Findings Of Fact At all times relevant hereto Daniel Francis Sanchez was licensed as a physician by the Florida Board of Medical Examiners having been issued license number ME0038795. At all times relevant hereto Respondent was Regional Medical Director of IMC which operated HMO offices in Hillsborough and Pinellas Counties. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency room at Metropolitan General Hospital. He was checked and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. The ambulance with EMS personnel arrived and concluded Stroganow was no worse than earlier when taken to the emergency room and they refused to transport him again to the hospital. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to the place where Stroganow lived. She was let in by the landlady and found an 84 year old man who was incontinent, incoherent, apparently paralyzed from the waist down, with whom she could not carry on a conversation to find out what condition he was in. She called for a Cares Unit to come and evaluate the client. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as a stethoscope, blood pressure cuff, or thermometer, but makes her determination on visual examination only. Upon arrival of the Cares Unit both members felt Stroganow needed to be placed where he could be attended. A review of his personal effects produced by his landlady showed his income to be over the maximum for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold- Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement for Stroganow at the time because he was not ambulatory but felt he needed to be placed where he could be attended to and not left alone over the coming weekend. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, the Assistant Medical Director for IMC in charge of the South Pasadena Clinic. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic and by EMS personnel. There were two and sometimes three doctors who treated patients at this clinic and, unless the patient requested a specific doctor, he was treated by the first doctor available. Stroganow had not specifically requested he be treated by Dr. Dayton. When the Cares team met with Dr. Dayton they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the night before but did not advise Dayton that the EMS team had refused to transport Stroganow to the hospital emergency room a second time the previous evening. Dayton telephoned the emergency room at Metropolitan General to ascertain the medical condition of Stroganow when brought in the evening before. With the information provided by the Cares team and the hospital, Dayton concluded that Stroganow should be given a medical evaluation and the quickest way for that to occur was to call the EMS and have Stroganow taken to an emergency room for evaluation. When the Cares team arrived, Dayton was treating patients at the clinic. A doctor's office, or clinic, is not a desirable place to have an incontinent, incoherent, non- ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to do certain procedures frequently needed in diagnosing the illness and determining treatment needed for an acutely ill patient. EMS squads usually arrive within minutes of a call to 911 for emergency medical assistance and it was necessary for someone to be with Stroganow with the EMS squad arrived. Accordingly, Dayton suggested that the Cares team return to Stroganow and call 911 for assistance in obtaining a medical evaluation of Stroganow. If called from the HMO office, the EMS squad would have arrived long before the Cares team could have gotten back to Stroganow. Dr. Dayton did not have admitting privileges at any hospital in Pinellas County at this time. Upon leaving the South Pasadena HMO clinic, the Cares team returned to Stroganow. Enroute, they stopped to call a supervisor at HRS to report that the HMO had not solved their problem. The supervisor then called the Administrator at IMC to tell them that one of their Gold-Plus patients had an emergency situation. Respondent, Dr. Sanchez, called and advised that Dr. Dayton would take care of the problem. Later, around 2:00 p.m. when no ambulance had arrived, the Cares team called 911 from a telephone a block away from Stroganow's residence and arrived back just before the emergency squad. The EMS squad again refused to transport Stroganow to an emergency room and this information was passed back to Sanchez who directed that Stroganow be taken to Lake Seminole Hospital. This was the first time either Dayton or Sanchez was aware that the EMS squad had refused to transport Stroganow to an emergency room. Although Sanchez did not have admitting privileges at Lake Seminole Hospital, IMC had a contractual agreement with Lake Seminole which provided that certain staff doctors at Lake Seminole would admit patients referred to Lake Seminole by IMC. Pursuant to this contractual arrangement, Stroganow was admitted to Lake Seminole Hospital where he was treated for his injuries and evaluated for his future medical needs.
The Issue Whether the certificate of need (CON) applications filed by New Port Richey Hospital, Inc., d/b/a Community Hospital of New Port Richey (Community Hospital) (CON No. 9539), and Morton Plant Hospital Association, Inc., d/b/a North Bay Hospital (North Bay) (CON No. 9538), each seeking to replace and relocate their respective general acute care hospital, satisfy, on balance, the applicable statutory and rule criteria.
Findings Of Fact The Parties AHCA AHCA is the single state agency responsible for the administration of the CON program in Florida pursuant to Chapter 408, Florida Statutes (2000). The agency separately reviewed and preliminarily approved both applications. Community Hospital Community Hospital is a 300,000 square feet, accredited hospital with 345 licensed acute care beds and 56 licensed adult psychiatric beds, located in southern New Port Richey, Florida, within Sub-District 5-1. Community Hospital is seeking to construct a replacement facility approximately five miles to the southeast within a rapidly developing suburb known as "Trinity." Community Hospital currently provides a wide array of comprehensive inpatient and outpatient services and is the only provider of obstetrical and adult psychiatric services in Sub-District 5-1. It is the largest provider of emergency services in Pasco County with approximately 35,000 visits annually. It is also the largest provider of Medicaid and indigent patient days in Sub-District 5-1. Community Hospital was originally built in 1969 and is an aging facility. Although it has been renovated over time, the hospital is in poor condition. Community Hospital's average daily census is below 50 percent. North Bay North Bay is a 122-bed facility containing 102 licensed acute care beds and 20 licensed comprehensive medical rehabilitation beds, located approximately one mile north of Community Hospital in Sub-District 5-1. It serves a large elderly population and does not provide pediatric or obstetrical care. North Bay is also an aging facility and proposes to construct a replacement facility in the Trinity area. Notably, however, North Bay has spent approximately 12 million dollars over the past three years for physical improvements and is in reasonable physical condition. Helen Ellis Helen Ellis is an accredited hospital with 150 licensed acute care beds and 18 licensed skilled nursing unit beds. It is located in northern Pinellas County, approximately eight miles south of Community Hospital and nine miles south of North Bay. Helen Ellis provides a full array of acute care services including obstetrics and cardiac catheterization. Its daily census average has fluctuated over the years but is approximately 45 percent. Mease Mease operates two acute care hospitals in Pinellas County including Mease Dunedin Hospital, located approximately 18 to 20 miles south of the applicants and Mease Countryside Hospital, located approximately 16 to 18 miles south of Community and North Bay. Each hospital operates 189 licensed beds. The Mease hospitals are located in the adjacent acute care sub-district but compete with the applicants. The Health Planning District AHCA's Health Planning District 5 consists of Pinellas and Pasco Counties. U.S. Highway 41 runs north and south through the District and splits Pasco County into Sub- District 5-1 and Sub-District 5-2. Sub-District 5-1, where Community Hospital and North Bay are located, extends from U.S. 41 west to the Gulf Coast. Sub-District 5-2 extends from U.S. 41 to the eastern edge of Pasco County. Pinellas County is the most densely populated county in Florida and steadily grows at 5.52 percent per year. On the other hand, its neighbor to the north, Pasco County, has been experiencing over 15 percent annual growth in population. The evidence demonstrates that the area known as Trinity, located four to five miles southeast of New Port Richey, is largely responsible for the growth. With its large, single- owner land tracts, Trinity has become the area's fuel for growth, while New Port Richey, the older coastal anchor which houses the applicants' facilities, remains static. In addition to the available land in Trinity, roadway development in the southwest section of Pasco County is further fueling growth. For example, the Suncoast Highway, a major highway, was recently extended north from Hillsborough County through Sub-District 5-1, west of U.S. 41. It intersects with several large east-west thoroughfares including State Road 54, providing easy highway access to the Tampa area. The General Proposals Community Hospital's Proposal Community Hospital's CON application proposes to replace its existing, 401-bed hospital with a 376-bed state- of-the-art facility and relocate it approximately five miles to the southeast in the Trinity area. Community Hospital intends to construct a large medical office adjacent to its new facility and provide all of its current services including obstetrical care. It does not intend to change its primary service area. North Bay's Proposal North Bay's CON application proposes to replace its existing hospital with a 122-bed state-of-the-art facility and also plans to relocate it approximately eight miles to the southeast in the Trinity area of southwestern Pasco County. North Bay intends to provide the same array of services it currently offers its patients and will not provide pediatric and obstetrical care in the proposed facility. The proposed relocation site is adjacent to the Trinity Outpatient Center which is owned by North Bay's parent company, Morton Plant. The Outpatient Center offers a full range of diagnostic imaging services including nuclear medicine, cardiac nuclear stress testing, bone density scanning, CAT scanning, mammography, ultrasound, as well as many others. It also offers general and specialty ambulatory surgical services including urology; ear, nose and throat; ophthalmology; gastroenterology; endoscopy; and pain management. Approximately 14 physician offices are currently located at the Trinity Outpatient Center. The Condition of Community Hospital Facility Community Hospital's core facilities were constructed between 1969 and 1971. Additions to the hospital were made in 1973, 1975, 1976, 1977, 1979, 1981, 1992, and 1999. With an area of approximately 294,000 square feet and 401 licensed beds, or 733 square feet per bed, Community Hospital's gross area-to-bed ratio is approximately half of current hospital planning standards of 1,600 square feet per bed. With the exception of the "E" wing which was completed in 1999, all of the clinical and support departments are undersized. Medical-Surgical Beds And Intensive Care Units Community Hospital's "D" wing, constructed in 1975, is made up of two general medical-surgical unit floors which are grossly undersized. Each floor operates 47 general medical-surgical beds, 24 of which are in three-bed wards and 23 in semi-private rooms. None of the patient rooms in the "D" wing have showers or tubs so the patients bathe in a single