The Issue The issue presented is whether Respondent HealthSouth Corporation engaged in an unlawful employment practice as to Petitioner Mary A. King, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact Petitioner Mary A. King is a black female born on April 5, 1952. Respondent HealthSouth Corporation operates HealthSouth Rehabilitation Hospital of Tallahassee, located in Tallahassee, Florida. Petitioner was initially employed by HealthSouth in 1995 as a nurse tech or certified nursing assistant (CNA) in the nursing department. In 1998 she suffered a back injury while performing her regular CNA duties. She received treatment for the injury and returned to work with lifting limitations placed on her by her doctor. The limitations were inconsistent with her duties as a CNA and are still in effect. In 1999 Petitioner requested a transfer to the position of patient transporter aide due to her lifting limitations and concerns over her back injury. Her transfer request was granted, and she began to work as a patient transporter in the physical therapy department. She was pleased with the transfer. As a patient transporter, Petitioner was responsible for transporting patients to and from the locations in the hospital where they received treatment. She was not directly involved in the administration of treatment to patients. Subsequently, Petitioner was transferred from the physical therapy department to the occupational therapy department. Her position and job duties remained the same; the only change was in the types of patients Petitioner transported. On September 1, 2004, new federal regulations went into effect. These regulations directly impacted all in-patient rehabilitation hospitals, limiting the types of patients that HealthSouth could accept. The new regulations had a severe impact on HealthSouth, causing a dramatic drop in the patient census. The 76-bed facility had an average daily census of 65, and occasionally up to 76, prior to the effective date, but only a patient census in the 30s and 40s after the effective date of the new regulations. With the dramatic drop in patient census, HealthSouth had to dramatically reduce costs. Lynn Streetman, Administrator of HealthSouth Rehabilitation Hospital of Tallahassee, looked at a variety of ways in which costs could be reduced, including re- structuring contracts with outside vendors, reducing orders of medical supplies, reducing or substituting pharmaceutical orders, discontinuing the use of P.R.N. or as-needed staff, and, ultimately, reducing the workforce at the hospital. Streetman began reducing the workforce through attrition. As positions at the hospital became vacant, they were not filled if they were not critical to the functioning of the hospital and if there would not be a negative impact on patient care. Although reducing the workforce through attrition helped, more workforce reductions were necessary to respond to the hospital's declining patient census. In order to determine what positions to eliminate, Streetman preliminarily reviewed all positions throughout the facility and developed a list of positions she thought could be eliminated with minimal impact on the hospital's operations. The criteria she used included whether the position was a clinical or non-clinical position, whether the position was essential to the operation of the hospital or merely a luxury position, whether the duties of the position could be effectively absorbed by other positions in the hospital, and what impact the elimination of the position would have on patient care. Streetman next met individually with members of the hospital's senior management team to discuss the positions in their respective departments that she had preliminarily identified as appropriate for elimination. She obtained input from the team members as to whether it would be appropriate to eliminate those positions and what impact their elimination would have on the functioning of their respective departments. After she met with the team members to discuss the reduction in force and consider their input, Streetman made the decision to eliminate 13 positions at the hospital in December 2004 and January 2005. Three positions were eliminated in December, and ten were eliminated in January. Streetman was the person responsible for making the final decision about which positions to eliminate. Of those employees affected by the reduction in force, 6 were black and 7 were white. Of those employees affected by the reduction in force, 6 were over 40 years of age, and 7 were under 40 years of age. Each employee whose position was eliminated as a part of the reduction in force was informed that he or she would be eligible to purchase insurance benefits through COBRA for up to 18 months after his or her employment with the hospital ended, each was paid for any accrued paid time off, and each eligible employee received severance benefits in accordance with an identical formula: one week of pay for every year of service up to a maximum of ten years. With the exception of a part-time employee who was not eligible, all employees affected by the reduction in force received benefits, paid time off payments, or severance payments in accordance with these policies. One of the positions selected for elimination was that of patient transporter. When Streetman was employed by HealthSouth, there had been three patient transporters. Two of the three positions had already been eliminated through attrition, and Petitioner was the only remaining patient transporter. Since Petitioner's position was eliminated, HealthSouth has not hired anyone as a patient transporter. Petitioner's position was selected for elimination because it was not essential to the operation of the hospital, was not responsible for any direct patient care, and was