Findings Of Fact In April, 1984, the Petitioner, Health Care and Retirement Corporation of America d/b/a Heartland of Palm Beach, applied for a certificate of need for 120 community nursing home beds in Palm Beach County, Florida. In July, 1984, the Respondent, the Department of Health and Rehabilitative Services (HRS) gave notice of initial intention to deny the application. HRS Exhibit 5. The instant proceedings are the result of the request of the Petitioner for a formal administrative hearing from that denial. On January 22, 1986, the parties jointly moved for a continuance of the final hearing in this case then scheduled to commence on February 3, 1986, and in paragraphs 3 through 6, represented that the purpose of the requested continuance was to allow the Petitioner to gather data as to two alleged underserved groups: patients suffering from Alzheimer's disease and sub-acute care patients. The Petitioner asserted that such data would support an amended, updated application for certificate of need to be filed by the Petitioner for the purpose of showing need pursuant to the special exception allowed in the rules. In paragraph 8 of the motion, HRS agreed to give serious consideration to the updated application and supporting documents. The motion was granted by order dated February 3, 1986, and at the request of both parties, the final hearing was reset for April 3, 1986. The parties have agreed that all statutory and rule criteria have been satisfied by the Petitioner in this case except for the issue of need as determined by rule 10-5.11(21), Florida Administrative Code, and that question is the sole issue in this case. T. 5; Hearing Officer Exhibit 1. Petitioner's initial application did not mention the intention to provide special services for victims of Alzheimer's disease, and the Petitioner did not amend or update its application with HRS in that respect, except to the extent that it presented such testimony in the formal administrative hearing. T. 104. The application is not in evidence. The initial review of Petitioner's application by HRS did not consider special services to Alzheimer's patients. T. 117; HRS Exhibit 5. HRS has adopted rule 10-5.11(21), Florida Administrative Code, to determine need for additional community nursing home beds. Using a planning horizon of 1987, which is 3 years after the date of application, the rule calculates a net surplus of 511 community nursing home beds for Palm Beach County. Even using the 1989 planning horizon, there is still a net zero bed need using the rule formula for Palm Beach County. T. 100; HRS Exhibit 2; T. 97 and 102. Alzheimer's disease is a degenerative process of the brain characterized primarily by loss of memory and impairment of a variety of routine functions. T. 160-161. Diagnosis of the disease is difficult since there are related degenerative mental disorders. Moreover, positive diagnosis typically requires examination of brain tissue, and the process of obtaining brain tissue is intrusive. T. 162-163. For these reasons, the diagnosis is typically of "senile dementia of the Alzheimer-type," or Alzheimer's disease or related disorders. T. 163. The cause of the condition is not known, although research into possible surgical techniques to ameliorate the effects is being conducted in the Jupiter, Florida, area. T. 73. Alzheimer's disease primarily afflicts elderly persons, although some younger persons may also be victims. T. 163. Person suffering from Alzheimer's disease typically have memory loss, communicative problems, aphasia, trouble understanding, confusion, disorientation, inability to recognize care givers, waking at night, interrupting the care giver's sleep, wandering, mealtime problems, inappropriate sexual activity, incontinence, and social disfunctions. T. 184. Such persons exhibit negative behavior such as resistence to care, demanding, aggression, anger, emotional outbursts due to inability to perform routine tasks, and delusions. Id. Four stages of progressive degeneration are expected with Alzheimer's disease. The first is forgetfulness and loss of ability to perform complex tasks which formerly could be performed. In the second stage, communication problems occur and also loss of memory as to the names of common objects. Wandering and becoming lost also may occur. Stage three is characterized by physical deterioration such as loss of weight, incontinence, and loss of control of other bodily functions. In the fourth stage, a patient will become unable to communicate at all, and may become comatose and bedridden. The course of the disease is from 12 to 16 years or longer and can involve many of the problems described above. T. 217-218. A family member is usually the person first required to provide care for an Alzheimer's victim. T. 165. The responsibilities caused by such care, and the manner in which the symptoms of Alzheimer's disease are exhibited, cause the family care-giver to feel trapped, fatigued, depressed, angry, resentful, and frustrated. T. 167. At times, the family care-giver is elderly and can suffer health problems from the responsibility. T. 82-83. The burden upon the family member can be alleviated by day care, which involves care only during the day, and respite care, which can involve overnight care for several days. T. 167, 147-148. Day care and respite care can also serve the function of establishing a relationship with staff and collection of data and records, both of which become useful for the time when the patient's disease progresses to the point that continuous inpatient care is required. T. 83, 220-223. Alzheimer's patients in a nursing home need special care directed toward their particular disability described above. Of primary concern is that the nursing home be structured to provide an environment that minimizes confusion and compensates for the disabilities of the Alzheimer's disease victim. Separation from other elderly residents, who are not cognitively impaired, is important to prevent confusion of the Alzheimer's patient and to protect the other residents from disruptive intrusions. The physical facility should be constructed and furnished so as to minimize confusion and stimulation. Colors should be subdued, flooring should not mute the sound of footsteps, patterns should not be used, and common appliances should have distinguishing shapes and be clearly identified or labeled. Spaces for quiet and for wandering should be provided. Features to compensate for forgetfulness, such as lights which automatically turn on when a door is opened, should be provided. T. 219- 227, 57-58, 63-64, 81. Staffing must be trained to recognize and help alleviate problems that arise from behavior caused by Alzheimer's disease. T. 74-75, 234- 235, 80, 83-84. Finally, since Alzheimer's disease patients become upset with change due to recognition and memory impairment, continuity of care (staffing and physical surroundings) becomes important. T. 221, 223, 78, 82-83. Alzheimer's disease victims who need inpatient care also need all of the normal forms of skilled nursing care that other elderly persons need. This may occur over a course of years, or may be the results of a sudden injury, such as a broken hip. T. 220-223, 147-148, 79. As discussed above, it is important to be able to provide such care in the same facility since continuity of care is so important, and transfers to new surroundings are disruptive. Any current holder of a certificate of need for community nursing home beds in Palm Beach County may, if it wishes, provide special services to persons suffering from Alzheimer's disease. T. 122. Existing nursing homes in Palm Beach County accept Alzheimer's disease victims, but none provide special services for these patients except perhaps Darcy Hall, which provides adult day care. T. 143, 76, 82, 168-169, 171, 200-201, 210-211. Existing adult congregate living centers and adult day care centers in Palm Beach County similarly do not have special services or programs for victims of Alzheimer's disease. T. 145. Existing nursing homes could provide such services to Alzheimer's patients, though approval of HRS by expedited review to change substructure might be required, but none has done so. T. 154. Alzheimer's patients are often inappropriately restrained, or mixed with non-Alzheimer's disease patients. T. 77. Dr. Eugene Loeser is a physician, board certified in neurology, and is in private practice in Jupiter, Florida. T. 157-158. Dr. Loeser created a list of questions to ask physicians in Palm Beach County to explore the need for special nursing home programs for Alzheimer's disease patients, and that list of questions is HRS Exhibit 8. T. 169, 186-189. Using these questions Dr. Loeser conducted a survey of 36 physicians in Palm Beach County, which included 8 family practitioners, 10 internists, 14 neurologists, 2 neurosurgeons, and 2 psychiatrists. T. 170. There are approximately 1,000 physicians in Palm Beach County, T. 31, and Dr. Loeser admitted that his survey was only of a small percentage. T. 170. Dr. Loeser did not attempt to make the survey statistically valid. T. 178. The physicians contacted were selected from the telephone book from Jupiter in the north to Lake Worth in the south. T. 171, 183. Dr. Loeser attempted to contact representatives of several specialities. T. 181. The specialities were selected as those likely to see Alzheimer's patients. T. 170. Of the 36 physicians contacted, 35 had seen patients having Alzheimer's disease. Petitioner's Exhibit 5. Of these, 27 physicians had "difficulty in finding appropriate placement" for these patients in terms of supervision, care and treatment. Petitioner's Exhibit 5; HRS Exhibit 8. The same number of physicians felt