facility located at the center of the wing on each floor. Community Hospital's "A" wing, added in 1973, is situated at the west end of the second floor and is also undersized. It too has a combination of semi-private rooms and three-bed wards without showers or tubs. Community Hospital's "F" wing, added in 1979, includes a medical-surgical unit on the second and third floor, each with semi-private and private rooms. The second floor unit is centrally located between a 56-bed adult psychiatric unit and the Surgical Intensive Care Unit (SICU) which creates security and privacy issues. The third floor unit is adjacent to the Medical Intensive Care Unit (MICU) which must be accessed through the medical-surgical unit. Neither intensive care unit (ICU) possesses an isolation area. Although the three-bed wards are generally restricted to in-season use, and not always full, they pose significant privacy, security, safety, and health concerns. They fail to meet minimum space requirements and are a serious health risk. The evidence demonstrates that reconfiguring the wards would be extremely costly and impractical due to code compliance issues. The wards hinder the hospital's acute care utilization, and impair its ability to effectively compete with other hospitals. Surgical Department and Recovery Community Hospital's surgical department is separated into two locations including the main surgical suite on the second floor and the Endoscopy/Pain Management unit located on the first floor of "C" wing. Consequently, the department cannot share support staff and space such as preparation and recovery. The main surgical suite, adjacent recovery room, and central sterile processing are 25 years old. This unit's operating rooms, cystoscopy rooms, storage areas, work- stations, central sterile, and recovery rooms are undersized and antiquated. The 12-bay Recovery Room has no patient toilet and is lacking storage. The soiled utility room is deficient. In addition, the patient bays are extremely narrow and separated by curtains. There is no direct connection to the sterile corridor, and staff must break the sterile field to transport patients from surgery to recovery. Moreover, surgery outpatients must pass through a major public lobby going to and returning from surgery. The Emergency Department Community Hospital's existing emergency department was constructed in 1992 and is the largest provider of hospital emergency services in Pasco County, handling approximately 35,000 visits per year. The hospital is also designated a "Baker Act" receiving facility under Chapter 394, Florida Statutes, and utilizes two secure examination rooms for emergent psychiatric patients. At less than 8,000 total square feet, the emergency department is severely undersized to meet the needs of its patients. The emergency department is currently undergoing renovation which will connect the triage area to the main emergency department. The renovation will not enlarge the entrance, waiting area, storage, nursing station, nor add privacy to the patient care areas in the emergency department. The renovation will not increase the total size of the emergency department, but in fact, the department's total bed availability will decrease by five beds. Similar to other departments, a more meaningful renovation cannot occur within the emergency department without triggering costly building code compliance measures. In addition to its space limitations, the emergency department is awkwardly located. In 1992, the emergency department was relocated to the front of the hospital and is completely separated from the diagnostic imaging department which remained in the original 1971 building. Consequently, emergency patients are routinely transported across the hospital for imaging and CT scans. Issues Relating to Replacement of Community Hospital Although physically possible, renovating and expanding Community Hospital's existing facility is unreasonable. First, it is cost prohibitive. Any significant renovation to the 1971, 1975, 1977, and 1979 structures would require asbestos abatement prior to construction, at an estimated cost of $1,000,000. In addition, as previously noted, the hospital will be saddled with the major expense of complying with all current building code requirements in the 40-year-old facility. Merely installing showers in patient rooms would immediately trigger a host of expensive, albeit necessary, code requirements involving access, wiring, square footage, fireproofing columns and beams, as well as floor/ceiling and roof/ceiling assemblies. Concurrent with the significant demolition and construction costs, the hospital will experience the incalculable expense and loss of revenue related to closing major portions, if not all, of the hospital. Second, renovation and expansion to the existing facility is an unreasonable option due to its physical restrictions. The 12'4" height of the hospital's first floor limits its ability to accommodate HVAC ductwork large enough to meet current ventilation requirements. In addition, there is inadequate space to expand any department within the confines of the existing hospital without cannibalizing adjacent areas, and vertical expansion is not an option. Community Hospital's application includes a lengthy Facility Condition Assessment which factually details the architectural, mechanical, and electrical deficiencies of the hospital's existing physical plant. The assessment is accurate and reasonable. Community Hospital's Proposed Replacement Community Hospital proposes to construct a six- story, 320 licensed beds, acute care replacement facility. The hospital will consist of 548,995 gross square feet and include a 56-bed adult psychiatric unit connected by a hallway to the first floor of the main hospital building. The proposal also includes the construction of an adjacent medical office building to centralize the outpatient offices and staff physicians. The evidence establishes that the deficiencies inherent in Community Hospital's existing hospital will be cured by its replacement hospital. All patients will be provided large private rooms. The emergency department will double in size, and contain private examination rooms. All building code requirements will be met or exceeded. Patients and staff will have separate elevators from the public. In addition, the surgical department will have large operating rooms, and adequate storage. The MICU and SICU will be adjacent to each other on the second floor to avoid unnecessary traffic within the hospital. Surgical patients will be transported to the ICU via a private elevator dedicated to that purpose. Medical-surgical patient rooms will be efficiently located on the third through sixth floors, in "double-T" configuration. Community Hospital's Existing and Proposed Sites Community Hospital is currently located on a 23-acre site inside the southern boundary of New Port Richey. Single- family homes and offices occupy the two-lane residential streets that surround the site on all sides. The hospital buildings are situated on the northern half of the site, with the main parking lot located to the south, in front of the main entrance to the hospital. Marine Parkway cuts through the southern half of the site from the west, and enters the main parking lot. A private medical mall sits immediately to the west of the main parking lot and a one-acre storm-water retention pond sits to the west of the mall. A private medical office building occupies the south end of the main parking lot and a four-acre drainage easement is located in the southwest corner of the site. Community Hospital's administration has actively analyzed its existing site, aging facility, and adjacent areas. It has commissioned studies by civil engineers, health care consultants, and architects. The collective evidence demonstrates that, although on-site relocation is potentially an option, on balance, it is not a reasonable option. Replacing Community Hospital on its existing site is not practical for several reasons. First, the hospital will experience significant disruption and may be required to completely close down for a period of time. Second, the site's southwestern large four-acre parcel is necessary for storm-water retention and is unavailable for expansion. Third, a reliable cost differential is unknown given Community Hospital's inability to successfully negotiate with the city and owners of the adjacent medical office complexes to acquire additional parcels. Fourth, acquiring other adjacent properties is not a viable option since they consist of individually owned residential lots. In addition to the site's physical restrictions, the site is hindered by its location. The hospital is situated in a neighborhood between small streets and a local school. From the north and south, motorists utilize either U.S. 19, a congested corridor that accommodates approximately 50,000 vehicles per day, or Grand and Madison Streets, two-lane streets within a school zone. From the east and west, motorists utilize similar two-lane neighborhood streets including Marine Parkway, which often floods in heavy rains. Community Hospital's proposed site, on the other hand, is a 53-acre tract positioned five miles from its current facility, at the intersection of two major thoroughfares in southwestern Pasco County. The proposed site offers ample space for all facilities, parking, outpatient care, and future expansion. In addition, Community Hospital's proposed site provides reasonable access to all patients within its existing primary service area made up of zip codes 34652, 34653, 34668, 34655, 34690, and 34691. For example, the average drive times from the population centers of each zip code to the existing site of the hospital and the proposed site are as follows: Zip code Difference Existing site Proposed site 34652 3 minutes 14 minutes 11 minutes 34653 8 minutes 11 minutes 3 minutes 34668 15 minutes 21 minutes 6 minutes 34655 11 minutes 4 minutes -7 minutes 34690 11 minutes 13 minutes 2 minutes 34691 11 minutes 17 minutes 6 minutes While the average drive time from the population centroids of zip codes 34653, 34668, 34690, and 34691 to the proposed site slightly increases, it decreases from the Trinity area, where population growth has been most significant in southwestern Pasco County. In addition, a motorist's average drive time from Community Hospital's existing location to its proposed site is only 10 to 11 minutes, and patients utilizing public transportation will be able to access the new hospital via a bus stop located adjacent to the proposed site. The Condition of North Bay Facility North Bay Hospital is also an aging facility. Its original structure and portions of its physical plant are approximately 30 years old. Portions of its major mechanical systems will soon require replacement including its boilers, air handlers, and chillers. In addition, the hospital is undersized and awkwardly configured. Despite its shortcomings, however, North Bay is generally in good condition. The hospital has been consistently renovated and updated over time and is aesthetically pleasing. Moreover, its second and third floors were added in 1986, are in good shape, and structurally capable of vertical expansion. Medical Surgical Beds and ICU Units By-in-large, North Bay is comprised of undersized, semi-private rooms containing toilet and shower facilities. The hospital does not have any three-bed wards. North Bay's first floor houses all ancillary and support services including lab, radiology, pharmacy, surgery, pre-op, post-anesthesia recovery, central sterile processing and supply, kitchen and cafeteria, housekeeping and administration, as well as the mechanical, electrical, and facilities maintenance and engineering. The first floor also contains a 20-bed CMR unit and a 15-bed acute care unit. North Bay's second and third floors are mostly comprised of semi-private rooms and supporting nursing stations. Although the rooms and stations are not ideally sized, they