form of a letter on January 13, 1989 advising that it intended to issue SFRMC a CON. On February 3, 1989, HRS published in the Florida Administrative Weekly a notice of its intent to grant the CON. After learning of this action, petitioner, Lee Memorial Hospital (Lee), filed a petition for formal administrative hearing seeking to contest the proposed agency action. That prompted this proceeding. The state agency action report, which is a part of this record, reflects that the applicant proposes to: ... add 4 additional operating rooms to the existing 11; 16 new cardiac surgery recovery beds to the existing 16; and 8 new CCU beds to the existing 8 (by conversion of med/surg beds) in a new three story building that will be a replacement/expansion to the existing facility. The requested project will not constitute an increase in the licensed beds of the applicant's facility. The proposal does not request approval of any new services or change in the total number of beds that are licensed for the applicant's facility, but it does include redesignation of 8 existing medical/surgical beds to add to the 8 additional CCU beds requested. New space for Central Supply Services, as well (as) new and additional administrative, staff support areas, land public areas have been planned. (Emphasis added) These changes were sought by SFRMC to meet "(t)he need and demand for Cardiac services (that have) increased dramatically over the last seven years due to the community's growth, technological advancements and changing clinical practices." According to the allegations in the petition, Lee operates a health care facility in Fort Myers, Florida, which is in the same health planning district as SFRMC. The petition goes on to aver that Lee provides a wide range of medical services and programs, including cardiac surgery and recovery, cardiac catheterization laboratories, CCU, and non-invasive diagnostic cardiology services as proposed in SFRMC's application. The petition alleges further that, due to the sheer size of the project and the "substantial change" in services that will occur, Lee is entitled to a hearing. Based upon these considerations, Lee alleges that its open heart surgery program will be substantially affected if the CON is issued. HRS has authorized Lee to operate an open heart surgery program. However, by stipulation dated March 28, 1988 in DOAH Case No. 87-4755, it has agreed not to begin this program until at least April 1, 1990. If approved, SFRMC's building addition would not be completed until May 1, 1990, or one month after Lee's program begins. The application reflects that SFRMC will increase its total square footage by 25%, operating room capacity by 57%, and SICU capacity by 64%. In all, the project will add approximately 68,000 square feet to the facility complex. In addition, operating expenses associated with the project will total in excess of $28 million per year. Finally, utilization of existing facilities will be enhanced by the new addition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Southwest Florida Regional Medical Center's motion to dismiss the petition of Lee Memorial Hospital be GRANTED and that Lee's petition for formal administrative hearing be dismissed with prejudice. DONE AND ORDERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
Findings Of Fact Procedural issues. In June 1983, Petitioner filed an application for a certificate of need to operate a cardiac catheterization laboratory at Hollywood Medical Center. Respondent, the Department of Health and Rehabilitative Service (HRS) denied the application, and Petitioner filed this petition for administrative review. Notice of hearing was given by order dated August 6, 1984. Two days before the hearing, SOUTH BROWARD HOSPITAL DISTRICT moved to intervene. The petition was denied because it was filed less than five days before the hearing, and was therefore untimely. Rule 28-5.207, F.A.C. Also shortly before the hearing, HRS filed a motion in limine, seeking to exclude evidence of cardiac catheterization utilization other than a base year of 1981. The motion was denied because the relevant rule, rule 10-5.11(15) allows proof of "not normal" circumstances. Prior to the hearing, the parties filed a joint prehearing stipulation, agreeing to certain issues of law and fact. Pursuant to that stipulation, the following criteria are either not applicable in this case or have been satisfied by the Petitioner: section 381.494(6)(c)(3), (4), (5), (6), (7), (8), (10), (11), and (13), Fla. Stat., section 381.494(6)(d), Fla. Stat., and rule 10-5.11(15)(a) through (f), (g), (h)(1) and (2), (i)(1) through (3) and (5), (j), (m), (n), and (o)(2). It was further stipulated that the Petitioner will not be performing coronary angioplasty in its proposed cardiac catheterization laboratory. HRS further stipulated that if the Petitioner satisfies all other applicable criteria, the project will be financially feasible. Remaining at issue in this case are subparagraphs (6)(c)(1), (2), and (12) of section 381.494, Fla. Stat., and subparagraphs (h)(3), (i)(4), (k)(1), and (o)(1) and (3) of rule 10-5.11(15). F.A.C. The central issue in this case is whether pursuant to the relevant statutory and rule criteria there is a need for a cardiac