that facilities with appropriate programs for placement of Alzheimer's disease or similar disorder patients were not presently available in Palm Beach County. Id. From the responses, Dr. Loeser estimated that these physicians had seen somewhat more than 600 patients suffering from Alzheimer's disease or related disorders in the last year. T. 171. Dr. Loeser personally estimated that he typically had difficulty finding a treatment and care facility for about 10 Alzheimer's disease patients annually. T. 185. He then estimated from responses received that the physicians surveyed were unable to find an appropriate program for about 135 patients annually. Petitioner's Exhibit 5. Dr. Loeser further estimated that among his own patients, about one or two per week needed some form of day care, T. 185, and from the responses of the physicians in the survey, estimated that such physicians annually had 150 patients needing day care. T. 175. Determination of placement problems for Alzheimer's disease patients from actual patient records or placement orders from physicians would be difficult because these records are confidential. Consent from the patient would be needed, and consent from an Alzheimer patient would be difficult due to the nature of the mental impairment caused by the disease. T. 173. The survey conducted by Dr. Loeser was not unreasonable for failure to contact more physicians. The survey accurately reflects a group of Alzheimer's disease patients treated by the physicians contacted, and does not purport to account for Alzheimer's disease patients treated by other physicians. Thus, the need identified by Dr. Loeser's survey, while underinclusive of total need, is reasonably accurate for the need identified. Palm Beach County currently has at least an estimated 16,597 persons suffering from Alzheimer's disease, and this number is expected to be 18,172 by 1988. T. 24. HRS itself estimates that the number of Alzheimer's victims in Palm Beach County in 1986 to be 27,200. Petitioner's Exhibit 6. It is further estimated that approximately 80 percent of such patients will require some sort of custodial care in the future. T. 76. Based upon the foregoing statistics, as well as the fact that existing Palm Beach County nursing homes do not provide special services or care for Alzheimer's disease patients, there is a need for the Alzheimer facility proposed by the Petitioner. The Petitioner proposes to establish a 120 bed nursing home in Palm Beach County designed and staffed to provide care and treatment to meet the special needs of persons suffering from Alzheimer's disease and related disorders. T. 45. The Petitioner, Health Care and Retirement Corporation of America, d/b/a Heartland of Palm Beach, is willing to have any certificate of need issued in this case to be conditioned upon it building, developing, and operating the proposed nursing home limited as it has proposed in this formal administrative hearing. T. 48-49. Thus, findings of fact 18 through 21 which follow relate to the manner in which the Petitioner proposes that a certificate of need may be conditioned and limited. The proposed physical design of the nursing facility is set forth in Petitioner's Exhibit 1. T. 49. The cost is estimated to be $3.7 million. T. The design includes a courtyard to allow patients to wander safely. T. 41. It also includes a shaded porch, an outdoor patio, and a lounge off the patio. Id. Security from wandering is proposed to be provided by a "Wanderguard" system of wristbands and sensing devices that sound an alarm as a patient passes an exit point. Id. Additionally, the proposed facility would have a therapeutic residential kitchen for patients still able to use a residential kitchen. Id. One room would be set aside as a quiet room. T. 42. It is contemplated that such a room will minimize the need for calming drugs. T. 224. Also to be provided are separate dining areas, areas for therapy, and separate nursing wings and sub-acute care wings. T. 42-43. Alzheimer patients would be separated from non-Alzheimer patients, fixtures would have shapes, colors, and labels to facilitate identification; wall and floor coverings would not use patterns, and the flooring would be vinyl or tile instead of carpet. T. 42, 225-228. The proposed plan of the facility contemplates that there be space for all stages of care for Alzheimer's patients: day care, respite care, nursing care, and sub-acute care. Petitioner's Exhibit 1; T. 221-222, 39-40, 56. The Petitioner also proposes to provide individual treatment plans, to include physical therapy, occupational therapy, social work, and recreational therapy. T. 230-231. Support groups for family members of the patient will be provided. T. 233. The Petitioner states that the staff for the proposed facility must be appropriately trained to know Alzheimer's disease and the special needs of these patients. T. 234. Ongoing education for staff is viewed as being imperative. Id. The Petitioner recognizes the need to provide greater staffing for peak periods. T. 235. Monthly in-service training will be provided by the parent corporation. T. 236. Moreover, the parent corporation, Health Care and Retirement Corporation of America, will develop and implement a program of staff training specifically for Alzheimer's disease. T. 237. Staff for the proposed facility will be adequately trained to properly deal with the problems of Alzheimer's patients. For a 24 hour period, a staff to patient ratio of 1 to 2.5 will be provided. T. 238. This ratio includes only nursing staff, aides, and activities and occupational rehabilitation staff. Id. The Petitioner proposes to designate and commit its entire facility to Alzheimer's patients. T. 60. But from a fiscal point of view, the Petitioner proposes to not deny admission to persons not having Alzheimer's disease. T. 66-68. At least 60 beds will be dedicated to patients with Alzheimer's disease, and these are expected to fill with persons in stages two and three of the disease. T. 67-68. When these patients reach more advanced stages of their disease, it is expected that they will be treated in the other 60 bed section, which is skilled nursing and sub-acute care. T. 68; Petitioner's Exhibit 1. Thus, the Petitioner expects ultimately to fill its entire facility with Alzheimer's disease patients consistent with its dedication and purpose. The facility proposed by the Petitioner would meet the unique needs of Alzheimer's disease patients and their families, and would be the only facility in Palm Beach County to provide a wide spectrum of care for Alzheimer's disease patients. Petitioner's proposal is consistent with priorities IV, V 3 and 4, and VI, Long Term Care section, District IX Health Plan (1985). T. 150-152. On March 6, 1986, the General Counsel of the Department of Health and Rehabilitative Services sent a memorandum to "all attorneys" construing and implementing the decision in the Gulf Court case, Gulf Court Nursing Center v. DHRS, 10 F.L.W. 1983 (Fla. 1st DCA 1985). On the next day, Robert E. Maryanski, Administrator, Community Medical Facilities, Officer of Health Planning and Development, sent the memorandum to his staff and told them to use the opinion as a guideline for the initial review of a CON application settlement and preparation for hearings. HRS Exhibit 6. HRS recognizes that there are three ways that an applicant for a certificate of need for nursing home beds can show need even though the rule shows a zero bed need. The third way is for "equivalent assessments" to be submitted by "attending physician." T. 113; HRS Exhibit 4, rule 10- 5.11(21)(b)10, F.A.C. HRS staff construes rule 10-5.11(21)(b)10, F.A.C., as requiring that each attending physician of each Alzheimer's patient document that his or her patient is in need of specialized services and that the patient is without access to those special services. T. 124. The issuance of certificate of need 4194 to the Joseph L. Morse Geriatric Center was issued pursuant to the special circumstances exception of rule 10-5.11(21)(b)10, F.A.C., since the rule did not show bed need. T. 127. There was nothing in the application in that case to show that elderly Jewish persons were denied access to existing nursing home facilities in Palm Beach County. Id. See also T. 130. There was, however, evidence that a large group of elderly Jewish persons were not being provided kosher dietary services at existing nursing homes. T. 129, 134. This evidence was not presented by attending physicians, however. T. 136. The certificate of need 4194 to the Joseph L. Morse Geriatric Center was also approved using priority VI, long term care section, District 9 local health plan, which provides in the second sentence for consideration of "ethnic- type services including special dietary requirements . . . ." HRS Exhibit 7; T. 134. Due to changes in federal funding, patients needing sub-acute care (less than hospital care, but more than an ordinary nursing home) do not qualify for cost reimbursement. T. 85-88. It appears that about one-half of all nursing home admissions in Palm Beach County are for three months or less. This may be a pool of persons needing sub-acute care. Petitioner's Exhibit 3, Long Term Care Section, page 4; T. 27-28. There was other general testimony that there was a "need for sub-acute care in Palm Beach County, T. 88, 146, and the local health plan, priority V 4, page 31, supports the grant of a certificate of need to an applicant that will provide such care. Petitioner Exhibit 3. There is also a need for sub-acute care in the final stages of Alzheimer's disease to provide continuity of care. T. 221. See also finding of fact 10. No one has petitioned to intervene in this case.
