Findings Of Fact The Respondent is licensed by the Board to practice as an osteopathic physician in Florida. The Respondent has been licensed to practice as an osteopathic physician in the State of Pennsylvania. He was criminally charged in the State of Pennsylvania with various violations of 35 Penna. Stat. Section 780- 113(a)(14). After entering a plea of not guilty, he was tried and convicted of three counts of violating the statute. He was adjudicated guilty and sentenced. The Respondent has exhausted all direct appellate remedies in Pennsylvania. He continues to pursue available collateral remedies. The Pennsylvania State Board of Osteopathic Examiners initiated disciplinary action against the Respondent. A hearing was conducted, and the Pennsylvania board concluded that the Respondent was convicted of a crime involving moral turpitude and was guilty of unethical conduct. The Board stated: It is clear that the Respondent blatantly disregarded the health and welfare of the citizens of Pennsylvania and the Board can impose a penalty for such disregard. How- ever, the Board has taken into consideration the fact that the Respondent no longer resides or practices osteopathic medicine in Pennsylvania, and therefore, he is presently not a danger to the health, safety and welfare of Pennsylvania. Apparently disregarding the testimony of the Respondent in the record that he did intend to continue practicing osteopathic medicine in Pennsylvania if his license was not revoked, the Board imposed no penalty against the Respondent. The Respondent thus continues to be licensed to practice osteopathic medicine in Pennsylvania. The Respondent is presently engaged in the general practice of osteopathic medicine in Florida. He practices in a black area and is the only doctor who accepts Medicaid patients in the area. During 1976 he turned in his federal license to dispense controlled substances. He is thus not able to prescribe controlled substances in his practice, but he can prescribe other drugs. The Respondent has not been the subject of any other disciplinary proceedings during his many years as a practicing osteopathic physician.
Findings Of Fact Respondent, Leon L. Shore, was at all times material hereto a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001600. On or about December 19, 1985, respondent presented to Harvey Sogoloff a pharmacist licensed in the State of Florida, a prescription to be filled. The subject prescription was written by respondent, and prescribed Percodan for himself. Mr. Sogaloff duly filled the subject prescription. Percodan, whose active ingredient is Oxicodone Hydrochloride, a salt of oxicode, is a Schedule II narcotic drug, as defined by Section 893.03(2)(a), Florida Statutes (1985). At the time of the prescription was written, respondent maintained his primary place of practice at 4801 South University Drive, Davie, Florida. During the first week of September, 1986, respondent closed his practice at that location without notice to petitioner, and did not thereafter practice for several months. In January, 1987, respondent resumed his practice at a new location, without notice to petitioner. Respondent asserts, however, that 2-3 weeks after commencing such practice, he instructed one of the medical directors at the center to notify petitioner of his new address. There was no proof that such notice was given, but following the commencement of this case, respondent did notify the petitioner of his new address, and no untoward consequences were shown to have resulted from such delay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered placing respondent on probation for a period of one (1) year subject to such conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ORDERED this 21st day of January, 1988, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 2. & 8. Addressed in paragraphs 4 and 5. & 4. Addressed in paragraphs 2 and 3. 5-7 & 9. Rejected as not a finding of fact, or subordinate. Respondent's proposed findings of fact are addressed as follows: Not necessary to result reached. Not necessary to result reached. 3-9 & 12. Rejected as not a finding of fact, subordinate, or contrary to the result reached. 10 & 11. Addressed in paragraphs 4 and 5. COPIES FURNISHED: David G. Vinikoor, Esquire DAVID G. VINIKOOR, P.A. 420 S. E. Twelfth Street Fort Lauderdale, Florida 33316 Derk A. Young, Esquire 320 Southeast 9th Street Fort Lauderdale, Florida 33316 Mr. Rod Presnell Executive Director Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether disciplinary action should be taken against the Respondent's license based on the alleged violations of Section 459.015(1), Florida Statutes, and Rule 21R-20, Florida Administrative Code, as set forth in the Administrative Complaint: By fraudulently misrepresenting that he met the criteria for exemption from demonstrating financial responsibility. By failing to demonstrate his financial responsibility to pay claims for medical care. By falsely swearing on his Physician's License Renewal form. By violating a term of the Final Order of the Board of Osteopathic Medical Examiners dated August 22, 1988.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001663. Respondent's practice is in Tampa, Florida. Respondent was employed, in his capacity as an osteopathic physician, as an independent contractor at a walk-in clinic owned and operated by Dr. J. Eloian followed by Mitchell D. Checkver, D.O., which office is currently located at 7211 N. Dale Mabry, #100, Tampa, Florida, from 1984 through 1990. Respondent's license to practice osteopathic medicine was in a probationary status from August of 1988, until June 15, 1990, pursuant to a Final Order filed by the Board of Osteopathic Medical Examiners (Board) on August 2, 1988, regarding case numbers 0055173, 0038979 and 00372994. As a condition of probation Respondent was to comply with all state and federal statutes, rules and regulations pertaining to the practice of osteopathic, including Chapters 455 and 459, Florida Statutes and the Florida Administrative Code. As a condition of probation, Respondent was to pay the Board a total administrative fine of $3,000, which was said. About a year before Dr. John Eloian retired in August 1988, he discussed the possibility of utilizing the exemption for part time physicians (in Section 459.0085, Florida Statute) with other doctors in his office, including Respondent. A condition of renewing an active license to practice osteopathic medicine in the State of Florida, is compliance with Section 459.0085, Florida Statutes. The licensee must demonstrate financial responsibility or meet the criteria for exemption. Two years later, on November 6, 1989, Respondent submitted a Board of Osteopathic Medical Examiners' Physician's License Renewal Form, and signed a sworn affidavit as to the veracity of the information provided therein. A sign was posted announcing to the patients that no malpractice insurance was carried by Respondent and Dr. Eloian. Within the License Renewal Form, Respondent represented that he was exempt from demonstrating financial responsibility based on his meeting all of the criteria listed. The exemption which the Respondent attempted to utilize had criteria which included the condition that the Respondent has not been subject, within the past ten (10) years of practice, to a fine of $500.00 or more for a violation of Section 459, Florida Statutes. The form specifies that a regulatory agency's acceptance of a stipulation, in response to filing of administrative charges against a licensee, shall be construed as action against a licensee. The exemption also had criteria which specified that the Respondent had maintained a part time practice of no more than 1,000 patient contact hours per year. Based on Respondent's submission to the Board of Osteopathic Medical Examiners of this Physician's Licensure Renewal Form in November 1989, and the information given therein, his license to practice osteopathic medicine was renewed through 1991. Subsequently, Respondent acknowledged he was ineligible for the exemption and obtained medical malpractice insurance, effective July 1, 1990. Respondent read, or should have read, the Physician's License Renewal form sufficiently to be aware of the language therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(a), Florida Statutes. As punishment therefore Respondent should pay a fine of $1,000, and he should be placed on probation by the Board of Osteopathic Medical Examiners with such reasonable terms and conditions as the Board may require. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0395 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,3,4,5,6,7,8,9,10,11,12,13, 14,18 Rejected as irrelevant or as argument: paragraphs 2,15,16,17 Respondent's proposed findings of fact: Accepted in substance: paragraphs 1 (in part), 4 (in part), 7 (in part), 9 Rejected: paragraphs 2 (in part, as against the greater weight of the evidence and as a conclusion of law), 3 (conclusion of law), 5 (irrelevant), 6 (irrelevant), 7 (in part), 8 (irrelevant) 10 (irrelevant) COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John R. Feegel, Esquire Thomas Sabella, Jr., Esquire 401 South Albany Avenue Tampa, FL 33606 Bill Buckhalt Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Applicants. Land O'Lakes Petitioner Land O'Lakes Hospital, Inc. (Land O'Lakes) is an applicant for a certificate of need to construct and operate a 112-bed general acute care hospital in Land O'Lakes. None of the beds will be designated as either pediatric or obstetrical beds; all will be considered general medical/surgical beds. Notwithstanding its own designation of Land O'Lakes Hospital, Inc., as the Petitioner in Case No. 84-1509, the actual applicant is entitled Health Care Associates Of America, Inc. The President of Health Care Associates Of America, Inc., is a veterinarian named Robert R. Hase, Jr. Veterinarian Hase's only experience with human health care is his involvement in his company's certificate of need for a 60-bed nursing home in Hudson, Florida, next to the Bayonet Point Regional Medical Center. Hase's company obtained the certificate of need in 1982, and the facility still is under construction, being only about 40 percent completed. In the preparation of the Land O'Lakes application and the preparation for final hearing, Hase relied to a large extent on the advice of those he retained as expert witnesses for the final hearing. For whatever reason, Hase waited until shortly before the final hearing to plan and decide upon some of the important details of his proposed project. As of the final hearing, Land O'Lakes had a square