catheterization laboratory at Hollywood Medical Center. The Hollywood Medical Center is located in the southern portion of Broward County. It is a 334 licensed bed medical/surgical hospital, and its medical staff covers all major medical specialties. The hospital has 24 hour emergency service, 14 intensive care beds, a full service operating room, and does cardiovascular surgery, but does not do open heart or bypass surgery. Hollywood Medical Center, based on zip codes from its own patient records, serves patients primarily from the Dade County line a few miles south to the New River Canal on the north and from the ocean on the east to the Collier County line on the west. In this service area, physicians tend to be located in the eastern section, and do not typically have staff privileges at hospitals in northern Broward County, nor do they tend to refer patients to hospitals in the northern section of Broward County. Patients at Hollywood Medical Center who need cardiac catheterization procedures are now referred to Memorial Hospital, which is approximately 2 miles away. In the south Broward County area, there is no other alternative. There was no evidence of any cardiac catheterization facility in northern Dade County accessible to patients from southern Broward County with the exception of a newly granted certificate of need to Humana Biscayne. There was no evidence as to when Humana Biscayne will be open and providing services. In northern Broward County, there are five operating cardiac catheterization laboratories. The one closest to Hollywood Medical Center, Broward General Medical Center, is approximately 6 miles to the north. Rule 10-5.11(15)(1), F.A.C., establishes a method of projecting the number of cardiac catheterization procedures expected for the year in which the proposed new service would begin. This number is the product of the projected population for the service area and the number of procedures performed in 1981 in the service area for one hundred thousand population. HRS interprets this rule to require analysis based upon HRS district data. The HRS district in this case is district ten, which is Broward County. Once the projected number of procedures is determined, that number is divided by 600 to determine the number of catheterization laboratories needed. This number is derived from rule 10- 5.11(15)(o)3., which forbids approval of a new laboratory if the average volume for all laboratories in the service area drops below 600. HRS now argues that the number 600 is only a floor to protect existing providers, and is not to be used to compute need. In the normal computation of need under the rule, this is not true. Thomas Porter, supervisor of the certificate of need section at HRS calculated his Projections of need using 600 procedures per unit in the district as the means to determine the need for a new laboratory. Mr. Porter testified: "Well, in terms of what I would agree with is in terms of numerically determining the need for the number of labs, we divide by 600 procedures. . . . HRS based its denial of the certificate of need in this case by using a use rate for Broward County in 1981 of 329.5 procedures per one hundred thousand population. This use rate in turn was based upon a 1981 population of 1,046,646 and 3,449 procedures in the county for that year. Since the projected population for Broward County in 1986, two years from the date of the hearing, is 1,179,205, HRS concluded that by 1986 the county will need 6.475 laboratories, which rounds to 6. There are 5 licensed and operating laboratories now in Broward County, and 2 additional laboratories have been approved by HRS in the final order in PLANTATION GENERAL HOSPITAL v. HRS, et al., DOAH case number 84-1838, 6 FALR 6796 (1984). Using the method proposed by HRS to calculate need, there is no need for an additional laboratory as sought by Petitioner in this case. Petitioner's exhibit 4, table 5, computes the same formula set forth above, but uses a 1981 rate of 340 catheterization procedures per one hundred thousand. This rate is incorrect. On table 2 of this exhibit the actual procedures for each Broward County facility is recorded for 1981, and the total number of procedures has been incorrectly added. The correct total is 3,449, not 3,546, and the resultant rate (which is based upon a slightly lower estimate of 1981 population, 1,042,941) is 330.7 procedures per one hundred thousand. Correcting table 5 using the 330.7 rate, the need for cardiac catheterization laboratories is: YEAR DISTRICT 1985 6.3 1986 6.5 Thus, if the rule for determining need in a normal situation is followed, the record in this case shows no need for the catheterization facility proposed by the petitioner. Subpart 15(f) of the rule, however, allows approval of an application if the circumstances are other than normal, in which case approval can occur even though need is not shown by subpart 15(l) and 15(o), above, pertaining to calculation of need using the 1981 use rate, future population projections, and division by 600. Mr. Porter testified for HRS that the 1981 use rate has been a fairly accurate predictor of actual use rates in subsequent years, but that it has not yet been accurate in Broward County. In 1981 the use rate, as