The Issue The issue in this cause is whether the Department of Health and Rehabilitative Services (HRS) should approve the application for Certificate of Need of any one or more of the Petitioners for community nursing home beds in Dade County. Petitioner, Manor Care, Inc., (Manor Care) presented the testimony of John D. Lee, Regional Director of Manor Care, who was accepted as an expert in nursing home operations: Alex Boyar, a financial analyst in the Planning Department of Manor, Care, who was accepted as an expert in health planning; and Craig D. Thornton, a health care consultant, who was designated and accepted as an expert in health planning. Manor Care's Exhibits 1 and 2 were marked for identification and received into evidence. Petitioner, Hillhaven Corporation, (Hillhaven) presented the testimony of Richard Ebersol, Regional Vice President for Operations with Hillhaven; Dan Lemon, an architect, who was designated and accepted as an expert in nursing home design and construction costs; Linda McClamma, District Director with Hillhaven for the East Coast of Florida, who was accepted as an expert in nursing home operation and nursing care; Julie Towne, Senior Health Planner with Hillhaven, who was accepted as an expert in health planning; and Kenneth Conners, Jr., a C.P.A., who was accepted as an expert in accounting and health care accounting. Hillhaven's Exhibits 1, 2, 4, 5, 9, 12-20, 22-23 were marked for identification and received into evidence. Appearing for Petitioner, Forum Group, Inc., (Forum) were David C. Warner, Ph.D., a health care consultant, who was accepted as an expert in health care planning, including need analysis, demographic analysis and health care finance; Donald I. Craig, Jr., a health care planner with Forum, who was accepted as an expert in health care planning, nursing home development and statistical analysis; Rita McDonald, Director of Quality Assurance and Staff Development for Forum, who was designated and accepted as an expert in nursing home operations and quality assurance; and Lawrence J. Morton, Director of Financial Services in the Long-Term Care Division of Forum, who was designated and accepted as an expert in health care finance. Forum's Exhibits , and 13 were marked for identification and received into evidence. Respondent, Department of Health and Rehabilitative Services, (HRS) offered the testimony of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor in the Office of Community Medical Facilities at HRS, who was accepted as an expert in CON review. Prior to the hearing, the parties stipulated that each Petitioner had timely filed its letter of intent and application, had been deemed complete, and upon denial had timely filed its petition for formal hearing and thus had standing in this proceeding. The parties also stipulated that each met the minimum requirements for the granting of a CON other than proof of need and long-term financial feasibility as it relates to need, but each Petitioner reserved the right to offer evidence of the superiority of its application. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of facts and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact The principal issue in this case is the appropriate interpretation of Rule 10-5.011(1)(k) [formerly cited as 10- 5.011(21)], Florida Administrative Code, to determine the need for new community nursing home beds in Dade County; specifically, the Petitioners and the Department differ as to the appropriate "approved bed" inventory data under the Rule methodology. The Department stipulated that each of the Petitioner' applications, filed in January, 1985, meets all minimum statutory and rule criteria necessary for approval, other than proof of need and long term financial feasibility as it relates to need, but left it to the Petitioners to demonstrate their relative superiority. The Department relied solely upon Rule 10-5.011(1)(k), Florida Administrative Code (hereafter "The Rule"), to determine bed need in this case. The Rule actually provides two different methods of calculating need: Paragraph 2.e. (formerly cited as 10- 5.011(21)(b)5.) of the Rule sets out the so-called "poverty adjustment," which provides that in departmental planning districts where the percentage of persons age 65 and over living in poverty exceeds the statewide poverty rate for persons in that age group and the sum of the "currently licensed and certificate of need approved beds" is less than 27 beds per thousand age 65 and over, the district shall be allocated a total of 27 beds per thousand persons age 65 and over "in the current year." The remaining paragraphs of the Rule set out the other methodology which projects future bed need according to a "three year planning horizon" in cases where the criteria for applying the poverty adjustment are not satisfied. While Paragraph 2.e. of the Rule does not specify the point in time at which "currently licensed and certificate of need approved beds" are to be counted for purposes of making the threshold calculation, it does refer to "LB" which term is clearly defined in Paragraph 2.g. Elfie Stamm, the person responsible for development of all rules pertaining to Certificates of Need (CON), who was designated by the Department to respond to a request for deposition under Rule 1.310(b)(6), Florida Rules of Civil Procedures, testified that the word "currently" in Paragraph 2.e. of the Rule modifies both "licensed" and "Certificate of Need approved beds." Paragraph 2.g. of the Rule specifically provides that review of applications for the January, 1985, batching cycle "shall be based upon" the number of licensed beds as of December 1, 1984, and that this count of "currently licensed beds" governs the threshold calculation of the poverty adjustment. The Department's witness, Elizabeth Dudek, testified that the Department's policy consistently has been to count "currently approved beds" for purposes of the threshold calculation of the poverty adjustment as of the date that she, as supervisor of health facilities services consultants, signs the "State Agency Action Report" regarding the applications under review. In this case, Ms. Dudek signed the State Agency Action Report (SAAR) on June 22, 1985. The Department's practice of counting approved beds as of the date Ms. Dudek signs the SAAR for purposes of the threshold calculation of the poverty adjustment is irrational and inconsistent with both the letter and purpose of Paragraph 2.e. of the Rule. The poverty adjustment portion of the Rule does not provide for calculation of need over a three-year planning horizon, as is provided elsewhere in the Rule, but specifically requires calculations of "current" need based on "current" population and inventory figures. It would be inconsistent with this policy to calculate such "current" need with data measured at different points in time, and the calculation as described by Ms. Dudek could lead to irrational results; for example, beds which were licensed after the December 1, 1984, cutoff for licensed beds and before the June 22, 1985, HRS cutoff for approved beds would be counted neither as licensed nor approved beds, and would "disappear" from the inventory. Moreover, a count of some beds at a point several months later than the point in time at which other aspects of "current need" are measured, (i.e., not in relation to a three- year planning horizon) would give a distorted measure of such current need. Notwithstanding Ms. Dudek's testimony, that the Department has consistently applied its policy regarding the point in time at which "current" data is measured, the Department's position has not been consistent. An example of the Department's inconsistency is the October 27, 1986, memorandum from HRS general counsel, Steven W. Huss, which purports to set out the Department's position regarding the appropriate interpretation of the Rule. That memorandum provides, in part, that "'Current' data is data current as of the date of the application." Ms. Dudek admits that the policy she applied in this case is contrary to the Huss memorandum and the Department's interpretation of Paragraph 2.e. as enunciated by Ms. Stamm. In light of the testimony and evidence presented at the hearing, it is clear that the poverty adjustment should have been applied even according to the Department's application of the Rule. The first prong of the poverty adjustment is met in that the District poverty level of persons age 65 and over exceeds the statewide poverty level for that age group. The "current" district population of persons age 65 and over is 301,552. On December 1, 1984, there were 5,626 licensed beds in the District and 1,990 approved beds in the District.1 If the poverty adjustment is calculated using the December 1, 1984, data, the poverty adjustment would apply as follows: 5626 + 1990 = 0.0253 = 25.3/1000 301,552 The Department's witness testified that she performed the threshold poverty adjustment calculation on June 22, 1985, using the approved bed figure which she believed to be current on that date, 2710, as follows: 5626 + 2710 = 0.0276 = 27.6/1000 301,552 As a result of this calculation, she concluded that the poverty adjustment was inapplicable to the review of the applications here at issue. However, two of the certificates of need which were counted by the Department as "approved" as of June 22, 1985, were in fact not approved and issued until after that date. [Forum Ex. 13 indicates that CON No. 3022, for 120 beds, was granted to Beverly Enterprises (South Dade) on June 24, 1985, and CON No. 3021, which Ms. Dudek counted as 240 beds, was granted to Dade Manor on July 3, 1985.] Ms. Dudek conceded that she had counted these 360 beds as "currently approved" as of the date she signed the SAAR on June 22, 1985, when in fact they were not approved until after that date. On cross-examination, Ms. Dudek conceded that if these 360 beds had not been counted as "approved" as of the date she signed the State Agency Action Report which she had described as the policy in fact followed by the Department then the appropriate calculation of the poverty adjustment would have been: 5626 + (2710-360) = 0.02645 = 26.45/1000 301,552 Had this last calculation been performed, the Department's witness conceded it would have indicated not only that the poverty adjustment should have applied, but that there would have been sufficient bed need to approve all three applications. The Department never introduced evidence to substantiate its use of 2710 as the number of approved beds as of the date of the SAAR.2 The SAAR indicates that there were 2170, not 2710 approved beds on that date, indicating Ms. Dudek's conclusion may have been based on a significant typographical error. Using the 2170 SAAR number as the number of approved beds, the calculation would have been; 5626 + 2170 = .0258 = 25.8/1000 301,552 This includes the 360 beds not approved until after the date the SAAR was signed by Ms. Dudek. If those beds are then deducted, the calculation would be: 5626 + (2170-360) = 0.0246 = 24.6/1000 301,552 Further, the Department included 600 beds awarded out of Petitioners' January, 1988, planning horizon to applicants from an earlier batching cycle without those applicants updating or amending their respective CON applications to address that planning horizon. It is clear that the Department made significant calculation errors in the SAAR, and that the poverty adjustment should have been applied to measure need for these applications. The Petitioners presented extensive evidence regarding the calculations of bed need according to the appropriate application of the poverty adjustment, employing the application of "current" approved beds as of December 1, 1984: LB + AB = 5626 + 1990 = 0.025256 POPE 301,552 PA = 0.027 x 301,552 = 8142 SPA = LBD x PA = 5386 x 8142 = 725 beds LB 5626 Net Need - 7794-5386(0.9 x 1990)725 beds Even if the Department's less rational measure of "current" approved beds as of the date of the SAAR was employed, however, there would be more than enough need under the Rule to approve all three applications: SPA = 7794 Net Need = 77945386(0.9 x 2170)455 beds It is significant to note that the Department's only witness agreed with Petitioner's experts that had the poverty adjustment been calculated as set forth in paragraph 32 above, there would have been sufficient bed need to approve all three applicants. THE FORUM PROPOSAL Forum proposes to build a 120-bed nursing home as an integral part of a retirement living community offering a continuum of services on one campus. Forum currently owns and operates 12 such retirement living centers in the United States as well as 20 free-standing nursing homes. The total retirement living facility proposed by Forum includes retirement apartments, an assisted living facility and a nursing home. In November, 1986, in preparation for final hearing, Forum updated its January, 1985, application for the 120-bed nursing home to reflect more current information. Forum presented evidence at the hearing that if less than a 120-bed need was found, it was ready and able to build a 60-bed facility which was also financially feasible. The total projected cost of the nursing home facility is $4,109,567, including the cost of approximately 3 acres of land. Forum proposes to offer the full range of services which characterize a licensed, Medicare-certified, skilled and intermediate care facility, including ventilator care, IV treatment, and nastrogastric