foot analysis for the proposed facility but no line drawings, no functional program and no utilization forecast for ancillary departments. The Land O'Lakes pro formas were not prepared until less than two weeks before the final hearing. Although Land O'Lakes relied to a great extent on the advice of its expert witness Michael Schwartz in shaping and modifying its application, there was no evidence that Mr. Schwartz would continue to advise Land O'Lakes or otherwise be involved in the project's development after the final hearing or in the operation of the facility when built. Within one week before the final hearing, Hase changed the Land O'Lakes application from one for a for-profit hospital to one for a not-for-profit hospital. The motivation for the change primarily was to improve the chances that the application ultimately would be approved. The switch seemed inconsistent with Hase's primary interest in the "financial bottom line" and whether things made "financial sense" to him as opposed to "good health care sense." Despite the technical application for a not-for-profit hospital, the evidence did not offer much assurance that Land O'Lakes would remain a not-for- profit hospital after the granting of a certificate of need unless required by HRS or University Community Hospital. Shortly before the final hearing, Land O'Lakes entered into an "intent to agree" with University Community Hospital (UCH) for management and consulting services in the pre-operational and operational phases of the proposed Land O'Lakes hospital and for ancillary and support services during the operational phase. The "intent to agree" was not signed until the Friday before the start of the final hearing on Monday, August 11, when the original was produced by Hase during cross examination. So new was this development that not even Land O'Lakes' attorneys were aware that the "intent to agree" had been signed. Despite the uncertain nature of the arrangements between Land O'Lakes and UCH, certain features of the Land O'Lakes application are dependent upon the establishment of the relationship. For example, the application does not include enough ancillary services to support a free-standing hospital, even a relatively small, relatively rural and relatively unsophisticated hospital. Only the most basic ancillary services would be provided at Land O'Lakes. The rest would be referred to UCH. As a result of this arrangement, the Land O'Lakes application proposes a hospital with a staff 13 to 15 FTE's smaller than one would expect, with resulting lower forecasted operating expenses. In addition, Land O'Lakes does not plan to have 24-hour emergency room service, intending to rely on UCH for emergency room service part of the time. Since the "intent to agree" is tentative in nature, even if a Land O'Lakes-UCH relationship is established, it is uncertain what that relationship would be. It is possible that it ultimately would result in Land O'Lakes becoming a virtual satellite hospital for UCH. (UCH has in fact already applied for a certificate of need for a satellite hospital in north Hillsborough County.) Bi-County Community Hospital. Petitioner Bi-County Community Hospital (Bi-County) has applied for a certificate of need to construct and operate a 100-bed osteopathic acute care hospital in Land O'Lakes. Like Land O'Lakes, Bi-County would not have any designated pediatric or obstetrical beds, only general/medical surgical beds. But unlike Land O'Lakes, Bi-County I's designed to have 24-hour emergency room service and a full complement of ancillary and support services ordinarily maintained and operated in a relatively rural and relatively unsophisticated hospital of its size. In addition, as an osteopathic hospital, Bi-County would be accredited by the American Osteopathic Association (AOA) and would make conditions conducive to practice of osteopathy at the hospital, including the installation and availability of osteopathic manipulation tables, without excluding or discouraging the practice of allopathic medicine at the hospital. The application also represents that it will offer an osteopathy internship program. Bi-County's principals include osteopathic doctors Lewis Faulkenberg and Robert Ford, an allopathic doctor named Fellman, and Mrs. Dr. Faulkenberg. Drs. Faulkenberg and Ford started Bi-County primarily as a response to the reduction of their privileges at Carrollwood Community Hospital in north Hillsborough County. The three physicians have considerable experience as practitioners, and Dr. Faulkenberg has experience as developer, principal, president of the board of directors and medical director of a 250-bed osteopathic hospital opened in Colorado in 1963. Notwithstanding Faulkenberg's experience, a health care facilities development company named Southwood Development Company, owned and operated by James H. Lewis of Elizabethton, Tennessee, has been in charge of the preparation of, and modifications to, the Bi-County application and the preparation for final hearing. Lewis also has selected Bi-County expert witnesses for the final hearing and is paying litigation costs. Faulkenberg and the other Bi-County principals have committed themselves to invest in the project in the future if the certificate of need is granted. Although most of Lewis' experience has been in the nursing home industry, he demonstrated his ability to shepherd the proposed project to the operational phase. Like Land O'Lakes, Bi-County also left some important details of its application until shortly before the final hearing. Bi-County did have line drawings of a proposed facility, but they were prepared approximately 10 days before the final hearing primarily to give the appearance of preparedness which did not exist. The architect who drew the plans did not know the gross square footage of the proposed facility and did not know the HRS regulations which would impact the design of the facility. The square footage for certain areas of the drawing he did were inconsistent with the square footage for the same areas in the application. The architect designed the facility for all private rooms, contrary to the application. He did the drawing without even inquiring as to Bi-County's desire as to the mix of private and semi-private rooms. Finally, the line drawing erroneously includes a labor and delivery room which is not part of the application. There also was no evidence that Bi-County had designed a functional program or had forecasted utilization for ancillary departments. Again, these are primary steps in the prudent preparation of a plan to built a new hospital. Bi-County's financial expert was not retained until two weeks before the final hearing and did not prepare pro formas until after her deposition. Bi-County's application contemplates management by a for-profit company named Health Care Management Corporation, a wholly owned subsidiary of Basic American Medical, Incorporated, (BAMI). Under the Bi-County application, Health Care Management would be paid 5 percent of net operating revenue as a management fee. This creates a conflict with Bi-County's not-for-profit status by building in a management incentive to maximize profitable procedures and minimize less profitable procedures regardless of community needs. Also, since Health Care Management primarily owns and operates rural hospitals, the Bi- County application builds in the real possibility that Health Care Management eventually would buy Bi-County from Faulkenberg and the other principals and change it to for-profit status. No management contract has as yet been entered into between Bi-County and Health Care Management. However, in light of Faulkenberg's experience, there is more assurance that Bi- County would be properly managed, subject to the reservations of the preceding paragraph, than that Land O'Lakes would. Quality Of Care (Section 381.494(6)(c)3., Florida Statutes 1985). Land O'Lakes' ability to provide quality care is dependent upon the establish of a relationship with UCH. Without UCH, Land O'Lakes as proposed would not provide necessary ancillary services and support and would not be able to operate a twenty-four hour emergency room. Assuming the Land O'Lakes-UCH relationship, however, the Land O'Lakes proposal would be able to provide quality care. There was sufficient evidence to prove that Bi- County would be able to provide quality care. There was little evidence as to the availability of health manpower (Section 381.494(6)(c)8., Florida Statutes 1985) to operate either Land O'Lakes or Bi-County. However, it would appear that the more serious issue than the availability of doctors and nurses to care for the patients is the availability of patients to support the doctors and nurses. If the need for the hospital services is there, doctors and nurses can be expected to follow. Need In Relation To State And District Health Plans (Section 381.491(6)(c)1., Florida Statutes 1985). State Health Plan. Goal 1 under the Florida State Health Plan is "to develop acute care resources in the quantity and mix which appropriately meet population needs in the most cost-efficient manner. The first objective under that goal is for the ratio of acute care hospital beds per one thousand of Florida's population be less then 4.11 by 1989. At this time, there are approximately 53,000 hospital beds in Florida, approximately 2000 to 7000 too many under the health plan's objective. The health plan recommends that increases in the supply of hospital beds in Florida be restrained through the state certificate of need program. Objective 2.2 under Goal 1 of the State Health Plan is to assure that acute care hospital services are available and accessible to urban residents within 30 minutes average one way driving time through 1989. The plan recommends that sub-districts with net need for beds be identified and acute care beds reallocated to subdistricts exhibiting need or inadequate access. This objective and recommendation is designed to help meet Goal 2 under the State Health Plan "to insure adequate access to acute care resources for all Floridians." Goal 3 under the state health plan is "to promote the efficient utilization of acute care services." Objective 3.1 under Goal 3 is to attain an average annual occupancy rate of at least 80 percent by 1989 for all non- federal, short stay hospital beds considered together in each planning district. Again, the plan recommends that increases in the supply of licensed hospital beds in Florida be restrained through the state certificate of need program. The 80 percent occupancy standard applies for both allopathic and osteopathic hospital beds. It is not met