corrected above, was 329.5, accepting as true the HRS population estimate for Broward County in 1981. In 1982 the use rate was 393.6. This figure differs from Petitioner's exhibit 4, table 3, because the columns are incorrectly added on table 2. The correct total of procedures for 1982 is 4211. The correct total for 1983 is 5008. In 1983 the use rate was 457.9 using the 5008 figure. Thus, in two years, Broward County has increased its use of cardiac catheterization by 39 percent over the 1981 base rate. HRS argued that the 1981 planning rate should continue to be used because current data may be anomalous, and not reflective of the long range trend. This might be true if the base rate were reflective of a stable prior trend, but it is not. It is only the data from one year, and as such, is less persuasive as a predictor of the future. The trend for at least Broward County in the six years from 1977 is reflected in Petitioner's exhibit 4, table 3. In 1977, the use rate in Broward County was 174 procedures per one hundred thousand. The actual rate has increased steadily each year for six years to the rate indicated above for 1983, 457.9 per one hundred thousand. This is an increase from the 1977 rate of about 263 percent. At least in Broward County, this data indicates that the 1981 rate is probably not static, but is only a point on a trend that shows significant increases annually. There was partial evidence that the trend indicated above may be slowing down. Dr. Silvio Sperber, who is a cardiologist in charge of the cardiac catheterization laboratory at Memorial Hospital, testified that Memorial Hospital had had 673 cardiac catheterization procedures from January 1984 through September 1984. He testified that his laboratory was running about 15 percent fewer procedures than the year before. This was not accurate. From Petitioner's exhibit 4, table 2, Memorial Hospital experienced 942 procedures in 1983. By the end of September 1984, it should have experienced about 75 percent of that number at a zero rate of increase, or 706 procedures. Its actual experience in nine months, 673, is only 4.7 percent less than the 1983 expected number of 706.3. The Memorial Hospital experience in 1984 is some evidence that the rate of increase in Broward County may be less or even stabilize in the future at the 1983 utilization rate, but this is evidence from only one hospital. The other four operating laboratories may have experienced a similar decline, or an increase, but there is no evidence on the point. And in any event, Use small decline at Memorial does not persuasively indicate a return to the significantly lower 1981 Broward County rate. There was additional evidence to support the conclusion that the 1983 rate of use would not decline again to the 1981 rate. Atherosclerotic heart disease is the number one cause of death in the United States today. Cardiac catheterization is the best tool currently available for evaluation of the condition of the heart. From 1978 to 1982, Broward County has experienced a higher death rate for major cardiovascular disease than Florida as a whole. The death rate was 16.6 percent higher in Broward County in 1982 than in Florida generally. Additionally, cardiac catheterization seems to he coming more and more useful in the treatment of heart disease. Three years ago, when HRS established the 1981 base rate, catheterization was not considered a state-of- the-art procedure for treatment of an acute heart attack. Today, catheterization during the first few hours of a heart attack for the point injection of a clot dissolving substance, streptokinase, is proving to be a remarkably effective means of reducing the long-range damage of clot caused heart attacks. Further, use of catheterization during the attack itself has enabled physicians to see for the first time that most heart attacks are caused by clots. As good uses for catheterization increase, it is only reasonable to expect that the utilization rate will increase. While the foregoing is some evidence that application of subpart 15(l) and (o) of the rule in this case in Broward County produces a "not normal" result, justifying consideration of additional evidence of need, it still does not necessarily follow that the application herein should be granted. First, using the 1983 use rate of 457.9 procedures per one hundred thousand population, and the 1986 predicted population of 1,179,205 in Broward County, the number of expected procedures by 1986 is 5400. There will be 7 approved laboratories by 1986, and thus each would be able to perform approximately 771 procedures, if there is an even distribution within the county. This would be considerably less than approximate maximum capacity of a catheterization laboratory, which is somewhat less than 1300. Dr. Sperber testified that his laboratory could perform 5 procedures per day, 5 days a week, or 1300 per year. This, however, fails to account for emergency work and angioplasty, both of which take more than two hours. Angioplasty at Memorial now runs about 15 percent of all procedures. It is urged by petitioner that once the number of procedures is predicted for 1986, then the need for laboratories should be derived by dividing that number by 600, which is in subpart 15(o) of