a luxury position for the facility. As verification that the elimination of Petitioner's position would not have a negative impact on the level of patient care at the hospital, Streetman considered that therapists at the hospital had already been assisting in the transportation of patients to and from treatment and that the previous reduction of two patient transporters through attrition did not negatively impact patient care at the hospital. Petitioner's job duties were absorbed into the daily work routine of therapists in the outpatient therapy department. Therapists simply transported their own patients rather than have Petitioner (and the other transporters who had previously been phased out through attrition) perform this function for them. Petitioner was informed of the decision to eliminate her position on November 30, 2004, by Donna Crawford, Director of Clinical Services, and Cindy Cox, Occupational Therapy Team Leader. Crawford informed Petitioner that Petitioner's position was being eliminated, that Petitioner would receive severance pay in accordance with her years of service, that Petitioner would be paid for all of her accrued paid time off, and that Petitioner was welcome to apply for any other open position at the hospital for which she was qualified. Crawford also told her that Petitioner was welcome to discuss any open positions with Jackie Chaires, Human Resources Director at the hospital. Petitioner was paid 360 hours of severance pay (nine weeks pay for nine years of service), was compensated for all accrued paid time off, and was sent a letter informing her of her right to purchase insurance under COBRA for up to 18 months after her employment with Respondent had ended. Petitioner also applied for and received unemployment benefits as a result of her job being eliminated. After Crawford advised her that her position had been eliminated, Petitioner went to talk with Jackie Chaires, a black female. Petitioner told Chaires that she did not understand why she had been laid off and asked about any available positions. During that conversation, in an attempt to console Petitioner according to Chaires' affidavit but as an act of discrimination according to Petitioner's testimony, Chaires suggested that Petitioner could also retire and let Petitioner's husband take care of her. At no time did Chaires suggest that Petitioner's husband's situation, his income, or Petitioner's age were factors in HealthSouth's decision to eliminate her position as part of its reduction in force. Moreover, Chaires was not involved in any way in the selection of Petitioner's position for elimination. At some point after being informed that their positions were eliminated, Petitioner, along with Kim Spencer, another employee affected by the reduction in workforce, inquired as to whether there were positions available in the nursing department. However, there were no positions available in that department, and both Petitioner and Spencer were informed that their requests could not be accommodated. Spencer is a white female. HealthSouth has a written policy prohibiting employees from giving letters of recommendation. At some point after being informed that her position was eliminated, Petitioner asked Cynthia Cox, her direct supervisor, for a letter of recommendation. Cox agreed to give her one even though she was uncertain as to the correct procedure, but after ascertaining from the human resources department that a recommendation would be against corporate policy, Cox told Petitioner she could not give her the letter and told Petitioner that it was against corporate policy. That policy is clearly stated in the hospital's employee handbook, which Petitioner had been given. At no time prior to her filing her charge of discrimination with the Florida Commission on Human Relations did Petitioner inform any of her supervisors that she felt she was being discriminated against in any way based on either her race or her age. Patsy Kitchens is a white female who is the same age as Petitioner. HealthSouth terminated her employment at the same time as it terminated Petitioner's employment as part of the same reduction in force.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary King 1039 Idlewild Drive Tallahassee, Florida 32311 L. Traywick Duffie, Esquire Wesley E. Stockard, Esquire Hunton & Williams, LLP Suite 4100 600 Peachtree Street, Northeast Atlanta, Georgia 30308-2216
The Issue In its petition, Florida Psychiatric Centers (FPC) alleges that HRS seeks to grant a CON to Florida Residential Treatment Centers, Inc. (FRTC), based on the agency's unpromulgated policy that ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (Petition, page 2, paragraph 6.) FPC argues that the policy is a "rule" and is invalid as a rule because it has not been adopted pursuant to Section 120.54, F.S., and because it conflicts with Sections 381.493, F.S., and 381.494, regarding need criteria. Further, FPC argues the "rule" is arbitrary and violates due process because the agency predetermines need regardless of the availability of like and existing services. HRS and Intervenor, FRTC, argue that the policy is incipient and needs not be promulgated. Further, the policy does not obviate a determination of need. HRS and FRTC claim that FPC lacks standing to bring this action, as its facility is a hospital and not the same as an intensive residential treatment program. HRS admits that the alleged policy has not been promulgated under Section 120.54, F.S. The issues for determination in this proceeding are summarized as follows: Whether FPC has standing to bring this action; Whether HRS has a policy regarding CON approval of intensive residential treatment programs, and whether that policy is a "rule"; and If the policy is a rule, is it an invalid rule?