state-wide in Florida, in District 5 (consisting of Pasco and pinellas Counties), in Pasco county or in Pinellas county. Occupancy rate for all acute care hospital beds in each subdistrict of District 5 for 1985 were: West Pasco 61 percent East Pasco 55 percent North Pinellas 61 percent South Pinellas 62 percent The same occupancy rates for medical/surgical, intensive care and cardiac care beds only were: West Pasco 63 percent East Pasco 58 percent North Pinellas 58 percent South Pinellas 50 percent The State Health Plan does not specifically address the need for osteopathic acute care hospital beds. District 5 Health Plan. Neither does the District 5 Health Plan specifically address the need for osteopathic acute care hospital beds. The District 5 Health Plan does, however, set forth policies intended to promote access for the indigent population to adequate health care. To promote this policy, the District 5 Health Plan states that future expansion of acute care hospital facilities should be through existing providers with a history as major providers of care to the medically indigent. The plan also states that future changes in the hospital facilities and services systems in District 5 should occur so as to maintain the fiscal and programmatic integrity of institutions providing a full range of services with documented access for the total community irrespective of ability to pay. Land O'Lakes and Bi- County, as proposed new providers, have no history to look at. Meanwhile, intervenor Riverside Hospital is the designated provider of hospital care for the indigent population in west Pasco County. Even so, its occupancy rate for 1986 has averaged only between 40 and 45 percent. 11.2 percent of its admissions, or 353 admissions in 1985, were from the Land O'Lakes area. At an average length of stay of 6 days, that translates to 2,118 patients from the Land O'Lakes area in 1985. At average gross revenue per patient stay between eight hundred fifty and one thousand dollars in 1986, the Land O'Lakes patient days represent approximately between one million eight hundred thousand and two million one hundred thousand dollars of gross patient revenue to Riverside Hospital. While the evidence did not quantify how much net patient revenue this represents, neither did the applicants, Land O'Lakes and Bi-County, prove that their proposed hospitals in Land O'Lakes would not seriously adversely affect the fiscal and programmatic integrity of Riverside Hospital. (Land O'Lakes forecast that it will capture 80 percent of the market of the Land O'Lakes area.) The District 5 Health Plan also adopts the policy of optimizing utilization of existing resources in District 5. The health plan states that additions to the inpatient acute care bed complement in a designated subdistrict should not be considered unless a numeric bed need is shown and, in the case of medical/surgical ICU and CCU services, the occupancy rate of existing subdistrict bed inventory is 80 percent. As seen in Findings Of Fact 29 through 32 below, there is no district need in the applicable subdistrict. But even if there were, the 1985 occupancy rate for existing services in the East Pasco subdistrict was only 58 percent. To optimize utilization, the District 5 plan also cautions that no additional acute care beds should be added to the inventory of a subdistrict which would result in a greater number than indicated by the bed need methodology except under extraordinary circumstances and in compliance with the directive referred to in the immediately preceding paragraph. See Findings Of Fact 29 through 32, below, for application of the bed need methodology. The District 5 Health Plan also includes a section on accessibility which states: "Travel time is not an obstacle in Pasco county, as all residents are within an average of 30 minutes of hospital services on an annual basis. This meets the time travel criterion for urban areas in the State adopted acute care rule". See Findings Of Fact 40 through 48, below, on accessibility. Uniform Bed Need Methodology. The uniform state-wide methodology for determining and forecasting acute care hospital need in HRS's planning districts is contained in Rule 10-5.11(23), Florida Administrative Code (1984) and (1985 Supp.). The division of District 5 into subdistricts and the allocation of bed need to designated subdistricts in District 5 is contained in Rule 10-17.006, Florida Administrative Code (1985 Supp.). The bed need methodologies forecast bed need at certain times, or planning horizons, in the future. Before the decision of the District Court of Appeal, First District of Florida, in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986), HRS had a policy of forecasting acute care hospital bed need on a planning horizon five years from the date of the final formal administrative hearing. After the decision in Gulf Court, to make Gulf Court more workable and more consistent with reality, HRS now has a policy of interpreting the "fixed pool of beds" referred to in the decision to mean the planning horizon on which bed need is forecasted. HRS now has a policy of forecasting acute care hospital bed need on the bi-annual planning horizon closest to, without exceeding, five years from the date for filing applications for a particular batching cycle. The application filing date for the batching cycle in which Land O'Lakes and Bi- County filed their applications was November 1983. The applicable planning horizon under the HRS policy is July 1988. Under the policy, its makes no difference whether HRS notifies one or more applicants in a batching cycle of alleged errors or omissions or whether one or more applicants file documents intending to cure the alleged errors or omissions, as Land O'Lakes did in this case in April 1984. The HRS policy for determining the planning horizon for a batching cycle is a reasonable interpretation of the Gulf Court decision. Under Rule 10-17.006, Florida Administrative Code (1985 Supp.), the Land O'Lakes area, which includes the proposed location of both the Land O'Lakes hospital and the Bi-County hospital, is within the East Pasco county subdistrict of District 5, near the border of the west Pasco County subdistrict. There is relatively little population or potential for new population just west of the subdistrict border in the west Pasco subdistrict. Using the uniform state-wide methodology, there is an excess of 429 acute care hospital beds forecasted in July 1988 (assuming the 1986 existing and approved bed inventory is not increased). However, by use of the rule method for allocating forecasted bed need to the subdistricts, there would be a need forecast for July 1988 in both the East Pasco and west Pasco subdistricts of District 5. But the need in the East Pasco subdistrict will only be 18 beds. (The need in west Pasco will be only 70 beds.) Osteopathic Acute care Bed Need (Section 381.494(2), Florida Statutes 1985). District 5 has not been divided into subdistricts for purposes of determining and forecasting the need for osteopathic acute care hospital beds. There was no evidence that it is reasonable to divide District 5 into subdistricts for this purpose. Nor was there any evidence what accessibility standard should apply to osteopathic acute care hospital beds only. There are only four osteopathic acute care hospitals in District 5, all located in Pinellas county. Using the current osteopathic use rate in District 5 and the current average length of stay in District 5, a need for only 376 osteopathic beds in District 5 is forecast for July 1988, assuming 80 percent occupancy. Currently, there are 662 osteopathic beds in District 5, resulting in a forecast net excess of 286 beds in the district in July 1988 assuming that the current osteopathic bed inventory is not increased. In 1985, the 662 osteopathic beds in District 5 were only 44 percent occupied; in other words, on any given day in 1985 there were an average of approximately 370 empty osteopathic beds. Using the Pinellas County osteopathic use rate, a need for 94 osteopathic beds in Pasco County can be forecast in July 1988, assuming 80 percent occupancy. But that forecast is greater than the actual need. Osteopathic hospital use by Pasco County residents is included in the Pinellas County use rate, but none of the Pinellas County osteopathic hospital beds are allocated to Pasco County for purposes of the forecast. The evidence did not prove that there is enough need for osteopathic acute care hospital beds in District 5 to support and justify the proposed 100- bed Bi-County Hospital. This finding is buttressed by the fact that, at current admission rates and the 80 percent occupancy standard, it would take another 374 more osteopathic physicians to fill the osteopathic beds in District 5 in July 1988 if the Bi-County Hospital is added to the inventory. Such an increase in the number of osteopathic physicians in District 5 is highly unlikely. Hospital beds also are available at Carrollwood Community Hospital. Carrollwood Community is accredited by the AOA and is dedicated to and does create an environment in which both osteopathic and allopathic physicians can practice medicine. The chief of staff is an osteopath, and five of the seven department chiefs are osteopaths. Although the credentials committee has three allopaths to two osteopaths and although some disgruntled osteopaths have complained about the current administration of the hospital, Carollwood Community qualifies as an osteopathic hospital. It has 120 medical/surgical and ICU/CCU beds of which only 49 percent were occupied in 1985. Carrollwood Community is in north Hillsborough County within approximately 30 minutes average drive time from the Land O'Lakes area. Finally, although not strictly speaking an osteopathic hospital, Riverside Hospital in West Pasco County, approximately 30 to 45 minutes from the Land O'Lakes area, also provides services for osteopathic physicians and patients. Riverside Hospital offers a full range of osteopathic services and treatment. The chief of staff is an osteopath; it has a three member board of trustees of whom one is a D.O. There are no restrictions to admission of patients to the hospital as osteopathic patients, nor restrictions to admission to the staff to osteopaths, and the admissions for physicians is by a five- member medical executive committee which has on it three M.D.'s and two D.O.'s. Approximately 17 percent of Riverside's medical/surgical and ICU/CCU admissions in 1985 were osteopathic admissions. In 1985, Riverside's medical/surgical and ICU/CCU occupancy rate was 53 percent; in other words, on the average approximately 