the rule. While this is the procedure for determining need in the normal case, as found above, it does not follow that the standard of 600 continues to apply to determine need in the abnormal case. The "not normal" exception of subpart 15(f) of the rule operates to except analysis of need not only from the 1981 use rate (subpart 15(l)), but also the 600 procedures standard (subpart 15(o)). Since the 600 standard is only about 50 percent of maximum capacity, it constitutes a rather low threshold number for commencement of a new laboratory. In effect, although the 1981 use rate apparently predicts only 72 percent of the need as compared to the 1983 rate, the 600 standard overpredicts need by at least the same amount. As indicated above, even if the 1983 use rate is used, the seven approved laboratories would be easily able to handle this need since the average spread among these laboratories would be about 771 procedures per laboratory. Though petitioner sought to show that there would be unmet need in the area actually served by Hollywood Medical Center, the evidence falls short of demonstrating a "not normal" situation of actual unmet need in that area justifying approval of its application. This evidence will be considered in the following findings. HRS does not consider district lines to be absolute if the facts justify consideration of services available in an adjacent district. In Broward County the local health council has debated the issue of dividing the district service area into subdistricts, but has not chosen to do so. Mr. Porter testified that he could think of as many reasons to divide the county as reasons not to divide the county. Broward County is divided north and south by the legislature into two hospital districts, however. As found above, physicians in the southern portion of Broward County tend to refer patients to hospitals in the same area, and do not use hospitals in northern Broward County. These physicians tend to use hospitals closer to their offices, and consequently do not usually have staff privileges at hospitals in the northern portion of the county. These patterns of use, however, have not been shown to be an immutable condition, but simply reflect current practices. Patients at Hollywood Medical Center who currently need cardiac catheterization are transferred to Memorial Hospital, a few miles away. Memorial Hospital is about a ten minute drive from Hollywood Medical Center. The cost of transfer is about 5300 to 5400. Although Hollywood Medical Center cardiac patients needing diagnostic catheterization at times must wait a day or two before Memorial can provide that service, such delays were not typically of major significance or life-threatening. A more significant problem experienced on occasion by Hollywood Medical Center has been inability to transfer unstable patients to Memorial for diagnostic catheterization. Acutely ill patients at times may need catheterization for diagnostic purposes, but are too ill to be transferred by ambulance to Memorial for the procedure. However, the record does not contain evidence of how frequently this occurs. In any event, these inconveniences are normal and expected where not every hospital has cardiac catheterization facilities. Stated another way, the above would be evidence of a "not normal" condition only if the normal condition was for all acute care hospitals to have catheterization laboratories, which is not the case. As discussed above, cardiac catheterization is also used for emergency treatment of heart attack by the injection of streptokinase directly to the clot causing the attack. Cardiac catheterization facilities must be available at the hospital initially receiving the heart attack patient because these patients are usually too unstable to be transferred from the emergency room of the receiving hospital to Memorial. Treatment by streptokinase injection is therapeutically most beneficial only in the first few hours of the heart attack, or at least within six hours of the emergency, because it is during this period that the permanent damage caused by the clot will occur. Dr. Stephen Roth, a cardiologist on the staff of Hollywood Medical Center, had from 5 to 10 heart attack patients in 1984 who needed streptokinase injection by catheterization, and who suffered a deterioration of their condition due to the unavailability of facilities for catheterization at Hollywood Medical Center. He implied that his two other partners had a similar experience, but the record does not contain competent evidence to support a finding as to the magnitude of the problem for them. Dr. Jeffrey Erlich, also a cardiologist, has had a similar problem of having heart attack patients arrive at Hollywood Medical Center in need of emergency streptokinase injection by catheterization, but did not testify as to the magnitude of the problem. In Dr. Erlich's opinion, every acute care hospital that treats heart attack victims should have a cardiac catheterization laboratory to provide emergency injection of streptokinase. Dr. Silvio Sperber, who is one of the only three physicians who run the cardiac catheterization facility at Memorial Hospital, testified that he had performed about 7 streptokinase injection procedures since the