Findings Of Fact FPC is a partnership which has received CON #2654 to construct a 100- bed psychiatric hospital in the Plantation/Sunrise area of West Broward County. The facility is under construction and will include 80 short-term psychiatric beds (40 geriatric, 15 adolescent, and 25 adult beds) and 20 short-term substance abuse beds. FPC anticipates an average length of stay of approximately 28 days for adults and less than 60 days for adolescents. FRTC is owned by Charter Medical Corporation. It proposes to build and operate a 60-bed intensive residential treatment program for children and adolescents in Broward County. The proposed facility will treat children and adolescents in need of psychiatric services. Its anticipated average length of stay is approximately one year. If it is awarded a certificate of need, FRTC intends to obtain licensing by HRS pursuant to Chapter 395, F.S., and Chapter 10D-28 F.A.C. No other facility licensed as an intensive residential treatment program, as defined in subsection 395.002(8), F.S. (1987), is available in Broward County. On March 11, 1987, HRS issued CON #4851 to FRTC for its 60-bed facility. A challenge to that CON is pending in DOAH consolidated cases #87- 2046/87-2400/87-2401. FPC is a petitioner in the case, with Florida Medical Center and South Broward Hospital District. Section 395.002(8), F.S., defines "Intensive Residential Treatment Programs for Children and Adolescents as: . . . a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. When completed, FPC will be accredited by the Joint Commission on Accreditation of Hospitals; it will provide 24-hour care and will have the primary function of diagnosis and treatment of patients with psychiatric disorders and problems of substance abuse. Unlike the other psychiatric hospitals in Broward County, FPC will have a campus-like setting and separate buildings for the various services. FPC will not be a locked facility. With the exception of the length of stay, the services provided by FPC for its adolescent patients will be essentially the same as an intensive residential treatment program, as defined above. Until recently, HRS has had very few CON applications for intensive residential treatment programs. HRS has considered that these programs must undergo CON review only if they seek licensure as a specialty hospital. In considering need for intensive treatment programs, HRS does not consider unlicensed residential treatment programs to be like and existing services because HRS is not required to review unlicensed facilities; HRS would not have any way of knowing all the programs in operation and would have no control over the services offered. This policy is similar to the policy HRS employed in conducting CON review of ambulatory surgery centers. In those cases, HRS did not consider the outpatient surgery being performed in physicians' offices. Because the legislature has created a special definition of intensive residential treatment facility, and because the State Health Plan seeks a continuum of mental health services, HRS presumes there is a need for a reasonably sized intensive residential treatment facility in each planning district. This presumption can be rebutted with evidence in a given case, such as the fact that the district has few children with mental illnesses, or that such programs have been tried and failed, or that parents in the area prefer to send their children outside the district. Moreover, any applicant for a CON for an intensive residential treatment facility must evidence compliance with the myriad criteria in Section 381.705, F.S. (1987), and in Chapter 10-5, F.A.C. Although there is no specific bed need methodology adopted by HRS for intensive residential treatment facilities, other psychiatric services, such as long-term psychiatric care, are also evaluated without a numeric bed need methodology. HRS has applied its presumption of need policy in intensive residential treatment program CON reviews at least since 1983. One reason why the policy has not been adopted as a rule is that there have been so few applications in that category. In the experience of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor, the first level supervisor for CON review, there were merely three applications of this type prior to a recent batch of three more applications. FPC's Petition to Determine Invalidity of Agency Rule(s) alleges that HRS' policy is ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (paragraph 6) FPC further alleges that HRS construes Chapter 395 as requiring it to ". . . automatically approve at least one residential treatment center in each DHRS health planning district regardless of whether the statutory criteria for need in Section 381.494(b), F.S. [renumbered and amended as Section 381.705, F.S., in 1987] would be met by the applicant." (paragraph #7) These allegations were not proven in this proceeding and are rejected in favor of the less rigid presumption of need policy described in findings of fact #7 and #8, above.
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (“the Agency") on Certificate of Need ("CON") Application No. 10083, which was filed by COMPASSIONATE CARE HOSPICE OF FLORIDA, INC. (“CCH”) and CON Application No.