41 of Riverside's 88 medical/surgical and ICU/CCU beds were empty on any given day. Availability And Accessibility Of Existing Beds (Section 381.494(6)(c)2. Florida Statutes 1985). Availability. Due to low occupancy rates at existing acute care hospitals in Pasco County and Hillsborough county, there are plenty of acute care hospital beds available for use by residents of Land O'Lakes area. The following hospitals are within an average of approximately 30 minutes to an hour of the Land O'Lakes area: Humana Hospital in Dade city; East Pasco Medical center in zephyr Hills; Riverside Hospital and community Hospital of New Port Richey in New Port Richey; and Bayonet Point Regional Medical center in Hudson. In addition, Carrollwood community Hospital and University community Hospital in north Hillsborough county in HRS District 6 are within approximately 30 minutes of the Land O'Lakes area. On the average, those hospitals had the following empty beds on any given day in 1985: Hospital # of Beds Medical/Surgical & Empty ICU/CCU Occupancy Beds Rate East Pasco Medical center 76 72 percent 21 Humana Hospital Dade city 102 47 percent 54 Riverside 88 53 percent 41 Community Hospital New Port Richey 112 Bayonet Point 200 58 percent 84 Carrollwood Community 120 49 percent 61 University Community Hospital 364 58 percent 153 Leaving aside the question of accessibility, there was no evidence that any of these empty hospital beds are inadequate or inappropriate or that they offer less than quality care. Accessibility. Land O'Lakes did not retain a travel time expert to testify at the final hearing. Instead, it retained the services of a Pasco County deputy sheriff, who testified on factual matters but gave no opinion. Deputy Sheriff Campbell used as a starting point in the Land O'Lakes area for his trips to various area hospitals a point near the back of the largest subdivision in Land O'Lakes, Lake Padgett Estates, approximately 7 to 8 minutes into the subdivision from the main highways he had to access for the trips. Even so, his trips to University Community Hospital in north Hillsborough County took very close to just 30 minutes in peak traffic within a few weeks before the final hearing in August 1986. Although winter traffic maybe somewhat heavier, the Land O'Lakes area should not be expected to be greatly influenced by the influx of "snowbirds" during the winter. In any event, Land O'Lakes offered no competent testimony to the average travel times on an annual basis on the routes Deputy Campbell took. Land O'Lakes offered absolutely no evidence as to the travel time to Carrollwood Community Hospital, which other evidence placed at an average of 20 to 25 minutes south of the intersection of Pasco County Road 54 and US Highway 41, the main intersection in Land O'Lakes. Deputy Campbell also did not drive to the new Countryside Hospital southwest of Land O'Lakes which probably is the closest hospital to one of the few substantial residential areas west of Land O'Lakes, Sierra Pines. Bi-County offered the testimony and opinions 05 a time travel expert. However, Bi-County's evidence reflected average travel times along pertient road segments in both directions, not average travel times just in the direction from Land O'Lakes to the area hospitals in question. Bi-County's expert relatively randomly drove all over Pasco and Hillsborough county at various times on various different days over a period of several years. He then accumulated his data to arrive at average times in both directions along certain segments of roadway. He could not testify to exactly when the various trips which made up segment averages were made and could not testify in which direction he traveled. It was impossible to test how fairly the road segment travel times were averaged. To simulate trips from the Land O'Lakes area to area hospitals, Bi- county's expert summed the roadway segment travel times and added what he called average delays for intersections and turns. This method further decreased the accuracy of the resulting travel times. Despite the weakness of Bi-County's evidence, even its evidence was clear that the Land O'Lakes area is not now more than 30 minutes travel time from a hospital under average travel conditions. Except for a few isolated complaints, there was no evidence of any sufficiently widespread complaints by patients in the Land O'Lakes area about the distance they have to travel to a hospital. Neither HRS nor the District 5 Local Health council has received any complaints about inaccessibility of the Land O'Lakes area to an acute care hospital. Most complaints were directed to the travel required for standard blood work and x-rays. But, being largely a bedroom community for people employed in Tampa, many Land O'Lakes residents are in the Tampa area during normal business hours in any event. In addition, carrollwood and an osteopath are planning a joint venture to open a medical clinic in Land O'Lakes which would make some of these type services available in Land O'Lakes. Neither Land O'Lakes nor Bi-County proved the population of the portion of the Land O'Lakes area more than 30 minutes average drive from a hospital, even assuming the accuracy of the average drive time evidence. The population in the Land O'Lakes area at this time is just approximately fifteen thousand. Despite testimony projecting the population in 1989 to be at incredibly higher levels, the population of the Land O'Lakes area in 1989 should not be expected to be more than twenty five thousand. The inflated projections assume rates of build-up of large developments of regional impact that are unreasonably high or, at best, speculative. Meanwhile, the approximate current population of the East Pasco subdistrict is approximately seventy three thousand. There was no evidence of projected East Pasco subdistrict population in 1989. If portions of the Land O'Lakes area are beyond 30 minutes average drive time from the hospital in 1989, they will be portions north of Pasco County Road 54. Yet there is evidence that there are now 2,000 homes in the Land O'Lakes area south of County Road 54 and 4500 homes north of it. There was no competent evidence to forecast the size of the population which might be more than 30 minutes from a hospital, even under the applicants' average drive time evidence. Probable Impact On Cost (Section 381.494(6)(c)12., Florida Statutes 1985). Due to the lack of numeric need for additional beds in District 5 or the East Pasco County subdistrict and the lack of proof of inaccessibility justifying 100 additional beds in the Land O'Lakes area, the granting of either the Land O'Lakes or the Bi-County application probably will result in unnecessary duplication of hospitals services. The probable impact of the unnecessary of duplication of hospital services referred to in the immediately preceding paragraph will be higher hospital costs charged in order to pay for the capital investment in the hospitals affected. In addition, 100 new beds in the Land O'Lakes area likely would result in lower occupancy rates in at least some of the area hospitals and a low occupancy rate at the proposed new Land O'Lakes hospitals. Currently occupancy rates already are quite low. See Finding Of Fact 39, above. A further reduction could adversely affect the financial viability of one or more of the area hospitals. Extremely low occupancy rates could also have the effect of lowering overall quality of patient care. First, efficiency and skill in caring for patients and performing hospital procedures is likely to go down if the frequency with which those services are performed declines enough. Second, as hospital profits decline, adjustments will have to be made as hospitals seek to maintain financial viability. The necessary adjustments are likely to cost the patient some degree of quality of care. Financial Feasibility (Section 381.494(6)(c)9., Florida Statutes 1985). Immediate Financial Feasibility. Both applicants, Land O'Lakes and Bi-county, have been able to persuade investment bankers that their proposed projects are worthy of a commitment to fund the cost of the projects. However, at this stage in the development of a new hospital, the investment banker's commitment has certain conditions. One of the conditions is that the borrower obtain a certificate of need and clear the detailed financial feasibility study performed by a major accounting firm. Therefore, the proof of immediate feasibility is contingent upon proof of long-term feasibility. Both applicants, Land O'Lakes and Bi-County, proved that they have or can borrow the capital necessary to pay for the cost of borrowing sufficient capital to fund the construction of the projects. Long-term Financial Feasibility. Land O'Lakes projects a $1,147,197 excess of total revenues over expenses in yea two of operation (1990). However, Land O'Lakes' projection is liberal on the revenue side and conservative on the expense side in several respects. On the revenue side, Land O'Lakes' utilization forecasts are generated using a use rate of 900 patient days per thousand population. This utilization rate is unreasonably high. A use rate of 800 is more reasonable. The use of the 900 patient day per thousand use rate inflates the excess of total revenues over expenses by approximately 11 percent or approximately $126,000 in year 2. Land O'Lakes used a speculative method for projecting the population in the Land O'Lakes area in 1990. Rather than using any officially published demographic projections of population by census tract or other similar geographic area, Land O'Lakes' expert projected population by counting residential units in permitted developments of regional impact, assuming 2.8 people per unit, and assuming an optimistic rate of build-up of the development. The projection method is speculative and unreasonable,, and Land O'Lakes' 1990 projection of thirty nine thousand people in the Land O'Lakes area probably is ten thousand or more too high. An over-estimate of this magnitude (approximately 12.8 percent or more) would result in erroneously inflated projected revenue of approximately $294,000 or more. Land O'Lakes also projects capturing 80 percent of the Land O'Lakes area patient base by year 2. The projected market share is probably approximately 12.5 percent too high. This over estimate would result in excess of total revenues over expenses being approximately $143,000 too high. On the expense side, it has been mentioned that the low staffing proposed for the Land O'Lakes Hospital is dependent upon the establishment of a relationship with University Community Hospital. If the relationship is not established, Land