Recommendation Based upon the foregoing, it is recommended that the Department of Health and Rehabilitative Services, pursuant to Rule 10-5.11(21)(b)10, Florida Administrative Code, and Section 381.494(8)(c), Florida Statutes, issue a certificate of need to Health Care and Retirement Corporation of American, d/b/a Heartland of Palm Beach, for 120 community nursing home beds limited and conditioned upon all such beds being dedicated only to the provision of such services and facilities for victims of Alzheimer's disease as described by the Petitioner in this case and set forth in findings of fact 18 through 21 of this order, with 30 of such beds established for sub-acute care needs of Alzheimer's disease patients. It is further recommended that the certificate of need not contain approval for general community nursing home beds, but be limited to Alzheimer's disease patients. DONE and ORDERED this 8th day of July, 1986, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3337 Pursuant to section 120.59(2), Fla. Stat., the following are specific rulings upon all proposed findings of fact submitted by the parties which have been rejected in this Recommended Order. Findings of Fact Proposed by the PETITIONER: 7. Sentences 3 and 4 have been rejected because the evidence was not sufficiently complete to describe nursing homes in Florida in general, and because the issue in this case is the need in Palm Beach County, thus making these proposed facts not relevant. 10. Sentence 3 is rejected since the testimony did not clearly show that therapeutic kitchens "should be available." 13. Sentences 9 and 10 are rejected because the evidence did not categorically show that it "would not be possible" to use actual physician orders, or that "physicians do not typically arrange their records so that orders of that kind could be extracted from their records." Similarly sentence 12 is rejected for lack of categorical evidence to prove impossibility. 17. Evidence that the entire facility is "completely fenced and enclosed" cannot be located in the record, and thus sentence 7 is rejected. The bulk of the discussion in proposed finding of fact 20 has been rejected because it is argument or conclusions of law. Those portions of this proposed finding which propose a finding that the Respondent's interpretation of rule 10-5.11(21)(b)10, Florida Administrative Code, is wrong or unreasonable are rejected as argument or conclusions of law. Most of the factual statements were adopted. Findings of Fact Proposed by the RESPONDENT: All proposed findings of fact by the Respondent have been adopted in substance. COPIES FURNISHED: Harden King, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 Kenneth A. Hoffman, Esquire G. Steven Pfeiffer, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether Respondent should approve Petitioner’s Certificate of Need (CON) Application No. 9896 for the establishment of a hospice program in Marion County, Hospice Service Area 3B.
Findings Of Fact Hospice Generally Hospice/palliative care services are provided to patients after their disease process has progressed to point that there is no longer a cure for it. Hospice and palliative care consists primarily of comfort measures to improve the quality of life during life's end stages, including pain control for patients and bereavement counseling for families. The level of responsive care for each patient is individualized. Pursuant to a CON, hospices programs provide services in various settings, including a patient's home, a residential nursing facility, an assisted living facility (ALF), a hospital, or any other setting that the patient and his or her family desires. Hospice care is delivered via an interdisciplinary team of care givers. The team includes nurse care managers, physicians, nurses, spiritual advisors, bereavement coordinators, social workers, home health aides, and family members. The primary reimbursement mechanism for hospice services is through the federal Medicare reimbursement plan on a per diem basis. The four levels of care that are reimbursable under Medicare are as follows: (a) routine; (b) continuous; (c) inpatient; and (d) respite. Some commercial insurance programs, as well as Medicaid, will also reimburse for hospice services. All beneficiaries of Medicare Part A are entitled to hospice services. To obtain the benefit, two physicians must certify that a patient has a terminal prognosis of six months or less if the disease runs its normal course. Due to the fact that approximately 90 percent of reimbursement for hospice services is via Medicare, the price rates for hospice service are fixed, disallowing opportunity for individual hospice programs to compete for patients by adjusting prices. Instead, hospice programs compete on non-price competition factors such as quality of care, including responsive time to admissions, education, and the provision of non-covered services. The Parties HMC is a not-for-profit Florida corporation, originally licensed in 1983 as Ocala Hospice. HMC is the sole existing provider of hospice services in AHCA's Subdistrict 3B (Marion County). HMC's program includes the provision of residential care and inpatient care in four hospice houses with a total of 52 beds. HMC is organized into the following ten major departments: (a) physician services; (b) quality improvement; (c) patient/family care; (d) professional and community education; (e) development (fundraising); (f) thrift stores (manned by volunteers); (g) pharmacy; (h) information technology; (i) human resources; and (j) financial services. HMC owns a number of affiliates, including Florida Palliative Home Care, LLC, Accent Medical, and Summerfield Suites, LLC. Palm Coast is a not-for-profit Florida corporation and the subsidiary of Odyssey Healthcare, Inc. (Odyssey), a for- profit corporation whose shares are publicly traded. Odyssey, as one of the largest providers of hospice care in the United States, currently operates approximately 80 state-licensed and Medicare-certified hospice programs in 30 states. Odyssey developed approximately 75 of its hospice program since 1997. Palm Coast is currently licensed and operates hospice programs in AHCA's Subdistrict 4B (Flagler County and Volusia County) and District 11 (Dade County). Palm Coast operates under a management agreement with Odyssey. Palm Coast currently does not provide inpatient services in a hospice facility and does not propose to do so through the instant application. Palm Coast's focus here is directed as follows: (a) identifying and treating non- traditional hospice patients (not diagnosed with cancer); identifying and treating traditional cancer patients; providing services within three hours of a physician order; daily contact and pain evaluations with every visit from a team member; (e) and end-of-life planning, education, and bereavement programs. Palm Coast plans to contract with a skilled-nursing facility or acute care hospital to provide inpatient services. AHCA is the state agency responsible for administering the CON program and licensing hospice programs. In this case, Palm Coast seeks to establish a new hospice program in AHCA's Subdistrict 3B (Marion County). AHCA denied Palm Coast's application and set forth its reasoning in the State Agency Action Report (SAAR). Stipulated Facts The parties have stipulated to the following facts: Section 408.035, Florida Statutes (2005), and Florida Administrative Code Rules 59C-1.0355 and 59C-1.030 set forth the statutory review criteria and standards applicable here; Sections 408.035(8) and 408.035(10), Florida Statutes (2005), are not applicable or at issue in this matter; Florida Administrative Code Rule 59C-1.0355, subparagraphs (7), (8), (9), and (10), are either not applicable or not at issue in this matter; Palm Coast timely filed its Letter of Intent (LOI); Palm Coast's application and AHCA's review of that application complied with the application and review process requirements of the Florida Statutes and the Florida Administrative Code set forth above; Initially, AHCA projected and published a FNP of one hospice for Subdistrict 3B for the 2005 second batching cycle in the Florida Administrative Weekly, October 7, 2005 edition; The FNP was subsequently amended and a FNP of zero was published in the October 21, 2005, edition of the Florida Administrative Weekly. The zero FNP was not challenged and is not at issue here. Unmet Need As stated above, AHCA's published FNP was zero for the second batching cycle of 2005, applicable to this proceeding. Palm Coast bases its application in part on an alleged "unmet need." Using a combined review of a volume-driven demand analysis and a "hybrid need methodology", the application purports to demonstrate the existence of an "incremental pool" of "potentially unserved hospice patients." Palm Coast's theory of need begins with the number most recently published by AHCA as the "net need," or projected number of unserved patients under the need formula for the applicable batching cycle. In this case, that number is 322, less by 28 than the 350 specified by rule as the threshold for showing need. Palm Coast bases its volume/demand analysis on a straight-line future projection of historic growth and an improper hybrid need methodology. Palm Coast's alternative need analysis, standing alone, cannot establish that there is an unmet numeric need. However, other than failing to show an unmet need or special circumstances that outweigh the lack of a numeric need, Palm Coast's application is approvable. Special Circumstances Palm Coast attempts to demonstrate the existence of "special circumstances" to justify approval of its proposed hospice pursuant to Florida Administrative Code Rule 59C- 1.0355(4)(d), which provides as follows: (d) Approval Under Special Circumstances. In the absence of numeric need identified in paragraph (4)(a), the applicant must demonstrate that circumstances exist to justify the approval of a new hospice. Evidence submitted by the applicant must document one or more of the following: That a specific terminally ill population is not being served. That a county or counties within the service area of a licensed hospice program are not being served. That there are persons referred to hospice programs who are not being admitted within 48 hours * * * The applicant shall indicate the number of such persons.