The Issue Whether Respondents committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Agency adopts the findings of fact set forth in the Recommended Order. CLUSIONS OF LAW The Agency adopts the conclusions of law set forth in the Recommended Order. RDER 1. The Agency’s Amended Administrative Complaint is UPHELD and the above- named Respondent’s license is REVOKED. , 2. Additionally, a $20,000 fine and $1,000 survey fee are hereby imposed. Unless payment has already been made, payment in the amount of $21,000 is now due from the Respondent as a result of the agency action. Such payment shall be made in full within 30 days of the filing of this Final Order. The payment shall be made by check payable to Agency for Health Care Administration, and shall be mailed to the Agency for Health Care Administration, Attn. Revenue Management Unit, Office of Finance and Accounting, 2727 Mahan Drive, Mail Stop #14, Tallahassee, FL 32308. 3. In order to ensure the health, safety, and welfare of the Respondent’s clients, the revocation of the Respondent’s license is stayed for 30 days from the filing date of this Final Order for the sole purpose of allowing the safe and orderly discharge of clients. § 408.815(6), Fla. Stat. The Respondent is prohibited from accepting any new admissions during this period and must immediately notify the clients that they will soon be discharged. The Respondent must comply with all other applicable federal and state laws. At the conclusion of the stay, or upon the discontinuance of operations, whichever is first, the Respondent shall promptly return the license certificate which is the subject of this agency action to the appropriate licensure unit in Tallahassee, Florida. Fla. Admin. Code R. 59A- 35.040(5). 4. In accordance with Florida law, the Respondent is responsible for retaining and i appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. : 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. | ORDERED in Tallahassee, Florida, on this _/” day of put. = 2013, r ELIZABETH DUNEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
Conclusions This cause was referred to the Division of Administrative Hearings where the assigned Administrative Law Judge (ALJ), Lynne A. Quimby-Pennock, conducted a formal administrative hearing. At issue in this case is whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so,-what penalty should be imposed. The Recommended Order dated January 17, 2013, is attached to this Final Order and incorporated herein by reference, except where noted infra.
Recommendation f Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Gene Cowles and Amelia Cowles, d/b/a Hillandale Assisted Living, violated sections 429.28 (1) {a} and (b) and 408.815(1) (e), imposing’ an administrative fine of $20,000.00, and assessing a survey fee of $1,000.00 ($500.00 for each investigation) associated with this case. 32 DONE AND ENTERED this 17th day of January, 2013, in Tallahassee, Leon County, Florida. Sn Meeffink YNNE A. QUIMBY-PENNOCK : Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2013.
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 comect gepy of this Final Order was served on the below-named persons by the method designated on this {30-day of Fora , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia R. Caufman, Field Office Manager Revenue Management Unit Areas 5 and 6 (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Tracy George, Chief Appellate Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Christina Mesa, Esquire MESA Law, P.A. P.O. Box 10207 Tampa, Florida 33679-0207 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. STATE OF FLORIDA FILED AGENCY FOR HEALTH CARE ADMINISTRATION ~ AHCA AGENCY CLERK STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, . MAPA Ib A yy: Petitioner, DOAH CASE NO. 11-3721 AHCA NOS, 2011006466 v. ‘ : ~ 2011006798 LICENSE NO. 10549 GENE COWLES AND AMELIA COWLES FILE NO. 11966321 d/b/a HILLANDALE ASSISTED LIVING, FACILITY TYPE: ASSISTED LIVING FACILITY Respondent. RENDITION NO.: AHCA-24- 0,3 5°7-FOF-OLC / .
The Issue The issues are whether proposed Florida Administrative Code Rule 58A-5.024(1)(p)1.a., a proposed amendment to Florida Administrative Code Rule 58A-5.024(3)(c), and, as recently amended or created, Florida Administrative Code Rules 58A-5.0131(41), 58A-5.0181(2)(b) (amending AHCA1 Form 1823 (Form 1823)), 58A-5.0182(8)(a) and (8)(a)1., 58A-5.0185(3)(g), 58A-5.0191(3)(a), and 58A-5.031(2)(d)2 are invalid exercises of delegated legislative authority, pursuant to section 120.52(8), Florida Statutes, on the grounds set forth in the Joint Pre-hearing Stipulation filed on May 30, 2018 (Prehearing Stipulation) or such other grounds that were tried by consent.
Findings Of Fact By "Notice of Proposed Rule" published on March 5, 2018, Respondent proposed amendments to 11 rules: rules 58A-5.0131, 58A-5.014, 58A-5.0181, 58A-5.0182, 58A-5.0185, 58A-5.019, 58A-5.0191, 58A-5.024, 58A-5.029, 58A-5.030, and 58A-5.031. For rulemaking authority, Respondent cited sections 429.07, 429.17, 429.178, 429.24, 429.255, 429.256, 429.27, 429.275, 429.31, 429.41, 429.42, 429.44, 429.52, 429.54, and 429.929. For the law implemented, Respondent cited sections 429.01 through 429.55 and 429.905 and chapter 2015-126, Laws of Florida.14 The proposed amendments to rule 58A-5.024 state15: The facility must maintain required records in a manner that makes such records readily available at the licensee’s physical address for review by a legally authorized entity. . . . For purposes of this section, “readily available” means the ability to immediately produce documents, records, or other such data, either in electronic or paper format, upon request.16 FACILITY RECORDS. Facility records must include: * * * The facility's infection control policies and procedures. The facility's infection control policy must include: A hand hygiene program which includes sanitation of the hands through the use of alcohol-based hand rubs or soap and water before and after each resident contact. Use of gloves during each resident contact where contact with blood, potentially infectious materials, mucous membranes, and non-intact skin could occur. The safe use of blood glucometers to ensure finger stick devices and glucometers are restricted to a single resident. Lancets should be disposed in an approved sharps container and never reused. Glucometers should be cleaned and disinfected after every use, per manufacturer's instructions, to prevent carry-over of blood and infectious agents. Medication practices including adherence to standard precautions to prevent the transmission of infections in a residential setting. Staff identification, reporting, and prevention of pest infestations such as bed bugs, lice, and fleas. * * * (3) RESIDENT RECORDS. Resident records must be maintained on the premises and include: * * * (c) . . . Records of residents receiving nursing services from a third party must contain all orders for nursing services, all nursing assessments, and all nursing progress notes for services provided by the third party nursing services provider. Facilities that do not have such documentation but that can demonstrate that they have made a good faith effort to obtain such documentation may not be cited for violating this paragraph. A documented request for such missing documentation made by the facility administrator within the previous 30 days will be considered a good faith effort. The documented request must include the name, title, and phone number of the person to whom the request was made and must be kept in the resident's file. The challenge to rule 58A-5.024(1)(p)1.a. is to the unconditional requirement of hand sanitizing "before and after each resident contact."17 Resident contact is unqualified, so the challenged provision does not exclude casual or incidental contact between a staffperson and a resident. One of Respondent's witnesses assured that Respondent does not intend for "each residential contact" to include casual contact by staff, such as "high fives" during a bingo game or the brushing of shoulders in the hall, but this assurance cannot displace the unconditional language of the rule, as well as the fact that enforcement of the rule is left to the Agency for Health Care Administration (AHCA), not Respondent.18 In its present form, the rule requires hand sanitizing before exchanging "high fives" or, somehow, even a pat on a staffperson's clothed shoulder initiated by a resident, so as to discourage such casual contact. Requiring hand sanitizing before and after each and every resident contact will encompass many contacts for which hand sanitizing will have no effect on the control of infections and deter or abbreviate interactions between residents and staff, who would repeatedly be washing their hands during time that they otherwise might spend with residents. Generally, a hand hygiene program is neither capricious nor arbitrary because it responds to a well-recognized means by which disease is transmitted——human to human--with sanitation as a well-recognized means to interrupt this transmission process. However, the proposed rule irrationally requires hand sanitation before incidental residential contact that, by its nature, is unplanned, and after residential contact with another part of a staffperson's body, such as an elbow or clothed back, rather than the staffperson's hand, where hand washing would not have any sanitizing effect. The rule is also unsupported by logic or the necessary facts. On its face, rule 58A-5.024(1)(p)1.a. is not vague: a staffperson must sanitize her hands after every contact with a resident and before every contact with a resident, even, somehow, unplanned contacts that may be initiated by the resident. Respondent's promise that AHCA will apply this proposed rule reasonably--i.e., the inspector will know a violation when she sees one--makes the point that, to be spared findings of capriciousness and arbitrariness, rule 58A-5.024(1)(p)1.a. must be construed so as to fail to establish adequate standards for agency decisions. "Sanitary" means "of or relating to health[, as in] sanitary measure."19 The challenge to rule 58A-5.024(3)(c) is to the requirement that an ALF obtain and maintain the records of third party providers of nursing services. This requirement is supported by logic and the necessary facts and is not irrational. Maintaining a set of these records at the residence of an ALF resident promotes resident welfare. Applicable only to a facility that intends to offer limited nursing services, rule 58A-5.031(2)(d) provides: Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who must be available to provide such services as needed by residents. The facility's employed or contracted nurse must coordinate with third party nursing services providers to ensure resident care is provided in a safe and consistent manner. The facility must maintain documentation of the qualifications of nurses providing limited nursing services in the facility's personnel files. Coordinating a facility's nursing services with the nursing services of a third party to ensure that resident care is provided in a safe and consistent manner is neither capricious nor arbitrary. Resident welfare is served by a rule requiring coordination between any nurse employed or contracting with a facility and a provider of third party nursing services, so this requirement is rationally related to resident care and supported by logic and the necessary facts. "Coordination" means "the process of organizing people or groups so that they work together properly and well."20 "Quality assurance" means "a program for the systematic monitoring and evaluation of the various aspects of a project, service, or facility to ensure that standards of quality are being met." "Ensure" means "to make sure, certain, or safe: guarantee."21 In addition to proposed rule 58A-5.024(1)(p)1., two rules pertain to a facility's infection control program (ICP). Rule 58A-5.0185(3)(g) provides: "All trained staff must adhere to the facility's [ICP] and procedures when assisting with the self——administration of medication." Rule 58A-5.0191(3)(a) adds: Staff who provide direct care to residents . . . must receive a minimum of 1 hour in- service training in infection control including universal precautions and facility sanitation procedures, before providing personal care to residents. The facility must use its [ICP] and procedures when offering this training. . . . Requiring the use of a facility's ICP in training or when assisting with the self-administration of medication is neither capricious nor arbitrary. These requirements are supported by logic and the necessary facts and are rational. 