O'Lakes' cost could be under-estimated by approximately one million dollars due to under-staffing. Even with the UCH relationship, Land O'Lakes' proposed staffing seems low, being approximately 50 full-time equivalent positions (FTEs) lower than one would expect in a full-service, free- standing one hundred bed hospital. In addition, the cost of the Land O'Lakes project does not include the cost of a telephone system. There was no evidence as to the approximate cost of a telephone system or to the probable impact of that omission on Land O'Lakes' longterm feasible. Finally, Land O'Lakes' financial projections assume not-for-profit status in omitting approximately two hundred thousand dollars of state sales tax from the cost of equipment to be purchased. There was no evidence as to the impact of two hundred thousand dollars of additional capital cost on the project's long-term feasibility. The Bi-county application also projects break-even during year two of operations and projects net income of $1,138,600 in year 2. Bi-County's utilization forecasts are more reasonable than Land O'Lakes. Their major flaw is the assumption that a high district wide osteopathic use rate, influenced by osteopathic use in Pinellas county, should be applied to Pasco county. In addition, Bi-County's projected outpatient revenue of approximately $1,737,700 in year 2 would be difficult to achieve with only two surgery suites, as proposed in the Bi-County application. On the expense side, however, Bi-County seriously under-estimates the expenses necessary to generate the revenues forecast. Bi-county proposes a full-service, 100-bed, free-standing hospital with a 24 hour emergency room. (Bi-County also proposes an osteopathic internship program but does not propose to start the program within the first two years of operation.) Yet it proposes to staff the hospital with only 162 full-time equivalent positions (FTEs) in year two of operations, approximately 3.24 paid FTEs per occupied bed. This low staffing results in under-estimating expenses by approximately $620,000. In addition, Bi-County's application does not address how its financial feasibility would be affected by the contributions Bi-County would have to make to, and the payments Bi-County would receive from, the Florida Public Medical Assistance Trust Fund. Section 395.101, Florida Statutes (1985), requires hospitals to pay one and one half percent of their net operating revenue into the trust fund. Payments to hospitals from the trust fund are determined by a formula which measures the extent to which the hospital services the indigent population. There was no effort to forecast how the formula would apply to Bi- County. (In fairness to Bi-County, there also was no explicit evidence whether the Land O'Lakes application addresses these considerations.) Like the Land O'Lakes application, Bi-County's equipment costs assume not-for-profit status, saving approximately $175,000 in Florida sales tax. There was no evidence how an additional $175,000 in capital cost would affect the long-term financial feasibility of Bi-County's application in the event Bi- County became a for-profit organization. Finally, Bi-County's application does not take into consideration attorneys' fees that will have to be expended in obtaining underwriting for the project or approximately 15 to 18 thousand dollars of attorneys fees for the certificate of need litigation involved in this case. There was no evidence how the omission of those costs might affect the long-term financial feasibility of the Bi-County proposal. As a result of the extent to which the applicants' net income for year 2 of operations has been over-estimated, and the extent to which questions concerning the applicants' ability to achieve even that much net income in year 2 of operations, neither applicant proved that their projects are financially feasible in the long term. Probably Economics And Improvements From Joint, Corporative, Or Shared Health Care Resources (Section 381.494(6)(c)s., Florida Statutes 1985). If the Land O'Lakes/UCH relationship is established, the Land O'Lakes application has the opportunity for significant economics and improvements in service. Through use of UCH ancillary and support services, Land O'Lakes would be able to operate with fewer full-time equivalent positions on its staff. UCH management of Land O'Lakes could result in significant economies of scale which could redound to the benefit of the patient of one or both of the facilities. It even is possible that Land O'Lakes could become a virtual satellite of UCH, with the attendant benefits. However, it also is possible that acute emergency patients from Land O'Lakes will not benefit from the Land O'Lakes Hospital if attempted economies require such patients to continue to be transported to UCH because certain major emergencies are designed not to be handled at Land O' Lakes. similarly, Bi-County is discussing a management agreement with BAMI which could result in some of the same economies of scale. It is possible that Bi-County and its patients could benefit from savings in the cost of management through use of BAMI's central accounting and other management functions and from BAMI's ability to obtain hospital supplies, equipment and pharmaceuticals at discounts. Need For Research And Educational Facilities (Section 381.494(6)(c)7., Florida Statutes 1985). UCH is a teaching hospital. However, the Land O'Lakes application does not in any way base need on the potential for use of Land O'Lakes as a research or educational facility for UCH. There was no evidence in that regard. Bi-County does propose osteopathic internship programs. However, there was no persuasive proof of a need for osteopathic internship programs in Land O'Lakes or District 5. Florida is training 5.3 percent of the nation's osteopathic students but only 2.5 percent of the allopathic students in the U.S. District 5 has the largest concentration of osteopathic hospitals and osteopathic internship program- in the State of Florida. There are 15 osteopathic hospitals in Florida, 7 of which have internship programs. 4 of those hospitals, and 2 of the internship programs, already are located in District 5. In addition to the absence of proof, there was no evidence or argument on the parts of the Bi-County application proposing an internship program. Doctor Faulkenberg, one of Bi-County's principals, testified that there were no plans for an internship program within the first 2 years of operations. Bi- County did not provide much assurance when or if an internship program would be instituted. In any event, Bi-County provided no more assurance than the evidence that Carrollwood Community Hospital plans an osteopathic internship program within the next year or two provided assurance that that program would in fact be established. Other Criteria. Availability And Adequacy Of Non-Hospital Services (Section 381.494(6)(c)4., Florida Statutes 1985). Some hospital services can be replaced with outpatient care, ambulatory surgery and home care services. Carrollwood Community Hospital and a Land O'Lakes osteopath are now embarking on a joint venture to open a medical clinic in Land O'Lakes. In addition, an ambulatory surgery facility is about to open in Land O'Lakes. These facilities can offer some outpatient surgical procedures and minor emergency treatment. Generally, the applications in this case do not rely upon the provision of those services to justify need. However, Land O'Lakes only proposes emergency room service part of the time, relying on UCH to cover emergencies 24 hours, and does not propose full ancillary support and services, again in reliance on UCH. To that extent, the existing UCH services are an alternative to new construction in Land O'Lakes. Need Not Reasonably And Economically Accessible In Adjoining Areas (Section 381.494(6)(c)6., Florida Statutes 1985). There was no evidence of any need in District for special equipment and services to be provided by either Land O'Lakes or Bi-County which are not already reasonably and economically accessible in areas adjoining District 5 special Needs And circumstances Of Health Maintenance Organizations (Section 381.494(6)(c)10., Florida statutes 1985). There was no evidence of any special needs or circumstances of health maintenance organizations which would be pertinent to either the Land O'Lakes or the Bi-County application. Provision Of Substantial Services To Individuals Not Residing In District 5 (Section 381.494(6)(c)11. Florida statutes 1985). There was no evidence that either the Land O'Lakes application or the Bi-County application would provide a substantial portion of services or resources to individuals not residing in District 5 or that there is a need for a hospital in Land O'Lakes for this purpose. Energy And Cost Efficiency (Section 381.494(6)(c)13., Florida Statutes 1985). The evidence sufficiently proved that both the Land O'Lakes application and the Bi-County application proposed costs and methods of construction which are reasonably energy and cost efficient. The evidence did not suggest that any alternative methods of construction are available that would be substantially less costly or more effective. Required Findings (Section 381.494(d), Florida Statutes 1985). It cannot be found that less costly, more efficient, or more appropriate alternatives to the inpatient services proposed by Land O'Lakes and Bi-County are not available or that the development of such alternatives have been studied and have been found not practicable. Since there is no numeric need for 100 additional beds located in Land O'Lakes and area hospitals are running occupancy rates well below the 80 percent standard, utilization of existing hospital beds is a less costly, more efficient and more appropriate alternative which is practicable. It can be inferred from the evidence that existing inpatient facilities providing inpatient services proposed by Land O'Lakes and Bi-County are being used in an appropriate and efficient manner except that those facilities are running low occupancy rates. Alternatives to new construction for example modernization or sharing arrangements have been considered but are not practicable in relation to the Land O'Lakes and Bi-County applications. The evidence did not prove that patients will experience serious problems in obtaining inpatient care of the type proposed in the absence of one of the proposed new services. Balanced Consideration. After giving a balanced consideration to all of the pertinent statutory and rule criteria, it is found that there is no need or justification for either the Land O'Lakes application or the Bi-County application. Of all the criteria, the most significant was geographic accessibility. The applicants did not prove that accessibility considerations justify the construction of a 100-bed hospital in Land O'Lakes.