beginning of 1984. The foregoing is insufficient evidence of a "not normal" need for a cardiac catheterization laboratory at Hollywood Memorial Hospital. The number of emergencies are not that great, the problem is not atypical of other hospitals not having cardiac catheterization facilities, and there is no evidence of any failed efforts to have emergency vehicle operators take all heart attack patients directly to the available laboratories in the area. See paragraph 24, ahead. Administratively, the process of transferring a patient from Hollywood Medical Center to Memorial for cardiac catheterization causes the sort of problems normally associated with transfer of ill patients. Though the drive is only ten minutes, the time preparing the patient and actually transferring the patient is much longer, and is a hardship on the patient. However, almost all of the cardiologists at Hollywood Medical Center are on the staff of Memorial, and can follow their patients at that facility without much difficulty, since it is only ten minutes away. In 1983, Memorial Hospital had 942 catheterization procedures. If the 1984 experience continues at 4.7 percent less than 1983, Memorial Hospital will perform about 898 procedures. If thereafter it experiences only a 10 percent growth rate, Memorial Hospital will perform 1086 procedures in 1986, and 1195 procedures in 1987. It is reasonable to conclude that it will reach its maximum capacity in a few years, probably by 1988. However, although not currently used by Hollywood Medical Center, there are or will be two catheterization facilities within less than eight miles. Broward General Hospital is the next closest, apparently about six miles away. In 1983, Broward General performed only 551 procedures, indicating significant future capacity. Additionally, a new laboratory has been approved for Plantation General Hospital, about eight miles away. Since this laboratory will be new, it will have a long way to go before it reaches a 1200 capacity. The driving distance to these two other facilities may be a few miles more than this, but the distance is not significantly greater than Memorial. Although Petitioner's physicians testified that they did not consider the hospitals further north to be acceptable as alternatives to Memorial, the distance alone does not pose a significant problem. The major problem is not in the driving distance, as long as the trip is 10 or 20 minutes driving time, but the administrative preparation time at either end, which would be the same inconvenience for transportation regardless which alternative was used. Typically patients who suffer a heart attack are transported to the emergency rooms of any number of hospitals in Broward County. Dr. Erlich testified that his prior patients do not usually call him before arriving at a hospital, and that he has no ability to direct his patients to a hospital having cardiac catheterization capability. Thus, he felt that all such hospitals should have the capability. There is no evidence that Memorial Hospital could not handle more heart attack patients, or that emergency vehicle operators could not transport more heart attack patients to Memorial. An ambulance carrying a heart attack patient could just as easily arrive at the emergency room of Memorial than it could at Hollywood Medical Center, only ten minutes away. The problem of having heart attack patients arrive in an unstable condition at Hollywood, where there is no catheterization facility, ought to be solved at least in part by greater coordination with emergency vehicle operators in the vicinity of the two hospitals. Dr. Sperber and his two partners apparently have a monopoly over the performance of cardiac catheterization procedures at Memorial Hospital. This factor is somewhat relevant to the issue of need for the proposed new catheterization laboratory, but absent additional evidence that patients will in fact be denied the service, or will receive service of poor quality or at unreasonable expense due to this apparent monopoly, this one factor alone does not show sufficient need to warrant approval of the application. Some patients prefer to go to Hollywood Medical Center, which is a smaller, for-profit hospital, but patient preference of this sort does not show a "not normal" need for the proposed catheterization laboratory. Based upon all of the foregoing, there is not sufficient evidence on this record demonstrating a "not normal" condition of need by 1986 to justify granting this application. However, if there were a need shown by the evidence, the following additional findings are made. Thomas Porter testified for HRS that the requirement that there be adequate care for indigents is satisfied if such care is provided by the District as a whole, and that there was no question that indigents were adequately served in District X. Petitioner will provide cardiac catheterization for indigents only on an emergency basis, and will rely upon Memorial to provide other indigent care. Based upon the testimony of Mr. Porter, the criteria with respect to indigent care, rule 10- 5.11(15)(h)3, F.A.C., has been satisfied. Since nearly all of the cardiologists on the staff of Hollywood Medical Center are also on the staff of Memorial Hospital, it is