13. Rule 58A-5.0131(41) provides: An "Unscheduled Service Need" means a need for a personal service, nursing service, or mental health intervention that generally cannot be predicted in advance of the need for the service, and that must be met promptly to ensure within a time frame that provides reasonable assurance that the health, safety, and welfare of residents is preserved. On its face and based on its placement within a rule devoted to definitions, rule 58A-5.0131(41) is a definition. If so, an "Unscheduled Service Need" occurs: 1) when a need for a covered service arises unexpectedly and 2) the need must be met promptly to ensure the preservation of resident welfare. If the rule is a definition, an amendment making the second condition more rigorous would inure to the benefit of ALFs because fewer situations would rise to the level of an Unscheduled Service Need. For instance, there would be even fewer Unscheduled Service Needs if the second condition stated, "and that must be met promptly to save the life of a resident." Two factors suggest that rule 58A-5.0131(41) is not merely a definition. A definition is normally incorporated in another provision of law that creates rights or enforces duties. However, "Unscheduled Service Need" occurs nowhere in the Florida Statutes and nowhere else in the Florida Administrative Code. "Unscheduled Service Need" might trigger action in a resident's care plan, but few residents are required to have a care plan. The parties have treated rule 58A-5.0131(41) as though it were a definitional rule that enforces a duty. FALA has challenged rule 58A-5.0131(41) as though the initial condition-- the occurrence of an unexpected, covered need--is the definition and the duty is for the ALF to meet the need to ensure the resident's welfare. Agreeing, Respondent stated in its proposed final order: "A plain reading of the entire rule makes it clear that the rule requires a facility to respond to an unscheduled service need in a manner that does not delay addressing the residents' needs."22 Although nearly all23 of the other subsections of rule 58A-5.0131 seem to provide conventional definitions, under the circumstances, this final order will follow the parties' reading of this definitional rule, so as to include the imposition of a duty on the ALF to take prompt action to ensure the resident's welfare. Rule 58A-5.0131(41) is neither arbitrary nor capricious. It is not irrational, illogical, or unsupported by the facts to define an unscheduled service need in the manner set forth in the rule and to require an ALF promptly to meet the need to ensure that the welfare of the resident. Rule 58A-5.0131(41) is vague. On its face, it is a merely definitional rule with two conditions, but, in reality, it is a rule that encompasses a definition with but one condition and an enforceable duty imposed upon an ALF. This fact, alone, establishes vagueness. Construed as a definition with a single condition and an enforceable duty imposed on an ALF, rule 58A-5.0131(41) achieves greater vagueness. The condition, which is a condition precedent, is invariably clear, but the enforceable duty is contingent on a condition subsequent that is entirely independent from the condition precedent: i.e., the duty of the ALF arises only if its prompt discharge ensures the resident's welfare. This means that, even though the condition precedent is satisfied, the duty of the ALF is not imposed if prompt action is not required to ensure the resident's welfare--as in a minor problem that does not jeopardize the resident's welfare--or if prompt action will not ensure the resident's welfare--as in a catastrophic event, such as a massive cardiovascular event, that precludes the possibility of any action that would "ensure" the resident's welfare. The fatal ambiguity arises because the final 17 words of the rule announced, simultaneously, the mandated action by the ALF and a condition precedent to the duty to take this action. Rule 58A-5.019(3) requires that an ALF maintain a specified number of minimum staff hours per week based on a specified "Number of Residents, Day Care Participants, and Respite Care Residents" in the facility. For instance, 6 to 15 such persons require a minimum of 212 staff hours weekly, and 16 to 25 such persons require a minimum of 253 staff hours weekly. Unchallenged, rule 58A-5.0131(12) defines "Day Care Participant" as "an individual who receives services at a facility for less than 24 hours per day." The inclusion of "Day Care Participants" among the persons on whom minimum staff hours are calculated is not capricious or arbitrary. An ALF accepting Day Care Participants has assumed responsibility for the care of these persons, and the imposition of minimum staffing standards based on residents and Day Care Facilities is supported by logic and the necessary facts and is rational. 22. Rule 58A-5.0182(8)(a) and (8)(a)1. provides: Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. All residents must be assessed for risk of elopement by a health care provider or mental health care provider within 30 calendar days of being admitted to a facility. If the resident has had a health assessment performed prior to admission pursuant to Rule 58A-5.0181(2)(a), F.A.C., this requirement is satisfied. . . . Staff trained pursuant toRule 58A-5.0191(10)(a) or (c), F.A.C., mustbe generally aware of the location of all residents assessed at high risk for elopement at all times. Rule 58A-5.0191(10) applies to ALFs that advertise that they provide special care for persons with Alzheimer's Disease and Related Disorders (ADRD) or that maintain certain secured areas (ADRD ALFs); the rule requires that ADRD ALFs must ensure that their staff receive specialized training. Rule 58A-5.0191(10)(a) and (c) specifies the training for staff who provide direct care to, or interact with, residents with ADRD. By addressing the training received by staff, rather than whether the supervised residents suffer ADRD or whether an ALF employing the staffperson is an ADRD ALF, rule 58A-5.0182(8)(a)1. imposes higher supervisory duties strictly on the basis of the training received, at some point, when the staffperson may have been employed by an ADRD ALF. Thus, the level of supervision at an ALF that is not an ADRF ALF may vary from shift to shift and unit to unit, as the staffpersons who, at some point, received the additional training are distributed through the facility's workplace. Perhaps it is not irrational to impose a higher supervisory duty on more highly trained staffpersons, but, on these facts, rule 58A-5.0182(8)(a)1. is not supported by logic or the necessary facts. Rule 58A-5.0182(8)(a)1. is vague. A "high risk" of elopement lacks meaning. As discussed below, in Form 1823, Respondent asks in a yes-or-no format the question of whether the resident is an "elopement risk," which seems to suggest an elevated risk from the general population. A "high risk" of elopement seems to suggest an even more elevated risk, but the rule provides no means to determine the threshold, even though, with each elevation of risk from the general population, the prescribed threshold becomes less discernible. Rule 58A-5.0182(8)(a)1. is also vague because of the phrase, "generally aware of the location" of all residents at high risk of elopement. "Generally" means "in disregard of specific instances and with regard to an overall picture generally speaking."24 Treating "awareness" as synonymous with "knowledge," it is difficult to understand what is meant by general, not specific, knowledge of the location of a resident.25 The troublesome qualifier modifies the knowledge of the staff person, not the location of the resident, which raises an obvious problem as to meaning, as well as proof. By inserting "generally," the rule rejects "knowledge" or "specific knowledge" in favor of knowledge of "an overall picture generally speaking" and introduces an unworkable level of ambiguity into the requirement. Rule 58A-5.0182(8)(a) is not capricious. A rule requiring a timely assessment of elopement risk by a health care provider or mental health care provider26 is not irrational; such an exercise is not utterly senseless. But a closer question is whether this rule is supported by logic or the necessary facts. A commonly used elopement risk tool, which was included in the exhibits of FSLA and Respondent, assigns numerical values on a scale of 0 to 4 to various resident behaviors or conditions. The predictive utility of each behavior or condition is a function of the value assigned to it: a 4 has the greatest predictive value. The only behavior or condition assigned a 4 is the resident's believing that he is late for work or needs to pick up the children, thus creating an urgency to leave the ALF. Four behaviors or conditions bear a 3: the resident's becoming lost outside of the facility, thus necessitating the intervention of staff to return him to the ALF; emphatically proclaiming that she is leaving the facility or saying that she is going somewhere, coupled with an attempt to leave; suffering paranoia or anxiety about where she is, disbelieving that she lives where she lives, or attempting to leave the ALF; and repeatedly trying to open the doors of the facility. Ten27 behaviors or conditions bear a 2: the resident's having a diagnosis of dementia; becoming confused outside of the community; wandering, looking for an exit from the ALF, or attempting to leave the ALF; getting up at night and leaving the room; suffering from disorientation as to place without any anxiety or effort to leave; dressing and presenting oneself in an appropriate manner, but requiring staff supervision outside of the building; ambulating, but unsafe outside without supervision; using assistive devices, but unsafe outside without supervision; presenting as unsafe when outside alone; and taking walks, but requiring redirection to the entrance of the building or back to the property. Five behaviors or conditions bear a 1: the resident's displaying evidence of early dementia; wandering at times, but not expressing a desire to leave the ALF or trying to leave the ALF; verbalizing the desire to be elsewhere; suffering occasional disorientation as to time and place, but reorienting easily; and presenting a disheveled and disorganized appearance, so as not to be confused for a visitor or staffperson. Nine behaviors or conditions bear a 0: the resident's having no diagnosis of dementia; having no history of elopement; not wandering; not verbalizing a need to leave the ALF; sleeping all night or getting up occasionally and not leaving the room; displaying orientation to time and place; dressing and presenting self in an appropriate manner and not requiring staff supervision outside of the building; ambulating or propelling self in wheelchair safely; and presenting no other behaviors associated with memory impairment. The elopement risk tool is completed by an ALF employee who is neither a health care provider nor or a mental health care provider. Of the 30 predictive factors, essentially only one, involving dementia, requires a medical or psychiatric diagnosis. It is, of course, not necessary to solicit from the health care provider an elopement risk assessment in order to obtain her opinion as to dementia. More importantly, overshadowing the dementia predictors to the point of near elimination are high- value predictors involving current behaviors, historic behaviors, and, most importantly, the perceived need to leave the facility to get to work or discharge domestic duties. Of these, the health care provider would have no direct knowledge, so her assessment of elopement risk would either be based on insufficient information or hearsay whose precise accuracy would be doubtful. On these facts, the requirement in rule 58A-5.0182 (8)(a) for a health care provider or mental health provider to assess a resident's elopement risk is unsupported by logic and the necessary facts. Rule 58A-5.0181(2)(b) incorporates Form 1823, which is divided into four sections. Sections 1, 2-A, and 2-B must be completed by a licensed health care provider. Section 3 must be completed by the ALF. The end of the form provides lines for the signatures of the resident and ALF. Under the signature of the resident, but not the ALF, the form states: "By signing this form, I agree to the services identified above to be provided by the [ALF] to meet identified needs." Section 1 is a "Health Assessment" that elicits information about allergies, medical history, height and weight, physical or sensory limitations, cognitive or behavioral status, nursing, treatment or therapy recommendations, special precautions, and "elopement risk." For all items except elopement risk, the form provides a block for comments; for elopement risk, the form provides only two boxes: one marked "yes" and one marked "no." Section 1.A asks: "To what extent does the individual need supervision or assistance with the following?" Seven activities