are in relatively good shape. North Bay utilizes a single ICU with ten critical care beds. The ICU rooms and nursing stations are also undersized. A four-bed ICU ward and former nursery are routinely used to serve overflow patients. Surgery Department and Recovery North Bay utilizes a single pre-operative surgical room for all of its surgery patients. The room accommodates up to five patient beds, but has limited space for storage and pre-operative procedures. Its operating rooms are sufficiently sized. While carts and large equipment are routinely stored in hallways throughout the surgical suite, North Bay has converted the former obstetrics recovery room to surgical storage and has made efficient use of other available space. North Bay operates a small six-bed Post Anesthesia Care Unit. Nurses routinely prepare patient medications in the unit which is often crowded with staff and patients. The Emergency Department North Bay has recently expanded its emergency department. The evidence demonstrates that this department is sufficient and meets current and future expected patient volumes. Replacement Issues Relating to North Bay While it is clear that areas of North Bay's physical plant are aging, the facility is in relatively good condition. It is apparent that North Bay must soon replace significant equipment, including cast-iron sewer pipes, plumbing, boilers, and chillers which will cause some interruption to hospital operations. However, North Bay's four-page written assessment of the facility and its argument citing the need for total replacement is, on balance, not persuasive. North Bay's Proposed Replacement North Bay proposes to construct a new, state-of-the- art, hospital approximately eight miles southeast of its existing facility and intends to offer the identical array of services the hospital currently provides. North Bay's Existing and Proposed Sites North Bay's existing hospital is located on an eight-acre site with limited storm-water drainage capacity. Consequently, much of its parking area is covered by deep, porous, gravel instead of asphalt. North Bay's existing site is generally surrounded by residential properties. While the city has committed, in writing, it willingness to assist both applicants with on-site expansion, it is unknown whether North Bay can acquire additional adjacent property. North Bay's proposed site is located at the intersection of Trinity Oaks Boulevard and Mitchell Boulevard, south of Community Hospital's proposed site, and is quite spacious. It contains sufficient land for the facilities, parking, and future growth, and has all necessary infrastructure in place, including utility systems, storm- water structures, and roadways. Currently however, there is no public transportation service available to North Bay's proposed site. Projected Utilization by Applicants The evidence presented at hearing indicates that, statewide, replacement hospitals often increase a provider's acute care bed utilization. For example, Bartow Memorial Hospital, Heart of Florida Regional Medical Center, Lake City Medical Center, Florida Hospital Heartland Medical Center, South Lake Hospital, and Florida Hospital-Fish Memorial each experienced significant increases in utilization following the opening of their new hospital. The applicants in this case each project an increase in utilization following the construction of their new facility. Specifically, Community Hospital's application projects 82,685 total hospital patient days (64,427 acute care patient days) in year one (2006) of the operation of its proposed replacement facility, and 86,201 total hospital patient days (67,648 acute care patient days) in year two (2007). Using projected 2006 and 2007 population estimates, applying 2002 acute care hospital use rates which are below 50 percent, and keeping Community Hospital's acute care market share constant at its 2002 level, it is reasonably estimated that Community Hospital's existing hospital will experience 52,623 acute care patient days in 2006, and 53,451 acute care patient days in 2007. Consequently, Community Hospital's proposed facility must attain 11,804 additional acute care patient days in 2006, and 14,197 more acute care patient days in 2007, in order to achieve its projected acute care utilization. Although Community Hospital lost eight percent of the acute care market in its service area between 1995 and 2002, two-thirds of that loss was due to residents of Sub- District 5-1 acquiring services in another area. While Community Hospital experienced 78,444 acute care patient days in 1995, it projects only 64,427 acute care patient days in year one. Given the new facility and population factors, it is reasonable that the hospital will recapture half of its lost acute care market share and achieve its projections. With respect to its psychiatric unit, Community Hospital projects 16,615 adult psychiatric inpatient days in year one (2006) and 17,069 adult inpatient days in year two (2007) of the proposed replacement hospital. The evidence indicates that these projections are reasonable. Similarly, North Bay's acute care utilization rate has been consistently below 50 percent. Since 1999, the hospital has experienced declining utilization. In its application, North Bay states that it achieved total actual acute care patient days of 21,925 in 2000 and 19,824 in 2001 and the evidence at hearing indicates that North Bay experienced 17,693 total acute care patient days in 2002. North Bay projects 25,909 acute care patient days in the first year of operation of its proposed replacement hospital, and 27,334 acute care patient days in the second year of operation. Despite each applicant's current facility utilization rate, Community Hospital must increase its current acute care patient days by 20 percent to reach its projected utilization, and North Bay must increase its patient days by at least 50 percent. Given the population trends, service mix and existing competition, the evidence demonstrates that it is not possible for both applicants to simultaneously achieve their projections. In fact, it is strongly noted that the applicants' own projections are predicated upon only one applicant being approved and cannot be supported with the approval of two facilities. Local Health Plan Preferences In its local health plan for District 5, the Suncoast Health Council, Inc., adopted acute care preferences in October, 2000. The replacement of an existing hospital is not specifically addressed by any of the preferences. However, certain acute care preferences and specialty care preferences are applicable. The first applicable preference provides that preference "shall be given to an applicant who proposes to locate a new facility in an area that will improve access for Medicaid and indigent patients." It is clear that the majority of Medicaid and indigent patients live closer to the existing hospitals. However, Community Hospital proposes to move 5.5 miles from its current location, whereas North Bay proposes to move eight miles from its current location. While the short distances alone are less than significant, North Bay's proposed location is further removed from New Port Richey, is not located on a major highway or bus-route, and would therefore be less accessible to the medically indigent residents. Community Hospital's proposed site will be accessible using public transportation. Furthermore, Community Hospital has consistently provided excellent service to the medically indigent and its proposal would better serve that population. In 2000, Community Hospital provided 7.4 percent of its total patient days to Medicaid patients and 0.8 percent of its total patient days to charity patients. Community Hospital provided the highest percentage and greatest number of Medicaid patient days in Sub-District 5-1. By comparison, North Bay provided 5.8 percent of its total patient days to Medicaid patients and 0.9 percent of its total patient days to charity patients. In 2002, North Bay's Medicaid patients days declined to 3.56 percent. Finally, given the closeness and available bed space of the existing providers and the increasing population in the Trinity area, access will be improved by Community Hospital's relocation. The second local health plan preference provides that "[i]n cases where an applicant is a corporation with previously awarded certificates of need, preference shall be given to those which follow through in a timely manner to construct and operate the additional facilities or beds and do not use them for later negotiations with other organizations seeking to enter or expand the number of beds they own or control." Both applicants meet this preference. The third local health plan preference recognizes "Certificate of Need applications that provide AHCA with documentation that they provide, or propose to provide, the largest percentage of Medicaid and charity care patient days in relation to other hospitals in the sub-district." Community Hospital provides the largest percentage of Medicaid and charity care patient days in relation to other hospitals in Sub-District 5-1, and therefore meets this preference. The fourth local health plan preference applies to "Certificate of Need applications that demonstrate intent to serve HIV/AIDS infected persons." Both applicants accept and treat HIV/AIDS infected persons, and would continue to do so in their proposed replacement hospitals. The fifth local health plan preference recognizes "Certificate of Need applications that commit to provide a full array of acute care services including medical-surgical, intensive care, pediatric, and obstetrical services within the sub-district for which they are applying." Community Hospital qualifies since it will continue to provide its current services, including obstetrical care and psychiatric care, in its proposed replacement hospital. North Bay discontinued its pediatric and obstetrical programs in 2001, does not intend to provide them in its proposed replacement hospital, and will not provide psychiatric care. Agency Rule Preferences Florida Administrative Code Rule 59C-1.038(6) provides an applicable preference to a facility proposing "new acute care services and capital expenditures" that has "a documented history of providing services to medically indigent patients or a commitment to do so." As the largest Medicaid provider in Sub-District 5-1, Community Hospital meets this preference better than does North Bay. North Bay's history demonstrates a declining rate of service to the medically indigent. Statutory Review Criteria Section 408.035(1), Florida Statutes: The need for the health care facilities and health services being proposed in relation to the applicable district health plan District 5 includes Pasco and Pinellas County. Pasco County is rapidly developing, whereas Pinellas County is the most densely populated county in Florida. Given the population trends, service mix, and utilization rates of the existing providers, on balance, there is a need for a replacement hospital in the Trinity area. Section 408.035(2), Florida Statutes: The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant Community Hospital and North Bay are both located in Sub-District 5-1. Each proposes to relocate to an area of southwestern Pasco County which is experiencing explosive population growth. The other general acute care hospital located in Sub-District 5-1 is Regional Medical Center Bayonet Point, which is located further north, in the Hudson area of western Pasco County. The only other acute care hospitals in Pasco County are East Pasco Medical Center, in Zephyrhills, and Pasco Community Hospital, in Dade City. Those hospitals are located in Sub-District 5-2, east Pasco County, far from the area proposed to be served by either Community Hospital or North Bay. District 5 includes Pinellas County as well as Pasco County. Helen Ellis and Mease are existing hospital providers located in Pinellas County. Helen Ellis has 168 licensed beds, consisting of 150 