[1/] Palm Coast does not contend that Florida Administrative Code Rule 59C-1.0355(4)(d)2. is at issue here. Rather, Palm Coast focuses on Florida Administrative Code Rules 59C-1.035(4)(d)1. and 59C-1.035(4)(d)3., asserting first that specific terminally ill populations are not being served, and second that there are persons referred to hospice programs who are not being admitted within 48 hours. Specifically Ill Populations In its application, Palm Coast alleged that two groups of people are underserved: hospice patients age 65 and over with diagnoses other than cancer and residents of nursing homes and assisted living facilities. There is a substantial crossover between those two groups. Palm Coast attempted at hearing to show special circumstances regarding these populations using its hybrid need methodology. The methodology segregates the component parts of AHCA's rule methodology and recalculates need based on penetration rates within individual age and diagnosis cohorts: hospice cancer patients under age 65; hospice cancer patients aged 65 and over; hospice patients under age 65 admitted with all other diagnoses; and hospice patients aged 65 and over admitted with all other diagnoses. As discussed above, this alternative need methodology may not be applied in determining need. However, an applicant is not foreclosed from looking at such specific local penetration rates in attempting to develop a showing of special circumstances. Non-cancer Patients The evidence here does not establish that hospice patients aged 65 and over with diagnoses other than cancer are underserved. There is no pattern of underperformance that would support such a finding. At one point during the hearing, Palm Coast seemed to shift its focus to show that it actually may be cancer patients under age 65 who are underserved rather than patients with a non-cancer diagnoses aged 65 and over. In support of this argument, Palm Coast relied on a single six-month drop in the penetration rate for hospice cancer patients. The drop in the penetration rate is readily explained by a number of significant changes in the Marion County oncology medical community for the period in question. Such anomalous occurrences undoubtedly impacted the number of cancer patient referred for hospice services locally and were unrelated to the performance of HMC. Historically, HMC has provided care for cancer and non-cancer patients, regardless of age. In 1996, non-cancer patients made up one-third of HMC's admissions and two-third of its patient days. Palm Coast emphasized that as a national average, approximately 68 percent of its patients have a non-cancer diagnosis. HMC currently provides approximately 66 percent of its services to non-cancer patients, a level that is not materially different than that of Palm Coast. The most recent data shows that HMC is performing above the statewide average in non-cancer categories for all ages. Nursing Home and ALF Patients Palm Coast argues in general that many non-cancer patients tend to live in nursing homes and ALFs. Palm Coast asserts that many of these patients have chronic conditions that go unrecognized when their condition becomes terminal. There are nine licensed skilled nursing facilities in Marion County. HMC provides services to patients in each facility. HMC also provides continuing professional education to nursing home staff members, particularly with regard to the signs and symptoms of end-stage disease, including non-cancer end-stage conditions. Ms. Alicia Brown is HMC's patient/family care coordinator for the nursing home team. Ms. Brown and her team maintain very close relationships with the directors of nursing homes, education nurses, unit managers, and staff nurses. Ms. Brown has developed educational programs, including an eight-part series based on nursing home survey criteria to help foster understanding and good relationships between hospice nurses and nursing home staff. HMC's medical director is Dr. Segismundo Pares. Dr. Pares has been on staff at HMC for approximately four years. Currently, he concentrates on the provision and development of hospice services in eight of the nine nursing homes in Marion County. Since January 2006, Dr. Pares has developed and expanded programming and direct initiatives in community outreach, initially focusing on the community of hospital physicians and staff who direct so many hospice referrals. Having started the hospitalist program at Munroe Regional Medical Center (Munroe Regional) in Ocala, Florida, as well as having been a leader of those operations, Dr. Pares has credibility and an extensive working relationship with the medical community to effectuate awareness, acceptance, and utilization among potential hospice referrers and patients. Ms. Leigh Hutson has been HMC's community liaison for over three years. Ms. Hutson makes personal visits on a regular basis to all nine nursing homes and 24 licensed ALFs in Marion County. Ms. Hutson provided persuasive testimony that HMC provides hospice services in Marion County ALFs, and regularly has patients in those facilities. HMC's ALF utilization has doubled in the last three years. Through HMC's outreach and education processes, nursing homes in Marion County have had an opportunity to gain a clear sense of the various scenarios in which hospice is appropriate. Nursing homes and ALFs in Marion County regularly refer both cancer and non-cancer patients to HMC. In 2005, HMC self-reported that it provided 13 percent of its patient days to nursing home patients and 25 percent of its combined patient days to patients in nursing homes and ALFs. On the other hand, Palm Coast alleges that 40 percent of Odyssey's patient days nationwide are nursing home patient days. These statistics are not persuasive enough to show that HMC is not providing adequate service to nursing home and ALF patients in Marion County. During the hearing, Palm Coast presented the testimonies of Jon Marc Creighton, its community education representative, and Rema Cole, its general manger in Volusia County. The testimonies were based on 18 informal, preliminary interviews of persons in the Marion County health care community in the fall of 2005. According to Mr. Creighton, his interviews in Marion County revealed frustration with HMC's removal of nursing home patients to its hospice house when services could just as easily be provided in the nursing home. Mr. Creighton testified that he talked to administrators who had not been educated about the full array of hospice services that can be provided in nursing homes. Mr. Creighton stated that the nursing home administrators he talked to did not like the way HMC staff failed to properly communicate with nursing home staff when they entered the facilities. Apparently, Mr. Creighton and Ms. Cole made five contacts with persons associated with nursing homes. One of the five nursing homes was Life Care of Ocala, a facility that strongly supports HMC in this proceeding. Interview notes for the other four nursing homes reveal no substantial support for the proposition that nursing home patients are underserved. The testimony of Mr. Creighton and Ms. Cole that HMS is not adequately and appropriately serving patients in nursing homes is not persuasive. Palm Coast also presented the testimony of Robert Mundrone, the administrator at Marion House Healthcare Center, a nursing facility in Marion County. Mr. Mundrone testified that HMC was not fulfilling their contractual responsibilities to provide hospice service to his facility. According to Mr. Mundrone, nine of his residents were "taken" from his facility in 2005 despite a contractual agreement for HMC to provide inpatient services at the nursing home. Mr. Mundrone believed that HMC failed to adequately evaluate the former living arrangements of nursing home patients before the patients were discharged from the hospital to HMC's hospice house. Mr. Mundrone's testimony actually establishes his awareness of available hospice services. He also confirmed the prevalence throughout his hospice career of hospice services being provided in his facility by HMC. He expressly endorsed the clinical quality and accessibility of HMC services. A large percentage of nursing home residents who receive HMC hospice services are put in contact with hospice during the course of a hospitalization. Ms. Ladonna Kellum, social work case manager at Munroe Regional, testified about these initial contacts. According to Ms. Kellum, her department works with patients and families to establish discharge plans and to arrange care for patients, including patients that are admitted to the hospital from nursing homes. Before discharge, Ms. Kellum's department makes sure that patients are aware of their choices such as home health, rehabilitation, or hospice. When patients are ready to leave the hospital, and their physician recommends hospice, Munroe Regional works together with HMC to present hospice placement alternatives to patients and family members, including the option of returning to their former nursing homes. HMC does not make any decision about the placement of Munroe Regional's patients nor "take" patients from nursing homes. Palm Coast provided five letters, collected in 2005, generally supportive of an additional hospice provider in Marion County. Two basic form letters came from staff at The Bridge, an ALF affiliated with Life Care Center of Ocala, which supports HMC. Two other letters of general support came from home health agencies that compete with HMC's affiliated home health entity. Interviews conducted and letters collected in 2005 have limited probative value in 2007. The greater weight of the evidence indicates that nursing homes and ALFs in Marion County know what hospice services are available and do not lack awareness of the availability of hospice services in their facilities. Hospice Houses Under Section 400.606(6), Florida Statutes (2005), "A freestanding hospice facility that is primarily engaged in providing inpatient and related services and that is not otherwise licensed as a health care facility shall be required to obtain a certificate of need." (Emphasis added). On the other hand, a hospice facility that performs 49 percent inpatient care and 51 percent non-inpatient services does not require a CON. HMC's hospice houses are not subject to a CON because they do not provide a majority of their services at the inpatient level of care. Nursing homes often refer patients for hospice house services upon determination that the patients are not economically attractive to the nursing home. On the other hand, patients returning to a nursing home from a hospitalization as a "skilled" patient under the Medicare reimbursement structure, qualify the facility to be reimbursed at a much higher rate for up to 100 days. While HMC's hospice utilization in nursing homes has been somewhat below the statewide average, several factors serve to explain the variance. Marion County has significantly fewer nursing home beds per/1000 population than the state on average. Further, over the last few years, hospice utilization among ALF residents has increased significantly. In the most recent reported annualized period, over one in three patients who received care from HMC is in a nursing home, ALF, or hospice house. The percentage of patient days provided in nursing homes by HMC also is likely to have been affected by the availability of hospice houses in Marion County. HMC operates more hospice house beds than any hospice of comparable size. The relative availability and general attractiveness of a home- like environment in a hospice house has likely affected patient and family choice as to hospice placement. There are a relatively small number of physicians who provide services to nursing home residents in Marion County. Out of approximately 80 primary care doctors, only 10 to 12 provide such care, creating an obstacle to developing hospice referrals of nursing home residents. Those doctors have a high patient load and relatively less time available for learning and understanding the benefits of hospice. Admission Within "48 Hours" of Referral Florida Administrative Code Rule 59C-1.0355(4)(d) allows an applicant that is confronted with a zero FNP to show another special circumstance justifying approval of a new hospice. The circumstance requires a showing "[t]hat there are persons referred to hospice programs who are not being admitted within 48 hours." See Fla. Admin. Code R. 59C-1.0355(4)(d)3. The rule requires an applicant to indicate the number of such persons. Id. There is no requirement for hospice programs to maintain a record of the time it takes to admit a patient or to track the number of admissions that occur 48 or more hours after referral. Such information, if it exists for a particular hospice program, is not public information. Prior to litigation involving an existing hospice, the only way an applicant can establish the special circumstance is by showing a pattern of delays as related by physicians, hospital discharge planners, nursing home social workers, family members, and others in a position to know whether admission delays are occurring. Even then, such anecdotal evidence may not provide the specificity required by the rule. In this case, Palm Coast had little or no evidence prior to filing its application that anyone in Marion County had complained about untimely admissions. Palm Coast's application refers to the special circumstance set forth in Florida Administrative Code Rule 59C- 1.0355(4)(d)3., only generally, stating in its Summary of the Need for the Proposed Project as follows, in relevant part: Hospice of the Palm Coast believes that the entrance of a new provider that has the management affiliation of a national provider, as well as the establishment of a new hospice model will enhance services to