of daily living (ADLs) are listed: ambulation, bathing, dressing, eating, self care (grooming), toileting, and transferring. Boxes allow the health care provider to pick one of four levels from independent to total care. The form also provides a block for comments beside each ADL. Section 1.B is: "Special Diet Restrictions." Four boxes are listed: regular, calorie controlled, no added salt, and low fat/low cholesterol. There are two lines for other dietary restrictions. Section 1.C asks: "Does the individual have any of the following conditions/requirements? If yes, please include an explanation in the comments column." Five items are listed: communicable disease, bedridden, pressure sores other than stage 1, "Pose a danger to self or others? (Consider any significant history of physically or sexually aggressive behavior.)," and 24 hour nursing or psychiatric care. The form provides a box for "yes/no" and a block for comments. Section 1.D asks: "In your professional opinion, can this individual's needs be met in an [ALF], which is not a medical, nursing, or psychiatric facility?" The form provides a box for "yes" and a box for "no," as well as a line for additional comments. Section 2-A is "Self-Care and General Oversight Assessment." Section 2-A.A is "Ability to perform Self-Care Tasks" and lists five tasks: preparing meals, shopping, making phone calls, handling personal affairs, handling financial affairs, and other. Boxes allow the health care provider to select one of three levels from independent to needs assistance. The form also provides a block for comments beside each task. Section 2-A.B is "General Oversight" and lists three tasks: "observing wellbeing," "observing whereabouts," "reminders for important tasks," and four spaces for "other." Boxes allow the health care provider to select one of four levels: independent, weekly, daily, and other. The form also provides a block for comments beside each task. Section 2-A.C is three lines for additional comments or observations. Section 2-B is "Self-Care and General Oversight Assessment--Medications." Section 2-B.A provides blocks for listing individual medications, dosages, directions for use, and route of administration. Section 2-B.B asks: "Does the individual need help with taking his or her medications (meds)?" The form provides a box for "yes" and a box for "no" with a direction, if yes is marked, to check one of the following three boxes: able to administer without assistance, needs assistance with self-administration, and needs medication administration. Section 2-B.C provides two lines for additional comments or observations. Immediately following Section 2-B is a section that requires identifying information about the health care provider and the date of the examination. Section 3 requires the ALF to identify the needs set forth in Sections 1 and 2 and provide the following information in blocks: identified needs, services needed, service frequency and duration, service provider name, and initial date of service. Form 1823 is mentioned in rule 58A-5.0181(2)(b) through (d), which describes the required medical examination based on when it takes place relative to admission or whether it follows a placement by Respondent, Department of Children and Families (DCF), or one of their private contractors. The rule states: HEALTH ASSESSMENT. As part of the admission criteria, an individual must undergo a face-to-face medical examination completed by a health care provider as specified in either paragraph (a) or (b) of this subsection. A medical examination completed within 60 calendar days before the individual’s admission to a facility pursuant to section 429.26(4), F.S. The examination must address the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations, An evaluation of whether the individual will require supervision or assistance with the activities of daily living, Any nursing or therapy services required by the individual, * * * 7. A statement on the day of the examination that, in the opinion of the examining health care provider, the individual’s needs can be met in an assisted living facility[.] * * * A medical examination completed after the resident’s admission to the facility within 30 calendar days of the admission date. The examination must be recorded on AHCA Form 1823, Resident Health Assessment for Assisted Living Facilities, March 2017 October 2010 . . . . The form must be completed as instructed. Items on the form that have been omitted by the health care provider during the examination may be obtained by the facility either orally or in writing from the health care provider. Omitted information must be documented in the resident’s record. Information received orally must include the name of the health care provider, the name of the facility staff recording the information, and the date the information was provided. Electronic documentation may be used in place of completing the section on AHCA Form 1823 referencing Services Offered or Arranged by the Facility for the Resident. The electronic documentation must include all of the elements described in this section of AHCA Form 1823. Any information required by paragraph (a), that is not contained in the medical examination report conducted before the individual’s admission to the facility must be obtained by the administrator using AHCA Form 1823 within 30 days after admission. Medical examinations of residents placed by the department, by the Department of Children and Families, or by an agency under contract with either department must be conducted within 30 days before placement in the facility and recorded on AHCA Form 1823 described in paragraph (b). For the same reasons that rule 58A-5.0182(8)(a) is arbitrary, but not capricious, the yes-or-no question as to elopement risk in section 1 is arbitrary, but not capricious. The record lacks counterparts to the elopement assessment tool for the remaining items under challenge from the Form 1823, so it is necessary to obtain from the CMS Documentary Guidelines the scope of a typical medical examination to address whether the challenged items in the Form 1823 are supported by logic and the necessary facts. A medical examination may cover any of ten organ systems or areas: cardiovascular; ears, nose, mouth, and throat; eyes; genitourinary; hematologic/lymphatic/immunologic; musculoskeletal; neurological; psychiatric; respiratory; and skin. Each organ system or area comprises several elements. Medical examinations may vary as to their scope. Between the two types of general multi-system medical examinations that are not focused on a particular problem, the less exhaustive examination, which is "detailed," typically requires an examination of at least a dozen elements spanning two to six organ systems or areas. If a multi-system medical examination includes a psychiatric examination, the examination typically involves no more than a "description of patient's judgment and insight" and "brief assessment of mental status including: orientation to time, place and person[;] recent and remote memory[; and] mood and affect (eg, depression, anxiety, agitation)[.]" Even a full psychiatric examination encompasses only the following elements: Description of speech including: rate; volume; articulation; coherence; and spontaneity with notation of abnormalities (eg, perseveration, paucity of language) Description of thought processes including: rate of thoughts; content of thoughts (eg, logical vs. illogical, tangential); abstract reasoning; and computation Description of associations (eg, loose, tangential, circumstantial, intact) Description of abnormal or psychotic thoughts including: hallucinations; delusions; preoccupation with violence; homicidal or suicidal ideation; and obsessions Description of the patient's judgment (eg, concerning everyday activities and social situations) and insight (eg, concerning psychiatric condition) Complete mental status examination including Orientation to time, place and person Recent and remote memory Attention span and concentration Language (eg, naming objects, repeating phrases) Fund of knowledge (eg, awareness of current events, past history, vocabulary) Mood and affect (eg, depression, anxiety, agitation, hypomania, lability) However, a full psychiatric examination would unlikely meet the reasonable expectations of Respondent or ALFs of a medical examination because it excludes consideration of any nearly all other organ systems or areas. The inquiry in Section 1.A about ADLs is not capricious, but is arbitrary as to some items. The scope of a typical medical examination will yield no information about a patient's ability to bathe, dress, groom, or toilet. The scope of a typical medical examination may yield some information about a patient's ability to ambulate, eat (as to swallowing), and transfer between a bed, chair, wheelchair, scooter, and car, and the health care provider should be able to rate the extent of the ability of the patient to perform each of these ADLs. Requiring the health care provider to rate the extent of the ability of the patient to perform any of the other ADLs is therefore not supported by logic or the necessary facts. The inquiry in Section 1.C about whether the patient poses a danger to self or others and directive to consider any significant history of physically or sexually aggressive behavior is arbitrary, but not capricious. Although a psychiatric examination would include a determination of whether the patient suffers from homicidal or suicidal ideations, a psychiatric examination is unlikely to take the place of a conventional medical examination, whose inclusion of limited psychiatric elements would not yield a reasonable basis for opining whether the patient poses a danger to self or others. Nor does the record suggest that the medical examinations of the type conducted for the admission of the patient to an ALF are conducted by psychiatrists, physician assistants specializing in psychiatry, or advanced registered nurse practitioners specializing in psychiatry. This finding necessitates the invalidation of the directive to consider significant history of physically or sexually aggressive behavior in responding to the question--a directive that is meaningless without the question of whether the patient poses a danger to self or others. The inquiry in Section 1.D about whether, in the "professional opinion" of the health care provider, the patient's needs can be met in an ALF that is not a medical, nursing, or psychiatric facility is arbitrary, but not capricious. No ALF is a medical facility, which likely means a hospital; nursing facility, which likely means a skilled nursing facility; or psychiatric facility, which likely means a psychiatric hospital. The addition of this information, which is superfluous to anyone who understands the nature of ALFs, reveals the concern of AHCA or Respondent that the health care providers lack even this basic knowledge of the nature of ALFs. Due, in fact, to their lack of knowledge of the specific features of an ALF, health care providers lack the foundation to answer this question intelligently. The request in section 2-A.A about the ability of the patient to perform self-care tasks and the request in section 2-A.B about the need of the patient for general oversight, are arbitrary, but not capricious, for the same reasons as set forth concerning the ADLs of bathing, dressing, grooming, and toileting. Section 3 is neither arbitrary nor capricious. The collection of needs identified in the preceding sections and identification of services to meet these needs, as well as the additional information, are not irrational and are supported by logic and the necessary facts. Due to section 3, the requirement that the resident and ALF sign the Form 1823 is neither arbitrary nor capricious. By signing, the resident explicitly agrees to receive the identified services, and the ALF implicitly agrees to provide the identified services; so it is not irrational or unsupported by logic or the necessary facts to require both parties to sign the Form 1823. However, if section 3 were invalidated, as it is below, the requirement of the signatures of the patient and ALF would be irrational and unsupported by logic and the necessary facts because there is no reason for the patient or ALF to sign a medical examination form, that does not also contain a statement of the services to be provided by the ALF. The only signature on a medical examination form that might rationally be required would be that of the health care professional in order to authenticate the completed form. A "form" is "the shape and structure of something as distinguished from its material--the building's massive form"; or "a printed or typed document with blank spaces for insertion of required or requested information tax forms."