probable that Hollywood Medical Center would do a substantial number of catheterization procedures in the first year of operation, which is projected to be 1986. By the third year of operation, 1989, the Hollywood Medical Center facility would satisfy the requirement of rule 10-5.11(15)(i)4, F.A.C., that it annually perform at least 300 procedures within three years of initiation of service. For these limited purposes it is appropriate to consider the proximate population served, since this population is the most reliable source of patients and revenue. Most of the patients for the Hollywood Medical Center catheterization laboratory will come from its current actual service area, which was defined by the evidence to be a region in southern Broward County. Given the shared cardiologist staffing at both hospitals, it is not at all unreasonable to project that Hollywood Medical Center will service 30 percent of the need in the southern region of Broward County. Based on the 1983 Broward use rate, Hollywood Medical Center would do 518 catheterizations in 1989 if it handled only 30 percent of the need. Memorial would handle the remaining 70 percent, doing 1207 procedures annually. Even using the lower 1981 use rate provided by HRS, 329.5 per 100,000, Hollywood Medical Center would do 372 procedures in 1989, using the assumed market share of 30 percent. (As noted above, however, these figures do not demonstrate need, however, since existing facilities will be able to serve this same population adequately.) As already found above in calculation of need, rule 10- 5.11(15)(o)1 and 3, F.A.C., is satisfied if the 1983 use rate is used. Beginning with 1986, and in every year thereafter, there will be enough catheterization procedures needed so that the average volume for all facilities in the district will be at least 600 annually. HRS stipulated that if all other criteria were satisfied, the project proposed by Petitioner would be financially feasible. From the foregoing findings, all other criteria in dispute have been satisfied, and the project would be financially feasible. All other findings of fact proposed by the parties which have not been discussed above have been considered and have been deemed to be irrelevant.
The Issue Whether or not Respondent properly awarded Image Resources, Inc., the bid for computer graphics equipment as set forth in bid No. 9-428-D.
Findings Of Fact On February 20, 1989, Petitioner's district manager, James W. Mercer, met with USF agents Frank Ribaudo and Renee Clements, for the purpose of discussing the needs of the Learning Resource Center's proposed new graphics work station. On March 6, 1989, Mercer delivered to Ribaudo the Petitioner's hard copy proposal for the graphics work station which was considered by Respondent in preparing its RFP. In May 1989, the University of South Florida (USF) issued a RFP for a computer graphics system for the Learning Resource Center of the Health Sciences Center of the University, proposal No. 9-428-D. On May 26, 1989, Petitioner received a copy of USF's RFP which included, among other things, Appendix A, a verbatim copy of the hard copy proposal as prepared and submitted by Petitioner in early March, 1989. Included with the RFP was also an Appendix B which was prepared by another offerer. Appendix B had the appearance of a "shopping list" for various computer equipment for USF's graphics work station. Petitioner, based on what it construed as an inconsistency between Appendix A and B, called Tom DeBella for clarification and was told that the proposal should be prepared according to the specifications called for in Appendix A which took precedence over Appendix B to the extent there were any inconsistencies between the two appendices. The effect of Petitioner's conversation with DeBella removed all inconsistencies between the appendices. Petitioner delivered its RFP to the purchasing agent at USF on June 9, 1989, in a timely fashion. On June 10, 1989, an addendum no. 1, extending the date to respond to the RFP until June 16, 1989, was prepared by Respondent and delivered to the various offerers. Petitioner notified Respondent on June 16, 1989, that its RFP, as originally submitted on June 9, 1989, should be considered as its final offering. Respondent received proposals from three offerers, Rainbow Graphics Technology, Inc., Image Resources, Inc., and Blumberg Communications, Inc. On June 16, 1989, the bids were tabulated and the documentation of the three offerers were presented to a committee for evaluation. The committee met and on July 5, 1989, drafted a memo which was delivered to the purchasing department stating its recommendation to accept the system offered by Intervenor, Image Resources, Inc. The three offerers submitted responses to the RFP as follows: Image Resources, Inc., submitted a timely response for the sum of $79,860.00; Blumberg Communications, Inc., submitted a timely response for the sum of $94,075.00 and; Rainbow Graphics Technology, Inc., timely submitted its response for the sum of $97,484. In preparing the RFP, Frank Ribaudo attended various seminars where computer graphics equipment was displayed, worked with various vendors and utilized the knowledge gained from the liaison with the vendors, the seminars