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") for the issuance of a final order. 1. On March 10, 2014, Greystone Hospice of District 6B, LLC, (“Greystone”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10206, which it submitted to establish a hospice program in the Service District 6B, and to contest the preliminary approval of VITAS Healthcare Corporation of Florida (“VITAS”) CON Application No. 10207, to establish a hospice program in Hospice Service Area 6B. Filed May 15, 2014 4:04 PM Division of Administrative Hearings 2. The request was referred to the Division of Administrative Hearings (“DOAH”) where it was assigned Case No. 14-1369CON. 3. On March 13, 2014, VITAS requested a formal administrative hearing to challenge the co-batched CON Application filed by Greystone to establish a hospice program in Service District 6B, (CON No. 10206), and to support the preliminary approval of its application (CON No. 10207). 4. The request was referred to DOAH where it was assigned Case No. 14-1366CON. 5. On April 4, 2014, DOAH issued an Order of Consolidation. 6. On April 18, 2014, Greystone filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 7. The denial of Greystone’s CON Application No. 10206 is upheld. 8. The approval of VITAS’ CON Application No. 10207 is upheld subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this /4 day of hay 2014. Elizabeth Dudek, Secretary Agency for Hgalth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- named persons by the method designated on this [Soma Ate , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) R. Terry Rigsby, Esquire Pennington, P.A. Post Office Drawer 10095 Tallahassee, Florida 32302 Trigsby@penningtonlaw.com (Electronic Mail) | James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Page 3 of 3
The Issue Whether HRS should license 23 comprehensive rehabilitation beds to TMRMC, at the same time reducing general acute care beds licensed at TMRMC by 23? Whether, prior to midnight June 30, 1983, TMRMC had 23 comprehensive rehabilitation beds in service?
Findings Of Fact There are "several buildings on the campus" (T. 21) at TMRMC, including the Extended Care Building on Hodges Drive which houses 53 hospital beds, and another building that houses 60 psychiatric hospital beds as well as 60 nursing home beds. Elsewhere there are an additional 598 hospital beds at TMRMC. TMRMC was licensed at 771 beds (including 60 nursing home beds) on February 3, 1983, when TMRMC's chief operating officer, J. Craig Honaman, wrote Mr. Konrad in HRS' Office of Health Planning and Development as follows: We would like to inform you of an alteration in our acute bed utilization and request your observations relating to the need for a Certificate of Need application to reassign the title of the bed function. Historically, Tallahassee Memorial Regional Medical Center has provided rehabilitative services to inpatients of an acute nature, as well as through a progressive care approach in a skilled facility.... Therefore, we intend to reassign the 53 beds currently utilized in the skilled nursing facility to a medical rehabilitation unit. The change would not affect our license bed capacity. Joint Exhibit No. 6. In reply, Mr. Porter wrote Mr. Honaman a letter dated February 17, 1983, stating: In that you have been providing rehabilitative services to inpatients on a continuous basis, and there will be no increase in licensed bed capacity, this reassignment of beds is not reviewable according to Chapter 10-5, Florida Administrative Cede, the Certificate of Need review process Petitioner's Exhibit No. 5. Effective June 8, 1983, Rule 10-5.11(24), Florida Administrative Code, set out a bed need methodology for comprehensive medical rehabilitation inpatient services. Effective July 1, 1983, Section 395.003(4), Florida Statutes, was amended to provide: The number of beds for the rehabilitation or psychiatric service category for which the department has adopted by rule a specialty-bed-need methodology under $381.494 shall be specified on the face of the hospital license. Before July 1, 1983, general acute care hospitals like TMRMC had been free to allocate beds among various specialty services on a day to day basis. Until September 1, 1984, HRS issued and renewed TMRMC's license authorizing it to operate a hospital without specifying the number of beds to be dedicated to specialty services. In the fall of 1983, TMRMC corresponded with Blue Cross, the medicare intermediary for Florida, requesting a distinct part provider number for rehabilitation services, and enclosing Mr. Porter's February 17, 1983, letter to Mr. Honaman. Blue Cross forwarded these materials to the Health Care Finance Administration (HCFA) in Atlanta, who then contacted HRS' Office of Licensure and Certification in Jacksonville for verification. The Office of Licensure and Certification advised HCFA that their records did not reflect rehabilitation beds licensed to TMRMC. EXPANDING SERVICES When Frances Elise Brown, now TMRMC's Technical Director of Rehabilitation, came to work at TMRMC in 1971, as a physical therapist, TMRMC did not offer speech therapy, occupational therapy or recreational