Findings Of Fact At all times pertinent to the allegations set out in the Administrative Complaint, Licensee held a valid license issued by the State of Florida to operate the Roseland Park Adult Care Center, at 4137 Badger Road, West Palm Beach, Florida. Rose land Park Adult Care Center is a Type II facility, as defined by the rules of the Department. A Type II adult care center is one that is equipped to provide a greater degree of assistance to and observation of its residents ,than the Type I facility, and the requirements for resident supervision are more stringent. Both types of facility are subject to various periodic inspections by representatives of the Department's licensing staff and other agencies. Whenever an inspection is accomplished, the reason for an inspection is announced to representatives of the facility. When the inspection has been completed, an out-briefing is conducted. Inspections are normally done once a year by the Department either for initial licensing or prior to relicensing. In addition, there is usually one additional off-cycle inspection per year. When complaints are received about a facility by the Department or a report of patient abuse, inspections are also done. The Licensee's facility was first licensed in 1980 for six residents. Since March, 1981, to the date of the hearing, the Department's local office has received six or seven complaints as to patient care at this facility. One came from a former resident, one from the daughter of a resident, one from Dr. Crews, and several anonymous complaints. Of the approximately 20 other facilities of similar size in this general geographic area, Licensee's facility gets a much higher incidence of complaints than the others. According to Ms. Cook, a supervisor for Aging Adult Services for the Department (specialist), some complaints, such as personal care of the residents, are repeats, even after having been previously brought to the attention of Licensee. On or about June 30, 1982, Dr. Crews, a physician, notified the Department of his concerns about one particular resident of Licensee's facility, a Mrs. Opal Russell, a 76-year-old woman who was a resident of Licensee's facility since April 1, 1981, and who had been a patient of his. Mrs. Russell had been brought to his office by Licensee on several occasions, the last of which was that same date, when she was brought in for a checkup, not a full physical. When she came into the office, she was walking under her own power and was responsive to the nurse. Licensee was not present when the vital signs were taken. The nurse noticed bruises on Mrs. Russell, and when she asked what had happened, Mrs. Russell replied that they were mean to her, without indicating who "they" were. During this visit, the Licensee indicated to the doctor that Mrs. Russell had been falling a lot. Dr. Crews indicated his concern that Mrs. Russell appeared to have seriously deteriorated in condition since he had last seen her on May 20, 1981, and he questioned the level of care she was receiving. Mrs. Russell had extensive bruising on her face, chest and upper forearm, and he felt she needed more care than she could get in a facility such as Licensee's. He advised Licensee of this fact and suggested she be moved to a hospital, but she was not. When he questioned Licensee about the bruises, she replied that Mrs. Russell was falling a lot. The facial bruises appeared to be about five days old and the other bruises somewhat more recent. The physician's certificate justifying keeping this patient on the premises was not filed with the Department as required by Rule 10A-5.18(1)(d), F.A.C. Ms. Loehndorf went back for a follow-up visit on July 7, 1982. When she arrived at mid-morning, it was naptime, and almost every resident was in bed resting, but only Mrs. Russell was in what appeared to be a very deep sleep. During the entire half hour Ms. Loehndorf was there, Mrs. Russell did not move. When Ms. Loehndorf again visited the facility on July 9, 1982, shortly after Mrs. Russell was admitted to the hospital, Licensee told her that Mrs. Russell had been in a coma for 36 hours prior to admission to the hospital, and when she asked if there had been any recent trauma or falls, Licensee replied there had not been. Barbara Trigg came to work at Licensee's facility on July 1, 1982. When she first started working there, Mrs. Russell appeared to be fine, considering her age. Her speech was somewhat incoherent, but she could feed herself and watch television, etc., though she had to be helped to go to the bathroom. Ms. Trigg noticed a deterioration in Mrs. Russell over the period of time she worked there. She noticed several bruises on Mrs. Russell's head, but does not know how they got there. She never saw Mrs. Russell fall. When she left work on July 6, Mrs. Russell appeared to be well. When she returned the next time, at 11:00 a.m. on July 9, 1982, she immediately noticed that Mrs. Russell was not the same. She was still in bed and appeared to be drowsy. At the request of Licensee, she helped her take Mrs. Russell to the kitchen, where Licensee unsuccessfully tried to get Mrs. Russell to drink some coffee. Then, Licensee directed Ms. Trigg to help her try to walk Mrs. Russell around outside. This amounted to no more than dragging her, as Mrs. Russell could neither walk nor support herself. Ms. Trigg advised Licensee's husband when he got home that Mrs. Russell should be in the hospital. Mr. Willis replied, as had Licensee on several occasions, that Mrs. Russell "got that way" sometimes. Ms. Trigg, who was often left alone in the facility with the residents, is not trained in cardio-pulmonary resuscitation (CPR). She would have had a very difficult time in saving the residents in case of a fire or other emergency. When Licensee and her husband returned from dinner and checked on Mrs. Russell, she noticed Mrs. Russell had developed a deep, yellow color which alarmed her, as did Mrs. Russell's vital signs. Licensee immediately called Dr. Daisey Mercy, who had treated some of the residents in Licensee's facility and who advised Licensee to immediately take Mrs. Russell to the hospital. Licensee admits that she did not call the doctor earlier on July 8 or 9 when Mrs. Russell would not eat or when she could not walk, but justifies that inaction on the basis that her condition had changed back and forth before, and this did not appear to be significantly different. She began to believe something out of the ordinary had happened when she and Ms. Trigg were walking Mrs. Russell around outside, but even then she did not call because she did not think there was any reason to do so. Licensee also called Mrs. Russell's son, reaching him after some difficulty, who directed Licensee to take his mother to JFK Hospital. When they got there, Licensee told the admitting nurse that Mrs. Russell had been comatose for 36 hours. She also made this statement to Ms. Loehndorf and Ms. Cook later that day when they came to the facility, though she does not recall saying that and now states she used the term "comatose" without knowing what it meant. I find, however, that she used the term as indicated by the witness and that in fact Mrs. Russell was comatose at the time of admission to the hospital. Licensee's use of the term was accurate. Dr. Albert Auld, a neurological surgeon, saw Mrs. Russell on July 10, 1982, after her admission to the hospital. At that time, she was comatose. A CAT scan revealed that she had a large subacute subdural hematoma on the left side of her brain, which he subsequently removed. The hematoma was classified as subacute because the clot had already begun to form out of the mass of blood that had collected, usually as the result of an injury to the head. The clot had already begun to the on a black, oily a black, oily consistency, which indicated the causing injury had taken place up to 12 days to two weeks previously. In the case of subdural hematomas, by the time they are subacute, the bleeding has already stopped. The blood that has gathered breaks down and absorbs fluids from the body, which makes it bigger. The trauma causing the injury may be rather trivial as opposed to significant, and the older the patient is, the less trauma it may take to cause a subdural hematoma. It usually stops bleeding the day of the injury, but with the absorption of body fluids, it gets bigger. This does not necessarily result in an immediate comatose state. In fact, there may be few symptoms for several days or several months, and as the clot becomes larger and larger, the patient becomes lethargic and sleepy, and gradually ingresses to a comatose condition, and death follows. In the case of Mrs. Russell, there was bruising around the left eye, which is consistent with a subdural hematoma on the left side as she had and which in the opinion of the doctor could have been caused prior to June 28, 1982. Mrs. Russell improved considerably after the operation, though Dr. Auld could not get her to talk. This absence of speech could have been volitional or as the result of the subdural hematoma. She was released from the hospital to a nursing home on August 8, 1982, and died sometime thereafter. At no time, either prior to or subsequent to June 28, 1982, did Licensee obtain and/or forward to the Department a signed statement, from Mrs. Russell's physician, Dr. Crews, or any other physician or person identified by the rule, as required, that Mrs. Russell should remain in Licensee's facility. Licensee categorically denied any knowledge of any falls or blows subsequent to June 8, 1982, the date of the injury that was the subject of the last report to the Department and which, according to Licensee, caused the bruise around the eye. Investigation by the Palm Beach County Health Department of Licensee's facility on several occasions and specifically on June 28, 1982, revealed the continued use of butcher paper on the beds, the storage of vitamins with food stuffs and the fact that the residents' beds were not made by 11:30 a.m., both of which facts had previously been brought to the attention of Licensee, but on the latest visit were found to be still in evidence. There was also evidence of the use of restraints that were lockable and bedside toilets.