those terminally ill patients that are not currently being served and will place a greater focus on the need to provide responsive and efficient hospice care within 48 hours of a referral. (Emphasis added). Palm Coast's application contains five letters of support from Marion County, including two letters from the same ALF and two letters from home health agencies. The fifth letter is from a nursing facility that specifically supports Palm Coast's service standards, including its turnaround admission time of three hours after referral. However, the record is not so clear as to the point in the admissions process that Palm Coast intends to start the clock running. HMC's goal is to admit appropriate patients within 24 hours of an initial contact, if at all possible. To HMC, an initial contact could be just an inquiry for information. It also could be a request for services from a prospective patient or his or her family members, friends, and neighbors. An initial contact could originate from a physician or the staff of a nursing home or ALF. On its admission log, HMC labels the date and time of an initial contact as a "referral." HMC records the date and time of the initial contact not for purposes of achieving an admission within 48 hours as contemplated by the rule, but to measure the time from initial contact to admission for internal monitoring purposes. HMC uses the information from the admission logs to create lag-time reports. The lag-time reports are presented to and reviewed by HMC's quality improvement committee to look for trends and identify circumstances where the process can be improved. HMC also documents the status of any admission and the reason for any delay after the initial contact. This process begins when a call is received by an intake facilitator. The status of an admission is tracked on a dry erase board. It is also documented in the comment section of an electronic record. If the reason for a delay is not documented in HMC's records, it could mean that the intake facilitator's efforts were producing no change. It could also mean that it was a particularly busy day and the status of an admission changed faster than could be recorded. HMC does not consider an initial contact to have developed into a referral that allows it to pursue an admission until it receives an authorized request for service and a written or verbal physician certification of terminal illness. An authorized request is important because many hospice patients have health-care surrogates or other authorized representatives that have to consent to admission. Patients, authorized representatives, families, and physicians often require time to meet, discuss, and deliberate about such a profound decision as requesting and/or recommending hospice services. The process of obtaining an authorized request and a doctor's certification may take more or less time, depending on any number of circumstances beyond the control of the hospice. During discovery, HMC produced documents reflecting that in 2004 there were 352 patients, and in 2005 there were 406 patients with a lag time from initial contact to actual admission greater than 72 hours. There is no evidence to show how many of the delays in admission were beyond the control of HMC. From January 1, 2006, through November 23, 2006, there were 460 identified patients who were admitted to HMC for hospice services after 48 hours from their first contact with HMC. Of those 460 patients, only four delays were the result of HMC's staffing problems. Other delays in admission are justified as follows: (a) 93 due to patient/family requests; (b) 58 due to wait for discharge from hospital; (c) 62 due to need for family conference; (d) 44 due to patient's choice to wait for a bed in a particular hospice house; (e) 36 due to unavailability of power of attorney; (f) 35 due to no response to request for physician order; (g) 32 due to patient not being in county; (h) 23 due to lack of documented information; (i) 19 due to indecision by patient; (j) 17 due to wait for discharge from skilled nursing facility; (k) 14 due to patient's desire to continue seeking aggressive treatment; (l) 12 due to inability to contact patient/family or unavailability of patient/family; and (m) 11 others due to miscellaneous reasons, including skilled nursing facility having no weekend staff to sign a contract. From January to November 2006, HMC admitted 411 patients on the same day it received the initial patient contact. It had a total of 2190 admissions, averaging 6 admissions a day. The evidence does not establish a special circumstance under the terms of the 48-hour delayed admission rule. To the contrary, HMC admits patients and provides services in timely manner. HMC's admission process is well staffed and capable of performing timely admissions within 24 hours of a complete referral, 24-hours a day, seven days a week, 365 days a year. Other Special Circumstances Apart from the special circumstances set forth in Florida Administrative Code Rule 59C-1.0355(4)(d), Palm Coast has not established the existence of any other special circumstances. First, the total population of Marion County is projected to grow by larger percentages than either the district or the state through 2010. However, the amount by which the service area's growth is projected to exceed growth of the district and state is not unusual. Such slight differences in growth percentages of the state, district, and service area are not so exceptional as to support an approval outside of published need. Second, the 65 and over population of Marion County is projected to grow by larger percentages than either the district or the state through 2010. Even so, as with the total population increases, the amount by which the service area's 65 and over population growth is projected to exceed growth of the district and state, the differences in growth percentages are not so exceptional as to support an approval outside of published need. This is especially true where there is no evidence that the over-65 population is unserved or underserved as discussed above. Third, there is no persuasive evidence of an underserved non-cancer population in Marion County. Just because a 2.37 percent discrepancy exists between the percentage of hospice non-cancer patients admitted by HMC and the average statewide, it does not mean there is an underserved non-cancer population. Fourth, there is no persuasive support for Palm Coast's contention that the service area's penetration rate would increase with the introduction of second provider. There is no observable problem with penetration rates that needs to be remedied. Additionally, there is no evidence to suggest that approval of Palm Coast's application would lead to improved quality, greater access, or cost-effectiveness of any types of services not already being provided by HMC. To the contrary, another hospice in Marion County will result in unnecessary duplication of overhead, administration, marketing, advertising, training, travel, outreach, recruitment, and "branding" costs. It is clear that another hospice will strain HMC's ability to maintain an adequate corps of volunteers. HMC's ability to recruit and maintain professional staff also will suffer as Palm Coast hires staff at salaries higher than those currently paid by HMC. Palm Coast projects that it will take as much as 25 percent of the Marion County market share of admissions within four years by virtue of its entry into the market. HMC will suffer an adverse financial impact as Palm Coast seeks to maximize revenue per admission while not exceeding applicable Medicare "caps" by managing patient mix for the most profitable balance. In that event, HMC will not only lose admissions, but will lose a disproportionate number of the more profitable admissions. Statutory and Agency Rule Criteria The parties stipulate that Section 408.035, Florida Statutes, and Florida Administrative Code Rules 59C-1.0355 and 59C-1.030 are applicable here. They also stipulate that certain provisions of those statutes and rules do not apply or are not at issue. During the hearing, Jeffery N. Gregg, AHCA's Chief of the Bureau of Health Facility Regulation, testified on behalf of the agency. According to Mr. Gregg, other than failing to show the existence of special circumstances in the face of zero numeric need, the application is "approvable." Mr. Gregg went on to clarify that there was nothing in the application that AHCA would consider a fatal error. Regarding Section 408.035, Florida Statutes, Palm Coast established the following: (a) the availability of resources for project accomplishment and operation; immediate and long-term financial feasibility; and (c) its past and proposed provision of health care services to the medically indigent. Palm Coast has not established the following criteria under Section 408.035, Florida Statutes: (a) that a numeric need exists; (b) that HMC's services are unavailable or inaccessible to any segment of the population or that its quality of care is unacceptable; (c) that Palm Coast's quality of care is superior to that of HMC; (d) that the proposed services will enhance access to hospice services; and (e) that the proposal will foster competition that promotes quality and cost-effectiveness. As to the preferences set forth in Florida Administrative Code Rule 59c-1.0355(4)(e), Palm Coast has shown the following: (a) that it has a commitment to serve populations with unmet needs; (b) that it will provide the inpatient care component of the hospice program through contractual arrangements with existing health care facilities; that it is committed to serve patients who do not have primary caregivers at home or the homeless and patients with AIDS; and (d) that it will provide services that are not specifically covered by private insurance, Medicaid, or Medicare. For the most part, Palm Coast meets the requirement of Florida Administrative Code Rule 59C-1.0355(5) by showing that its proposal is consistent with the needs of the community and other criteria contained in the local health council plan. Palm Coast intends to provide community education and to provide support groups and bereavement programs for all community residents. However, Palm Coast presented little or no evidence regarding its ability to provide culturally competent care or its specific strategy for volunteer recruitment in Marion County. To comply with Florida Administrative Code Rule 59C- 1.0355(6), Palm Coast provided a detailed program description. The description includes proposed staffing levels and use of volunteers. Palm Coast states that it will seek patient referrals from physicians, long-term care facilities (including nursing homes and ALFs), hospitals, managed care companies, and insurance companies. The description of Palm Coast's proposed program included 405 projected admissions in year two of operation. The projected admissions were described by payer type, by type of illness, and by age group. The application states that most hospice services will be provided directly by hospice staff and volunteers. Palm Coast intends to contract with physicians, nutritionists, physical therapists, speech therapists, and occupational therapists. Palm Coast proposes to provide inpatient care through contracts with existing health care providers. However, there is limited evidence regarding the following: (a) the number of inpatient beds that will be located in hospitals and nursing homes; (b) circumstances under which a patient would be admitted to an inpatient bed; and (c) specific provisions for serving persons without primary caregivers at home. Regarding fundraising activities, Palm Coast states that Odyssey has a contribution program that gives back to the communities being served. Palm Coast individually does not have active local fundraising projects and activities. Therefore, any funds donated will be used to support other local not-for- profit community programs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered denying CON Application No. 9896. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2008.