tube feedings. No costs are projected for the additional staff and equipment needed for ventilator patients. Upon opening, Forum is prepared to offer respite care, adult day care, meals on wheels and hospice care if need for such programs is demonstrated in the community. Medicaid certification would be sought for 48 beds with an additional five beds certified for Medicare patients. Forum will annually provide a $10,000 fund for indigent care and for those services not covered by Medicaid, Medicare and other reimbursement programs. The nursing facility would be composed of 40 private room (1 bed) and 40 semi-private rooms (2 beds) in a two-story building. Forum projects an occupancy rate of 63.25% at the end of the first year, and 95% at the end of the second year, and the fill up rates are reasonable and consistent with the experience of other Forum facilities. Daily charges for Forum nursing home patients are reasonable and consistent with Forum's experience and are based on a survey of rates in Dade County and range from $50.64 for Medicaid patients, to $60 for Medicare patients, to $75 for a private pay patient in a private room. Forum, as a national health care provider, will benefit generally from economies of scale in the area of staff training and availability, purchasing, and varieties of nursing programs, and specific economic benefits from this project will result from shared facilities, such as kitchen, dining and common grounds, as well as shared staff in those areas. Forum has a commitment to provide quality care with its continuum of services on one campus and is consistent with the state and local health plans. Forum would seek a superior rating for this facility as is its policy for its facilities and as it has done in other states with similar rating systems. To promote quality of care Forum thoroughly assesses residents' needs and develops a plan of care to satisfy those needs, including a quality assurance program, and will be staffed at a higher than minimum level with skilled professionals. In addition, Forum patients would benefit from an environment which offers and encourages interaction with the healthier residents in other portions of the retirement living center which Forum's study shows results in substantially shorter lengths of stay. Forum is in a very strong financial position and is prepared and able to finance construction with cash reserves, thereby saving debt service charges that would otherwise apply; further, this strong financial position will allow Forum to fund any start-up losses in the first year, thereby ensuring financial feasibility in the short term. Forum stated a strong commitment to this project and is prepared to proceed as soon as it receives approval. THE MANOR CARE PROPOSAL Manor Care proposes to build a 120-bed nursing home. The total cost of Manor's Care's proposal is projected at $4,513,500. Manor Care proposes a 2 story facility with 18 1-bed rooms, 33 2-bed rooms, and 12 3-bed rooms. The number of 3-bed rooms was tripled in the updated application in order to, among other things, reduce the size of the facility for which construction costs would otherwise be higher. Manor Care has 9 existing Florida facilities, 4 of which were acquired by purchase and 5 of which were built by Manor Care over the last 4 1/2 years. All homes built by Manor Care have been within budget, constructed and licensed on time. All three of the homes which were constructed under the supervision of Manor Care's current Regional Director, have received superior licenses, the highest rating available. The proposed nursing home would have the full range of nursing services including skilled and intermediate care, the full range of therapies (physical, occupational, speech, respiratory) and respite care and adult day care. Manor Care provides in-house physical therapists, speech pathologists, and other therapists, which the other applicants provide only by contract, if at all. Manor Care provides respite care whenever beds are available. Manor Care provides a chaplaincy program, by contracting with local chaplains to counsel family, staff and residents. It is the company philosophy of Manor Care to be as involved in the local community as possible. Manor Care provides educational programs for residents, family and staff. Manor Care provides up to $750 per year tuition and expense for staff members wishing to further their education in the field. Manor Care has a centralized, comprehensive, quality assurance program, which consists of a set of standards compiled by taking the strictest standards of all federal and state guidelines in all states in which Manor Care operates. The program is implemented by a quality assurance team which does a comprehensive, unannounced inspection, similar to, but stricter than, a state survey. Manor Care provides higher than average Medicare utilization, which means that the level of care is higher than average. Medicare patients generally require a higher skilled level of care than most nursing home residents. Manor Care has committed 42 of its 120 beds for Medicaid utilization, and all services are offered to all patients regardless of their ability to pay. This percentage of Medicaid beds is below the community average for Medicaid utilization. Manor Care has an emphasis on rehabilitative treatment. Approximately 35-40% of residents in Manor Care facilities return home. Manor Care proposes as part of this application to dedicate a 30-bed wing for the provision of specialized care to Alzheimer's patients. This specialized care is not a "new service" added to its application. Rather, it is a recognition of state of the art care, and a rearrangement of services that would otherwise be provided on a less coordinated basis. There is a need for an Alzbeimer's program in Dade County, and Manor Care has the ability and the experience to provide a high-quality Alzheimer's program. Manor Care projects an occupancy rate of 58% at the end of the first year and predicts reaching and maintaining 90% occupancy midway through the second year. The daily rates projected for this facility are $69.21 for Medicaid, $126.62 for Medicare, and an average for private pay patients of $95.62; Alzheimer's patients would pay $94.00 for a semi-private room and $111.00 for a private room. Manor Care's rates are in the upper half of current rates in Dade County. Manor Care proposes to provide the highest nursing staff to patient ratio of all three applications. Manor Care's pro formas and charges are reasonable and are based upon Manor Care's experience in opening and operating nursing homes in Florida. Manor Care's project is financially feasible. 81. Manor Care proposes to locate in South Dade, where the need is greatest. There are only 22.3 beds per thousand in South Dade and greater than 27 beds per thousand in the rest of Dade County. Furthermore, three of eight homes located in South Dade County are not Medicaid-certified, so there is a need for additional Medicaid beds in South Dade County. THE HILLHAVEN PROPOSAL The Hillhaven corporation is the country's second largest owner and operator of nursing homes, with over 450 facilities throughout the United States, of which 15 operating facilities and three under construction are located in Florida. Hillhaven maintains district offices is Sarasota and Boca Raton, Florida, from which its management, personnel and professional services consultants supervise its Florida operations. Hillhaven proposes to construct a new 120-bed skilled and intermediate nursing facility in the southern part of Dade County as delineated by the District Health Council. The District Plan provides that nursing home beds should be available to the community at a ratio of 27 beds per 1000 population age 65 and over, and should be geographically accessible. The ratio of licensed and approved beds to elderly population in Dade County, measured at any appropriate point in time, is less than 27 per 1000. Therefore, the Hillhaven application is consistent with this criterion. Evidence also was presented that the ratio of beds to population in South Dade County, as defined by the District XI Health Council, is 22.3 per 1000, substantially below that for District XI as a whole. Hillhaven proposes to located its facility in South Dade County, so is consistent with this District Health Plan criterion. Hillhaven proposes to offer skilled nursing services, including round the clock nursing, physical therapy, occupational therapy, oxygen therapy and rehabilitative services in areas of restorative nursing such as bowel and bladder training, activities of daily living restoration, restorative feeding, reality orientation, recreation therapy, personal grooming and resident council. Hillhaven has successfully developed several nursing homes from the Certificate of Need phase through licensure in Florida and has never failed to complete construction of a CON- approved facility, nor has it ever had a CON revoked in Florida. Hillhaven has never exceed the CON approved budget in constructing a new Florida facility. sO. Hillhaven proposes to achieve a payor mix of 60% Medicaid, 30% private pay and 10% Medicare at its South Dade facility. This is 72 beds for Medicaid and 12 beds for Medicare. Hillhaven's corporate representative testified that Hillhaven's projected payor utilization differs from that set out in the original application filed in January, 1985, to take account of demographic changes during the past two years, including increased Medicaid utilization and unmet demand for Medicaid beds. The current Medicaid utilization in District XI exceeds 55%, and three of the existing eight facilities located in South Dade County do not accepted Medicaid patients. Hillhaven presented evidence that based on utilization of its existing facilities in Florida, accessibility problems for Medicaid patients to existing facilities, and the demographics in South Dade County, 60% Medicaid utilization is achievable. Hillhaven's system-wide Medicaid occupancy is between 50 and 53%, and Medicaid utilization at several existing Hillhaven facilities in Florida exceeds 60%. Superior licenses are granted to approximately 20% of all Florida facilities on the basis of extra staffing, on-staff consultants, superior compliance with regulatory and survey criteria and excellence of care. Hillhaven presented evidence that of its fifteen Florida facilities, nine currently have superior license. Hillhaven also was recommended for a tenth superior license shortly before the hearing. It has a conditional license at one Florida facility in Dade County. Hillhaven offered evidence that several of its superior-license facilities maintain Medicaid occupancy over 60%. Hillhaven has a quality assurance program, which employs professional service consultants (nurse consultants) and dietary consultants to monitor quality of care and to set up systems designated to insure quality of care. Hillhaven has a screening and assessment system used to place incoming patients in an appropriate setting and to- determine the appropriate level of care. Hillhaven has been able successfully to recruit and hire staff for its Florida facilities. Hillhaven provides staff in each of its facilities who are fluent in languages other than English. The staffing pattern projected for Hillhaven's proposed facility exceeds the regulatory requirements for the State of Florida and represents the level necessary to obtain a superior license in Florida. Hillhaven facilities also use support groups and social work designees to provide support to residents' families. Hillhaven's Florida facilities have set up resident councils in each facility to assist in making residents aware of their rights and to afford residents the opportunity to discuss their problems and make suggestions for improvements. All Hillhaven facilities in Florida provide physical therapy, occupational therapy and speech therapy. Hillhaven facilities emphasize a restorative nursing program including a bowel and bladder retraining program, a restorative feeding program and a living restoration program which emphasizes personal care and grooming skills. Hillhaven, also emphasizes activity and recreational therapy programs, and its facilities emphasize continuing the residents' link with the community through activities including the "Adopt-a-Resident" program, health fairs, and Heart Association fundraising drives. The Hillhaven Foundation, a not-for-profit educational foundation specializing in educating health professionals and the public about Alzheimer's disease, serves as an educational resource to train Hillhaven staff. Hillhaven projects achieving 95% occupancy in 12 months, and presented evidence that such a fill rate is realistic based on its projected payor mix and Florida experience. The Hillhaven proposal is financially feasible. Hillhaven's proposes to build a new 120 bed facility for a total project cost of $3,432.526. Hillhaven proposes to build a 38,323 square foot one- story H-shaped facility designed for construction and operational efficiency. Hillhaven's projected daily rates range from $58 to $62.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order granting Certificates of Need No. 3900, 3894, and 3893 to Manor Care, Inc., Hillhaven Convalescent Center, and Forum Group, Inc., each for a 120-bed nursing home in Dade County, Florida. DONE AND ENTERED this 8th day of April, 1987, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1987.