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Health and Rehabilitative Services' revocation of Mary E. Willis's revocation of Mary E. Willis's license to operate the Roseland Park Adult Care Center dated July 16, 1982, be sustained and a final order of revocation be entered. RECOMMENDED this 5th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 5th day of August, 1983. COPIES FURNISHED: K. C. Collette, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 Bruce J. Daniels, Esquire Lesser, Daniels & Shalloway, P.A. 909 North Dixie Highway West Palm Beach, Florida 33401 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Charter is a wholly owned subsidiary of Charter Medical Corporation, (CMC), a hospital corporation established in 1969. CMC presently owns and operates health care facilities and health related organizations throughout the United States and abroad. Within its inventory are 27 psychiatric and addictive disease hospitals and 12 medical/surgical hospitals in addition to several other health related entities. Charter, by application filed on November 15, 1983 and subsequently amended, proposed to develop Charter Haven Hospital, (Charter Haven), a freestanding hospital containing 52 short term psychiatric and addictive disease beds, in Bradenton, Manatee County, Florida. The bed makeup will consist of 25 beds for adult and geriatric psychiatric patients, 16 beds for adolescent psychiatric and addictive disease patients, and 11 beds for adults with alcohol and drug-related problems. The geriatric patients will have the benefit of a specialized program designed specifically for the special problems of geriatric patients. Treatment will be open to all on a nondiscriminatory basis. Charter's application was denied in March, 1983, and denial was reaffirmed in June, 1983, on the basis that Petitioner failed to show need for the proposed facility in HRS District VI as defined by Rule 10-5.11(25), Florida Administrative Code. Intervenor, MMHC's application for a similar facility, filed in a later batching cycle, was also denied on the same basis. Petitioner's proposed facility would be located on a 9.34 acre site on Cortez Road in Bradenton, approximately 1 - 2 miles from the currently existing Blake Memorial Hospital and 4 - 5 miles from MMH. MMHC is located about 2 - 3 miles from the site which is readily available to staff, prospective patients, and physicians. Its reasonable proximity to the cited hospitals facilitates the providing of medical treatment to patients on a routine or emergency basis. The facility in question was designed for CMC within standardized design parameters developed specifically to create a facility in which psychiatric care could be provided in a non-institutional atmosphere. The building, proposed as a one-story, self-contained structure incorporating within it all treatment services and program elements, is to be constructed so as to be compatible with the Florida climate and environment and the complex will include facilities, both indoor and outdoor, to take advantage of the Florida life- style. All patient rooms will have outside windows. Considerable attention has been given in design to cost efficiency and professionally appropriate design criteria as well. The patient units, (adult, geriatric, and adolescent), can be utilized as either open or closed units by the use of doors adjacent to the main nursing station which, itself, is located in a centralized spot which affords nurses and staff members visual control of the major corridors in each unit. The facility is equipped to handle violent, disruptive, or involuntarily committed patients whose special needs can be handled by the use of seclusion rooms on the units. Areas to be utilized for such activities as classrooms, occupational therapy, and recreation are generally outside the nursing units and are designed to serve patients from more than one unit, on a scheduled basis. Some facilities, such as the gym, serve a multipurpose function. Design organization incorporates numerous cost and energy saving concepts. For example, each room will be individually temperature controlled; all corridors have rooms on both sides; and specialty areas with special design requirements are grouped together where possible. This facility, which CMC considers to be the state of the art in psychiatric hospital design, was designed with the intent to have it economically expandable to meet proposed prospective future needs. It is anticipated that its design will comply with the requirements of all standardizing and licensing agencies as they pertain to psychiatric hospital construction. MMH, a community based, not for profit general acute care hospital in Bradenton, operates an inpatient psychiatric care unit identified as the Mental Health Unit, (MHU). Approximately 22 percent of the MHU patients are Baker Act eligible under a contract with the MMHC which requires the MHU and MMH to accept Baker Act patients regardless of the fact that reimbursement funds may be insufficient or depleted. In fact, as of the hearing, insufficient funds were available to pay for the total care provided to Baker Act and indigent patients treated in the MHU. MMHC, also a nonprofit, community based organization, is a part of the community's public-funded mental health care system. It provides an extensive range of mental health care in the Bradenton community for the prevention and rehabilitation of mental, emotional, and substance abuse disorders. MMHC operates 13 separate programs including crisis intervention and counselling to approximately 5,500 outpatient and residential psychiatric and substance abuse patients per year regardless of the individual's ability to pay. The MMHC provides inpatient and substance abuse care at its Glenridge center which is licensed to operate crisis stabilization, short term residential care, and substance abuse units. The substance abuse unit operates both detoxification and 28-day treatment programs with the former having 9 beds and the latter 20. The short term residential and crisis stabilization unit has 8 inpatient beds. Staffing includes nursing personnel, counselors, psychiatric technicians, physicians, and support staff. The facility is housed in an inadequate 60 year old frame building which is to be replaced by a new facility funded by the Florida Legislature. It will contain 54 beds (12 substance abuse and 42 psychiatric) and is scheduled for opening in 1985. MMHC has applied for a CON to operate the new facility as a psychiatric hospital rather than as Glenridge is presently operated. MMHC is the Baker Act receiving facility for Manatee County and nearly 100 percent of its patients are either Baker Act eligible or indigent. While currently unable to handle disruptive patients and required to transfer them to MMH's MHU, the opening of the new facility, it hopes, will enable it to care for all Baker Act eligible, indigent, and disruptive patients in-house without referral to MMH. Charter's project is estimated to have a total cost of approximately $5,102,000. The individual factors which go into the total cost makeup are reasonable and supportable and include such items as development costs and feasibility studies, financing (interest) fees and loan origination fees; professional services (legal, accounting, architectural, and engineering); site survey and preparation; land acquisition; construction; and equipment. Because of its widespread and high-volume purchases, CMC is able to get reduced prices on much of its equipment and supplies. Further, its support services to the individual hospitals in the areas of consultations, planning and development, and personnel recruitment are designed to and generally do reduce costs. MMHC, on the other hand, contends that CMC's demonstrated willingness to pay higher salaries could tend to drive local personnel costs up. There is no demonstrable evidence, outside the professed intentions on the one hand and the speculation about results on the other to show what in fact, would happen. On the question of financial feasibility, during its first year of operation (projected August 1, 1985 - July 31, 1986) the 52 bed facility is expected to experience a 61 percent occupancy rate which would translate into 11,578 patient days. Bad debt in the first year, based on CMC's experience in opening other hospitals, is anticipated at 6 percent in the first year of operation and 5 percent in the second. This is in addition to "Charter Care," a policy within CMC which in the instant case, would provide 2 free beds (a $250,000.00 value) for indigent patients within the first year of the facility's operation. Indigent care and bad debts (including contractual adjustments) are expected to constitute 11 percent of the first year's total patient days. Since projected total revenue is based on a rate of $350.00 per patient day 1/ for a total of $4,052,00.00 (11,578 x $350.00), deductions for Charter Care, bad debts, and Baker Act patients result in a net revenue during the first year of $3,384,000.00. Medicaid is not available as a reimbursement mechanism for this facility. Further deductions for salary and benefits, figured at $19,500.00 per person, on CMC's historical and reasonable average, and supplies and expenses of $85.00 per patient day are reasonable in both categories. Projections for both income and expense are considered reasonable as is the profit margin projected for the first two years of operation. In determining where to locate its proposed facility in this area, Charter utilized two criteria: (1) the site must have accessibility to users, practitioners, and other facilities; and, (2) the site must be capable of being built on. The site selected appears to meet both criteria. In addition, however, Charter personnel also considered alternates to new construction (the conversion of an existing building, for example) but were unable to find anything suitable that was available. They talked, in advance, with representatives of MMH and MMHC with a view towards some sort of cooperative endeavor, but while the response was originally not negative, it became so after the proposal was brought to Intervenors' Boards. Notwithstanding that initial rejection, Charter indicates its desire to open and keep open lines of communication with these facilities and to, in fact, engage in some cooperative efforts where possible. In fact, it is, Charter contends, its policy and intent, consistent with its practice in all its facilities, to maintain an interface with the local community on community issues. It will enter into memoranda of understanding here, such as it has done in the past in other areas into which it has come, such as Ocala, Florida; Macon, Georgia; and Ft. Wayne, Indiana. Regarding Charter's policy on the provision of care to indigents, CMC has a two-part program. Part I deals with emergency care and states that anyone will be treated on an emergency basis and further disposition of that patient is made when it is medically safe to do so. In Part II, Charter Care, as mentioned above, provides for free care to some percentage of patients on a longer term basis. Here it is anticipated that two beds from the facility inventory of 52 beds will be available to indigent patients within the first year. Admittedly, some of the older Charter hospitals do not have a clearly defined pre-need Charter Care policy. In those cases, a decision is made regarding indigent patients on a case by case basis. Here, Charter Care will be provided to low income patients based on criteria still to be set. In these cases, the local hospital administrator will have the authority to make the determination as to whether a particular applicant meets that criteria. It was acknowledged, however, that this Charter Care policy could be terminated at any time. CMC indicates this hospital would be available for and would like to receive Baker Act patients. However, the Charter management realizes that MMHC is the area's primary Baker Act receiving facility. Nonetheless, if possible, they could be desirous of striking an agreement with MMHC to take those patients who cannot be served there. In this regard, Petitioner's representation of its proposed occupancy rate includes 5 percent Baker Act patients. Charter's representative believes, however, that there are sufficient other non-Baker Act patients available to ensure that a reduction in patient census would not occur as a result of the absence of this type of patient. In any case, Charter's admission policy is for this facility to take patients without discriminating against any group on any basis. Charter predicts occupancy rates which, if achieved, would meet the requirements of Respondent's rules. These are: 70 percent for adult and 60 percent for child psychiatric in the second year; 80 percent for adult and 70 percent for child psychiatric in the third year; and 70 percent and 80 percent for substance