therapy, and did not own what became the Extended Care Building. After TMRMC acquired the Extended Care Building, "there were some physical therapy services provided in that facility." (T. 107) Thereafter, the intensity of physical therapy services increased campus-wide, and in 1978 occupational therapy was "initiated both at Extended Care and in the hospital at the same time." Id. In 1980, TMRMC "initiated speech therapy, which again was delivered both in the hospital and Extended Care at the same time." (T. 107) In 1981, TMRMC acquired an existing outpatient facility that offered physical, occupational and speech therapy. TMRMC "provide[s] services indifferent areas, acute care, long-term, nursing home, home health, in/outpatient services." (T. 102) Recreational therapy and occupational therapy are also available at TMRMC; and TMRMC enjoys a good working relationship with Williams Orthotics a firm which fits braces and prostheses for patients who need them. Respiration therapy is available as are psychological counseling and the services of a social worker. Nursing services are available, although nobody specifically trained in rehabilitation nursing is on staff. A psychiatrist and an audiologist serve as consultants, but no physiatrist consults. No substantial changes in rehabilitation services being provided at Extended Care have occurred during the last three years or so, although it might have been during that period that a speech pathologist began spending more time (ten hours a week) at the Extended Care Building. (T. 119) Neither before or after Mr. Honaman's letter of February 3, 1983, announcing "an alteration in . . . acute [sick bed utilization," Joint Exhibit No. 6, and an "inten[t] to reassign the 53 [sic] beds," Joint Exhibit No. 6, did TMRMC "change anything about those beds." (T 69) For business reasons, TMRMC was waiting for a distinct part provider number for rehabilitation before proceeding. At one time the thought was to offer comprehensive rehabilitation services in a joint venture with Rehab Hospital Services Corporation, but negotiations collapsed in May of 1983. EXTENDED CARE The Extended Care Building has 23 beds "to the right . . . as one goes in" (T. 66) and 30 beds to the left, but there are no "delineated beds" (T. 116) reserved exclusively for patients in need of rehabilitation. The Extended Care Building houses medically stable patients who need skilled nursing services, whether or not they are suitable candidates for rehabilitation. Administratively distinct from TMRMC's acute care facility, the Extended Care Building as a whole has a part-time medical director and a distinct provider number, although TMRMC never received the provider number it sought for rehabilitation beds only. Patients admitted to the Extended Care Building from acute care facilities at TMRMC must first be discharged as acute care patients. They are admitted into the Extended Care Building "according to the screening criteria for extended care." (T. 116) There are no separate rehabilitation admission criteria. The average stay for patients in the Extended Care Building is approximately one month. On an application for hospital license, TMRMC listed the 53 beds in the Extended Care Building as extended care beds on June 22, 1977. On an application for hospital license dated September 7, 1977, TMRMC listed the 43 beds in the Extended Care Building under the category "SNF (D.P.)," meaning skilled nursing facility, distinct part. TMRMC reported the beds in this category through April 23, 1981, on its renewal applications for hospital licensure. On March 17, 1983, for the first time in a licensure application as far as the evidence shows, TMRMC listed the 53 beds in the Extended Care Building as "SNF/Rehab," meaning skilled nursing facility/rehabilitation. Joint Exhibit No. 1. INVENTORY TAKE A joint communication from the director of HRS' Office of Licensure and Certification and its deputy assistant secretary for health planning and development dated December 8, 1983, advised hospital administrators that HRS had "arrived at a count of the number of beds in each category for each hospital in Florida," went on to state: We are asking that each hospital review and verify or comment on these counts prior to final agency action. Petitioner's Exhibit No. 10. In response, TMRMC's Mr. Honaman wrote HRS' Jackie Jefferson on December 20, 1983, reporting "[v]arious errors." Petitioner's Exhibit No. 11. An attachment to Mr. Honaman's letter of December 20, 1983, reported 23 "Comprehensive Rehabilitation" beds at TMRMC. HRS caused notice to be published in the Florida Administrative Weekly on February 17, 1984, Vol. 10, No. 7 of its count of licensed beds in general hospitals by bed type by district, and reported no comprehensive rehabilitation beds at TMRMC. Petitioner's Exhibit No. 12. Mr. Honaman wrote Mr. Rond, administrator of HRS' Comprehensive Health Planning, stating that the "listing is incorrect, as previously reported to you . . . ." Petitioner's Exhibit No. After exchanging letters on the matter with John Adams, a licensure supervisor for HRS, Petitioner's Exhibit Nos. 15 and 16, TMRMC requested a formal