and his contact person at USF's medical center, Dr. Kaufman. Prior to submitting their proposals, the three vendors responding to the RFP were invited to the University to review the facility and the university's layout to determine exactly what specific graphic system would be needed to best satisfy USF's requirements. Of the three vendors responding to the RFP, Petitioner submitted the highest response. Intervenor, Image Resources, Inc., was the lowest offerer of the three vendors responding to the RFP. All of the responses were evaluated by the Learning Resources Center HFC Committee in accordance with the procedures of Chapter 287.062(1), Florida Statutes. USF, following review by its evaluation committee, accepted the response submitted by Intervenor as the lowest responsive offer. The RFP called for an integrated system capable of industrial quality 3/4" video output. Specifications in the RFP also called for optical storage as being critical to management of TARGA files. The specifications required that hard disk performance of 13 MS and optical storage were critical to the management of TARGA files. Petitioner submitted a proposal providing a hard disk system with a speed of 1 MS which exceeds the specifications called for in the RFP. Petitioner also included a Shinko ChC-345 printer which is not postscript compatible and does not have an internal controller with a microcompressor and 8 MB RAM as specified in Appendix A. Intervenor's proposed printer is postscript compatible with the software package included in its proposal. Specifications in the RFP require a video adapter capable of 32-BIT color or PAL and Intervenor's proposal is capable of handling 32-BIT color. Intervenor is an authorized dealer to handle the Matrix instruments film recorder and has offered to serve and maintain the equipment it proposed for one year, a substantially longer period than the 90 day warranty offered by the manufacturer, Matrix.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent, the University of South Florida Purchasing Department, enter a final order upholding the award of the bid proposal for the computer graphics system to Image Resources, Inc., and deny Petitioner's request to resubmit this proposal as an Invitation to Bid under Chapter 287.12(8), Florida Statutes (1988 Supp.). 1/ DONE and ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 12th day of December, 1989.
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
Findings Of Fact On January 21, 1977, respondent was employed as a registered nurse by Mount Sinai Hospital in Miami Beach, Florida. She and Ms. Nancy Sewak were working together in the labor and delivery department of the hospital, attending the single patient under their care that night, a newly delivery mother resting in the recovery room. Respondent had the keys to the narcotics Box. Ms. Sewak heard respondent unlocking the narcotics box, which aroused her suspicions. Shortly after respondent had left it, Ms. Sewak inspected the medicine room and noticed a bottle of sterile water standing by itself on a counter. From the medicine room, she went to the head obstetrics nurse, Ms. Sandra Sazlow Spiegel who, in turn, approached Mr. Ledon, Chief of Safety and Security at the hospital. Ms. Spiegel went to the door of a bathroom where she had been told she could find respondent. When she knocked, respondent answered, "just a minute," and the people standing outside the door heard the toilet being flushed several times. Ms. Spiegel left the vicinity of the bathroom, but Ms. Sewak and Mr. Ledon entered after respondent left and found in the wastebasket a wet alcohol sponge, a piece of Chix with fresh blood spots, and paper towels. Later Ms. Sewak saw respondent in the medicine room holding a 3 cc syringe filled with clear liquid, and asked her what the syringe contained. Respondent answered, "I guess I better label this as 50 mg. of Demerol," and did so. At Ms. Spiegel's request, respondent came to the nursing office where she and Ms. Marcia Fetterman, Assistant Director of Nursing at Mount Sinai Hospital, questioned her. They had a 3 cc syringe which respondent identified as the one she had labelled "50 mg. of Demerol." Ms. Fetterman asked her whether it would be necessary for them to send the syringe to the lab for analysis of its contents. Respondent said that would not be necessary and admitted the syringe contained sterile water. She further admitted that she had injected herself with Demerol earlier in the evening, and had been taking Demerol for over a year. Respondent offered to pay for the Demerol.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's license, No. 69273-2, be suspended for one year; and thereafter until she shall furnish the Board her affidavit reciting that she has abstained from using Demerol during the period of the suspension. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of June, 1977. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1977. COPIES FURNISHED: Lucy A. Pantzer, R.N. 915 N. Wilton Pl. Apt 311 Los Angeles, California 90038 Julius Finegold, Esquire 1005 Blackstone Building 233 East Bay Street Jacksonville, Florida 32201 Helen P. Keefe State Board of Nursing 6501 Arlington Expressway, Bldg. B Jacksonville, Florida 32211