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying both the application of Land O'Lakes Hospital, Inc., in Case No. 84-1509 and the application of Bi-County Community Hospital, Inc., in Case No. 84-1900. DONE AND ORDERED this 2nd day of January 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 84-1509 AND 84-1900 These rulings are made to comply with Section 120.59(2), Florida Statutes (1985). Bi-County's Proposed Findings of Fact. 1-4. Accepted and incorporated. Accepted but unnecessary. Rejected as contrary to the greater weight of the evidence and facts found. 7-8. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence and facts found. (Carrollwood is "osteopathic.") Accepted but unnecessary. Rejected as contrary to the greater weight of the evidence and facts found. (Harborside is "osteopathic.") Conclusion of law. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted that there would be no difficulty staffing; rejected that osteopaths in Pinellas would make it particularly "conducive" for Bi-County. Rejected as contrary to facts found. Accepted but unnecessary. Land O'Lakes Proposed Findings of Fact. 1. Accepted and incorporated. 2-3. Unnecessary. 4. Accepted and incorporated. 5 First sentence, accepted; second sentence, contrary to the greater weight of the evidence; third sentence, subordinate. Not proved. Proved only to the extent that it becomes a satellite of UCH. Conclusion of law. Rejected as contrary to facts found. Rejected as contrary to the greater weight of the evidence. Accepted. Subordinate. Not proved; not particularly relevant. Accepted but unnecessary. Subordinate to facts alleged but not proved. Accepted but unnecessary. 17.-18. Subordinate to facts alleged but not proved. Rejected as contrary to facts found. Subordinate. Subordinate. Rejected as contrary to facts found. Accepted and incorporated. Rejected as contrary to facts found since short-term financing is dependent on long-term feasibility. Rejected as being a summary of some of the evidence, not a finding. Rejected as not proved. Accepted but unnecessary. Accepted and incorporated. Accepted but unnecessary. Subordinate. Accepted but not necessary. Accepted with qualifications reflected in facts found. Rejected. There is no Pasco subdistrict. The total East and west Pasco is 88. Rejected. Underutilization proved; inaccessibility not proved. Accepted, assuming UCH involvement. Rejected as contrary to facts found. Accepted and incorporated. Cumulative. Rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 41.-42. Subordinate to facts found. Rejected. There is some osteopathic need in Pasco. Accepted except for the last sentence, which is rejected. Subordinate. Accepted but subordinate and unnecessary. Rejected as summary of some evidence, not a finding. Subordinate to facts found; unnecessary. Accepted and incorporated. Subordinate to facts found. 51.-52. Argument. 53.-54. Accepted but unnecessary. Accepted and incorporated. Incomplete and incomprehensible. 57.-58. Subordinate to facts found. Argument. Second and third sentences are accepted but not necessary; the rest is cumulative. Accepted but unnecessary. First sentence accepted and incorporated; second sentence is accepted but unnecessary. Accepted and incorporated. Bi-County's financial feasibility was not proved. Accepted and incorporated in part, subordinate in part. Accepted but unnecessary. Conclusion of law. Irrelevant. 67.-68. Rejected as contrary to the greater weight of the evidence. 69. Conclusion of law. 70.-72. Cumulative. 73. Rejected as contrary to facts found. HRS/Riverside/Harborside Joint Proposed Findings of Fact. 1-3. Accepted and incorporated. Subordinate to facts found. Unnecessary. 6-7. Accepted but unnecessary. 8.-9. Accepted and incorporated. 10. Accepted but unnecessary. 11.-12. Accepted and incorporated except where subordinate and unnecessary. 13.-20. Accepted but unnecessary. 21. Accepted and incorporated. 22.-23. Accepted but unnecessary. 24. Accepted and incorporated. 25.-29. Accepted but unnecessary. Accepted and incorporated. Accepted but unnecessary. Accepted and incorporated. Conclusion of law. Accepted and incorporated. Conclusion of law. 36.-39. Accepted and incorporated. 40. Accepted and incorporated except where subordinate. 41.-44. Subordinate to facts found. 45. Accepted and incorporated. 46.-48. Subordinate to facts found. 49. Accepted Incorporated as to Riverside; unnecessary as to Harborside. 50.-51. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. Subordinate to facts found. (Land O'Lakes FTEs are adequate assuming the UCH relationship.) 34 54. Rejected as contrary to facts found. Accepted but subordinate and unnecessary. Cumulative. 57.-59. Accepted but subordinate and unnecessary. 60. First sentence accepted but subordinate and unnecessary. Second sentence rejected as contrary to the greater weight of the evidence. 61.-63. Subordinate and unnecessary. 64.-69. Accepted and incorporated. Accepted but subordinate and unnecessary. Cumulative. Accepted and incorporated. Accepted and incorporated except where subordinate. 74 First sentence unnecessary; second sentence accepted and incorporated. 75. Accepted and incorporated except the implication that "specificity" and exact "accuracy" is necessary at this stage of a project is rejected as contrary to the greater weight of the evidence. 76.-77. Subordinate and unnecessary. 78. Rejected as contrary to facts found. 79.-81. Rejected as contrary to the greater weight of the evidence and facts found. Subordinate to facts found. Accepted and incorporated. 84.-86. Subordinate to facts found. 87.-88. Accepted and Incorporated. Rejected as contrary to facts found. Accepted that 80 percent is too high, but 50 percent-60 percent is too low. First sentence rejected as contrary to the greater weight of the evidence; second sentence accepted and incorporated. 92.-95. Subordinate to facts found. 96.-97. Cumulative. Rejected as contrary to the greater weight of the evidence. Unnecessary. Accepted and incorporated. Accepted but unnecessary. See 75, above. Unnecessary. Subordinate to facts alleged but not proved. 105.-106. Subordinate to facts found. 107.-1OB. Rejected as contrary to the greater weight of the evidence. 109.-110. Cumulative. Some patients would come from outside Land O'Lakes, but not as many as Bi-County projects. Rejected as contrary to facts found. Rejected as contrary to the greater weight of the evidence. 114.-116. Subordinate to facts found. 117. First sentence subordinate to facts found; second sentence rejected as contrary to facts found. 118.-119. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. Accepted but unnecessary. 122.-123. Accepted and incorporated. 124.-129. Accepted but unnecessary. 130.-132. Accepted and incorporated. Accepted but unnecessary. Accepted and incorporated. Accepted but unnecessary. Cumulative. Accepted and incorporated to the extent necessary. Subordinate to facts found. 139.-140. Accepted and incorporated to the extent necessary. First sentence unnecessary; second cumulative. Rejected as contrary to facts found. Cumulative. Accepted and incorporated. First sentence cumulative; rest subordinate to facts found. 146.-147. Accepted and incorporated. D. HRS' Supplemental Proposed Findings Of Fact. Accepted and incorporated. Accepted and incorporated. Said another way, applicants did not prove inaccessibility. Accepted. Incorporated in large part. Accepted and incorporated. Accepted but unnecessary. Cumulative. Accepted. Incorporated to the extent necessary. Accepted and incorporated. Unnecessary. Accepted but unnecessary. 11.-12. Accepted and incorporated. Unnecessary. Subordinate to facts found. Accepted and incorporated to the extent necessary. Accepted and incorporated. Irrelevant. 18.-19. Subordinate to facts found. 20.-21. Accepted and incorporated. First sentence, conclusion of law; rest, cumulative. Accepted but not necessary. Accepted but not necessary. Conclusion of law and unnecessary. First sentence, conclusion of law; rest, subordinate. Accepted incorporated in part; in large part, subordinate. Subordinate to facts found. See 27 above. 30.-33. Subordinate to facts found. 34. Accepted but not necessary. 35 (a) Subordinate to facts found and unnecessary; (b) accepted in part, but rejected in part as conclusion of law and unnecessary; (c)-(f) subordinate to fact found; Accepted and incorporated to the extent necessary. Cumulative and subordinate. Rejected, not proved. Accepted. Incorporated in part; in part subordinate. Subordinate to facts found; unnecessary. COPIES FURNISHED: Kenneth F. Hoffman, Esquire Harold F. X. Purnell Oertel & Hoffman, P. A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Charles D. Hood, Esquire Post Office Box 191 Daytona Beach, Florida 32015 Douglas L. Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302-3300 Leonard A. Carson, Esquire Bruce A. Leinback, Esquire Carson & Linn, P. A. Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32308 William Page, Jr. Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steven W. Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the licensure examination taken by the Petitioner qualifies him under Section 459.007(3), Florida Statutes, for licensure as an osteopathic physician in the State of Florida.