The Issue The issue is whether Hialeah Hospital, Inc. may be licensed for a 21-bed psychiatric unit, without first obtaining a certificate of need, on the basis that it provided psychiatric services before a certificate of need was statutorily required.
Findings Of Fact Background of the Controversy The Parties The Department of Health and Rehabilitative Services (the Department) is responsible for determining whether health care projects are subject to review under the Health Facility and Services Development Act, Sections 381.701- 381.715, Florida Statutes. It also licenses hospitals under Chapter 395, Florida Statutes. The Department's Office of Community Medical Facilities renders decisions about requests for grandfather status which would exempt a psychiatric service offered at hospital from certificate of need review. The Department's Office of Licensure and Certification issues licenses but does not grant grandfather exemptions. A hospital will not receive separate licensure for psychiatric beds unless a certificate of need has been obtained for those beds, or the beds are in a psychiatric unit which had been organized before certificate of need review was required. See Section 381.704(2), Florida Statutes (1987). A hospital can provide inpatient psychiatric services to a patient in one of three ways: a) as a patient housed among the general hospital population, b) as a patient housed in a special unit organized within the hospital and staffed by doctors, nurses and other personnel especially to serve patients with psychiatric diagnoses, or c) in a hospital organized as a psychiatric specialty hospital. Serving patients through methods b and c requires special certificate of need approval and licensure. Most community hospitals place psychiatric patients among the general patient population; few hospitals create a distinct psychiatric unit; fewer hospitals still specialize as psychiatric hospitals. Hialeah Hospital, Inc. is a 411-bed general hospital in Hialeah, Florida. It does not currently hold a certificate of need for licensure of a distinct psychiatric unit. As a result, its reimbursement for psychiatric services from the Federal government for Medicare patients is limited. The Health Care Finance Administration (HCFA) generally reimburses hospitals for services based upon flat rates which are paid according to categories known as diagnostic related groups. Hialeah Hospital now receives reimbursement for services it renders to psychiatric patients on this basis. If it is entitled to a grandfather exemption from certificate of need review, and its distinct psychiatric unit is separately licensed by the Department, Hialeah Hospital will receive cost-based reimbursement for services to psychiatric patients, which will result in higher income to the hospital. Approval of the grandfathering request will not result in a) any capital expenditure by the hospital, b) the addition of staff, or c) a change in the type of services currently offered at the hospital. Just before July 1, 1983, the hospital had an average daily census of 16-17 psychiatric patients. If the psychiatric services the hospital has offered do not qualify for grandfathering, Hialeah Hospital may apply for a certificate of need for a distinct psychiatric unit. Even without a psychiatric certificate of need, Hialeah is still entitled to continue to serve patients with psychiatric diagnoses among its general population, and to receive the lower diagnostic related group reimbursement for those services from HCFA. Palmetto General Hospital is a licensed general hospital with 312 acute care beds and 48 separately licensed psychiatric short-term beds operated as a distinct psychiatric unit. It is located near Hialeah Hospital, and both hospitals serve the same geographic area. The primary markets of both hospitals overlap. They compete for patients, including psychiatric patients. Agency Action Under Review From 1973 to 1979 the license issued to Hialeah Hospital by the Department bore a designation for 21 psychiatric beds, based on information submitted in the hospital's licensure application. The hospital then dropped the psychiatric bed count from its licensure applications. This change probably was caused by a problem generated by an announcement from the Northwest Dade Community Health Center, Inc., the receiving facility for psychiatric emergencies in northwestern Dade County, which includes Hialeah. That center had written to the Hialeah Police Department, informing the police that when the center was not open, it had a crisis worker at the Hialeah Hospital emergency room, and that persons needing involuntary psychiatric hospitalization should be taken to the Hialeah Hospital emergency room. The only other hospital in Hialeah treating psychiatric patients was Palmetto General Hospital, which did not accept, as a general rule, patients who could not pay for care. The Hialeah Police Department thereafter began dropping psychiatric patients at Hialeah Hospital, much to the distress of the Hialeah Hospital emergency room staff. The Hospital thereafter dropped the designation of any of its beds as psychiatric beds on its annual licensure applications. It still received psychiatric patients from Jackson Memorial Hospital when that hospital reached its capacity for psychiatric patients. On its 1980 licensure application Hialeah Hospital collapsed all of its medical, surgical and psychiatric beds into a single figure. This was consistent with its practice of serving medical, surgical and psychiatric patients throughout the hospital. Hialeah Hospital filed similar licensure applications in 1981, 1982, 1983. In 1984 there was a dispute over the total number of beds to be licensed, which was resolved in early 1985. In 1985, after a change in the licensing statute which is discussed below, the Department informed Hialeah Hospital that its application for licensure was incomplete and could not be processed until Hialeah explained its basis for seeking separate licensure for 20 short-term psychiatric beds. In its response, Hialeah's Vice President stated: [W]e felt it was appropriate to indicate that Hialeah Hospital did accept psychiatric admissions. These patients have been randomly placed in the institution, many times based on other primary or secondary diagnoses. The application indicates bed usage, not that it is currently a discrete unit. Hialeah Hospital does currently have a Letter of Intent [on file] for establishment of a discrete med/psych unit. Hialeah Ex. 24a On August 1, 1985, the Department's Office of Licensure and Certification informed Hialeah Hospital by certified mail that the application for licensure of 20 short-term psychiatric beds was denied for failure to have obtained a certificate of need for them or to have obtained an exemption from review [both could only come from the Department's Office of Community Medical Facilities]. The hospital was provided a clear point of entry to challenge this determination through a proceeding under Chapter 120, Florida Statutes, but Hialeah filed no petition for review of that decision. Instead, Hialeah pursued the certificate of need application which it had filed in April, 1985 for separately licensed psychiatric beds. There was no reason to challenge the August 1, 1985, denial because the factual bases alleged by the Department were true--the hospital had no certificate of need for psychiatric beds and had not yet asked the Department's Office of Community Health Facilities to decide whether Hialeah qualified for grandfathered beds. On October 21 and 23, 1986, Hialeah Hospital wrote to the Office of Community Health Facilities seeking a determination that it was entitled to have 21 pyschiatric beds grandfathered on its license. In certificate of need application 4025 Hialeah Hospital sought the establishment of a distinct 69 bed psychiatric unit at Hialeah, with separately licensed beds. The application went to hearing and was denied on its merits on February 17, 1987, in DOAH Case 85-3998. In his recommended order, the Hearing Officer discussed the issue of whether Hialeah Hospital was exempt from certificate of need review because it already had a psychiatric unit. He found that the issue was not appropriately raised in the proceeding before him, which was Hialeah Hospital's own application for a certificate of need to establish a psychiatric unit. He therefore found he lacked jurisdiction to consider the grandfathering issue. Hialeah Hospital v. HRS, 9 FALR 2363, 2397, paragraph 5 (HRS 1987). The Department adopted that ruling in its May 1, 1987, final order. Id. at 2365. A letter dated December 5, 1986, from the Office of Community Medical Facilities denied Hialeah's request to grandfather 21 short-term psychiatric beds on its license and thereby exempt them from certificate of need review, as requested in Hialeah's letters of October 21 and 23, 1986. The Department denied the grandfathering request for four reasons: When the Department conducted a physical plant survey on June 1, 1980, there were no psychiatric beds in operation at the hospital; The hospital bed count verification form returned to the Department on January 31, 1984 by the Director of Planning for Hialeah, Gene Samnuels, indicated that the hospital had no psychiatric beds; An inventory of psychiatric beds had been published by the Department in the Florida Administrative Weekly on February 17, 1984 which showed that Hialeah Hospital had no psychiatric beds, and Hialeah never contested that inventory; The Department had not received evidence demonstrating that psychiatric services were provided "in a separately set up and staffed unit between 1980 and 1985." This letter again gave Hialeah a point of entry to challenge the Department's decision to deny licensure of psychiatric beds and it was the genesis of Hialeah's petition initiating this case. It is significant that the Department's Office of Community Health Facilities gave Hialeah a clear point of entry to challenge the December 5, 1986, grandfathering denial with full knowledge that the Department's Office of Licensure and Certification had denied a request from Hialeah Hospital on August 1, 1985, to endorse psychiatric beds on Hialeah's 1985 license. The Departmental personnel knew that those two denials involved different issues. Once the Office of Licensure and Certification told the hospital it had to produce either a certificate of need or a grandfathering approval to have psychiatric beds endorsed on its license, the hospital had to turn to the Office of Community Health Facilities to get a ruling on its grandfathering claim. The letter of December 5, 1986, was the first ruling on the merits of Hialeah Hospital's claim that it was entitled to have 21 beds grandfathered. History of the Department's Specialty Bed Recognition Psychiatric Beds in Florida Hospitals Before July 1, 1983 Before April 1, 1983 no state statute or Department rule required that psychiatric beds in a hospital be located in physically distinct units. Psychiatric patients could be located throughout a hospital. They were not required to be placed in rooms having distinguishing characteristics, or to use group therapy rooms, dining rooms, or other rooms exclusively dedicated to use by psychiatric patients. There were, of course, hospitals that had distinct psychiatric units, and some entire hospitals which were specifically licensed as psychiatric hospitals. After 1983, a hospital had to obtain a certificate of need to organize what had previously been diffuse psychiatric services into a distinct unit dedicated to serving patients with psychiatric diagnoses. Today no special certificate of need is required to serve psychiatric patients in the general hospital population, but without separate licensure the hospital receives Medicare reimbursement from the federal government for psychiatric patients at the level established by the diagnostic related groups, not cost based reimbursement. Before July 1, 1983 annual hospital licensure application forms asked hospitals to identify their number of psychiatric beds as an item of information. The hospital licenses issued, however, were based on the hospital's total number of general medical-surgical beds, a category which included psychiatric beds. The 1983 Amendments to the Florida Statutes and the Department's Rules on Specialty Beds In April of 1983, the Department adopted a rule which established a separate need methodology for short-term psychiatric beds, Rule 10-5.11(1)(o), Florida Administrative Code. Thereafter, the Legislature amended the statutes governing the hospital licensing, Section 395.003, Florida Statutes (1983) by adding a new subsection (4) which read: The Department shall issue a license which specifies the number of hospital beds on the face of the license. The number of beds for the rehabilitation or psychiatric service category for which the Department has adopted by rule a specialty bed need methodology under s. 381.494 shall be specified on the face of the