acute care beds and an 18-bed skilled nursing unit, and is located 7.9 miles from Community Hospital's existing location and 10.8 miles from Community Hospital's proposed location. Access to Helen Ellis for patients originating from southwestern Pasco County requires those patients to travel congested U.S. 19 south to Tarpon Springs. As a result, the average drive time from Community Hospital's existing and proposed site to Helen Ellis is approximately 22 minutes. Helen Ellis is not a reasonable alternative to Community Hospital's proposal. The applicants' proposals are specifically designed for the current and future health care needs of southwestern Pasco County. Given its financial history, it is unknown whether Helen Ellis will be financially capable of providing the necessary care to the residents of southwestern Pasco. Mease Countryside Hospital has 189 licensed acute care beds. It is located 16.0 miles from Community Hospital's existing location and 13.8 miles from Community Hospital's proposed location. The average drive time to Mease Countryside is 32 minutes from Community Hospital's existing site and 24 minutes from its proposed site. In addition, Mease Countryside Hospital has experienced extremely high utilization over the past several years, in excess of 90 percent for calendar years 2000 and 2001. Utilization at Mease Countryside Hospital has remained over 80 percent despite the addition of 45 acute care beds in April 2002. Given the growth and demand, it is unknown whether Mease can accommodate the residents in southwest Pasco County. Mease Dunedin Hospital has 189 licensed beds, consisting of 149 acute care beds, a 30-bed skilled nursing unit, five Level 2 neonatal intensive care beds, and five Level 3 neonatal intensive care beds. Its former 15-bed adult psychiatric unit has been converted into acute care beds. It is transferring its entire obstetrics program at Mease Dunedin Hospital to Mease Countryside Hospital. Mease Dunedin Hospital is located approximately 18 to 20 miles from the applicants' existing and proposed locations with an average drive time of 35-38 minutes. With their remote location, and the exceedingly high utilization at Mease Countryside Hospital, neither of the two Mease hospitals is a viable alternative to the applicants' proposals. In addition, the construction of a replacement hospital would positively impact economic development and further attract medical professionals to Sub-District 5-1. On balance, given the proximity, utilization, service array, and accessibility of the existing providers, including the applicants, the relocation of Community Hospital will enhance access to health care to the residents. Section 408.035(3), Florida Statutes: The ability of the applicant to provide quality of care and the applicant's record of providing quality of care As stipulated, both applicants provide excellent quality of care. However, Community Hospital's proposal will better enhance its ability to provide quality care. Community is currently undersized, non-compliant with today's standards, and located on a site that does not allow for reasonable expansion. Its emergency department is inadequate for patient volume, and the configuration of the first floor leads to inefficiencies in the diagnosis and treatment of emergency patients. Again, most inpatients are placed in semi-private rooms and three-bed wards, with no showers or tubs, little privacy, and an increased risk of infection. The hospital's waiting areas for families of patients are antiquated and undersized, its nursing stations are small and cramped and the operating rooms and storage facilities are undersized. Community Hospital's deficiencies will be effectively eliminated by its proposed replacement hospital. As a result, patients will experience qualitatively better care by the staff who serve them. Conversely, North Bay is in better physical condition and not in need of replacement. It has more reasonable options to expand or relocate its facility on site. Quality of care at North Bay will not be markedly enhanced by the construction of a new hospital. Sections 408.035(4)and(5), Florida Statutes, have been stipulated as not applicable in this case. Section 408.035(6), Florida Statutes: The availability of resources, including health personnel, management personnel, and funds available for capital and operating expenditures, for project accomplishment and operation The parties stipulated that both Community Hospital and North Bay have available health personnel and management personnel for project accomplishment and operation. In addition, the evidence proves that both applicants have sufficient funds for capital and operating expenditures. Community Hospital proposes to rely on its parent company to finance the project. Keith Giger, Vice-President of Finance for HCA, Inc., Community Hospital's parent organization, provided credible deposition testimony that HCA, Inc., will finance 100 percent of the total project cost by an inter-company loan at eight percent interest. Moreover, it is noted that the amount to be financed is actually $20 million less than the $196,849,328 stated in the CON Application, since Community Hospital previously purchased the proposed site in June 2003 with existing funds and does not need to finance the land acquisition. Community Hospital has sufficient working capital for operating expenditures of the proposed replacement hospital. North Bay, on the other hand, proposes to acquire financing from BayCare Obligated Group which includes Morton Plant Hospital Association, Inc.; Mease; and several other hospital entities. Its proposal, while feasible, is less certain since member hospitals must approve the indebtedness, thereby providing Mease with the ability to derail North Bay's proposed bond financing. Section 408.035(7), Florida Statutes: The extent to which the proposed services will enhance access to health care for residents of the service district The evidence proves that either proposal will enhance geographical access to the growing population in the service district. However, with its provision of obstetrical services, Community Hospital is better suited to address the needs of the younger community. With respect to financial access, both proposed relocation sites are slightly farther away from the higher elderly and indigent population centers. Since the evidence demonstrates that it is unreasonable to relocate both facilities away from the down-town area, Community Hospital's proposal, on balance, provides better access to poor patients. First, public transportation will be available to Community Hospital's site. Second, Community Hospital has an excellent record of providing care to the poor and indigent and has accepted the agency's condition to provide ten percent of its total annual patient days to Medicaid recipients To the contrary, North Bay's site will not be accessible by public transportation. In addition, North Bay has a less impressive record of providing care to the poor and indigent. Although AHCA conditioned North Bay's approval upon it providing 9.7 percent of total annual patient days to Medicaid and charity patients, instead of the 9.7 percent of gross annual revenue proposed in its application, North Bay has consistently provided Medicaid and charity patients less than seven percent of its total annual patient days. Section 408.035(8), Florida Statutes: The immediate and long-term financial feasibility of the proposal Immediate financial feasibility refers to the availability of funds to capitalize and operate the proposal. See Memorial Healthcare Group, Ltd. d/b/a Memorial Hospital Jacksonville vs. AHCA et al., Case No. 02-0447 et seq. Community Hospital has acquired reliable financing for the project and has sufficiently demonstrated that its project is immediately financially feasible. North Bay's short-term financial proposal is less secure. As noted, North Bay intends to acquire financing from BayCare Obligated Group. As a member of the group, Mease, the parent company of two hospitals that oppose North Bay's application, must approve the plan. Long-term financial feasibility is the ability of the project to reach a break-even point within a reasonable period of time and at a reasonable achievable point in the future. Big Bend Hospice, Inc. vs. AHCA and Covenant Hospice, Inc., Case No. 02-0455. Although CON pro forma financial schedules typically show profitability within two to three years of operation, it is not a requirement. In fact, in some circumstances, such as the case of a replacement hospital, it may be unrealistic for the proposal to project profitability before the third or fourth year of operation. In this case, Community Hospital's utilization projections, gross and net revenues, and expense figures are reasonable. The evidence reliably demonstrates that its replacement hospital will be profitable by the fourth year of operation. The hospital's financial projections are further supported by credible evidence, including the fact that the hospital experienced financial improvement in 2002 despite its poor physical condition, declining utilization, and lost market share to providers outside of its district. In addition, the development and population trends in the Trinity area support the need for a replacement hospital in the area. Also, Community Hospital has benefited from increases in its Medicaid per diem and renegotiated managed care contracts. North Bay's long-term financial feasibility of its proposal is less certain. In calendar year 2001, North Bay incurred an operating loss of $306,000. In calendar year 2002, it incurred a loss of $1,160,000. In its CON application, however, North Bay projects operating income of $1,538,827 in 2007, yet omitted the ongoing expenses of interest ($1,600,000) and depreciation ($3,000,000) from its existing facility that North Bay intends to continue operating. Since North Bay's proposal does not project beyond year two, it is less certain whether it is financially feasible in the third or fourth year. In addition to the interest and depreciation issues, North Bay's utilization projections are less reasonable than Community Hospital's proposal. While possible, North Bay will have a difficult task achieving its projected 55 percent increase in acute care patient days in its second year of operation given its declining utilization, loss of obstetric/pediatric services and termination of two exclusive managed care contracts. Section 408.035(9), Florida Statutes: The extent to which the proposal will foster competition that promotes quality and cost-effectiveness Both applicants have substantial unused capacity. However, Community Hospital's existing facility is at a distinct competitive disadvantage in the market place. In fact, from 1994 to 1998, Community Hospital's overall market share in its service area declined from 40.3 percent to 35.3 percent. During that same period, Helen Ellis' overall market share in Community Hospital's service area increased from 7.2 percent to 9.2 percent. From 1995 to the 12-month period ending June 30, 2002, Community Hospital's acute care market share in its service area declined from 34.0 percent to 25.9 percent. During that same period, Helen Ellis' acute care market share in Community Hospital's service area increased from 11.7 percent to 12.0 percent. In addition, acute care average occupancy rates at Mease Dunedin Hospital increased each year from 1999 through 2002. Acute care average occupancy at Mease Countryside Hospital exceeded 90 percent in 2000 and 2001, and was approximately 85 percent for the period ending June 30, 2002. Some of the loss in Community Hospital's market share is due to an out-migration of patients from its service area to hospitals in northern Pinellas and Hillsborough Counties. Market share in Community's service area by out-of- market providers increased from 33 percent in 1995 to 40 percent in 2002. Community Hospital's outdated hospital has hampered its ability to compete