Findings Of Fact The Petitioner, Lawrence Edward Suess, is an osteopathic physician licensed by the Boards of Medical Examiners in Texas, Alabama, and Kentucky. He seeks licensure in Florida, pursuant to Section 459.007(3), Florida Statutes. He is also licensed in Arizona and Texas as a registered nurse, holds BS and MS degrees in child development and nursing and a Ph.D. in nursing. The Respondent, the Board of Osteopathic Medicine (Board), is an agency of the State of Florida, charged with regulating the admission to practice and the practice and licensure standards of osteopathic physicians licensed or seeking to be licensed in the State of Florida. The Board issued an order, as corrected, on November 9, 1995, granting application of licensure to the Petitioner upon the condition that within one year, he successfully complete Part III of the NBOME examination for purposes of licensure in the State of Florida, and not for diplomate status. The Board found in that order that the Petitioner had not passed all three parts of the NBOME examination and had submitted certification of passage of only Parts I and II. The Board found that the “FLEX” examination was not a substantially-similar examination to the required NBOME examination since the FLEX examination did not contain an osteopathic medicine component. The Board also found that the completion by the Petitioner of a Board certification examination was not substantially similar to the NBOME examination because it tested only a single subject matter and not the broad principles contained in Part III of the NBOME examination. On November 13, 1995, a Petition for Formal Hearing was filed by the Petitioner disputing the decision of the Board which precluded him from obtaining licensure to practice medicine in the State of Florida because of failure to complete Part III of the NBOME examination. He contended that he was outside the time period in which he would be allowed to take Part III. He further contended that the FLEX examination was a substantially-similar examination to the NBOME examination. The Petitioner contends that taking the FLEX examination should be sufficient to justify licensure, although he also acknowledged that Part III of the NBOME examination tests osteopathic philosophy and principle; and he acknowledged that the FLEX examination does not, although he was attempting to testify and argue that the FLEX examination was substantially similar to the NBOME examination. He provided no testimony or evidence, however, to establish that the FLEX examination tests osteopathic philosophy and principle. The Respondent presented the testimony of Joseph Smoley, Ph.D. by deposition. Dr. Smoley holds a Ph.D. in educational measurement and has served for ten of the last eleven years as Executive Director of the NBOME. The NBOME is an organization that develops an examination that is independent of the osteopathic medical schools to evaluate osteopathic physicians who are either currently in undergraduate or in graduate medical programs. The NBOME’s main mission is to provide state licensing examinations with an independent assessment of the knowledge base of candidate osteopathic physicians. Dr. Smoley oversees NBOME policy and supervises educational measurement within the osteopathic profession. His oversight responsibilities include the examination section of the NBOME. He provides a constant review of the process of testing for the Board of Directors. The NBOME developed its examination by having questions drafted by faculty members and osteopathic physicians in independent practice. Faculty members may be D.O.’s or Ph.D.’s in the various basic sciences, and there is a multi-tiered process for preparing and reviewing questions. A copy of the bulletin of information concerning the NBOME examinations was attached to and made part of the deposition. Dr. Smoley testified that typically the candidates take Part I as a sophomore during medical school, Part II as a senior, and Part III as an intern in their first post-graduate year. He established that the purpose behind that examination is “the integration of osteopathic principles and practices as well as the philosophy of osteopathic medicine.” No allopathic physicians are involved in the grading process of that examination. Some allopathic physicians associated with osteopathic colleges may submit questions that, after the review process, may be used on the examination. The purpose of the NBOME examination, as shown by Dr. Smoley, is to make sure that each question integrates osteopathic principles and practices in some way and that the entire examination is reflective of the practice of osteopathic medicine. Dr. Smoley is also familiar with the FLEX examination, as well as the current licensure examination for allopathic physicians, the USMLE. The Federation of State Medical Boards (FSMB) does not prepare any complete examination or any additional components for its regular examination concerning manipulation or osteopathic practice and principles. According to Dr. Smoley, there has never been an official comparison or analysis between the NBOME examination and the FLEX examination. Based upon his experience and educational measurement, he has determined that if one examination, the NBOME, contains osteopathic principles and practice and the other examination, the FLEX, does not incorporate those principles and practices, then the two examinations could not be considered equivalent. The NBOME examination is more extensive because it integrates osteopathic principles and practice throughout its content. This osteopathic examination is not simply one that tests manipulation. Therefore, it is not asserted to be appropriate for chiropractors or M.D.’s who have been trained in manipulation but only for persons who have received an osteopathic medical education. The Respondent also presented the testimony by deposition of James R. Winn, M.D. He is Executive Vice President of the FSMB. The FSMB assists state medical boards in conducting their evaluation of physicians regarding their fitness to practice medicine. The FSMB developed examinations which are administered by state boards. Dr. Winn serves as the supervisor for the examination services section of the FSMB. Those examinations are developed in cooperation with the National Board of Medical Examiners. The current examination available from the FSMB is the United States Medical Licensing Examination (USMLE) used since 1992. Prior to that time, the FSMB administered the FLEX examination, which was for the evaluation of all physicians requesting licensure. The FLEX examination did not have a section on osteopathic practice, as shown by Dr. Winn. The FSMB allows all physicians seeking licensure in the United States to take that examination, including graduates of osteopathic medical schools and graduates of foreign medical schools. With the FLEX examination, unlike the NBOME examination, medical students are not eligible, only graduates of medical schools are eligible to take the examination. Dr. Winn is familiar with the examination of the NBOME and its purpose. He is not aware of any side-by-side comparison between the two examinations to determine equivalency. In his expert opinion, there would have to be such an evaluation in order to determine whether the examinations are equivalent. The testimony of Drs. Smoley and Winn was elaborated upon and corroborated by Dr. Morton Morris. Dr. Morris is a licensed osteopathic physician in the State of Florida and is board certified in osteopathic surgery by the American Osteopathic Board of Orthopedic Surgery. He is also certified by the American Board of Quality Medical Assurance and is a fellow of the American College of Legal Medicine. He is Vice-Chancellor for academic affairs in the health professions division at Nova Southeastern University, a Florida osteopathic medical school. Additionally, Dr. Morris is a licensed, practicing attorney in the State of Florida. He practices in the areas of medical malpractice, general health law and administrative law. Dr. Morris is familiar with the NBOME examination, having served as a test item writer for the NBOME. He recognizes Dr. Smoley as one who helps develop the philosophy of the examinations in question. The philosophy of the NBOME is that content concerning osteopathic practice and principles permeates the entire examination. Even when certain questions on their face are not osteopathically oriented, the evaluation and the grading of the responses is carried out from an osteopathic viewpoint and philosophy. The test item writers are directed to draft test questions which include osteopathic philosophy. In the past, the NBOME has agreed to allow a candidate to take only Part III or an equivalent examination and receive the score from the NBOME. In fact, Dr. Morris represented that person in his capacity as an attorney. He worked out the arrangements whereby that candidate could take and pass Part III of the NBOME examination in order to obtain a Florida osteopathic medical license, as the Petitioner seeks herein, even though, since he would not have taken Part III within the required seven years, he could not receive diplomate status with the NBOME. The Board’s order in this case specifically requires passage of Part III of that examination, but it does not require diplomate status. Such an arrangement would thus seem to provide a means to alleviate the Petitioner’s predicament in the instant situation. The Petitioner, in questioning Dr. Morris upon cross- examination, inquired about the possibility of a person taking all three parts of the NBOME examination, even if he had already taken Parts I and II. Dr. Morris stated that that was possible. Page 7 of the Bulletin of Information, in evidence in Respondent’s Exhibit 1, although stating that the candidate cannot take the examination “to attempt to improve his score”, states nothing to indicate preclusion of a candidate taking the entire examination for any other purpose. Dr. Morris stated that the Petitioner could take Part III of the examination and that the NBOME would make arrangements to allow him to do that, with the understanding that if he passed Part III, he would not be able to receive diplomate status from the NBOME (because of passage of time before taking Part III). In making comparisons between osteopathic medical education and allopathic medical education, Dr. Morris acknowledged that in some cases, osteopathic medical colleges use the same textbooks as used by allopathic medical schools. That does not, however, make them similar professions. Although anatomy and physiology may not be different, the philosophy of treating the whole patient is different. Responding to the Petitioner’s contention that having obtained board certification in his specialty area should count as equivalency to the entry level examination, Dr. Morris pointed out that all that the board certification accomplishes is to show that an osteopathic physician is recognized by his or her peers as competent to practice a specialty. It does not mean that the person is osteopathically oriented enough to be eligible for licensure and to be able to pass a minimum competency examination. The Petitioner contends that having passed Parts I and II of the NBOME examination, FLEX should quality him for osteopathic licensure in the State of Florida, in lieu of taking Part III of the NBOME examination, because anything of an osteopathic nature would have already been tested on Parts I and II. Dr. Morris established to the contrary, however, that Part III is the clinical testing, the testing of how the individual puts to use his clinical evaluation in treatment of patients. It is the ultimate test of whether an individual has developed and is able to apply a