hospital license. All beds which are not covered by any specialty bed need methodology shall be specified as general beds. Section 4, Chapter 83-244, Laws of Florida (underlined language was added). In the same Act, the Legislature amended the planning law to require hospitals to apply for certificates of need to change their number of psychiatric and rehabilitation beds. Section 2, Chapter 83-244, Laws of Florida, codified as Section 381.494(1)(g), Florida Statutes (1983). The Department's rules defined short-term psychiatric services as: [A] category of services which provide a 24- hour a day therapeutic milieu for persons suffering from mental health problems which are so severe and acute that they need intensive, full-time care. Acute psychiatric inpatient care is defined as a service not exceeding three months and averaging a length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years. Rule 10- 5.11(25)(a), Florida Administrative Code (1983), effective April 7, 1983. A minimum size for any new psychiatric unit was prescribed in Rule 10- 5.11(25)(d)7., which states: In order to assure specialized staff and services at a reasonable cost, short-term inpatient psychiatric hospital based services should have at least 15 designated beds. Applicants proposing to build a new but separate psychiatric acute care facility and intending to apply for a specialty hospital license should have a minimum of 50 beds. After the effective date of the rule, April 7, 1983, no hospital could organize its psychiatric services into a distinct psychiatric unit using specialized staff unless the unit would have at least 15 beds. This did not mean that a hospital which already had organized a distinct psychiatric unit using specialized staff had to have at least 15 beds in its unit to continue operation. Whatever the number of beds, whether fewer or greater than 15, that number had to appear on the face of the hospital's license. Section 395.003(4), Florida Statutes (1983). To change that number, the hospital had to go through the certificate of need process. Section 381.494(1)(g) Florida Statutes (1983). Those hospitals whose pre-existing units were endorsed on their licenses can be said to have had those units "grandfathered". There is no specific statutory exemption from certificate of need review for pre-existing units, but such treatment is implicit in the regulatory scheme. The Department's Grandfather Review Process To know which hospitals were entitled to continue to operate discrete psychiatric units without obtaining a certificate of need, the Department's Office of Community Medical Facilities had to identify hospitals which had separate psychiatric units before the July 1, 1983, effective date of Section 395.003(4), Florida Statutes (1983). An inventory of beds in the existing psychiatric units also was necessary to process new certificate of need applications. The Department's rule methodology authorized additional beds in psychiatric units based upon a projected need of 15 beds per 10,000 population. Rule 10-5.11(25)(d)1., Florida Administrative Code (1983). The Legislature approved the psychiatric service categories which the Department had already adopted by rule when it enacted Section 4 of Chapter 83- 244, Laws of Florida. The Legislature thereby validated a process the Department had initiated in 1976 with its Task Force on Institutional Needs. That group had developed methodologies to be used throughout the state to determine the need for different types of medical services, because local health systems agencies were reviewing CON applications based upon idiosyncratic methodologies. To develop review criteria for psychiatric services, the Task Force had to both define psychiatric services and determine how it should measure them. In doing so, the Department looked for assistance to publications of entities such as the American Hospital Association and the Joint Commission on Accreditation of Hospitals. According to the American Hospital Association, psychiatric services are services delivered in beds set up and staffed in units specifically designated for psychiatric services. In the Task Force report, a psychiatric bed was defined as: A bed in a clinical care unit located in a short-term, acute care hospital or psychiatric hospital which is not used to provide long-term institutional care and which is suitably equipped and staffed to provide evaluation, diagnosis, and treatment of persons with emotional disturbances. An inpatient care unit or clinical care unit is a group of inpatient beds and related facilities and assigned personnel in which care is provided to a defined and limited class of patients according to their particular care needs. HRS Exhibit 14 at 92 and 1-5. The definition of a psychiatric bed in the Report of the Department Task Force on Institutional Needs is compatible with the requirements of the Florida Hospital Cost Containment Board in its Florida Hospital Uniform Reporting Manual. Reports made by hospitals to the Hospital Cost Containment Board include information about services provided in separately organized, staffed and equipped hospital units. The information provided to the Board assisted the Department in determining which Florida hospitals already were providing psychiatric services in separately organized, staffed and equipped hospital units before separate licensure became necessary. The Department surveyed hospitals to determine the number of existing beds in distinct psychiatric units. It also looked to old certificates of need which referenced psychiatric services at hospitals, reports hospitals had made to the Florida Hospital Cost Containment Board, to past licensure applications the Department had received from hospitals, and to the Department's 1980 physical plant survey. These sources of information were, however, imperfect, for the reasons which follow: 1. Certificates of Need Issued 22. Before July 1, 1983, certificates of need were required for the initiation of new services which involved capital expenditures above a certain threshold dollar amount. Hospitals which had a long-standing psychiatric units would have had no occasion to request a certificate of need for psychiatric services. Review of certificates issued would not turn up a hospital with a mature psychiatric service. 2. Hospital Cost Containment Board Information 23. The reports from hospitals during the early years of the Hospital Cost Containment Board are not entirely reliable, because the hospitals did not yet have uniform accounting systems in place, despite the Board's attempt to establish uniform accounting methods through its reporting system manual. Hospitals commonly made errors in their reports. If the reports were prepared correctly, they would identify hospitals with discrete psychiatric units. Hialeah's HCCB Reports for 1981, 1982 and 1983 indicated that the hospital had no active psychiatric staff, no psychiatric beds and no psychiatric services. 3. Departmental Survey Letters 24. In Spring, 1983, the Department tried to verify the existing inventory of beds for specialty services such as psychiatric services, comprehensive medical rehabilitation services and substance abuse services. There is no record, however, that this survey letter was sent to Hialeah Hospital. In late 1983 or early 1984, the Department again attempted to establish inventories for psychiatric beds and rehabilitation beds. It distributed a cover letter and a form entitled "Hospital Bed Count Verification", which asked hospitals to confirm the Department's preliminary count of the hospital's "number of licensed beds". Hialeah's planner returned the form verifying that Hialeah Hospital was licensed for 411 "acute general" beds and that it had no short or long term psychiatric beds. The answer was correct, for that is the figure which appeared on Hialeah's license at that time. The Department did not ask the hospitals for an average daily census of short-term psychiatric patients. The cover letter for the survey form told hospital administrators that the Department was seeking to verify its preliminary bed count for services for which a special bed need methodology had been established, viz., long and short term psychiatric beds, substance abuse beds and comprehensive medical rehabilitation beds. The cover letter drew attention to the Department's intention to use the data collected from the responses to the form as a beginning inventory for short-term psychiatric beds. The cover letter also cautioned hospitals that when completing the form, they should "keep in mind the service definitions". Copies of the definitions were attached to the form. The appropriate inference to be drawn from the answer given by Hialeah Hospital to the survey form was that in January, 1984, the hospital had no beds organized into a short term psychiatric unit. This is consistent with the later letter from the hospital's vice president quoted in Finding of Fact 6, above. The Department published on February 17, 1984, its base inventory of psychiatric and rehabilitation beds in the Florida Administrative Weekly. The publication stated that "any hospital wishing to change the number of beds dedicated to one of the specific bed types listed will first be required to obtain a certificate of need." 10 Florida Administrative Weekly at 493. Hialeah was shown as having no psychiatric beds. Id. at 498. The notice did not specifically inform the hospitals of the right to petition for a formal hearing to challenge the inventory figures published. 4. Licensure Files 25. Although, the Department's licensure application form listed "psychiatric" as a possible hospital bed utilization category before 1983, these categories were set up for informational purposes only. No definitions were given to hospitals describing how beds should be allocated among the categories available on the form, making those figures unreliable. Before 1980 Hialeah Hospital had listed psychiatric beds on its licensure applications, see Finding of Fact 5, above. Since 1980 it listed no psychiatric beds. 5. Physical Plant Survey The Department performed a physical plant survey in 1980 to determine the total number of beds in service at each hospital. That survey did not attempt to make distinctions between different types of services listed on the survey form. The Department's architect who performed the survey did not attempt to evaluate the quality or intensity of the psychiatric services provided at any hospital. Each of the types of information the Department examined to determine the existing inventory of short-term psychiatric beds in 1983 had weaknesses, and no single source is dispositive. It is difficult to credit the assertion that Hialeah Hospital had a distinct psychiatric unit before July, 1983 which was not reflected in any of these sources of information. The use of multiple sources of information served as a cross-check on information from each source. It is understandable that Hialeah would not have applied for a certificate of need to operate a separate psychiatric unit. Before 1983, no such application was needed if the establishment of the unit entailed an expenditure of money below a threshold amount. All of its reports to the Hospital Cost Containment Board, however, indicate that there was no separate psychiatric service at the hospital and that the hospital had no active psychiatric staff. With respect to the Department's survey letters, while the 1984 survey form itself did not specifically inform hospital administrators that their responses would be used to establish a base inventory of psychiatric beds, the cover letter did make that clear. This should have put the hospital's planner, who filled out the form, on notice that if Hialeah had a discrete, short-term psychiatric service the number of beds in that unit should be listed. What is perhaps the most significant point is that the hospital reported no psychiatric beds on its licensure application at all from 1980 to 1985. Medical doctors in general practice can and do treat psychiatric patients, in addition to doctors who specialize in psychiatry. No doubt patients commonly were admitted to the hospital who had primary diagnoses of psychiatric illnesses. The hospital's licensure filings, however, since 1979 fail to record any psychiatric beds. This is important evidence that the hospital did not regard itself as having any distinct unit organized to provide psychiatric care. The Hospital's 1985 correspondence from the Hospital's vice president to the Department, quoted in Finding of Fact 6 confirms this. The failure to list any psychiatric beds at Hialeah on the Department's 1980 physical plant survey is not significant, since determining the number of psychiatric beds was not the focus of that survey. It is true that the Department never conducted site visits at all hospitals to determine whether they had a) distinct psychiatric units, b) psychiatric medical directors, c) written psychiatric admission and treatment policies, or d) psychiatric