abuse in the second and third years respectively. In that regard, the 11,578 overall patient days in 1985 referred to above in the discussion of financial feasibility constitutes only a 64 percent occupancy rate, but it is expected that there will be 15,184 overall patient days in 1986 which would constitute an 80 percent rate and these projections appear reasonable when the data from the Office of Graduate Medical Education, (OGME), showing 20,000 patient days available to this facility, as testified to by Charter's health planning expert, is considered. In fact, the number of anticipated 1989 admissions projected by the Petitioner's and Intervenor's experts, of 1,105 and 1,114, respectively, are quite close. If, in fact, as represented by Intervenor's expert, freestanding psychiatric units have longer average patient stays than psychiatric units in general hospitals, Petitioner's expert's expectations of patient stays of 15 days at MMH's MHU and 30 days at Charter's proposed facility are not unreasonable. The majority of experts from both sides agreed that average stay lengths at the freestanding hospital could be expected to be: adults, 25-30 days; adolescents, 45 days; and substance abuse, 28-30 days. When these figures are correlated with the demonstrated occupancy rates at MMH's MHU, an overall community length of stay is shown to be 25 days. Applying those figures to the existing bed inventory plus CMC's proposed beds, it is not at all unreasonable to assume that both facilities would stay fully occupied. Another factor to be considered here is the size of the projected Baker Act patient load in the service area of Manatee County. Intervenors' expert contends that 42 percent of the entire county population would be Baker Act eligible based on family income. However, Petitioner introduced evidence to indicate the income figure was met in that county by only 11.6 percent of the population. Assuming, arguendo, that the real figure falls somewhere in between the two, this is still moderated by the fact that some Baker Act eligible patients who are employed, have health insurance which would enable that patient to receive treatment outside the Baker Act. CMC's proposed facility would be located in HRS Health District VI which encompasses Hillsborough and Manatee Counties as well as Hardee, Highlands, and Polk Counties. It defines its primary service area for the facility as Manatee County and the secondary service would take in the additional southern portion of Hillsborough County, an area more closely related in identity with the more relaxed Bradenton life style rather than the more urban Tampa life style. In addition, demographic makeup aligns the area more with Bradenton than with Tampa because of the large percentage of over 65 individuals there currently and predicted for the future. Population statistics developed by the University of Florida's Bureau of Economics and Business Research (BEBR) indicated a 1980 Manatee County population of 142,442 and a projected 1990 of 197,000 (medium) or 212,800 (high). Whichever figure is accepted, there is a definite substantial increase in population projected which does not take into account a seasonal influx of winter residents which can reasonably be expected. Considering also the potential increase in the percentage of younger people in the projected population, the projections are conservative and not at all unreasonable. Further, any accurate analysis must also consider the population projected for the southern portion of Hillsborough County which was previously identified as forming a part of the projected secondary area. No doubt the majority of these individuals, who by the BEBR projections will number between 48,500 and 52,000, will utilize facilities in the Bradenton area rather than going the greater distance through much heavier traffic to Tampa. At the present time, District VI has 562 licensed psychiatric beds with 94 additional CON approved. Of this total of 656 beds, only the 25 located at MMH's MHU are within the immediate or secondary service areas as defined by Petitioner. The majority of the remainder are in Tampa with a lesser number in the other counties. The District also currently has 72 licensed substance abuse beds with 22 additional CON approved. None of these beds are currently located in Manatee or lower Hillsborough Counties. Under the currently utilized HRS bed need methodology as set out in Rule 10-5.11(25) and (27), Florida Administrative Code, the fixed ratio for psychiatric inpatient bed need is .35 per 1,000 population, and for substance abuse, .06 per 1,000. Additional beds may not be approved unless existing inpatient adult psychiatric beds show an occupancy rate of 75 percent or greater (70 percent for adolescent beds), and substance abuse beds a rate of 80 percent or greater for the preceding 12 months district wide. The rule for proposed facilities requires new adult psychiatric and substance abuse facilities to meet a 70 percent and 80 percent occupancy rate for the second and third years of operation respectively, and 60 percent and 70 percent for adolescent beds for the same time frame. Review of occupancy rates for 1983 reflects a rate of approximately 65 percent combined psychiatric and substance abuse in District VI. The proposed rule which would have made Manatee County a sub-district of District VI was never adopted by HRS and has been withdrawn. Consequently, there is currently a substantial surplus of licensed and approved psychiatric and substance abuse beds over those computed as needed using the above rule. This surplus, to some degree or other, is acknowledged by all parties. Considering what other facilities are or will be available in the 5 year out time frame, as required, it can be seen that the MMH's MHU will still be in operation and providing inpatient facilities to some degree. Whether approved as a psychiatric hospital or not, MMHC will have inpatient treatment capability which will, to a substantial degree at least, satisfy the Baker Act population need. Another major factor is that provision of Rule 10-5.11(25) which dictates that short term inpatient psychiatric care should be available within a maximum travel time of 45 minutes, under average travel conditions, for 90 percent of the area population. There can be little doubt that those individuals in Manatee County, and, for the most part, the southernmost part of Hillsborough County contiguous to Manatee County, are not within 45 minutes normal driving time of the facilities in Tampa, or, for that matter, those in the other, less urban, portions of the District such as Polk, Highlands, and Hardee counties. Consequently, if patients from the immediate service area in question here can be considered to relate only to District VI facilities, there is little doubt that from the access standpoint, there is a definite need. Respondent contends there is an alternative, however, that there are three hospitals in Sarasota, well within the access criteria, which have 99 licensed and 37 approved psychiatric beds currently utilized at less than 80 percent occupancy. These Sarasota based beds, admittedly in a different District, are nonetheless at least partially available to patients from Bradenton, Manatee County, and southern Hillsborough County within 45 minutes normal driving time. However, the beds in Sarasota (District VIII) were predicated upon the population in that District which does not include the Manatee and southern Hillsborough County patients. Consequently, a tangible impact on these District VIII facilities can be expected from an influx of District VI patients and it is not reasonable to expect the current surplus to be available in the 1989 time frame since the District VIII population, is itself in a state of rapid growth. There are many valid reasons why health care professionals feel that hospitalization within the community, especially in the area of psychiatric and substance abuse treatment, is imperative. As to adolescents, this discipline requires the involvement of the whole family. Repeated lengthy drives on an every-two-day basis, even to Sarasota, especially during the high traffic volume winter months, is disruptive to the course of treatment. The inconvenience of the long trip quite often lessens an already minimal desire for involvement on the part of the family and without family involvement, the potential for recurrence of the illness is higher. In the case of geriatric patients, the problem is similar. Family involvement is of great importance and here, with older spouses, the difficulty of long distance travel in relatively unfamiliar areas heightens the risk and increases the stress on both the patient and the family. Family involvement plays an integral part in the treatment of addictive diseases as well. In fact, in the opinion of one expert in the field, the recovery rate for alcoholic patients is 20 percent higher when the family is involved. In light of the above, there can be little question that the availability of easy access to local treatment is of major importance. What then is currently available to satisfy the area's need for short term inpatient psychiatric care? The only locally available short-term psychiatric beds are in the Mental Health Unit at MMH. However, because of the shortage of beds, that facility treats, as a rule, only acute psychiatric patients. The average length of stay there, in the experience of one physician who has used it, is from 10 to 11 1/2 days. Many of this practitioner's patients who could have benefited from longer term treatment once the acute phase was over, were not able to get it there because of the shortage of beds. As of the date of the hearing, the 25 bed unit had 37 patients with the addition of beds to already occupied patient rooms and to the hallways. This overcrowding, to one extent or another, has existed for several years. Further, this unit, located within MMH, does not have space for and therefore does not offer such beneficial items as recreational programs or occupational and physical treatment programs that might be expected at a free standing psychiatric hospital. In addition, it cannot reasonably, and does not, separate patients by age. In the experience of at least the testifying physician, it is difficult to get patients admitted to this facility. The other local facility is the MMHC. This facility does not permit admissions by private physicians in the area who desire to continue to assist in the care of their patients. The current facility has only 8 beds in operation and does not have the capability to handle disruptive patients who, as stated above, must be transferred to the MHU at MMH. From all the above, it becomes very clear and it is so found that: Less costly, more efficient, or more appropriate alternatives to the proposed inpatient service, are not reasonably available except outside the health district involved or within, but far beyond a 45-minute driving time for the potential patient, in the immediate geographic area described here. Existing inpatient facilities within the area to be served, providing services similar to those proposed are overcrowded and currently overtaxed and unable to accommodate more patients. Alternatives to new construction have been considered and found to be unsatisfactory or as nonexistent. Patients are now and will continue to experience serious problems in obtaining inpatient care of the type proposed within a reasonable distance within the District. Use of facilities outside the District would be only an interim, stopgap measure.