philosophy of practice sufficient to show that he is competent to be an osteopathic physician. Parts I and II of the NBOME examination do not test clinical skills. The FLEX does test clinical skills, but it does not test for osteopathic practices as to clinical skills. The NBOME requires that a person take Part III within seven years of having taken Part I, if that person wishes to be a diplomate of the NBOME. There is no apparent preclusion, however, in a person arranging to take only Part III, simply for purposes of state licensure. The record is not clear whether a person could take Parts I, II and III within the period of one year. It does seem apparent, however, that the Petitioner could take Part III within a one-year time period, which is all that is required in the Board’s order. Further, the statute requires that a person take all parts of the NBOME examination or a substantially-equivalent examination. What the Petitioner attempts to do is to take two parts of the NBOME examination and then substitute a different examination (FLEX) for Part III. This does not constitute a substantially-equivalent examination for the above reasons. A substantially-equivalent examination would have to be equivalent to all three parts of the NBOME examination. During discussion of the difference between osteopathic and allopathic schools of medicine, Dr. Morris pointed out that many osteopathic physicians use the same modalities that allopathic physicians use. It is just that they also use osteopathic modalities. He gave the example of a cardiac patient whom an osteopathic physician would treat just as a medical doctor would treat the basic condition with appropriate drugs but then would incorporate osteopathic philosophy, such as the “lymphatic pump”, meaning that the osteopathic physician would incorporate muscle techniques of stretching and passive manipulation in order to help the patient. The osteopathic physician would possibly use manipulative techniques on the lymphatic system and not just use drugs or other allopathic techniques. In the context of the NBOME examination, a question might reference a cardiac patient. Although the question would not mention the lymphatic pump, a proper answer might entail a clinical response that would consider that modality of treatment. In orthopedics, Dr. Morris’ specialty, an osteopathic physician can make significant use of manipulative techniques, as well as general surgery, casting and other modalities normally used by allopathic physicians. Use of the FLEX examination, rather than the NBOME examination, would not lower standards for osteopathic physicians. Rather, the FLEX examination simply embodies a different standard than the one used to test for competency in osteopathic principles and medicine. The Petitioner acknowledged that he could have taken Part III of the NBOME examination but chose not to because it was then more convenient for him to take the FLEX examination to continue his training in the State of Texas which required passage of the FLEX examination for osteopathic licensure. The Petitioner contended that if he applied for a Florida osteopathic medical faculty certificate (MFC), the FLEX examination would be acceptable and he would be eligible. That fact, he contends, by analogy, establishes that he is qualified to practice osteopathic medicine in the State of Florida. He has never applied for such a certificate nor has he been offered an osteopathic medical faculty position in the State of Florida. Thus, determination of that issue is not before this tribunal. Even if it were, there are significant differences between a full license to practice osteopathic medicine indefinitely and a medical faculty certificate. With the MFC, the Petitioner would not be allowed to be engaged in private practice of osteopathic medicine and the MFC would only allow him to practice in the academic realm for only two years. Finally, the statutory requirements for an MFC do not require the passage of any licensure examination. Accordingly, to the extent that the Petitioner’s argument and testimony implies some analogy or equivalency between eligibility for the MFC and eligibility for full licensure, such equivalency is not borne out by the greater weight of the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of the Petitioner, Lawrence Edward Suess, D.O., for licensure as an osteopathic physician, without conditions, is denied on the basis that the FLEX examination has not been shown to be substantially similar to the NBOME examination.DONE AND ENTERED this 28th day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997. COPIES FURNISHED: Lawrence E. Suess, D.O., Ph.D. Owensboro Psychiatric Institute 1700 Frederica Street, Suite 106 Owensboro, Kentucky 42301 M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Room PL-01 Tallahassee, Florida 32399-1050 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0757 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact Prior to and during part of 1983 Dr. Sturdivant practiced as an osteopathic physician. Dr. Sturdivant operated an office in Bradenton, Florida. Sometime during 1983 Dr. Sturdivant met and discussed employment with Dr. Daniel Clark. Dr. Clark operated the Total Health Care Clinic Center (hereinafter referred to as the "Center"), in Ormond Beach, Volusia County, Florida. Dr. Clark had been licensed as a physician in Florida. Dr. Clark's license to practice medicine in Florida was revoked, however, on April 21, 1983. As a result of his discussions with Dr. Clark, Dr. Sturdivant practiced medicine at the Center four days a week during most of 1983. One day a week Dr. Sturdivant continued to work out of his office in Bradenton. Sometime during 1984 Dr. Sturdivant left the Center. He did not return to the Center until 1985. During the early part of 1985 Dr. Sturdivant returned to the Center where he worked full time as the Center's Medical Director. Dr. Sturdivant worked at the Center from at least March 27, 1985 to at least June 22, 1985. During the period of time during 1985 that Dr. Sturdivant acted as the Medical Director of the Center, Dr. Clark's title was Administrator of the Center. During the period of time after April 21, 1983, that Dr. Sturdivant was employed at the Center Dr. Sturdivant knew or had reason to know that Dr. Clark's license to practice medicine in the State of Florida had been revoked. During the portion of 1985 that Dr. Sturdivant was employed as the Medical Director of the Center Dr. Sturdivant was aware that he was responsible for the medical care of patients seen at the Center. Ms. Judy Baxley was seen as a patient at the Center several times beginning in March, 1985, while Dr. Sturdivant was the Medical Director. Ms. Baxley was treated for asthma and a "yeast" infection. Ms. Baxley was seen by Dr. Clark on some of her visits. She received medical tests and treatments at the direction of Dr. Clark, as evidenced, at least in part, by progress notes signed by Dr. Clark. Ms. Shirley Van Gampler was seen as a patient at the Center on May 8, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Van Gampler was seen by Dr. Clark as a patient. Dr. Clark's treatment of Ms. Van Gampler included examination, testing and diagnosis, as evidenced, at least in part, by progress notes signed by Dr. Clark. Mr. Douglas Cutsail was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director. Mr. Cutsail had a history of heart attacks and hypertension. He went to the Clinic in an effort to control his high blood pressure. Dr. Clark treated Mr. Cutsail as a patient, performing tests on Mr. Cutsail and directing chelation therapy treatments of Mr. Cutsail's medical problems. Dr. Clark signed the progress notes on Mr. Cutsail. Dr. Sturdivant also signed the progress notes but his signature was added at a later date after Dr. Clark had already treated Mr. Cutsail. Ms. Eileen Deasy was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Dr. Clark treated Ms. Deasy as a patient, as evidenced by progress notes signed by Dr. Clark. Ms. Lonna Sloan was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Sloan, who is now deceased, had breast cancer at the time she was seen by Dr. Clark. Ms. Sloan was treated as a patient by Dr. Clark. The treatment received by Ms. Sloan was substandard treatment. Dr. Sturdivant allowed Dr. Clark to exercise professional medical responsibilities during 1985 while Dr. Sturdivant was the Medical Director of the Center and with knowledge that Dr. Clark was not licensed to carry out those responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Dr. Sturdivant's license to practice in the State of Florida be suspended for a period of one (1) year. It is further, RECOMMENDED that the recommended suspension of Dr. Sturdivant's license for one (1) year be stayed and set aside and that he be placed on probation for a period of three (3) years in lieu thereof. During the period that Dr. Sturdivant is on probation, he should be required to work under the supervision of an osteopathic physician. He should not work in any supervisory capacity. During the period of his probation, Dr. Sturdivant and his supervisor should submit quarterly written reports of Dr. Sturdivant's employment activities. DONE and ENTERED this 8th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Stipulated to by the parties. 2 3. 2 and 4. 5 and 6. 5 6. 6 7. 7 8. 8 9. 9 10. 10 11. 11 12. 12-13 13. This is a conclusion of law. Lonna Sloan's deposition is hearsay. It has been accepted only to the extent that it corroborates the testimony of Dr. Smith and Petitioner's exhibit 3, the progress notes on Ms. Sloan. Summary of testimony. Cumulative and hearsay. The Respondent's Proposed Findings of Fact Not supported by the weight of the evidence and irrelevant. The evidence established that Dr. Sturdivant was aware that Dr. Clark's license to practice in Florida had been revoked. Whether Dr. Clark had a license to practice in Georgia is irrelevant. The evidence failed to prove this contention. The evidence did prove that some of the products sold by the Center were nutritional products available in health food stores. The evidence also proved that persons who received nutritional products were treated medically by Dr. Clark. The evidence failed to prove that these nutritional products were prescribed as only for nutritional purposes. COPIES FURNISHED: Susan Branson, Esquire William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Sturdivant, D.O. 800 South Nova Road Suite H Ormond Beach, Florida 32074 Mr. Rod Presnell Executive Director Department of Professional Regulation Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