policy and procedures manuals. The efforts the Department did make to establish the beginning inventory of psychiatric beds were reasonable, however Hialeah Hospital's Licensure History and Efforts to Obtain Grandfather Status The entries on Hialeah's applications for annual licensure from the Department are cataloged above, and need not be repeated. During the years 1980-84, after it ceased listing psychiatric beds on its licensure application, psychiatric services were still being provided to patients throughout the hospital. In 1984, the hospital engaged in correspondence with the Department over the appropriate number of licensed beds for the hospital as a whole. Ultimately the hospital and the Department agreed that 411 beds should be licensed. In its 1985 licensure application, Hialeah then requested that 20 short-term psychiatric beds be listed on the license. The Office of Licensure and Certification questioned this. Ultimately, the Office of Licensure and Certification refused to endorse those 20 psychiatric beds on the license because there was no certificate of need on file for them, nor any statement from the Office of Community Medical Facilities granting the hospital an exemption from that licensure requirement. Hialeah Hospital did not challenge that decision in a proceeding under Chapter 120, Florida Statutes. The discussions between the hospital and the Department's Office of Community Medical Facilities continued, and by late October, 1986, Hialeah requested the Department to approve 21 short-term psychiatric beds at the facility, and sent the Department backup material which it believed justified a grandfather determination. After review, the Department denied the grandfather request by letter dated December 5, 1986. The Department's Action Regarding Other Grandfathering Requests Hialeah's is not the first request the Department received for grandfathering beds. After June of 1983, when the Legislature required CON approval for hospitals to change their number of psychiatric or rehabilitation beds, a number of institutions made similar requests. 1. Comprehensive Medical Rehabilitation Beds The rule on comprehensive medical rehabilitation beds was developed by the Department at the same time as the rule on psychiatric beds. The Department used a similar process to determine the existing inventory of both types of beds. The Department determined that preexisting comprehensive medical rehabilitation units at Parkway General Hospital, Naples Community Hospital, Orlando Regional Medical Center, Holy Cross Hospital, and University Community Hospital entitled those facilities to grandfathering of their comprehensive medical rehabilitation services. The Department has also determined that a preexisting distinct psychiatric unit at Palmetto General Hospital entitled that institution to grandfather status for its psychiatric beds. Parkway General Parkway General Hospital did not specify rehabilitation beds on its licensure applications for the years 1980 through 1984. The Department denied Parkway's request for endorsement of 12 comprehensive medical rehabilitation beds on its 1985 license because Parkway had not obtained a certificate of need for them or an exemption from review. The Department thereafter determined that Parkway had been providing comprehensive medical rehabilitation services before June, 1983 in a physically distinct and separately staffed unit consisting of 12 beds. It then endorsed 12 beds on Parkway's license, even though the rule which became effective in July, 1983 would require a minimum unit size of 20 beds for any hospital organizing a new comprehensive medical rehabilitation unit. See Rule 10-5.011(24), Florida Administrative Code. Naples Community Hospital The Department granted Naples Community Hospital a grandfather exemption for its rehabilitation beds in February, 1987. In had not listed the rehabilitation beds on its license application for the years 1983-1985, had not returned the Department's bed count verification form, nor did it challenge the bed count which the Department published in the Florida Administrative Weekly. The hospital had applied for and received a certificate of need in January of 1981 to establish a 22-bed rehabilitation unit and that unit began operation in late 1982. The Department ultimately determined that the hospital had provided rehabilitation services in a physically distinct unit and the services were organized and delivered in a manner consistent with applicable regulatory standards. It granted a grandfather request in February, 1987. Orlando Regional Medical Center A grandfather exemption for 16 rehabilitation beds was granted to Orlando Medical Center in 1986. The 16-bed brain injury unit had been authorized by the Department through certificate of need number 2114 before the Department had adopted its rule governing comprehensive medical rehabilitation beds in 1983. The services were provided in a physically distinct unit. The Department determined the 20-bed minimum size for a new unit did not apply to a unit which qualified for grandfathering. Holy Cross Hospital The Department granted a grandfather exemption for comprehensive medical rehabilitation beds to Holy Cross Hospital after a proceeding was filed with the Division of Administrative Hearings to require the Department to recognize the existence of a 20-bed comprehensive medical rehabilitation center. The Department determined by a site visit that Holy Cross had established a separate unit, probably in 1974, long before the Department's comprehensive medical rehabilitation unit rule became effective in July, 1983. The unit had its own policy manual, quality assurance reports, patient screening criteria, and minutes of multidisciplinary team staff conferences. The hospital had neglected to report the unit in its filings with the Hospital Cost Containment Board but the hospital contended that it never treated the unit as a separate unit for accounting purposes, and had not understood the need to report the unit as a distinct one under Hospital Cost Containment Board reporting guidelines. The hospital corrected its reporting oversight. The grandfathering is consistent with the hospital's actual establishment of the unit long before the Department's rules went into effect. University Community Hospital A dispute over whether to grandfather a comprehensive medical rehabilitation unit which went through a Chapter 120 administrative hearing and entry of a final order involved University Community Hospital (UCH). The Department initially determined that the nine comprehensive medical rehabilitation beds at UCH had been in existence before July, 1983 and were exempt from certificate of need review. That decision was challenged in a formal administrative proceeding by a competing hospital, Tampa General. The competitor was successful, for both the Hearing Officer in the recommended order and the Department in the final order determined that University Community Hospital's 9 bed rehabilitation unit was not entitled to be grandfathered. University Community Hospital v. Department of Health and Rehabilitative Services, 11 FALR 1150 (HRS Feb. 14, 1989). In determining that grandfathering was inappropriate, the Department found that the hospital had not prepared separate policies and procedures for its rehabilitation unit before the rule on comprehensive medical rehabilitation beds became effective, and that the unit did not have a physical therapy room on the same floor as the patients. The beds supposedly dedicated to rehabilitative care were mixed with non- rehabilitative beds, so that a semiprivate room might have one bed used for rehabilitative care and another for an unrelated type of care. This conflicted with the requirement that the rehabilitation unit be physically distinct, with all patients and support services located on the same area or floor, rather than scattered throughout the hospital. The Department also determined that many hospitals offer physical therapy, occupational therapy, or speech therapy, but that to qualify as a comprehensive medical rehabilitation center, these services had to be coordinated in a multidisciplinary approach to the patient's needs, which had not been the case at University Community Hospital. The common strand running through the grandfathering decisions on comprehensive medical rehabilitation beds is that grandfathering is appropriate when a hospital demonstrates that before the comprehensive medical rehabilitation rule became effective in July, 1983, it had a separate unit which met the standards and criteria for a comprehensive medical rehabilitation unit (other than the minimum size for new units). Psychiatric Beds Tampa General Hospital Only two cases involve a decision on whether psychiatric services at a hospital qualify for grandfathering. Tampa General Hospital, which was owned by the Hillsborough County Hospital Authority, operated 93 psychiatric beds in 1981, 71 at Hillsborough County Hospital and 22 at Tampa General Hospital. A certificate of need granted in 1981 authorized the expenditure of $127,310,000 for the consolidation of both hospitals and an overall reduction of 14 psychiatric beds after the hospitals were integrated. When the Hillsborough County Hospital Authority obtained its certificate of need, it was not necessary to differentiate between general acute care beds and psychiatric beds for licensure purposes. Increased demand for acute care beds led Tampa General to close its psychiatric unit and make those 22 beds available for ordinary acute care. After the 1983 statutory and rule changes regarding the separate licensure of psychiatric beds, the Hillsborough County Hospital Authority told the Department that Tampa General had no psychiatric beds in operation. On its 1985 licensure application, the Hillsborough County Hospital Authority applied for licensure for 22 psychiatric beds at Tampa General and 77 at Hillsborough Hospital. The Department denied the request for the psychiatric beds at Tampa General. The Final Order entered in Hillsborough County Hospital Authority v. HRS, 8 FALR 1409 (Feb. 16, 1986), determined that there had been a discontinuation in the use of psychiatric beds at Tampa General, and that to allow Tampa General to add psychiatric beds after the statutory and rule changes in 1983 would frustrate the certificate of need process and would be detrimental to good health care planning. Palmetto General Hospital Palmetto General Hospital participated in an administrative hearing in 1975 regarding the disapproval of its proposed expansion, which included the dedication of one floor and 48 beds as a psychiatric unit. The Hearing Officer found that there was a need for psychiatric beds in the community and recommended that the Secretary of the Department issue a certificate of need "for that portion of the applicant's proposed capital expenditures relating to the addition of a 48 bed psychiatric unit". Palmetto General Exhibit 32, at 12, paragraph 2. The order of the Hearing Officer was affirmed by the District Court of Appeal in Palmetto General Hospital, Inc. v. Department of HRS, 333 So.2d 531 (Fla. 1st DCA 1976). The approval of the 48 psychiatric beds is clear only from a review of the Hearing Officer's order. Certificate of Need 292X was issued for the 48 psychiatric beds. Palmetto General exhibit 45. Palmetto received Medicare certification for its psychiatric inpatient unit, and listed 48 short-term psychiatric beds on its licensure applications each year from 1979 to 1983. It failed to show its psychiatric beds on the bed count verification survey form sent by the Department. Palmetto General's chief financial officer told the Department on June 10, 1983 that Palmetto General did not have psychiatric beds in a separately organized and staffed unit. This resulted in the issuance of a license which showed no psychiatric beds. The Department itself wrote to the administrator of Palmetto to learn why the 48 short-term psychiatric beds had not been listed on Palmetto's application for licensure in 1985. Palmetto wrote back and acknowledged that it did have 48 short-term psychiatric beds. A license showing those 48 beds was then issued. Thereafter, staff from the HRS Office of Comprehensive Health Planning took the position that the 48 short-term psychiatric beds should not have been listed on the license, and the Department's Office of Licensure and Certification requested that the 1985 license containing the endorsement for those 48 psychiatric beds be returned to the Department for cancellation. Palmetto then sought an administrative hearing on the attempted cancellation of the license. Palmetto and the Department entered into a Final Order dated March 9, 1986 which agreed that Palmetto met all the requirements for the designation of 48 short-term psychiatric beds on its license. Palmetto, had, in fact, operated a 48 bed psychiatric unit on its third floor since 1981, but moved that unit to the sixth floor in 1985. It was dedicated