Recommendation Based on the above Findings of Fact and Conclusions of Law, it is: RECOMMENDED THAT Petitioner, Charter Medical-Southeast, Inc., d/b/a Charter Haven Hospital, be DENIED a Certificate of Need to construct and operate a 52 bed short term psychiatric and substance abuse hospital in Manatee County, Florida. RECOMMENDED this 27th day of September, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1984.
Findings Of Fact The Application West Florida Regional Medical Center is a 400-bed acute care hospital in Pensacola, Escambia County, Florida. The hospital is located in a subdistrict which has the greatest population aged 65 and over who are living in poverty. That group constitutes the population qualified for Medicare. Some 17 percent of Escambia County's population falls into the medicare category. Prior to October, 1987, HRS had determined that there was a fixed pool need in the Escambia County area for 120 nursing home or extended care beds. Several hospitals in the Escambia County area applied for the 120 nursing home beds. Those beds were granted to Advocare (60 beds) and Baptist Manor (60 beds). The award of the 120 beds to Baptist Manor and Advocare is not being challenged in this action. West Florida, likewise, filed an application for an award of nursing home beds in the same batch as Advocare and Baptist Manor. However, Petitioner's application sought to convert 8 acute care beds to nursing home or extended care beds. West Florida's claim to these beds was not based on the 120 bed need established under the fixed need pool formula. West Florida's application was based on the unavailability of appropriately designated bed space for patients who no longer required acute care, but who continued to require a high skill level of care and/or medicare patients. The whole purpose behind West Florida's CON application stems from the fact that the federal Medicare system will not reimburse a hospital beyond the amount established for acute care needs as long as that bed space is designated as acute care. However, if the patient no longer requires acute care the patient may be re-designated to a skilled care category which includes nursing home or extended care beds. If the patient is appropriately reclassified to a skilled care category, the hospital can receive additional reimbursement from Medicare above its acute care reimbursement as long as a designated ECF bed is available for the patient. Designation or re-designation of beds in a facility requires a Certificate of Need. Petitioner's application for the 8 beds was denied. When the application at issue in this proceeding was filed Petitioner's 13-bed ECF unit had been approved but not yet opened. At the time the State Agency Action Report was written, the unit had just opened. Therefore, historical data on the 13 bed unit was not available at the time the application was filed. Reasons given for denying West Florida's application was that there was low occupancy at Baptist Hospital's ECF unit, that Sacred Heart Hospital had 10 approved ECF beds and that there was no historical utilization of West Florida 13 beds. At the hearing the HRS witness, Elizabeth Dudek stated that it was assumed that Baptist Hospital and Sacred Heart Hospital beds were available for West Florida patients. In 1985 West Florida applied for a CON to establish a 21-bed ECF unit. HRS granted West Florida 13 of those 21 beds. The 8 beds being sought by West Florida in CON 5319 are the remaining beds which were not granted to West Florida in its 1985 CON application. In order to support its 1985 CON application the hospital conducted a survey of its patient records to determine an estimate of the number of patients and patient days which were non acute but still occupied acute care beds. The hospital utilized its regularly kept records of Medicare patients whose length of stay or charges exceeded the Medicare averages by at least two standard deviations for reimbursement and records of Medicare patients whose charges exceed Medicare reimbursement by at least $5,000. These excess days or charges are known as cost outliers and, if the charge exceeds the Medicare reimbursement by $5000 or more, the excess charge is additionally known as a contractual adjustment. The survey conducted by the hospital consisted of the above records for the calendar year 1986. The hospital assumed that if the charges or length of stay for patients were excessive, then there was a probability that the patient was difficult to place. The above inference is reasonable since, under the Medicare system, a hospital's records are regularly reviewed by the Professional Review Organization to determine if appropriate care is rendered. If a patient does not meet criteria for acute care, but remains in the hospital, the hospital is required to document efforts to place the patient in a nursing home. Sanctions are imposed if a hospital misuses resources by keeping patients who did not need acute care in acute care bed spaces even if the amount of reimbursement is not at issue. The hospital, therefore goes to extraordinary lengths to place patients in nursing home facilities outside the hospital. Additionally, the inference is reasonable since the review of hospital records did not capture all non-acute patient days. Only Medicare records were used. Medicare only constitutes about half of all of West Florida's admissions. Therefore, it is likely that the number of excess patient days or charges was underestimated in 1986 for the 1985 CON application. The review of the hospital's records was completed in March, 1987, and showed that 485 patients experienced an average of 10.8 excess non-acute days at the hospital for a total of 5,259 patient days. The hospital was not receiving reimbursement from Medicare for those excess days. West Florida maintained that the above numbers demonstrated a "not normal need" for 21 additional ECF beds at West Florida. However as indicated earlier, HRS agreed to certify only 13 of those beds. The 13 beds were certified in 1987. The 13-bed unit opened in February, 1988. Since West Florida had planned for 21 beds, all renovations necessary to obtain the 8-bed certification were accomplished when the 13- bed unit was certified in 1987. Therefore, no capital expenditures will be required for the additional 8 beds under review here. The space and beds are already available. The same study was submitted with the application for the additional eight beds at issue in these proceedings. In the present application it was assumed that the average length of stay in the extended care unit would be 14 days. However, since the 13 bed unit opened, the average length of stay experienced by the 13-bed unit has been approximately 15 days and corroborates the data found in the earlier records survey. Such corroboration would indicate that the study's data and assumptions are still valid in reference to the problem placements. However, the 15- day figure reflects only those patients who were appropriately placed in West Florida's ECF unit. The 15-day figure does not shed any light on those patients who have not been appropriately placed and remain in acute care beds. That light comes from two additional factors: The problems West Florida experiences in placing sub-acute, high skill, medicare patients; and the fact that West Florida continues to have a waiting list for its 13 bed unit. Problem Placements Problem placements particularly occur with Medicare patients who require a high skill level of care but who no longer require an acute level of care. The problem is created by the fact that Medicare does not reimburse medical facilities based on the costs of a particular patients level of care. Generally, the higher the level of care a patient requires the more costs a facility will incur on behalf of that patient. The higher costs in and of themselves limit some facilities in the services that facility can or is willing to offer from a profitability standpoint. Medicare exacerbates the problem since its reimbursement does not cover the cost of care. The profitability of a facility is even more affected by the number of high skill Medicare patients resident at the facility. Therefore, availability of particular services at a facility and patient mix of Medicare to other private payors becomes important considerations on whether other facilities will accept West Florida' s patients. As indicated earlier, the hospital goes to extraordinary lengths to place non- acute patients in area nursing homes, including providing nurses and covering costs at area nursing homes. Discharge planning is thorough at West Florida and begins when the patient is admitted. Only area nursing homes are used as referrals. West Florida's has attempted to place patients at Bluff's and Bay Breeze nursing homes operated by Advocare. Patients have regularly been refused admission to those facilities due to acuity level or patient mix. West Florida also has attempted to place patients at Baptist Manor and Baptist Specialty Care operated by Baptist Hospital. Patients have also been refused admission to those facilities due to acuity level and patient mix. 16 The beds originally rented to Sacred Heart Hospital have been relinquished by that hospital and apparently will not come on line. Moreover the evidence showed that these screening practices would continue into the future in regard to the 120 beds granted to Advocare and Baptist Manor. The president of Advocare testified that his new facility would accept some acute patients. However, his policies on screening would not change. Moreover, Advocare's CON proposes an 85 percent medicaid level which will not allow for reimbursement of much skilled care. The staffing ratio and charges proposed by Advocare are not at levels at which more severe sub-acute care can be provided. Baptist Manor likewise screens for acuity and does not provide treatment for extensive decubitus ulcers, or new tracheostomies, or IV feeding or therapy seven days a week. Its policies would not change with the possible exception of ventilated patients, but then, only if additional funding can be obtained. There is no requirement imposed by HRS that these applicants accept the sub-acute-patients which West Florida is unable to place. These efforts have continued subsequent to the 13-bed unit's opening. However, the evidence showed that certain types of patients could not be placed in area nursing homes. The difficulty was with those who need central lines (subclavian) for hyperalimentation; whirlpool therapy such as a Hubbard tank; physical therapy dither twice a day or seven days a week; respiratory or ventilator care; frequent suctioning for a recent tracheostomy; skeletal traction; or a Clinitron bed, either due to severe dicubiti or a recent skin graft. The 13-bed unit was used only when a patient could not be placed