for patients in its service area. Mease is increasing its efforts to attract patients and currently completing a $92 million expansion of Mease Countryside Hospital. The project includes the development of 1,134 parking spaces on 30 acres of raw land north of the Mease Countryside Hospital campus and the addition of two floors to the hospital. It also involves the relocation of 51 acute care beds, the obstetrics program and the Neonatal Intensive Care Units from Mease Dunedin Hosptial to Mease Countryside Hospital. Mease is also seeking to more than double the size of the Countryside emergency department to handle its 62,000 emergency visits. With the transfer of licensed beds from Mease Dunedin Hospital to Mease Countryside Hospital, Mease will also convert formerly semi-private patient rooms to private rooms at Mease Dunedin Hospital. The approval of Community Hospital's relocated facility will enable it to better compete with the hospitals in the area and promote quality and cost- effectiveness. North Bay, on the other hand, is not operating at a distinct disadvantage, yet is still experiencing declining utilization. North Bay is the only community-owned, not-for- profit provider in western Pasco County and is a valuable asset to the city. Section 408.035(10), Florida Statutes: The costs and methods of the proposed construction, including the costs and methods or energy provision and the availability of alternative, less costly, or more effective methods of construction The parties stipulated that the project costs in both applications are reasonable to construct the replacement hospitals. Community Hospital's proposed construction cost per square foot is $175, and slightly less than North Bay's $178 proposal. The costs and methods of proposed construction for each proposal is reasonable. Given Community Hospital's severe site and facility problems, the evidence demonstrates that there is no reasonable, less costly, or more effective methods of construction available for its proposed replacement hospital. Additional "band-aide" approaches are not financially reasonable and will not enable Community Hospital to effectively compete. The facility is currently licensed for 401 beds, operates approximately 311 beds and is still undersized. The proposed replacement hospital will meet the standards in Florida Administrative Code Rule 59A-3.081, and will meet current building codes, including the Americans with Disabilities Act and the Guidelines for Design and Construction of Hospitals and Health Care Facilities, developed by the American Institute of Architects. The opponents' argue that Community Hospital will not utilize the 320 acute care beds proposed in its CON application, and therefore, a smaller facility is a less- costly alternative. In addition, Helen Ellis' architectural expert witness provided schematic design alternatives for Community Hospital to be expanded and replaced on-site, without providing a detailed and credible cost accounting of the alternatives. Given the evidence and the law, their arguments are not persuasive. While North Bay's replacement cost figures are reasonable, given the aforementioned reasons, including the fact that the facility is in reasonably good condition and can expand vertically, on balance, it is unreasonable for North Bay to construct a replacement facility in the Trinity area. Section 408.035(11), Florida Statutes: The applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent Community Hospital has consistently provided the most health care services to Medicaid patients and the medically indigent in Sub-District 5-1. Community Hospital agreed to provide at least ten percent of its patient days to Medicaid recipients. Similarly, North Bay agreed to provide 9.7 percent of its total annual patient days to Medicaid and charity patients combined. North Bay, by contrast, provided only 3.56 percent of its total patient days to Medicaid patients in 2002, and would have to significantly reverse a declining trend in its Medicaid provision to comply with the imposed condition. Community Hospital better satisfies the criterion. Section 408.035(12) has been stipulated as not applicable in this case. Adverse Impact on Existing Providers Historical figures demonstrate that hospital market shares are not static, but fluctuate with competition. No hospital is entitled to a specific or historic market share free from competition. While the applicants are located in health planning Sub-District 5-1 and Helen Ellis and the two Mease hospitals are located in health planning Sub-District 5- 2, they compete for business. None of the opponents is a disproportionate share, safety net, Medicaid provider. As a result, AHCA gives less consideration to any potential adverse financial impact upon them resulting from the approval of either application as a low priority. The opponents, however, argue that the approval of either replacement hospital would severely affect each of them. While the precise distance from the existing facilities to the relocation sites is relevant, it is clear that neither applicants' proposed site is unreasonably close to any of the existing providers. In fact, Community Hospital intends to locate its replacement facility three miles farther away from Helen Ellis and 1.5 miles farther away from Mease Dunedin Hospital. While Helen Ellis' primary service area is seemingly fluid, as noted by its chief operating officer's hearing and deposition testimony, and the Mease hospitals are located 15 to 20 miles south, they overlap parts of the applicants' primary service areas. Accordingly, each applicant concedes that the proposed increase in their patient volume would be derived from the growing population as well as existing providers. Although it is clear that the existing providers may be more affected by the approval of Community Hosptial's proposal, the exact degree to which they will be adversely impacted by either applicant is unknown. All parties agree, however, that the existing providers will experience less adverse affects by the approval of only one applicant, as opposed to two. Furthermore, Mease concedes that its hospitals will continue to aggressively compete and will remain profitable. In fact, Mease's adverse impact analysis does not show any credible reduction in loss of acute care admissions at Mease Countryside Hospital or Mease Dunedin Hospital until 2010. Even then, the reliable evidence demonstrates that the impact is negligible. Helen Ellis, on the other hand, will likely experience a greater loss of patient volume. To achieve its utilization projections, Community Hospital will aggressively compete for and increase market share in Pinellas County zip code 34689, which borders Pasco County. While that increase does not facially prove that Helen Ellis will be materially affected by Community Hospital's replacement hospital, Helen Ellis will confront targeted competition. To minimize the potential adverse affect, Helen Ellis will aggressively compete to expand its market share in the Pinellas County zip codes south of 34689, which is experiencing population growth. In addition, Helen Ellis is targeting broader service markets, and has filed an application to establish an open- heart surgery program. While Helen Ellis will experience greater competition and financial loss, there is insufficient evidence to conclude that it will experience material financial adverse impact as a result of Community Hospital's proposed relocation. In fact, Helen Ellis' impact analysis is less than reliable. In its contribution-margin analysis, Helen Ellis utilized its actual hospital financial data as filed with AHCA for the fiscal year October 1, 2001, to September 30, 2002. The analysis included total inpatient and total outpatient service revenues found in the filed financial data, including ambulatory services and ancillary services, yet it did not include the expenses incurred in generating ambulatory or ancillary services revenue. As a result, the overstated net revenue per patient day was applied to its speculative lost number of patient days which resulted in an inflated loss of net patient service revenue. Moreover, the evidence indicates that Helen Ellis' analysis incorrectly included operational revenue and excluded expenses related to its 18-bed skilled nursing unit since neither applicant intends to operate a skilled nursing unit. While including the skilled nursing unit revenues, the analysis failed to include the sub-acute inpatient days that produced those revenues, and thereby over inflated the projected total lost net patient service revenue by over one million dollars.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Community Hospital's CON Application No. 9539, to establish a 376-bed replacement hospital in Pasco County, Sub- District 5-1, be granted; and North Bay's CON Application No. 9538, to establish a 122-bed replacement hospital in Pasco County, Sub-District 5- 1, be denied. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 19th day of March, 2004. COPIES FURNISHED: James C. Hauser, Esquire R. Terry Rigsby, Esquire Metz, Hauser & Husband, P.A. 215 South Monroe Street, Suite 505 Post Office Box 10909 Tallahassee, Florida 32302 Stephen A. Ecenia, Esquire R. David Prescott, Esquire Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Richard J. Saliba, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive Tallahassee, Florida 32308 Robert A. Weiss, Esquire Karen A. Putnal, Esquire Parker, Hudson, Rainer & Dobbs, LLP The Perkins House, Suite 200 118 North Gadsden Street Tallahassee, Florida 32301 Darrell White, Esquire William B. Wiley, Esquire McFarlain & Cassedy, P.A. 305 South Gadsden Street, Suite 600 Tallahassee, Florida 32301 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
The Issue Whether Department of Health and Rehabilitative Services ("HRS") Rules 10- and 10-17.005 (originally published as 10-16.001, 10-16.005), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Standing Humana is a corporation engaged in the business of constructing and operating hospitals in Florida. It has applied to HRS for a certificate of need to construct and operate a 100-bed acute care hospital to be located south of the St. Johns River in the area known as Mandarin, in Duval County, Florida. The challenged Subdistrict Rule places this area in Subdistrict 3 of HRS District IV. Humana's (Mandarin) application for a certificate of need (CON) was denied by HRS on February 23, 1983, and Humana requested a formal Section 120.57(1), hearing. The case was then transferred to the Division of Administrative Hearings and assigned Case Number 83-934. The final hearing in that CON case began on September 6, 1983, and recessed on September 7, 1983. In the instant case--on Humana's request, and without objection by HRS--official recognition was given to the transcript of that hearing, as filed with the Division of Administrative Hearings. Prior to the CON hearing in Case Number 83-934, on August 12, 1983, HRS published proposed Rules 10-16.001 and 10-16.005 ("Subdistrict Rule") at Volume 9, Number 32, pages 1952 through 1957, Florida Administrative Weekly. (Petitioner's Exhibit No. 1) After the CON hearing recessed, and after a public hearing on the proposed Subdistrict Rule, HRS published changes to the rule on September 23, 1983, at Volume 9, No. 38, page 2475-2476, Florida Administrative Weekly. These changes were made in response to comments which HRS received at a public hearing held on the proposed rule. (Petitioner's Exhibit No. 2) On September 26, 1983, HRS filed the Subdistrict Rule with the Department of State for adoption, effective October 16, 1983. (Petitioner's Exhibit No. 3) Thereafter, the Bureau of Administrative Code, Department of State, informed HRS that since other rules were already numbered in Chapter 10-16, Florida Administrative Code, the Subdistrict Rule would be published in Chapter 10-17, Florida Administrative Code. (Petitioner'S Exhibit No. 28) At the CON hearing, Humana