exclusively to psychiatric patients and there were specific policy and procedure manuals developed and used in dealing with psychiatric patients since 1981. The history of Palmetto's licensure is certainly one replete with contradictions. It is inexplicable that the chief financial officer of the hospital would have told the Department in 1983 that it had no separately organized and staffed psychiatric unit when, in fact, it had such a unit. It was also unclear why it would have shown no psychiatric beds on the bed count verification form returned in late December or early January, 1984, or why its April, 1983, and its 1985/1986 license application forms listed no psychiatric beds. Nonetheless, it had obtained a certificate of need for a psychiatric unit after administrative litigation and an appeal to the District Court of Appeal. The unit was opened and remained continuously in existence. It had appropriate policies and procedures in place for a distinct psychiatric unit as the 1983 statutory and rule amendments required for separate licensure of psychiatric beds. History of Psychiatric Bed Services at Hialeah Hospital Since at least 1958, Hialeah Hospital has had psychiatrists on its medical staff, and the number of psychiatric physicians on staff has increased. Thirteen psychiatrists had admitting privileges at the hospital by 1983; there are now 23 psychiatrists with privileges. As is true with most community hospitals, physicians specializing in psychiatry would admit patients to the general population at Hialeah Hospital if they needed intensive psychotherapy or medication which needed to be monitored by nurses. Patients who were homicidal, suicidal or intensely psychotic were not admitted to Hialeah Hospital. Those patients need a more intensive psychiatric environment, either in a locked psychiatric unit or in a psychiatric specialty hospital. The persons physicians placed at Hialeah through 1983 did not need the intensive services of a discrete psychiatric unit. Hialeah Hospital indicated on its licensure application to the Department that it had 21 psychiatric beds throughout the 1970's, but ceased this listing in the 1980's as set forth in Finding of Fact 5 above. The nature of the services available at the hospital had remained constant. Under the psychiatric diagnosis coding system published in the Diagnostic Statistical Manual III, (which is commonly used by psychiatrists) Hialeah Hospital had an average daily census of 25 patients with primary or secondary psychiatric diagnoses in 1980, and 18 in 1981. Only about 25 percent of those patients had a primary psychiatric discharge diagnosis. The additional patients had secondary psychiatric diagnoses. Hialeah must rely on these secondary diagnoses to argue that its average daily census for psychiatric patients approached 21 beds. It was not until 1985 that Hialeah consolidated its psychiatric services to a medical/psychiatric unit. That unit serves patients with medical and psychiatric diagnosis as well as patients with solely psychiatric diagnoses. Before 1983, there was no medical director of psychiatry at Hialeah Hospital, and no separate policies and procedures for the admission of patients to a psychiatric unit, nor any staff dedicated to the care of psychiatric patients. To be sure, the hospital was in a position to provide quality psychiatric care to patients whose needs were psychotherapy, monitored medication, or individual counseling by psychiatric physicians and nurses. This reflects the reality that not all patients who need to be placed in the hospital for psychiatric care require the services of a separate medical/psychiatric unit. Patients with more acute psychiatric illness do need interdisciplinary approaches to their care. These interdisciplinary approaches are more expensive than serving psychiatric patients in the general hospital population. This is why the Federal government provides higher, cost-based reimbursement to the hospitals with specialty psychiatric licenses. Hialeah has not proven that the psychiatric services it was providing before 1983 were significantly different from those provided in typical community hospitals which did not have distinct psychiatric units. Hialeah's long-standing relationship with the Northwest Community Mental Health Center is not especially significant. Certainly, the Center was aware that Hialeah was a potential source of psychiatric care. Baker Act patients who needed hospitalization were taken there between 1980 and 1983. There was a flow of patients back and forth between the Center and the hospital's inpatient population, and discharge plans by Hialeah's social workers included referrals back to the Mental Health Center for follow-up and outpatient care. Similarly, the Dade-Monroe Mental Health Board knew that Hialeah was a potential provider of inpatient psychiatric services. The predecessor to the current local health council, the health systems agency of South Florida, recorded that there were psychiatric admissions at Hialeah Hospital in the early 1980's, and the health systems agency recommended a conversion of existing beds to psychiatric services because of a need for additional psychiatric services in the area. None of this, however, means that Hialeah had operated a distinct psychiatric unit before 1983 which entitles it to grandfather status.
Recommendation It is recommended that the application of Hialeah Hospital for grandfather status for 21 short-term psychiatric beds, and the inclusion of those short-term psychiatric beds on its license and on the Department's bed inventory be denied. DONE AND ENTERED this 6th day of October, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1989.
Conclusions Having reviewed the Amended Administrative Complaint ant the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and the Administrative Complaint and Election of Rights forms to the Respondent. (Composite Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $18,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed April 17, 2014 3:12 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this_ Z@ day of Cort , 2014. Elizabeth Dudxk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct gps of this Final Order was served on the below-named persons by the method designated on this ik. day of / , 2014. a ay X\ OOP, Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting ~ | Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Alba M. Rodriguez, Senior Attorney Peter A. Lewis, Esq. Office of the General Counsel Law offices of Agency for Health Care Administration Peter A. Lewis, P.L. (Electronic Mail) 3023 North Shannon Lakes Drive - Suite 202 Tallahassee, Florida 32309 (U.S. Mail) Cathy M. Sellers Administrative Law Judge [Division of Administrative Hearings (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2012011203 ; v. ISLF WESTCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. AMENDED ADMINISTRATIVE COMPLAINT" COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this Amended Administrative Complaint against ISLF Westchester of Sunrise, LLC d/b/a Westchester of Sunrise (hereinafter “Westchester of Sunrise”), pursuant to Chapter 429, Part I, Chapter 408, Part Il, and Section 120.60, Florida Statutes (2011), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $5,000.00 pursuant to Sections 429.14 and 429.19, Florida Statutes (2011), for the protection of public health, safety and welfare, and to impose a survey fee in the amount of $500.00 pursuant to Section 429.19(2)(c) and 429.19(7), Florida Statutes (2011). L The Amended Administrative Complaint is being issued to reflect the revised sanctions imposed by the Agency. Coellae TE EXHIBIT 1 JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and Chapter 28-106, Florida Administrative Code (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2011). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Chapter 408, Part II, Florida Statutes (2011), and Chapter 58A-5 Florida Administrative Code (2011). 5. Westchester of Sunrise operates a 150-bed assisted living facility located at 9701 W. Oakland Park Blvd., Sunrise, Florida 33351. Westchester of Sunrise is licensed as an assisted living facility under license number 7440. Westchester of Sunrise was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes, COUNT I WESTCHESTER OF SUNRISE FAILED TO ENSURE RESIDENTS LIVE IN A SAFE ENVIRONMENT SECTION 429.28, FLORIDA STATUTES RULE 58A-5.0182(6), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE — FACILITY PROCEDURES STANDARDS) CLASS If VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Westchester of Sunrise was cited with one (1) Class II deficiency as the result of a revisit survey conducted on Aril 2, 2012. 8. Based on observation, record review, and interview, it was determined that the facility failed to ensure residents live in a safe and decent living environment and with due recognition of personal dignity, for 1 resident. (Resident #1) The findings include the following. 9. During an interview on 4/2/12 at 10:30 AM with Resident #1, the resident's room was observed in disarray. Empty food containers were on the resident's side table beside her nebulizer, food was in the draws of the wall unit, and in a box on the table. The resident's clothes were hanging on rods in broken boxes in the corner of the room. Four unidentified pills in a plastic bag were noted on the bedside table, and an empty insulin bottle and 4 empty pill bottles on the counter in the bathroom. The floor in the room was also soiled. 10. The resident stated she felt like nobody likes her, staff is mean, and nobody ever comes to check on her. The resident also stated she is missing medication, the aides don't shower her, and she feels like "the staff are mad at me". Then the resident began crying. 11. At 10:35 AM on 4/2/12, the call light was tested and pressed by the surveyor with the facility manager present. Fifteen minutes later, at 10:45 AM, the call light was answered. The call light was answered by a med tech, who stated nobody was in the medication room when the light went off so they did not see it. 12. During an interview on 4/2/12 at 11:40 AM with the 2 facility med techs, they stated resident #1 does not have any home health services and self-administers their medications. The med techs also stated they did not store any of the resident's medications and they should all be kept in her room. At that time observation was made of the call light system which is located inside the first floor medication room/nurse station. If no staff is present in this room, there is no way to know if a resident activates the call system. 13. A review of resident #1's record revealed an admission date of 1/31/11 and a diagnosis to include diabetes, renal insufficiency, and asthma. The AHCA form 1823 dated 1/26/11 documents the residents need for assistance with medications. The AHCA form 1823 dated 2/17/12 documents the resident's need for assistance with bathing and need for help taking their medications. The form did not document if the resident needs assistance with self- administration or medication administration. 14. The resident's medication observation record (MOR) for February through April 2012 was reviewed and included the following medications: Lantus 100 units/ml vial inject sub- Q 25 units 3 times a day, "Home Health Care". Iprat-Albut .5-3(2.5) mg use 1 vial via nebulizer twice daily. Wellbutrin XL 150 mg 1 tablet daily. Glipizide 10 mg 1 tablet daily. Singulair 10mg 1 tablet daily. Bupropion hel 150mg 1 tablet twice daily. 15. | The MOR's were blank. The facility did not document resident #1 had refused or received their medications as ordered by the physician for 14 months. A plan of care for skilled services to administer the resident's insulin was requested as well as the home health record. The facility manager stated the resident does not receive home health services and the facility has not been monitoring the resident's diabetes. 16. Further review of the record did not contain physician's orders for the resident to self-administer any medications, or documentation the resident was being assisted with bathing. There was no evidence the facility notified the physician with any concerns. 17. During an interview on 4/2/12 at 2:40 PM with the facility manger and Resident #1 in their room, the resident stated she gives herself the insulin 2 or 3 times a day depending on what she eats and does not check her glucose levels. At that time observation was made of 2 bottles of Lantus insulin in a plastic bag in the resident's refrigerator. The resident also stated she was missing medications, and needed to get to the bank because she did not have the money for the copayments. She reported the facility does not get her medications and was not in possession of any of the above listed medications. 