outside the hospital. The skill or care level in the unit at West Florida is considerably higher than that found at a nursing home. This is reflected in the staffing level and cost of operating the unit. Finally, both Advocare and Baptist Manor involve new construction and will take approximately two years to open. West Florida's special need is current and will carry into the future. The Waiting List Because of such placement problems, West Florida currently has a waiting list of approximately five patients, who are no longer acute care but who cannot be placed in a community nursing home. The 13-bed unit has operated at full occupancy for the last several months and is the placement of last resort. The evidence showed that the patients on the waiting list are actually subacute patients awaiting an ECF bed. The historical screening for acuity and patient mix along with the waiting list demonstrates that currently at least five patients currently have needs which are unmet by other facilities even though those facilities may have empty beds. West Florida has therefore demonstrated a special unmet need for five ECF beds. Moreover, the appropriate designation and placement of patients as to care level is considered by HRS to be a desirable goal when considering CON applications because the level of care provided in an ECF unit is less intense than the level of care required in an acute care unit. Thus, theoretically, better skill level placement results in more efficient bed use which results in greater cost savings to the hospital. In this case, Petitioner offers a multi-disciplinary approach to care in its ECF unit. The approach concentrates on rehabilitation and independence which is more appropriate for patients at a sub-acute level of care. For the patients on the awaiting proper placement on the waiting list quality of care would be improved by the expansion of the ECF unit by five beds. Finally, there are no capital costs associated with the conversion of these five beds and no increase in licensed bed capacity. There are approximately five patients on any given day who could be better served in an ECF unit, but who are forced to remain in an acute care unit because no space is available for them. This misallocation of resources will cost nothing to correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a CON to Petitioner for five ECF beds. DONE and ORDERED this 30th day of March, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1989. APPENDIX The facts contained in paragraph 1-29 of Petitioner's proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 1, 2, 3, 4, 5, 6, 8, 12, 15, 16, 20, 27, 28, 29, 31 and 33 of Respondent's Proposed Findings of Fact are subordinate. The first sentence of paragraph 7 of Respondent's Proposed Findings of Fact was not shown to be the evidence. Strict compliance with the local health plan was not shown to be an absolute requirement for CON certification. The remainder of paragraph 7 is subordinate. The facts contained in paragraph 9, 10, 11 and 30 of Respondent's Proposed Findings of Fact were not shown by the evidence. The first part of the first sentence of paragraph 13 of Respondent's Proposed Findings of Fact before the semicolon is adopted. The remainder of the sentence and paragraph is rejected. The first sentence of paragraph 14 of Respondent's Proposed Findings of Fact was not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in paragraph 17, 26 and 32 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. The acts contained in paragraph 18 are rejected as supportive of the conclusion contained therein. The first (4) sentences of paragraph 19 are subordinate. The remainder of the paragraph was not shown by the evidence. The first (2) sentences of paragraph 21 are adopted. The remainder of the paragraph is rejected. The facts contained in paragraph 22 of Respondent's Proposed Findings of Fact are irrelevant. The first sentence of paragraph 23 is adopted. The remainder of paragraph 23 is subordinate. The first sentence of paragraph 24 is rejected. The second, third, and fourth sentences are subordinate. The remainder of the paragraph is rejected. The first sentence of paragraph 25 is subordinate. The remainder of the paragraph is rejected. COPIES FURNISHED: Lesley Mendelson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Donna H. Stinson, Esquire MOYLE, FLANIGAN, KATZ, FITZGERALD & SHEEHAN, P.A. The Perkins House - Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue In its petition, Florida Psychiatric Centers (FPC) alleges that HRS seeks to grant a CON to Florida Residential Treatment Centers, Inc. (FRTC), based on the agency's unpromulgated policy that ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (Petition, page 2, paragraph 6.) FPC argues that the policy is a "rule" and is invalid as a rule because it has not been adopted pursuant to Section 120.54, F.S., and because it conflicts with Sections 381.493, F.S., and 381.494, regarding need criteria. Further, FPC argues the "rule" is arbitrary and violates due process because the agency predetermines need regardless of the availability of like and existing services. HRS and Intervenor, FRTC, argue that the policy is incipient and needs not be promulgated. Further, the policy does not obviate a determination of need. HRS and FRTC claim that FPC lacks standing to bring this action, as its facility is a hospital and not the same as an intensive residential treatment program. HRS admits that the alleged policy has not been promulgated under Section 120.54, F.S. The issues for determination in this proceeding are summarized as follows: Whether FPC has standing to bring this action; Whether HRS has a policy regarding CON approval of intensive residential treatment programs, and whether that policy is a "rule"; and If the policy is a rule, is it an invalid rule?
Findings Of Fact FPC is a partnership which has received CON #2654 to construct a 100- bed psychiatric hospital in the Plantation/Sunrise area of West Broward County. The facility is under construction and will include 80 short-term psychiatric beds (40 geriatric, 15 adolescent, and 25 adult beds) and 20 short-term substance abuse beds. FPC anticipates an average length of stay of approximately 28 days for adults and less than 60 days for adolescents. FRTC is owned by Charter Medical Corporation. It proposes to build and operate a 60-bed intensive residential treatment program for children and adolescents in Broward County. The proposed facility will treat children and adolescents in need of psychiatric services. Its anticipated average length of stay is approximately one year. If it is awarded a certificate of need, FRTC intends to obtain licensing by HRS pursuant to Chapter 395, F.S., and Chapter 10D-28 F.A.C. No other facility licensed as an intensive residential treatment program, as defined in subsection 395.002(8), F.S. (1987), is available in Broward County. On March 11, 1987, HRS issued CON #4851 to FRTC for its 60-bed facility. A challenge to that CON is pending in DOAH consolidated cases #87- 2046/87-2400/87-2401. FPC is a petitioner in the case, with Florida Medical Center and South Broward Hospital District. Section 395.002(8), F.S., defines "Intensive Residential Treatment Programs for Children and Adolescents as: . . . a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. When completed, FPC will be accredited by the Joint Commission on Accreditation of Hospitals; it will provide 24-hour care and will have the primary function of diagnosis and treatment of patients with psychiatric disorders and problems of substance abuse. Unlike the other psychiatric hospitals in Broward County, FPC will have a campus-like setting and separate buildings for the various services. FPC will not be a locked facility. With the exception of the length of stay, the services provided by FPC for its adolescent patients will be essentially the same as an intensive residential treatment program, as defined above. Until recently, HRS has had very few CON applications for intensive residential treatment programs. HRS has considered that these programs must undergo CON review only if they seek licensure as a specialty hospital. In considering need for intensive treatment programs, HRS does not consider unlicensed residential treatment programs to be like and existing services because HRS is not required to review unlicensed facilities; HRS would not have any way of knowing all the programs in operation and would have no control over the services offered. This policy is similar to the policy HRS employed in conducting CON review of ambulatory surgery centers. In those cases, HRS did not consider the outpatient surgery being performed in physicians' offices. Because the legislature has created a special definition of intensive residential treatment facility, and because the State Health Plan seeks a continuum of mental health services, HRS presumes there is a need for a reasonably sized intensive residential treatment facility in each planning district. This presumption can be rebutted with evidence in a given case, such as the fact that the district has few children with mental illnesses, or that such programs have been tried and failed, or that parents in the area prefer to send their children outside the district. Moreover, any applicant for a CON for an intensive residential treatment facility must evidence compliance with the myriad criteria in Section 381.705, F.S. (1987), and in Chapter 10-5, F.A.C. Although there is no specific bed need methodology adopted by HRS for intensive residential treatment facilities, other psychiatric services, such as long-term psychiatric care, are also evaluated without a numeric bed need methodology. HRS has applied its presumption of need policy in intensive residential treatment program CON reviews at least since 1983. One reason why the policy has not been adopted as a rule is that there have been so few applications in that category. In the experience of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor, the first level supervisor for CON review, there were merely three applications of this type prior to a recent batch of three more applications. FPC's Petition to Determine Invalidity of Agency Rule(s) alleges that HRS' policy is ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (paragraph 6) FPC further alleges that HRS construes Chapter 395 as requiring it to ". . . automatically approve at least one residential treatment center in each DHRS health planning district regardless of whether the statutory criteria for need in Section 381.494(b), F.S. [renumbered and amended as Section 381.705, F.S., in 1987] would be met by the applicant." (paragraph #7) These allegations were not proven in this proceeding and are rejected in favor of the less rigid presumption of need policy described in findings of fact #7 and #8, above.