attempted to introduce evidence which HRS challenged as inconsistent with Rule 10-5.11(23) the state-wide acute care bed- need rule, and the Subdistrict Rule--then a proposed rule not yet adopted by HRS. The presiding hearing officer, acknowledging the "proposed rule" status of the Subdistrict Rule, sustained HRS objections to the admission of evidence proposing a methodology, or subdistrict bed-need allocations, inconsistent with those contained in the (proposed) Subdistrict Rule. He did, however, rule that the two non-agency parties could offer evidence for the purpose of showing that HRS, or the local health council in conjunction with HRS, had developed bed-need formula or techniques for subdistricts beyond, or inconsistent with, the proposed Subdistrict Rule and the underlying local health council's district plan. (DOAH Case No. 83-934, pp. 220-221, Transcript of Hearing). II. The Rule Adoption Process In response to Section 381.494(7)(b), Florida Statutes (1983), requiring local health councils to develop district plans using a "uniform methodology," HRS transmitted to the councils written guidelines for designating and allocating bed-need among various subdistricts. (Petitioner's Exhibit Dos. 9 and 10) The statute does not express or imply that the word, "methodology" should be given a meaning other than that assigned by ordinary and common usage. Webster's Seventh New Collegiate Dictionary defines the term as: "a body of methods, rules and postulates; a particular procedure or set of procedures." A methodology is not necessarily a mathematical formula. These guidelines, transmitted to the local health councils in early 1983, describe the relationship between HRS and the councils, the format and content elements of district health plans, and the requirements for stating district health care policies and priorities. Examples are provided. The guidelines require that local plans contain a district health profile--an overview of the area's population characteristics, community health status and prevailing health related attitudes and behaviors. Components are also required, including detailed information on the district's health care resource inventories, costs and utilization patterns, analysis of local services as well as recommendations and priorities for future health systems development. For at least three types of existing health care facilities--acute care hospitals, nursing homes, and psychiatric specialty hospitals information must be provided on current capacity, physical status, service areas, and recommendations for future developments. A time frame is imposed for accomplishing each phase of the plan development, with the final phase adoption of the local health plan--to be accomplished by December, 1983. Finally, the guidelines, at page 15, point out the statutory requirement that HRS adopt, by rule, those elements of the approved district plans necessary for review of applications for certificates of need: Adoption Into Rules Section 7(b) of Chapter 381.493 states that "Elements of an approved district plan necessary to the review of any certificate of need application shall be adopted by the Department as a part of its rules." This should be kept in mind through- out the plan development process. Local policies and priorities are the items most pertinent to certificate of need review since information on bed need and capacity are either determined at the state level or must be updated to the time of certificate of need application, review and appeal. There- fore, the local health council will be ex- pected to develop a separate submission of their policies and priorities in the proper format for rule promulgation within thirty days of the adoption of the local health plan. State agency staff will assist in the development and refinement of these documents. (Petitioner'S Exhibit No. 9) HRS interpreted its responsibility under Section 381.494, as one of assuring that district health plans were consistent with the state-wide uniform bed-need methodology prescribed in Rule 10-5.11(23). Under subparagraph "d" of that rule, local health plans must designate subdistricts according to HRS guidelines. Subparagraph "e" requires that beds be allocated to designated subdistricts consistent with the total number of beds allocated to the district under the rule, and consistent with subparagraph "i," which contains geographic accessibility standards. Rule 10-5.11(23) * * * * * Acute Care Service Subdistrict Designation. Acute care service sub- district designations shall be adopted, as necessary, by each Local Health Council as an element of its local health plan according to guidelines developed by the State Health Planning Agency. Designations will become effective for the purposes of this rule upon the filing of the adopted local health plan acute care subdistricting elements with the Secretary of State. Subdistrict Bed Allocations. Subdistrict bed allocations by type of service shall be made by the Local Health Councils consistent with the district total acute care bed allocation as determined by the methodology contained in paragraph (f) below, as well as any adjustments to the allocation as determined by the provisions of paragraphs and (h) below. Such allocations shall also be consistent with the provisions 9f paragraph (i) and the requirements of Section 381.494(7)(b) , Florida Statutes. * * * * * Geographic Accessibility Considerations. Acute care hospital beds should be available and accessible within an automobile travel time of 30 minutes under average travel conditions to at least 90 percent of the population residing in an urban area subdistrict. Acute care hospital beds should be available and accessible within a maximum automobile travel time of 45 minutes under average travel conditions to at least 90 percent of the population residing in a rural area sub- district. The elements of the District IV health plan contained in the Sub- district Rule are consistent with the uniform methodology prescribed in Rule 10-5.11(23) and HRS guidelines. In response to these guidelines, the District IV health council adopted and transmitted to HRS, on July 7, 1983, the acute care component of the district health plan. After the district council approved this component and allocated beds to the various subdistricts, HRS supplied updated population figures resulting in an increase in the total number of beds allocated to the district. The council's staff then adjusted the number of beds allocated to the subdistricts on a pro rata basis. These adjustments were consistent with the council's policy, as reflected by its approval of the acute care component. No evidence has been presented to show that the council's staff lacked authority to make these adjustments. (Petitioner's Exhibit No. 7) In addition to allocating district wide bed-need among the subdistricts of District IV, the acute care component contains detailed information and analysis concerning acute care bed-need. This information is pertinent but not necessary to the review of CON applications in District IV. (Petitioner's Exhibit No 7) The challenged Subdistrict Rule simply designates subdistricts and allocates bed-need among them; other data and analysis contained in the acute care component are not included. HRS, however, is now drafting an addition to the Subdistrict Rule (Section 10-17.005), titled "subsection (3), Acute Care Policies and Priorities," which incorporates additional portions of the district plan for use in reviewing CON applications in District IV. This draft rule allows exceptions based on local conditions: When there are more than one widely separated hospital service areas located within a single subdistrict, such as St. Augustine in South Duval Subdistrict 3, Bunnell and Daytona Beach in Subdistrict 4, and unforeseen growth, change and makeup of population, or other circumstances cause a significant increase in the demand for inpatient care within one of the service areas, the State should make exception to the District Health Plan when it is reasonable and logical to do so. (Petitioner'S Exhibit No. 34) This provision was contained in the district plan at the time HRS adopted the Subdistrict Rule. (Petitioner'S Exhibit No. 7) The Subdistrict Rule, with the exception of St. Lukes' Hospital, allocates beds among the subdistricts on the basis of the number of patient-days currently utilized by the hospitals in each subdistrict, projected for 1988. St. Lukes' Hospital, now located on the north side of the St. John's River in Subdistrict 1, will move to the south side of the St. John's River in Subdistrict 3, the subdistrict where Humana seeks to build its Mandarin hospital. This move from north to south is accounted in the subdistrict allocation by assuming that 34 percent of the current (north) St. Lukes' Hospital patient-days will come with the hospital when it moves from Subdistrict 1 to Subdistrict 3, and that the remainder will come from Subdistrict 3 (south) patients. With 66 percent of St. Lukes' bed capacity allocated for Subdistrict 3, there will be no additional bed-need in that subdistrict for years. HRS prepared an economic impact statement (EIS) in connection with its adoption of the subdistrict rules, including the Subdistrict Rule under challenge. The EIS addresses the agency's cost to implement the proposed rules, the cost or economic benefit to persons directly affected, and the affect on competition. The data and methods used in preparing the EIS are also briefly summarized.
The Issue Whether HRS should revoke respondent Sprayberry's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?
Findings Of Fact The parties are in apparent agreement that respondent Wiley R. Sprayberry has held emergency medical technician certification No. JT 004523, at all pertinent times. Warranted Search It was freezing cold at about ten o'clock on the night of February 13, 1986, when Eric Adams, Kenneth Allen Tate, Jerry Eldridge and Jesse Joyner, all of the Holmes County Sheriff's Department, arrived to execute a search warrant at the "ambulance shack," the building that Holmes County emergency medical technicians occupied between ambulance runs. The warrant issued earlier the same day, on the strength of an affidavit Wilburn G. Baker had executed that morning at the state attorney's office. (T. 343-4). Mr. Baker's visit to the state attorney's office followed a stormy meeting of the Holmes County Ambulance Service emergency medical technicians. During one such meeting Mr. Baker told Messrs. Sprayberry and Cullifer "that he wished neither one of them had worked there . . . " (T. 195) Wilburn Baker had begun working for the Holmes County Ambulance Service sometime after he obtained his own certification as an emergency medical technician in 1978, and was already on board when Wiley R. Sprayberry began, in 1983. Mr. Baker took over as director of the Service when Mr. Cullifer "stepped down on his own" (T. 207) in 1985. Affidavit and warrant notwithstanding, a motion to suppress evidence obtained in the February 13, 1986 search was later granted in the criminal proceeding in which Messrs. Sprayberry and Cullifer were accused of marijuana possession on that night. The criminal prosecution was subsequently abandoned altogether. Apparently, however, on the night of the search, the authorities did not foresee these developments. They had, indeed, invited television crews and other media representatives to be on hand to witness them apprehend the respondents, whom Mr. Baker assured them they would find in possession of marijuana. Gunfire In Winter As law enforcement personnel, including a dog handler, gathered outside, Messrs. Cullifer and Sprayberry lay in beds inside the ambulance shack, covers drawn, watching a television news program. They had returned not long before from taking a Mr. Whitaker to Dothan. Among those outside the ambulance shack was Mr. Baker. Some hours before the fact (T. 349), the sheriff's office told him when the search was to take place, so that other