administrative hearing. Petitioner's Exhibit No. 14. HRS memoranda written on July 26, 1984, reflected HRS' view that TMRMC had no comprehensive rehabilitation beds, Petitioner's Exhibit No. 8, and that recognition of such beds hinged on their being "CARF certified." Petitioner's Exhibit No. 9. CARF STANDARDS The Commission on Accreditation of Rehabilitation Facilities (CARF) publishes accreditation criteria and standards for facilities serving people with disabilities. The Extended Care Building meets the safety requirements for physical facilities laid down by CARF (T. 122) and most of the services that CARF requires be offered TMRMC does offer, but TMRMC's Ms. Brown conceded (outside the hearing) that comprehensive rehabilitation is not available at TMRMC. TMRMC's M. T. Mustian was also quoted at hearing as acknowledging that TMRMC does not have a comprehensive rehabilitation program within the meaning of Rule 10-5.11(24), Florida Administrative Code, which references the CARF standards. Implicit throughout the CARF standards is the concept of a distinct rehabilitation unit, and there are explicit references to, e.g., "staff organization under the chief executive." Petitioner's Exhibit No. 27, p. 11. "Designated staff should be assigned to the rehabilitation program. Id., p. 39. The standards require that a rehabilitation facility "have clearly written criteria for admission." Petitioner's Exhibit No. 27, p. 27. Beds should be placed in "a designated area which . . . is staffed . . . for the specific purpose of providing a rehabilitation program." Id., p. 39. With respect to medical staff, the standards provide that the "physician responsible for the person's rehabilitation program should possess training and/or experience in rehabilitation" and that the "physician should attend and participate actively in conferences concerning those served." Id., at 39. "Rehabilitation nursing" is to be furnished in addition to basic medical nursing. Id. No staff are assigned exclusively to the putative 23-bed unit, nor are records kept separately for rehabilitation beds. TMRMC does not employ a rehabilitation nurse anywhere. There is no medical director of the comprehensive rehabilitation program TMRMC claims to have. The admitting physician sets the course of treatment and decides about discharge. Admitting physicians do not ordinarily attend conferences scheduled with the other therapists. In comprehensive rehabilitation units, physical therapists or other specialists typically spend five hours or more daily with a single patient as opposed to the 30 to 45 minutes patients at TMRMC are likely to receive from any one therapist. There are no cancer or cardiac rehabilitation patients at TMRMC. The primary caseload consists of stroke victims, patients recovering from joint replacement surgery, "amputee[s and] a few close head injuries." (T. 103) Most patients are older than 45 or 50 and none are admitted under 16 years of age. TMRMC does not furnish vocational training or try to teach people with disabilities to drive automobiles. There is no formal "activities of daily living" program. PROPOSED FINDINGS CONSIDERED Both parties filed proposed recommended orders, and proposed findings of fact have been considered in preparation of the foregoing findings of fact. Proposed findings have been adopted, in substance unless unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS deny TMRMC's request to reclassify 23 of its licensed beds as comprehensive rehabilitation beds, without prejudice to a subsequent application if TMRMC obtains a certificate of need. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: Alfred W. Clark, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 Lesley Mendelson, Esquire and John Carlson, Esquire Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency"”) concerning co-batched Certificate of Need ("CON") Application Nos. 10069 - 10072 seeking to establish a new hospice program in Orange County, District 7/B. ODYSSEY HEALTHCARE OF COLLIER COUNTY, INC. d/b/a ODYSSEY HEALTHCARE OF CENTRAL FLORIDA (hereinafter “Odyssey Healthcare”) filed CON Application No. 10071 in the Second Batching Cycle of 2009. The application was denied. Thereafter, Odyssey Healthcare timely filed a Petition for Formal Administrative Hearing with respect to its denial. The Petition was Filed August 27, 2010 3:01 PM Division of Administrative Hearings. forwarded by the Agency Clerk to the Division of Administrative Hearing (“DOAH"). On June 8, 2010, Odyssey Healthcare filed its voluntary dismissal of the DOAH Case No. 10-1681CON (Ex. 1). On June 9, 2010, an Order Severing DOAH Case No. 10-1681CON (Ex. 2) and an Order Closing file (Ex. 3) were issued by DOAH as a result of Odyssey Healthcare’s voluntary dismissal. It is therefore ORDERED and ADJUDGED: 1. The voluntary dismissal by Odyssey Healthcare is hereby acknowledged and accepted. 2. CON Application No. 10071 is hereby denied. 3. The above-styled case is hereby closed. DONE and ORDERED this 2) day of August, 2010, in Tallahassee, _y W. ARNOLD, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION Florida. ae eeeneeeeeaeneneneenmmnenneneeennnaaneneieemnenenamemenenneE mat a