Findings Of Fact The Petitioner desires to construct a 180-bed nursing home facility. The proposed facility was originally conceived by the Winter Haven Hospital. The hospital was seeking to construct the facility adjacent to its present location. The hospital planned to utilize Federal Economic Development Agency funds to finance the construction. Under Federal regulations, Economic Development Agency funds are not available to a private hospital, but are available to local governmental units. The Petitioner agreed to seek the certificate of need, to apply for Economic Development Agency funds, and to construct the facility. After construction it is the Petitioner's plan to contract with the Winter Haven Hospital to operate the facility. Petitioner's request for certificate of need was forwarded to the South Central Florida Health Systems Council, Inc., and to the Respondent. The Health Systems Council, by a seven to six vote, recommended to the Respondent against the issuance of a certificate of need. The Council's written recommendation to the Respondent was never forwarded to the Petitioner, or to the Winter Haven Hospital. The Respondent denied the request for issuance of certificate of need by letter dated December 30, 1976. The Respondent's denial was based upon a mechanical application of the Florida State Plan for Construction of Hospitals and Related Medical Facilities. The sole basis for the denial was that in accordance with population figures set out in the State Plan, and in accordance with the application of a Federally required formula to the population figures, there is no need for the additional nursing home beds proposed by the Petitioner. No independent determination was made by the Respondent as to actual needs for nursing home facilities that might exist in Polk County. In the Florida State Plan for Construction of Hospitals and Related Medical Facilities, it was determined that 252 additional long-term care beds were needed in Polk County. At the time that the plan was promulgated, Kennedy Center, a new nursing home facility located in Lakeland, Florida, was not actively under construction. Since the plan was adopted, active construction of the Kennedy Center has commenced. At the time of the hearing 120 beds had been opened and made available at the Kennedy Center, and an additional 120 beds were being constructed. When the Kennedy Center is considered, there remains a need of only 12 additional long-term care beds in Polk County. Obviously the Petitioner's proposed 180-bed facility would greatly exceed the need envisioned in the State Plan. Petitioner offered evidence in the form of a publication of the Bureau of Economic and Business Research at the College of Business Administration, University of Florida, which indicates that the population of Polk County is somewhat higher than that set out in the State Plan (Petitioner's Exhibit 3). If these population figures, rather than those set out in the State Plan were utilized, there would remain a need for 252 long-term care beds in Polk County, even after construction of the Kennedy Center (Petitioner's Exhibit 5). There is no means of determining from the evidence whether the population figures submitted by the Petitioner are more or less accurate than those set out in the State Plan. Petitioner offered evidence that it has had difficulty placing certain classes of patients in nursing home facilities. This difficulty in fact prompted the Petitioner to seek a certificate of need for a new nursing home facility. Petitioner takes the responsibility for placing indigent persons in need of nursing home care. The State Medicade Program contributes the bulk of the cost of the care. Three categories of nursing home care are identified for Medicade purposes. These are "skill care", "intermediate I" and "intermediate II" patients. Skill care patients are the most infirm, and intermediate II care patients are the least infirm. The Medicade program allots more money for skill care patients than it does for intermediate care patients. Because of this private nursing home facilities often reject intermediate care patients in favor of skill care patients. The Petitioner has accordingly experienced difficulty in placing indigent intermediate care patients. The Petitioner has had to place 86 patients in nursing home facilities outside of Polk County. The opening of the Kennedy Center will alleviate most of the placement difficulties that the Petitioner has experienced. Approximately 100 beds at the Kennedy Center will be available for "intermediate II" patients. In addition, the operator of the "Grovemont Home" in Winter Haven, Florida, appeared at the hearing and stated that his facility would accept Medicade intermediate care patients, and that they are not running at full capacity. The Petitioner had not previously been placing Medicade patients in the Grovemont Home.
The Issue The issue presented for decision herein is whether or not the Respondent, based on conduct set forth hereinafter in detail, is guilty of unprofessional conduct and of being convicted or found guilty of a crime which directly relates to the practice of nursing or the ability to practice nursing.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact: At times material hereto, Respondent, Cecelia Faye Norwood, was licensed as a practical nurse by petitioner and has been issued license number 0533451 by the Florida Hoard of Nursing. (Petitioner's Composite Exhibit A) During times material herein, Respondent was employed as a licensed practical nurse at South Florida State Hospital, Hollywood, Florida and was assigned to a ward where she administered treatment to psychiatric patients. During the afternoon of October 21, 1983, while employed at South Florida State Hospital, Respondent administered an injection to a fifteen (15) year old patient. Thereafter, Respondent assisted other hospital employees in restraining the patient. The patient had been placed in a "four-point restraint" (with both arms and legs restrained) however she managed to pull her left arm from the restraint. While Respondent was attempting to restrain patient D'Antuono's left arm, the patient grabbed Respondent's hair, pulling her head towards the bed frame at which time Respondent struck the patient in the face. During the afternoon, Respondent was assisted by employees Patricia Calcagino, an LPN, and Mrs. Fico. Those two employees released the patient's fingers from Respondent's hair and while Ms. Calcagino was attempting to refasten the restraint straps to the bed frame, Respondent struck the patient in the face. (Tr. 19 and 37) This incident was reported to the hospital and an internal investigation was conducted by Ben Drazen, Director of Internal Affairs for South Florida State Hospital. Later, a joint investigation of the incident was conducted by South Florida State Hospital, the Office of Children, Youth and Family Services, and the Broward County Sheriff's Department. Respondent was criminally charged based on the investigation by the Broward County Sheriff's Department and, on October 17, 1984, entered a plea of nolo contendere to the charge of knowingly or by culpable negligence, permitting the physical or mental injury to a child by striking said child about her face with her hand, in violation of Section 827.04(2), Florida Statutes. The patient involved in the aforesaid incident was a stocky patient who had been diagnosed as psychotic and slightly retarded. The patient had a history of combative, assaultive behavior. Ms. Rotton, an RN who was called upon to offer her opinion as to whether or not Respondent's conduct was unprofessional, considered that such conduct was inappropriate or unprofessional. She understood that Respondent was provoked to the point where she struck the patient and "she could understand how such an incident might happen." The patient is a patient with a "very well-documented history of extremely assaultive behavior, very, very agitated. She has injured many employees in the past." (Testimony of Drazen, Tr. 34 and 35) Nurse Rotten also acknowledged that the patient involved had given the staff quite a few problems. The patient bit, kicked, scratched, clawed and spit in the face of other employees. (Testimony of Rotton, Tr. 28 and 29) Nurse Rotten had observed Respondent work with patients for a long time. Nurse Rotten has "seen [Respondent] deal with some pretty difficult patients. I've seen her, you know, assaulted, by patients; nothing like this has ever happened. . . ." (Tr. 30) Respondent has never been disciplined by either her then employer, South Florida State Hospital, 2/ or Petitioner, Board of Nursing. (Tr. 30)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent, Cecelia Faye Norwood, be placed on probation for a period of one (1) year subject to appropriate terms of probation as deemed indicated by her conduct, found hereinabove, by Petitioner. 3/ RECOMMENDED this 21st day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1985.