ambulance attendants could fill in for the respondent and Mr. Sprayberry when they were arrested. After knocking and announcing their intention to execute a search warrant, Officers Adams, Tate and Eldridge entered the ambulance shack. Mr. Sprayberry remained in bed during the reading of the search warrant, but Mr. Cullifer took the opportunity to get dressed. Mr. Cullifer followed Officer Adams outside. As they walked with Officer Tate toward Mr. Cullifer's black Jeep, Officer Adams asked for the keys to the vehicle. Mr. Cullifer answered that "it's not even locked, anybody could have put anything . . . in there." (T. 371) Although the Jeep, "a hunting type vehicle," (T. 263) was capable of being locked, "you could pick the door up and s[e]t it off" (T. 272) and Mr. Cullifer never locked it when he parked it outside the ambulance shack. Instead of giving Officer Adams the keys, respondent Cullifer opened the unlocked door of the Jeep, got inside, inserted a key in the ignition lock, and started the engine. Standing beside the driver's seat and facing him, Officer Adams reached for the keys with his left hand, but Cullifer drove forward, knocking Adams backward, although not down. When his orders to halt went, unheeded, Officer Adams fired three shots. A bullet lodged in the back of the driver's seat as the Jeep sped from sight. Bag Plus Partial Cigarette In reaching (unsuccessfully) for the car keys, Officer Adams spotted a large, transparent bag under the driver's seat containing a "[g]reen leafy substance" (T. 13) that resembled marijuana. It was on account of this that he felt justified in firing on Mr. Cullifer, whom he took to be a fleeing felon. Whether the bag was of the "Zip-Loc" type he could not determine. Perhaps five minutes after he left, Mr. Cullifer returned, to be greeted by Officer Tate who wrestled him to the ground and handcuffed him. In the ensuing search of the Jeep, Officers Tate and Joyner "found a roach and all sorts of residue of marijuana." (T. 15) Partial Cigarette Only Meanwhile, inside the ambulance shack, respondent Sprayberry had decided to get dressed after all. He had just buckled his belt when he heard gunshots outside. Curious, he started for the door, only to have Officer Eldridge slam him against the wall. He was leaning against the wall, arms outstretched, when the telephone rang. Somebody from the hospital wanted to know what was happening at the ambulance shack. Still inside the ambulance shack, Mr. Sprayberry was asked for the keys to his car. Saying they were not needed since he had left his car unlocked, Mr. Sprayberry nevertheless threw his keys to a sheriff's officer. In fact, however, the Sprayberry car was locked when Officer Adams had tried to gain access before going for the key. A search of Mr. Sprayberry's car yielded "cannabis traces," (T. 15) in the form of a partial marijuana cigarette or "roach." No Other Link To Sprayberry With the help of a specially trained dog, sheriff's officers also searched the ambulance shack. Officer Tate recalled the dog's signalling suspiciously while sniffing a certain filing cabinet drawer, but nobody even opened the drawer at the time. Except inside the vehicles, no marijuana was found. City police arrived in response to reports of gunfire. "[T]here w[ere] cameras everywhere and lights everywhere." (T. 311) Mr. Baker, among others, was interviewed by the press, but he was unable to say at hearing whether a newspaper had quoted him correctly to the effect that the arrests came as a surprise to him. (T. 350-354) During the years he had known them, Mr. Baker never saw either Mr. Cullifer or Mr. Sprayberry in possession of marijuana. (T. 158). He nevertheless came to believe that they used marijuana, or so he testified. This belief he claimed sprung from statements he attributed to Mr. Cullifer, who denied making them, and which did not pertain to Mr. Sprayberry, in any event; and from leafy matter and paraphernalia Mr. Baker said he found at the ambulance shack. But emergency medical technician Robert Mitchell Taylor, who has worked for the Holmes County Ambulance Service for nine years, testified that he never saw "any indication that anybody had possessed marijuana at the ambulance shack." (T. 197) Donnie Ray Brock, a paramedic who worked for the Holmes County Ambulance Service from '78 or '9, through '86 sometime" (T. 204) testified that, during his employment there, he never had reason to believe that Messrs. Cullifer or Sprayberry "possessed marijuana while at the ambulance shack." (T. 205-6) Judith Sharon Braxton, aside from Messrs. Baker, Cullifer and Sprayberry, the only other Holmes County Ambulance Service employee who testified, said she had never seen Mr. Cullifer or Mr. Sprayberry in possession of marijuana, although she conceded she probably would not recognize marijuana if she saw it. (T. 216) Attending a Patient On February 7, 1986, respondents transported a 79 year-old man from the hospital in Bonifay to Bay Memorial Medical Center in Panama City. As they left Doctors Memorial Hospital shortly after five o'clock in the afternoon, Mary Elizabeth "Libby" Streep Kolmetz, R.N., Director of Nurses, noticed that "down to the corner, they both remained in the front seat." (T. 73) Mr. Sprayberry was driving. She saw Mr. Cullifer in the other front seat for one or two minutes, including 30 to 60 seconds that elapsed before the ambulance began its journey. The ambulance is "basically a regular van with . . high-top roof . . . [t]wo bucket seats in the front and a sliding door in the middle for the EMT's to go back and forth through." (T. 231) Because the sliding door is routinely locked open, an attendant seated on the edge of the passenger's seat can see and hear the patient while he is on the radio. Not uncommonly the attendant remained in the front seat for a minute or two as the ambulance set out, in order to communicate by radio with Doctors Memorial or Holmes County Ambulance Service. A critical electrical cord attached to the only radio that worked was long enough that the attendant could have stood somewhat closer to the patient, but it was unsafe to stand. Although the driver might have operated the radio, this was not customary. The evidence did not show that Mr. Sprayberry's performance on February 7, 1986, departed from any standard of care or acceptable practice. Mr. Cullifer's testimony that he only left patients "to make a radio transmission" (T. 237) keeping an eye on them even then, and that he did not "stay away from a patient over two or three minutes," id., has been credited. The record made of the 79-year old passenger's vital signs on February 7, 1986, does not prove otherwise. While this record reflects minimal variation in blood pressure during the 50-minute trip, the reported pulse rates vary more, and the reported rates of respiration show still more variation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS dismiss the administrative complaint filed against Wiley R. Sprayberry. DONE and ENTERED this 11th day of August, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division Administrative Hearings this 11th day of August, 1988. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 4 is not supported by the record cited. Petitioner's proposed finding of fact No. 8 has been adopted, in substance, insofar as material, except for the characterization of the bag as "Ziplock." Petitioner's proposed finding of fact No. 10 has been adopted, in substance, except as regards where the shots were aimed and where the bullets lodged. The last sentence of petitioner's proposed finding of fact No. 17 has not been adopted, despite testimony to this effect, because using the radio could distract the driver. Petitioner's proposed findings of fact Nos. 18 and 19 are rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 20, no evidence supported the allegation that Cullifer had given marijuana to Sherri Pate. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 20, 21 and 22 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not clearly and convincingly rule out the possibility that Baker planted the marijuana cigarettes. Respondent's proposed finding of fact No. 7 is consistent with the evidence, but raises the question why he would be "frightened by the presence of police officers." With respect to respondent's finding of fact No. 9, nobody corroborated Baker's allegation of marijuana use or possession by respondent at any time other than February 13, 1986. Respondent's proposed finding of fact No. 15 is immaterial. With respect to respondent's proposed finding of fact No. 19, the cord would not reach far enough to allow the attendant to sit in the patient compartment. Respondent's proposed finding of fact No. 23 is rejected as unsupported by the evidence. COPIES FURNISHED: JOHN R. PERRY 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 BONNIE K. ROBERTS P. O. BOX 667 BONIFAY, FLORIDA 32425 GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700
The Issue The issue for disposition is whether Petitioner's application for a certificate of need (CON) was properly rejected by Respondent for failure to file the application by the deadline established in rules 59C-1.008(k)1. and 2. and 59C-1.008(4), F.A.C. The parties have stipulated that if the rules are determined valid in the companion case, 93-7094RX, the agency was authorized to reject the application.
Findings Of Fact Manatee Hospitals and Health Systems, Inc. d/b/a Manatee Memorial Hospital (Manatee) is a nonprofit corporation which operates a short-term general acute care hospital in Manatee County, Florida. On November 1, 1993, Manatee timely and properly submitted a letter of intent to the Agency for Health Care Administration (Agency) seeking authority to convert up to 11 substance abuse beds and/or up to 28 acute care beds to 28 skilled nursing beds for review in the Nursing Home Batch Cycle, 2nd Cycle, 1993. On December 1, 1993, Manatee submitted a CON application to the agency seeking authority to convert up to 11 adult substance abuse beds and/or up to 28 acute care beds to 28 skilled nursing beds for review in the nursing home batch cycle, 2nd cycle, 1993. The application included the appropriate filing fee. Manatee failed to submit a copy of its CON application to the local health council by 5:00 p.m. on the application due date of December 1, 1993. Instead, the application was submitted to the local health council on December 2, 1993. By correspondence from Liz Dudek, Chief, Certificate of Need and Budget Review Section, dated December 7, 1993, the agency advised Manatee that its CON application was not accepted and was being returned to Manatee because Manatee failed to submit a copy of its application to the health council by 5:00 p.m. on the application due date of December 1, 1993, as required by rules 59C- 1.008(1)(k)1., and 2., and 59C-1.008(4), F.A.C.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Petitioner's request that the agency accept its application for comparative review in the Nursing Home Cycle, 2nd cycle be DENIED. DONE AND RECOMMENDED this 21st day of February, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 21st day of February, 1994. COPIES FURNISHED: John M. Knight, Esquire The Perkins House, Suite 200 118 North Gadsden Street Tallahassee, Florida 32301 J. Robert Griffin, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 June 28, 2013, Sebring Hospital Management Associates, LLC d/b/a Highlands Regional Medical Center (“Highlands Regional”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10182, which it submitted to establish a seven-bed comprehensive medical rehabilitation unit in District 6 (Highlands County). Filed May 15, 2014 4:07 PM Division of Administrative Hearings 2. The matter was referred to the Division of Administrative Hearings (“DOAH”) where it was assigned Case No. 13-2512 CON. 3. On June 28, 2013, Haines City HMA, LLC d/b/a Heart of Florida Regional Medical Center (“Heart of Florida”) requested a formal administrative hearing to contest the preliminary denial of CON Application No. 10180, which it submitted to establish a 14-bed comprehensive medical rehabilitation unit in District 6 (Polk County). 4. The matter was referred to DOAH where it was assigned Case No. 13-2513 CON. 5. On July 23, 2013, DOAH issued an Order of Consolidation. 6. On April 23, 2014, Highlands Regional filed a Notice of Voluntary Dismissal. 7. On April 23, 2014, Heart of Florida filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 8. The denial of Highlands Regional’s CON Application No. 10182 is upheld. 9. The denial of Heart of Florida’s CON Application No. 10180 is upheld. ORDERED in Tallahassee, Florida, on this He day of thax , 2014. Elizabeth Dudek, Secretary Agency for Healjh 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. 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 [Ema Loe , 2014. . Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 John D. Newton, IT Lorraine M. Novak, Esquire Administrative Law Judge Office of the General Counsel Division of Administrative Hearings Agency for Health Care Administration (Electronic Mail) (Electronic Mail) James McLemore, Supervisor Corrine T. Porcher, Esquire Certificate of Need Unit Susan C. Smith, Esquire Agency for Health Care Administration Geoffrey D. Smith, Esquire (Electronic Mail) Sabrina B. Dieguez, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, Florida 32308 Corinne@smithlawtlh.com Susan@smithlawtlh.com Geoff@smithlawtlh.com Sabrina@smithlawtlh.com LL (Electronic Mail)