The Issue Whether Petitioner is entitled to interest on the subject medicaid reimbursement payment and, if so, the amount of the interest to which it is entitled.
Findings Of Fact Petitioner, Palm Springs General Hospital, Inc. (PSGH) is a hospital operating in the State of Florida that provides Medicaid services. In a separate administrative proceeding that was initially referred to the Division of Administrative Hearings (DOAH), PSGH and the Health Care Cost Containment Board (HCCB) litigated the method by which PSGH's entitlement for Medicaid disproportionate share reimbursement under Chapter 88-294, Laws of Florida, for the fiscal year 1987 should be calculated. In April 1989, while the litigation between PSGH and HCCB was pending before DOAH, the PSGH and HCCB entered a written settlement agreement which settled the dispute. Consequently, DOAH's file in that matter was closed and the matter was returned to HCCB for final disposition. Respondent, Department of Rehabilitative Services (DHRS), serves as the disbursing agency for medicaid payments to medicaid providers in the State of Florida. In the pending matter, PSGH initially raised the same issues with DHRS that it had raised in its dispute with HCCB - the manner by which PSGH's medicaid reimbursement entitlement had been calculated. At the request of the parties, the dispute between PSGH and DHRS was abated until the conclusion of the litigation between PSGH and HCCB. After the dispute between PSGH and HCCB had been returned to HCCB pursuant to the settlement agreement, HCCB reneged on the settlement agreement. PSGH thereafter appealed HCCB's decision not to honor the settlement agreement. In an opinion filed May 8, 1990, Florida's Third District Court of Appeal reversed the refusal by HCCB to honor the settlement agreement and remanded the cause to HCCB for the entry of a final order adopting the settlement agreement. The Court referred to the HCCB's action in attempting to renounce its agreement as a "gross abuse of the agency's discretion" and awarded appellate attorney's fees to PSGH against HCCB. Palm Springs General Hospital, Inc., v. Health Care Cost Containment Board, et al. 560 So.2d 1348, 1350 fn. 2 (Fla. 3rd DCA 1990). During the pendency of the litigation between HCCB and PSGH, counsel for PSGH became concerned that DHRS might disburse the medicaid funds in its possession before the extent of PSGH's entitlement was determined. To avoid additional litigation, PSGH and DHRS entered into a stipulation in the pending case on June 12, 1989. That stipulation provided as follows: The parties, by and through their undersigned attorneys, hereby stipulate and agree as follows: In a related administrative proceeding, Palm Springs General Hospital, Petitioner vs. Health Care Cost Containment Board (HCCB), Respondent, Case No. 89-0633H, Palm Springs and the HCCB are litigating an issue which might be described in general terms as the number of Medicaid patient days delivered by the hospital during 1987 to be used in calculating the amount of disproportionate share reimbursement as to which the hospital may be entitled under Section 30 of Chapter 88-294, Laws of Florida. The Department of Health & Rehabilitative Services is the agency which receives from the HCCB calculations of entitlement of hospitals to the trust funds described in Chapter 88-294. HRS gives administrative direction for distribution of the trust funds. Palm Springs and other qualifying hospitals have received three of the four partial disproportionate share distributions for the trust funds described in Section 30 of Chapter 88-294. The final distribution under the program is expected to be made in early July 1989. A dispute exists between HRS and HCCB on the one hand and Palm Springs on the other hand with respect to the disproportionate share distribution to which Palm Springs is entitled. The initial calculations made by HRS and the HCCB show that Palm Springs is entitled to a disproportionate share distri- bution of $201,366. Palm Springs has challenged this in the administrative proceeding set forth in paragraph 1 and in the captioned proceeding. Palm Springs claims that it is entitled to a dispropor- tionate share distribution of approximately $530,000, rather than the $201,366 presently calculated by the HCCB. As the disbursing agency, HRS agrees to retain in the trust fund sufficient monies to pay the full claim of Palm Springs General Hospital until completion of all litigation relating to the amount of the distribution to which Palm Springs is entitled. The purpose of entering into this stipu- lation is to eliminate any need for Palm Springs to file a court action seeking an injunction to assure availability of the disproportionate share distribution to which the hospital claims it is entitled, should it ultimately prevail on the issue. The parties enter into this stipulation to avoid litigation. It is not the purpose of the stipulation to prejudice or aid the position of either of the parties in connec- tion with the amount of money to which the hospital is entitled under the dispropor- tionate share program. The fact that HRS has agreed to retain the claimed money in trust in no fashion is an admission by HRS or the HCCB that Palm Springs is entitled to this money. There were no other written documents reflecting the agreement of counsel, other than the foregoing stipulation, and the stipulation was not modified by the parties. At the formal hearing, the parties agreed that the reference to "trust funds" or to maintaining the money "in trust" referred to the public medical assistance trust fund that is referred to in Chapter 88-294, Laws of Florida, and not to a separately established trust by which DHRS would hold the disputed funds. Consultec, Inc. is the Medicaid fiscal agent contractor for the State of Florida. It maintains an interest bearing bank account at Barnett Bank of Tallahassee in which it deposits sums entrusted to it by DHRS and from which it issues checks to Medicaid providers after the entitlement of each provider has been determined and appropriately processed. On July 20, 1989, Consultec, Inc. wrote check number 103077 made payable to PSGH in the amount of $391,028.50. Consultec, Inc. deposited into the Barnett Bank account the sum of $19,458,498.75 to cover checks written to Medicaid providers on July 20, 1989. Included in this deposit were the funds necessary to pay check number 103077. Had it not been for the dispute between PSGH and HCCB, check number 103077 would have been routinely delivered to PSGH. However, because of the dispute between PSGH and HCCB, check number 103077 was intercepted by DHRS. At the instruction of DHRS, check number 103077 was voided and two separate checks, both made payable to PSGH, were drafted by Consultec, Inc. The first check, in the amount of $48,684.50 was delivered to PSGH. The second check, in the amount of $342,345, represented the amount that was in dispute between PSGH and HCCB. The second check was held pending resolution of the dispute between PSGH and HCCB, and the funds necessary to cover that check remained in the Barnett Bank account between July 21, 1989, and June 21, 1990. This procedure was followed by DHRS to ensure that the disputed funds would be available for distribution consistent with its stipulation with PSGH dated June 12, 1989. After being advised by PSGH of the resolution of its dispute with HCCB by the Third District Court of Appeal, DHRS instructed Consultec, Inc. to remit to PSGH the sum of $342,345. On June 21, 1990, the sum of $342,345 was paid to PSGH. The Consultec, Inc. account at the Barnett Bank drew interest between July 21, 1989, and June 21, 1990, at the average daily rate of 7 1/4%. After the payment to PSGH of $342,345 on June 21, 1990, PSGH demanded, for the first time, interest on that sum. The appellate opinion that resolved the related litigation between PSGH and HCCB did not speak to the issue of whether PSGH was entitled to interest on the disputed funds. There was no evidence that the settlement agreement between HCCB and PSGH addressed that issue. The pleadings in the pending matter did not address the issue of interest until PSGH's "Motion to Compel HRS to Pay Interest" was filed on July 6, 1990. The stipulation between PSGH and DHRS dated June 12, 1989, resulted in the sum of $342,345 being held in the Consultec, Inc. account at the Barnett Bank and drawing interest between July 21, 1989 and June 21, 1990. However, the stipulation did not provide for the disposition of any interest that might be earned pending the resolution of the HCCB litigation and the stipulation was not intended to create an express or implied trust.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the above-styled proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2178 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-13 and 18 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 14-17 and 19-21 are rejected as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-3, 5-7A, 8, 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4 and 7B are rejected as being unnecessary to the conclusions reached. The proposed findings of fact which precede the semicolon in paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact subsequent to the semicolon in paragraph 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Paul Siegel, Esquire Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. 