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
Findings Of Fact David Kelly, certified since 1973 as an emergency medical technician and as an ambulance driver, does business as Franklin Ambulance Service, under contract to the Franklin County Commission. Franklin Ambulance Service held ambulance service license No. 221 from February 2, 1982, through February 1, 1983. An application for renewal of this license, dated January 19, 1983, has been filed with petitioner Department of Health and Rehabilitative Services (HRS). Franklin County itself owns the two ambulances respondent operates. One ambulance had been driven 160,000 miles at the time of hearing; and the other had been driven more than 200,000 miles. They both require maintenance frequently. The ambulances are converted vans with no barrier between the driver and the back of the vehicle. Typically one ambulance is stationed in Apalachicola and the other in Carrabelle. Cases that Weems Memorial Hospital in Apalachicola is not prepared to handle are generally taken to Tallahassee Memorial Regional Medical Center from the eastern part of the county, and to Bay Memorial Regional Medical Center from the western part of the county. TELEPHONE ACCESS When the ambulance based in Apalachicola is not in use or being serviced, Mr. Kelly keeps it at his residence on 26th Street in Apalachicola. He has a telephone in his house. In addition, according to Mr. Kelly: The County has a volunteer phone system. That means that it is answered by volunteers in the community. There is four phones in Apalachicola, four phones in Carrabelle that are manned by volunteers. In the event that someone is not going to be at the phone and a call comes in, a recorder is put on the telephone to tell the people of Carrabelle, if they need an ambulance, to call the ambulance number in Apalachicola, and the recorder in Apalachicola is very rarely put on, but whenever it is put on, it tells them to call the Weems Memorial Hospital, and the Weems Memorial helps them secure an ambulance. (T. II. p. 77). The ambulances maintain direct radio contact with Weems Memorial Hospital when in service. This system has not always worked perfectly. About noon on September 23, 1982, calls were placed to the ambulance telephones in Apalachicola and in Carrabelle, in an effort to secure an ambulance, but to no avail. Both in Carrabelle and in Apalachicola, volunteers sometimes answered the telephone for Franklin Ambulance Service. Debra Johnson, when she had completed her training as an emergency medical technician but before being certified, was such a volunteer in October of 1982. At the time, Nelson Noble worked for Mr. Kelly and had responsibility for ambulance service in Carrabelle and the eastern part of the county generally, as well as being pastor of the Church of God in Apalachicola. On October 9, 1982, Mr. Noble asked Ms. Johnson to answer the telephone while he went to Apalachicola, leaving an oxygen tank, bandages, air splints and instructions to stabilize any patient who needed it, until he could get back from Apalachicola. On Sunday, October 10, 1982, Mr. Noble had the ambulance at his church. He was gone all day and did not return to relieve the volunteer manning the telephone until ten o'clock that night. At about half past noon on October 12, 1982, Mr. Noble asked Ms. Johnson to answer the telephone and to tell callers that the ambulance was on a run to Tallahassee. At 6:30 or 7:00 that evening, Ms. Johnson was told that Mr. Nelson and the ambulance were at Mr. Noble's house in Carrabelle. She called and complained that he had not kept her informed of his whereabouts. On one occasion, the ambulance went to Tallahassee with a patient and did not return for six hours. Mr. Noble "had been shopping, and had bought parts for his truck. . ." T. 1 p. 151. There was no showing that these particular incidents or other specific interruptions of continuous telephone access by the Carrabelle public were brought to Mr. Kelly's attention at the time. There was no showing that the Apalachicola ambulance was inaccessible to the public at any time, except for good reason. DRIVER ATTENDS WHILE EMT DRIVES On June 27, 1982, two cars travelling in opposite directions across Gorrie Bridge collided head on. Archie Brooks Holton, a Franklin County deputy sheriff, was the first law enforcement officer on the scene. He radioed his dispatcher asking that a fire truck and at least one ambulance be sent to the bridge. Twenty or thirty minutes later the Apalachicola ambulance driven by Mr. Kelly arrived. Seated next to him was James Clark Tomlin. After accident victims had been placed in the ambulance, Mr. Kelly drove off, with Mr. Tomlin attending the patient in the rear of the ambulance. En route to the hospital, one of the patients threw up and Mr. Tomlin cleared out vomitus with his fingers, then used a suction device. At all pertinent times, Mr. Tomlin was a certified ambulance driver, but was not certified as an emergency medical technician. Explaining why Mr. Tomlin, rather than he, attended the patient in the back of the ambulance as they left the Gorrie Bridge accident, Mr. Kelly testified: Whenever I started to leave the accident scene, Jim Tomlin told me that he had left his glasses. He did not have his glasses with him, and he is required on his driver's license, to drive with glasses, and he said that he could not see to back off that bridge and pass those cars and turn around without his glasses, that the glare was too much for him. (T. II. p. 68). Another traffic accident, on State Road 67 five miles north of Carrabelle, resulted in another accident victim's being transported by the Apalachicola ambulance on or about August 31, 1982. Again Mr. Kelly drove and Mr. Tomlin rode in back. Whether or not a physician's assistant was also in the back of the ambulance while it travelled to Dr. Sands' office, Mr. Tomlin and the patient were alone in the back of the ambulance while Mr. Kelly drove it from Dr. Sands' Franklin County office to Tallahassee Memorial Regional Medical Center. Mr. Kelly explained: On the way to the ambulance, Jim Tomlin told me that he had gotten nauseated and sick from working. It was a hot night and he said that he was nauseated and sick to his stomach, and he didn't think that he would be able to drive, and I told him that I would drive him on to the doctor's office, and we would see, when we got there, if he thought he'd be able to drive on to Tallahassee. . .Jim, at that time, informed me that he was not able. . .to drive on to Tallahassee, that he still felt too bad. I told him that, since the patient was stabilized, we had the splints on the patient, to watch him and inform me if anything went wrong, and I would drive on to Tallahassee. (T. II. pp. 61-62). According to Messrs. Kelly and Tomlin these two occasions were the only ones on which Mr. Tomlin rode in the back of the ambulance with a patient while Mr. Kelly drove the ambulance. The weight of the evidence was otherwise. At various times, including November 1, 1982, Vicki Lynn Holton, a nurse at Weems Memorial, saw the Apalachicola ambulance arrive at the hospital with Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance. Dr. Photis Nichols has on several occasions seen the ambulance leave Weems Memorial with Mr. Tomlin attending the patient in the back and Mr. Kelly driving. Some time in 1981 or 1982 Mr. Kelly drove an ambulance to Tallahassee Memorial Regional Medical Center with a mother and newborn infant in the back attended by Mr. Tomlin. On September 3, 1982, an ambulance left St. Teresa with a patient, his wife, and Mr. Tomlin in the back of the ambulance and Mr. Kelly driving. Dora Lee White, PBX operator at Weems Memorial, has seen Mr. Kelly driving an ambulance and Mr. Tomlin in the back attending a patient from time to time over the last three years. Ms. Julia Barber, another PBX operator at Weems Memorial, can see the ambulance arrive and depart from her work station. Over the last three years, Mr. Kelly has almost always driven and Mr. Tomlin has almost always attended the patient in the back of the ambulance, as far as she has observed. A former employee of the ambulance service, Nancy Cone, observed Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance, on ten or fifteen occasions. The evidence overwhelmingly established that Mr. Kelly routinely drove the ambulance, leaving Mr. Tomlin to take care of patients. Because of the van configuration, the two men could communicate. In a sense, the licensed driver, Mr. Tomlin, was in the presence of a certified emergency medical technician, Mr. Kelly, when he attended patients in the back of the ambulance Mr. Kelly was driving. When Mr. Noble was hired to take charge of ambulance operations in Carrabelle, he was certified as an ambulance driver, but not as an emergency medical technician. (He was nevertheless paid one third again as much as the two emergency medical technicians he replaced earned between them, perhaps because part of his duties was "public relations.") Mr. Noble had been previously certified as an emergency medical technician and was recertified on October 15, 1982. While working for Franklin Ambulance Service, but before his recertification as an emergency medical technician, Mr. Noble drove or rode in the Carrabelle ambulance numerous times when patients were being transported and without a duly certified emergency medical technician on the ambulance. Mr. Noble's testimony that this occurred only once has not been credited. RECORD KEEPING Whenever one of the ambulances makes a trip, an employee of the ambulance service filled out a "REMSMO Ambulance Report" form. Even though Mr. Kelly drove and Mr. Tomlin acted as ambulance attendant, the "run reports" indicated that Mr. Tomlin drove and Mr. Kelly acted as the attendant. False reporting of this kind occurred repeatedly, including the night of the accident on Gorrie Bridge.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner deny respondent's application for licensure, without prejudice to the filing of a new application 90 days after the effective date of the denial. DONE and ENTERED this 15th day of June, 1983, 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 15th day of June, 1983. COPIES FURNISHED: Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 406 Tallahassee, Florida 32301 Van P. Russell, Esquire 41 Commerce Street Apalachicola, Florida 32320 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