1125 Alfred I. DuPont Building Miami, Florida 33131 Karen Baarslag, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building Six, Room 230 Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In the latter part of April, 1976, petitioner Ambulatory Surgical Center of West Palm Beach (hereinafter referred to as ASC) submitted its capital expenditure proposal to construct a freestanding ambulatory surgical center in West Palm Beach. The concept of ambulatory surgical care is approximately six or seven years old. It allows the patient to have surgery performed under general anesthesia in one day at an approximate savings of fifty percent. The patient goes to the facility the day before surgery, goes through laboratory tests, meets the anesthesiologist or other medical staff members, fills out insurance and other forms and then returns home. The next day, the surgical procedure is performed and the patient then goes home accompanied by a member of his family or a friend. The advantages of the system include more precise scheduling and less anxiety and stress for the patient. The petitioner's proposal is to occupy some 9,000 square feet on the first floor of a 33,000 square foot three story medical office building. Also to be located-on the first floor is a 1,000 square foot pharmacy, a 1,000 square foot restaurant and a 500 square foot clinical laboratory. The facility will encompass dressing rooms with lockers, five operating rooms -- one of which is to be used exclusively for dental surgery under general anesthesia -- and sixteen or seventeen recovery beds. ASC will have the same life support equipment and facilities as exist at a general hospital. Any doctor who is licensed by the State of Florida and on the staff of another hospital will be permitted to use the ASC facility. Petitioner's facility will accept all patients for treatment whether they be reimbursed by Medicare, Medicaid or other sources available at the state or county level. Some one hundred and twenty different surgical procedures are proposed to be offered at the ASC facility. Some fifty physicians in Palm Beach County were sent a questionnaire by one of the organizers of petitioner. The thirty-seven responses received indicated a weekly utilization rate of approximately sixty surgical procedures by the end of the fourth quarter of operation of petitioner's facility. On June 24, 1976, the Health Facilities Committee of the area Health Planning Council, Inc. (HPC) met to consider the petitioner's certificate of need request. By a vote of six to four, with one abstention, a motion to approve the facility failed. On the same date, the Board of Directors of the HPC voted nine to seven, with one abstention, to recommend approval of petitioner's proposal. The Board considered the fact that outpatient surgery departments were being planned for existing hospitals in the area and heard comments from proponents and opponents of the application. The Board further considered the factors supporting approval as set forth in the staff project review. These include: "1. Such a facility has the potential of lowering to a great extent the cost of patient health care by avoiding unnecessary hospital confinement; Such a service, both in terms of cost savings and utilization, have been endorsed by the HPC in its document entitled Acute Care General Hospitals, Long Range Growth Position Statement and Recommendations. In effect, this proposed service will provide a cost effective component to the area's existing health care system; Based on the manpower requirements, both from the standpoint of parti- cipating physicians and support per- sonnel, there appears to be both sufficient and appropriate manpower available to effectively operate the proposed services; and Based on a sample utilization survey, it appears that the proposed ASC will serve a population group large enough to provide a reasonable utilization level. At the same time, it is expected that this population group will be basically separate and distinct from the population group expected to be served by the OSD at the Palm Beach-Martin - County Medical Center." (Exhibit No. 11) Although Good Samaritan Hospital had been considering doing so since June of 1975, it actually opened its outpatient surgical department in early August of 1976. Being a hospital based facility, no certificate of need was required. The State Hospital Advisory Committee met on August 10, 1976, to consider petitioner's application. This Committee heard discussion from and directed questions to both the applicant and the intervenor-opponent. Letters from physicians in support of and in opposition to the application were considered. This committee, by a vote of five to zero with one abstention, voted to recommend that the application be denied. (Exhibit 6) By letter dated August 12, 1976, respondent notified petitioner that its capital expenditure proposal was not favorably considered for the following reasons: "1. Your proposed ambulatory surgical facility would be a duplication of facilities and services which are available in Good Samaritan Hospital which is within a block or two of the site of your facility. In addition, St. Nary's Hospital, approximately three (3) miles from your site, has ambulatory surgery capability. The charges you propose for surgical procedures are comparable to those of Good Samaritan Hospital, therefore, cost containment is not a real factor in this case. The fact that Medicaid virtually has eliminated the provision for paying for elective surgery for persons qualifying for care under this program. Under such restrictions, it appears that your proposed facility would not be necessary in terms of providing services to such persons. Petitioner was advised of its right to appeal this decision and petitioner timely requested a hearing on the matter. At its regular meeting on August 26, 1976, the Board of Directors of the HPC voted, by a vote of twenty-one of the twenty-two Board members present, to support petitioner's appeal. There are presently some 700 physicians in Palm Beach County. Some 265 of these doctors are on the staff of Good Samaritan Hospital, which is located on the same block as petitioner's proposed facility. Physicians not staffed at Good Samaritan are able to refer their patients for treatment by physicians staffed there. Good Samaritan has no black doctors on its staff, no podiatrists and no osteopaths. The only dentists allowed staffing privileges are those having two years of post graduate training. Good Samaritan, while it does some charity work, does not participate in the Medicare or Medicaid program, nor does it have any contract with the county to provide services for the indigent. It does have an emergency contract with Medicare. The actual amount of charity work performed is somewhat in dispute. While a figure in excess of $900,000.00 was given by the Administrator of Good Samaritan, it appears that a portion of this amount was uncollected bills. Approximately twenty percent of the procedures offered by Good Samaritan in its outpatient surgery department overlap with the procedures proposed to be offered by ASC. The patient costs of these procedures are substantially similar to those proposed by ASC. While the intervenor has had an outpatient clinic for some time now, it first began to offer general anesthetic surgical procedures on an outpatient basis in early August of 1976. Good Samaritan is currently performing about thirty such procedures per month, or six per week. While the intervenor's operating room is equipped to handle dental services under general anesthesia, it does not contain a dental chair. The evidence regarding other existing ambulatory or outpatient surgical centers or departments in the immediate area of petitioner's proposed facility is somewhat in dispute. While two hospital-based facilities, each twenty miles away, do exist, it is not clear whether St. Mary's Hospital located some three or four miles from petitioner and the intervenor actually has such a separate facility. It is clear that St. Mary's has the capabilities for such a facility. The Palm Beach County Social Services Department provides services for indigent persons in the county through the use of ad valorem tax monies. About ninety percent of the services performed are in the medical field. During the last fiscal year, the county's hospitalization budget for indigents was approximately $1,790,000.00. Amounts paid from September of 1975 through August of 1976 for short term hospitalizations were in excess of $19,400.00 for a total of 158 hospital days. (Exhibit No. 15) All of such procedures performed might have been done in an ambulatory facility. Substantially all of the procedures to be offered by ASC are performed for indigents in Palm Beach County if it is deemed necessary for the client. If the patient were able to undergo surgery and go home in the same day, the hospital per diem charge, which averages $160.00 per day, would be eliminated. The Director of the County Social Services is supporting petitioner's application for the reason that while a similar facility exists nearby -- Good Samaritan Hospital, such facility is not accessible for the indigent client. Dr. C.L. Brumback, Director of the Palm Beach County Health Department, affirmed that procedures to be offered by ASC could be provided to eligible county patients with payment available through the County Social Service Department or the County Health Department. (Exhibit No. 2). The issue of Medicaid reimbursement to an ambulatory surgical facility was somewhat in dispute during the earlier public hearings on petitioner's application. It appears that such reimbursement is presently limited to those services actually provided by a physician. The legislature decides on the services to be provided by line item appropriations, and presently physician service is a listed item while free standing outpatient clinics are not listed. The Florida Department of Health and Rehabilitative Serviced has expressed an interest in having ambulatory surgical care with adequate regulations and their legislative budget request for next year will reflect this interest. (Exhibit No. 3).
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the determination of the Office of Community Medical Facilities to deny the petitioner's application for a certificate of need be REVERSED. Respectfully submitted and entered this 16th day of November, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John H. French, Jr. P.O. Box 1752 Tallahassee, Florida 32302 Jon C. Moyle 707 North Flagler Drive West Palm Beach, Florida Eric J. Haugdahl 1323 Winewood Boulevard Room 406 Tallahassee, Florida 32301 Harold D. Lewis 203 West College Avenue Tallahassee, Florida