18. During an interview on 4/2/12 at 4:00 PM with the facility manager and nurse consultant to review resident #1's record, it was confirmed the facility does not have a physicians order for resident #1 to self administer their medications. It was also confirmed the facility does not supply or store any of resident #1's medications. The facility could not provide documentation resident #1 had received any of their physician ordered medications from 2/1/11 through 4/2/12 or home health services as ordered by the physician for diabetic management. This is an uncorrected tag from survey on 12/21/11. 19. Based on the foregoing facts, Westchester of Sunrise violated Section 429.28 Florida Statutes, and Rule 58A-5.0182(6), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $5,000.00. SURVEY FEE Pursuant to Section 429,19(7), Florida Statues (2011), AHCA may assess a survey fee in the amount of $500.00 to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Westchester of Sunrise. 2. Assess an administrative fine of $5,000.00 against Westchester of Sunrise on for the violation cited above. 3. Assess a survey fee of $500.00 against Westchester of Sunrise for the violation cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Ti allahassee, Florida 32308. Alba M. ee Bs i Fla. Bar No.: 0880175 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53” Street Suite 300 Miami, Florida 33166 305-718-5906 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. — Suite 500 Delray Beach, Florida 33484 (U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail palewis@petelewislaw.com, Peter A. Lewis, Esq., Attorney for Respondent, 3023 N. Shannon Lakes Drive, Suite 101, Tallahassee, Florida 32309 on this 13" day of February, 2014. Alba M. 2 Rediaatae STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: ISLF Westchester of Sunrise, LLC d/b/a AHCA No.: 2012011203 Westchester of Sunrise ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) | I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) ___—=i dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Floriaa Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2012001196 Return Receipt Requested: v. 7009 0080 0000 0586 7599 ISLF-WESTHCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this administrative complaint against ISLF-Westchester of Sunrise LLC d/b/a Westchester of Sunrise (hereinafter “Westchester of Sunrise”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2011), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $13,000.00 pursuant to. Sections 429.14 and 429.19, Florida Statutes (2011), for the protection of public health, safety and welfare JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and Chapter 28-106, Florida Administrative Code (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2011). PARTIES 4, AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2011), and Chapter 58A-5 Florida Administrative Code (2011). 5. Westchester of Sunrise operates a 150-bed assisted living facility located at 9701 W. Oakland Park Blvd., Sunrise, Florida 33351. Westchester of Sunrise is licensed as an assisted living facility under license number 7440. Westchester of Sunrise was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I WESTCHESTER OF SUNRISE FAILED TO PROVIDE PERSONAL SUPERVISION 1 DAILY OBSERVATION, AND GENERAL AWARENESS OF RESIDENT’ S WHEREABOUTS AND SAFETY WHICH RESULTED IN DEATH. RULE 58A~5.0182(1), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE SUPERVISION STANDARDS) CLASS I VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Westchester of Sunrise was cited with two (2) Class I deficiencies and one (1) Class IT deficiency as the result of a complaint investigation survey that was conducted on December 21, 2011. 8. A complaint investigation survey was conducted on December 21, 2011. Based on record review and interview, it was determined that the facility failed to provide personal supervision, daily observation, and general awareness of a resident's whereabouts and safety, which resulted in death for one out of four sampled residents (resident #3). The findings include the following. 9. A review of the adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered on 11/11/11 unresponsive on the floor in a’ vacant room on the floor where he resided. During an interview on 12/21/11 at 2:45 PM with the Director of Nurses (DON) and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. 10. The risk manager also reviewed documentation from staff reporting resident #3 did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident's family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation, the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. The resident was discovered on 11/11/11 at approximately 12:20 PM in a vacant room across the hall from their room. 11. In interview on 12/21/11 at 3:45 PM the DON, risk manager, and administrator confirmed the facility does not have policies regarding resident supervision or resident safety related to vacant rooms. 12. A review on 1/13/11 of the police investigation dated 11/11/11 revealed a sworn statement taken from facility staff documenting staff was aware the resident liked to walk and was prone to falling. It was also documented that "No employees attempted CPR or to free him from his walker, nor. did any persons to her knowledge check for breathing or a pulse until the Sunrise FD arrived and performed their assessment." "It appears as if the decedent was confused...this was not the first time that the decedent wandered into another room thinking that is was his. No signs of forced entry, however, it appeared as if the decedent was possibly struggling to keep his balance thus knocking over some furniture." 13. A review of the medical examiner's report dated 11/12/11 identified the injury description as the decedent’s neck became caught in the walker and the cause of death as Asphyxia due to Cervical Compression. 14. Based on the foregoing facts, Westchester of Sunrise violated Rule 58A-5.0182(1), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $6,000.00. COUNT II WESTCHESTER OF SUNRISE FAILED TO ENSURE RESIDENTS LIVED IN A SAFE ENVIRONMENT. SECTION 429.28, FLORIDA STATUTES RULE 58A-5.0182(6), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE RIGHTS & FACILITY PROCEDURES STANDARDS) CLASS I VIOLATION 15. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 16. A complaint investigation survey was conducted on December 21, 2011. Based on observation, record review, and interview, it was determined that the facility failed to ensure residents live in a safe environment, free from neglect which resulted in a death of a resident, for 1 of 4 sampled residents (Resident #3). The findings include the following. 17. Resident #3 was admitted to the facility on 9/24/11 with a diagnosis to include depression, anxiety, and he osteoporosis. A review of the AHCA form 1823 dated 9/15/1 documented the resident ambulates independently with a walker. A review of the facility resident summary sheet dated 9/24/11 documents the resident's need for partial assistance with a walker while ambulating. 18. Continued review revealed a physician order dated 11/9/11 for Tylenol 650 mg daily three times a day and a rib series "dx: S/P Fall" (diagnosis: status/post fall). Further review of the resident's record revealed no documentation regarding a fall. 19. A review of the medication observation record (MOR) documented resident #3 began taking Tylenol 325 mg 2 tabs three times a day on 11/10/11. During an interview on 12/21/11 at 11:30 AM with the risk manager, Director of Nurses (DON) and administrator, the facility was unable to determine when the resident had a fall. 20. During an interview on 12/21/11 at 12:00 PM with the physician and the physician assistant, who wrote the order on 11/9/11, she stated the resident was complaining of rib pain "he said he had fallen but did not say when". The physician stated she reviewed an old X-ray from a left rib fracture but since the resident was complaining of right rib pain and has a history of falls she ordered the rib series. 21. A review of the facility's adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered unresponsive on the floor in a vacant room. During an interview on 12/21/11 at 2:45 PM with the DON and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. The DON stated the door to vacant rooms should always be locked. During the interview, the maintenance director confirmed the facility had not done any work in the room between 10/3/11 & 11/11/11. The facility did not have a policy related to resident supervision or securing/monitoring vacant rooms. 22. The risk manager also reviewed documentation from staff reporting the resident did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident’s family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. The resident was discovered on 11/11/11 at approximately 12:20 PM in a vacant room across the hall from their room. 23. During the interview at 3:45 PM on 12/21/11, the risk manager confirmed the room was vacant and stated the headboard of the bed was not attached to the wall, the bed was falling off the frame, and the resident was found unresponsive on the floor beside the bed with their head entrapped between the bars of the walker. A telephone interview on 12/21/11 with the medical examiner, revealed the cause of death as Asphyxia due to Cervical Compression. 24. Based on the foregoing facts, Westchester of Sunrise violated Section 429.28, Florida Statutes, and Rule 58A- 5.0182(6), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $6,000.00. COUNT III WESTCHESTER OF SUNRISE FAILED TO IMPLEMENT THEIR ELOPEMENT RESPONSE POLICIES AND PROCEDURES. RULE 58A-5.0182(8), FLORIDA ADMINISTRATIVE CODE (ELOPEMENT PROCEDURE STANDARDS) CLASS II VIOLATION 25. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 26. A complaint investigation survey was conducted on December 21, 2011. Based on record review and interview, it was determined the facility failed to implement their elopement response policy and procedure for 1 of 4 sampled residents (resident #3). The findings include the following. 27. A review of the adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered on 11/11/11 unresponsive on the floor in a vacant room on the floor where he resided at approximately 12:20 PM. During an interview on 12/21/11 at 2:45 PM with the Director of Nurses (DON) and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. 28. Based on record review with the risk manager, the facility had documentation from staff reporting resident #3 did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident’s family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. 29. Based on the foregoing facts, Westchester of Sunrise violated Rule 58A-5.0182(8), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Westchester of Sunrise on Counts I, II, and III. 2. Assess an administrative fine of $13,000.00 against Westchester of Sunrise on Counts I, II, and TII for the violations cited above. 3. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 4. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308. 10 RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. If YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER Cewas mr. Races Alba M. Rodriguez} Esqa Fla. Bar No.: 0880175 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53%° Street Suite 300 Miami, Florida 33166 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. ~ Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Gary Stephen Solomons, Administrator, Westchester of Sunrise, 9701 W. Oakland Park Blvd., Sunrise, Florida 33351 on this i2** aay of Opts , 2013. Alba M. ee ye" Zz ms 12 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: ISLF-Westchester of Sunrise, LLC d/b/a AHCA No.: 2012001196 Westchester of Sunrise ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive mny right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. ___Fax No. Email(optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Dates Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, AHCA No. 2012001196 Petitioner, DOAH No. 13-2452 vs. AHCA No. 2012011203 DOAH No. 13-3182 ISLF WESTCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”, through its undersigned representatives, and Respondent, ISLF Westchester of Sunrise, LLC d/b/a Westchester of Sunrise (hereinafter “Respondent”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Respondent is an Assisted Living Facility, licensed pursuant to Chapters 408, Part I], and 429, Part I, Florida Statutes, and Chapter 38A-5, Florida Administrative Code: and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Respondent, pursuant to Chapter 429, Part I, Florida Statutes; and WHEREAS, the Agency served Respondent with an administrative complaint on or about May 21. 2013, (on case #2012001 196), notifying the Respondent of its intent to impose adniinistrative fines in the amount of $13,000.00; and an amended administrative complaint on EXHIBIT 2 or about February 14, 2014, notifying the Respondent of its intent to impose administrative fines in the amount of 5,000.00, and a survey fee in. the amount of $500.00; and WHEREAS, Respondent requested a formal administrative proceeding by selecting Option 3 on the Election of Rights form: and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding: and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: L. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Respondent agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120,68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, Respondent agrees to pay $18,000.00 in administrative fines, and a survey fee in the amount of $500.00 to the Agency within thirty (30) days of the entry of the Final Order. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. ba 6. By executing this Agreement, Respondent neither admits nor denies, and the Agency asserts the validity of the allegations raised in the administrative complaint referenced herein. 7. No agreement made herein shall preclude the Agency from using the deficiencies from the surveys identified in the administrative complaint in any decision regarding licensure of Respondent, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance. The Agency is not precluded from using the subject events for any purpose. within the jurisdiction of the Agency. In such event, however, the Facility or its assigns or successors will be provided hearing rights pursuant to Chapter 120 to challenge the allegations made in this case. Further, Respondent acknowledges and agrees that this Agreement shall not preclude or estop any other federal. state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part. the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Respondent's Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney's fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Respondent for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attomeys of and from all claims. demands, actions, causes of action. suits, damages, losses, and expenses, of any and every nature whatsoever. arising out of or in any way related to this matter and the Agency’s actions, including. but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. by or on behalf of Respondent or related facilities. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Respondent was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule $9G-9.070, Florida Administrative Code. 14. Respondent agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Respondent in the Final Order, or any portion thereof, owed by Respondent to the Agency ftom any present or future funds owed to Respondent by the Agency, and that the Agency shall hold a lien against present and future funds owed to Respondent by the Agency for said amounts until paid. 1S. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. 16. This. Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18... This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. Molly McKinytry Sheryl Adminisyrator Deputy Segrefary: Westchester of Sunrise Agency for Health Care Administration 9701 W. Oakland-Park Boulevard 2727 Mahan Drive, Bldg #1 Sunrise, Florida 33351 Tallahassee, Florida 32308 DATED: _&@ = 24-/f Stuart Williams, General Counsel Alba M. ante é q 4e Florida Bar No. 670731 Assistant General Counsel Agency for Health Care Administration 8333 NW 53” Street, Suite 300 2727 Mahan Drive, Mail Stop #3 Miami, Florida 33166 Tallahassee. Florida 32308 DATED: 3/3 6 / Ly DATED: —_ Péter A. Lewis, Esquire 2012 North Shanon Lakes Drive Suite 101 Tallahassee, Florida 323090 DATED: 3° 73-42! te
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (the "Agency") concerning Certificate of Need ("CON") Application No. 10131 filed by The Shores Behavioral Hospital, LLC (hereinafter “The Shores”) to establish a 60-bed adult psychiatric hospital and CON Application No. 10132 The entity is a limited liability company according to the Division of Corporations. Filed March 14, 2012 2:40 PM Division of Administrative Hearings to establish a 12-bed substance abuse program in addition to the 60 adult psychiatric beds pursuant to CON application No. 10131. The Agency preliminarily approved CON Application No. 10131 and preliminarily denied CON Application No. 10132. South Broward Hospital District d/b/a Memorial Regional Hospital (hereinafter “Memorial”) thereafter filed a Petition for Formal Administrative Hearing challenging the Agency’s preliminary approval of CON 10131, which the Agency Clerk forwarded to the Division of Administrative Hearings (“DOAH”). The Shores thereafter filed a Petition for Formal Administrative Hearing to challenge the Agency’s preliminary denial of CON 10132, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”). Upon receipt at DOAH, Memorial, CON 10131, was assigned DOAH Case No. 12-0424CON and The Shores, CON 10132, was assigned DOAH Case No. 12-0427CON. On February 16, 2012, the Administrative Law Judge issued an Order of Consolidation consolidating both cases. On February 24, 2012, the Administrative Law Judge issued an Order Closing File and Relinquishing Jurisdiction based on _ the _ parties’ representation they had reached a settlement. . The parties have entered into the attached Settlement Agreement (Exhibit 1). It is therefore ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The Agency will approve and issue CON 10131 and CON 10132 with the conditions: a. Approval of CON Application 10131 to establish a Class III specialty hospital with 60 adult psychiatric beds is concurrent with approval of the co-batched CON Application 10132 to establish a 12-bed adult substance abuse program in addition to the 60 adult psychiatric beds in one single hospital facility. b. Concurrent to the licensure and certification of 60 adult inpatient psychiatric beds, 12 adult substance abuse beds and 30 adolescent residential treatment (DCF) beds at The Shores, all 72 hospital beds and 30 adolescent residential beds at Atlantic Shores Hospital will be delicensed. c. The Shores will become a designated Baker Act receiving facility upon licensure and certification. d. The location of the hospital approved pursuant to CONs 10131 and 10132 will not be south of Los Olas Boulevard and The Shores agrees that it will not seek any modification of the CONs to locate the hospital farther south than Davie Boulevard (County Road 736). 3. Each party shall be responsible its own costs and fees. 4. The above-styled cases are hereby closed. DONE and ORDERED this 2. day of Meaich~ , 2012, in Tallahassee, Florida. ELIZABETH DEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
The Issue Whether a certificate of need to construct a 60-bed short-term inpatient psychiatric hospital should be granted to CPC and whether a certificate of need to construct a 24-bed short-term inpatient psychiatric hospital should be granted to Apalachee?
Findings Of Fact Introduction. CPC. Community Psychiatric Centers, Inc., a proprietary corporation, was formed in 1968 by the merger of 2 existing psychiatric hospitals. It now consists of 24 psychiatric hospitals, two of which are located in Florida, and two subsidiary corporations. On December 16, 1983, CPC submitted to the Department an application for a certificate of need to construct and operate a 60-bed inpatient psychiatric hospital. The 60-beds are to consist of 15 beds for adolescents, 20 beds for adults in an open unit, 10 beds for adults in an intensive care unit and 15 beds for geriatric patients. Apalachee. Apalachee is a not-for-profit corporation. It began approximately 30 years ago as a small clinic. It was incorporated as the Leon County Mental Health Clinic in the 1960's and later changed its name to Apalachee Community Mental Health Services, Inc. Apalachee presently serves over 7,000 clients a year, has a $6,500,000.00 budget and 300 employees. It provides services to 8 north Florida counties: Gadsden, Liberty, Franklin, Leon, Wakulla, Madison, Jefferson and Taylor. Apalachee provides specialized continuums of care for substance abuse, children and geriatrics and basic generic services, including a 24-hour, 365 days-a-year emergency telephone and/or face-to-face evaluations. It also provides a full range of case management, day treatment and residential care primarily aimed at the acute and chronically mentally ill and specific programs for children, such as an adolescent day treatment program and an adolescent residential facility. Apalachee's residential programs include a program called Positive Alternatives to Hospitalization (hereinafter referred to as "PATH"). Apalachee also operates an 8-bed non-hospital medical detoxification program in conjunction with PATH. This program is operated in the same building as PATH. It also operates 3 group homes (an adult, an alcohol abuse and an adolescent half-way house) with 10 clients each (these houses will be expanded to 16 clients each), a geriatric residential facility with 60 to 70 beds and cater Oaks, a long-term residential treatment facility for adolescents. On November 15, 1983, Apalachee applied to the Department for a certificate of need for 24 short-term inpatient psychiatric beds. In its application filed during the final hearing of these cases, Apalachee proposed to construct a facility to house the 24-beds adjacent to its current "Eastside" facility. Its Eastside facility currently houses Emergency Services, PATH and its non-hospital medical detoxification programs. All adult mental health programs of Apalachee will also be located on the site in order to consolidate the full continuum of adult psychiatric care provided by Apalachee. Statutory Criteria. The following findings of fact are made as they pertain to the criteria included in Section 381.494(6)(c) and (d), Florida Statutes (1983), and Section 10-5.11(25), F.A.C. The Need for Psychiatric Services Florida State Health Plan and the District 2 Health Plan. General. The Florida State Health Plan is outdated and the District 2 Health Plan does not contain specific goals as to the need for short-term psychiatric care for District 2, the District the facilities would be constructed in. CPC and Apalachee did, however, address both plans, to the extent applicable, in their applications. The relationship of "need" to these plans, as agreed to by the Department, is not relevant to this proceeding, however. CPC also indicated that it evaluated local bed need by studying socioeconomic, population and employment data and by interviewing local practicing psychiatrists. CPC concluded that additional services were needed and filed its application. Although the Florida State Health Plan and the District 2 Health Plan do not address the question of need, need as determined under the Department's rules is crucial. Section 10-5.11(25), F.A.C., provides that a favorable need determination will "not normally" be given on applications for short-term psychiatric care facilities unless bed need exists under paragraph (25)(d). Under Section 10-5.11(25)(d)(3), F.A.C., bed need is to be determined 5 years into the future by subtracting the number of existing and approved beds in the District from the number of beds for the planning year based upon a ratio of .35 beds per 1,000 population projected for the planning year. The population projection is to be based on the latest mid-range projections published by the Bureau of Economic and Business Research at the University of Florida. The Department has projected a need for 185 total short-term psychiatric beds for District 2 for 1989. There are 82 currently licensed and 35 approved short-term psychiatric beds in District 2. Therefore, for 1989 there is a net short-term psychiatric bed need projected of 68 beds. Based upon the projected population of District 2 for 1990 (537, 567), which is 5 years from 1985, the total bed need is 188 beds. The net bed need for 1990 is 71 beds (188 total beds less 117 licensed and approved beds). The Department did not use this figure because the calculation for bed need for 1990 will not be made by the Department until July of 1985. Pursuant to Section 10-17.003, F.A.C., the total projected short-term psychiatric bed need for District 2 is allocated among 2 subdistricts. Subdistrict 2 consist of Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties. CPC's and Apalachee's proposed facility will be located in Subdistrict 2. Subdistrict 2 is the same area designated by CPC as its "primary" service area. This rule, which is to be "used in conjunction with Rule 10-5.11(25)(c)(d)(e)" allocates the 1988 short-term inpatient psychiatric and substance abuse projected bed need as follows: Subdistrict 1: 75 Subdistrict 2: 104 Total 179 Because the projected bed need for Subdistrict 2 under this rule is based upon 1988 projections, it is clearly in conflict with the requirement of Section 10-5.11(25)(d)(3), F.A.C., that bed need is to be projected 5 years into the future. The total bed need projected for the District for 1988 is 179 beds; for 1990, the total is 188 beds. Based upon the allocation of total bed need in Section 10- 17.003, F.A.C., the net bed need for Subdistrict 2 for 1988 is 44 beds: 104 total beds less 60 licensed and approved beds in Subdistrict 2. If it is assumed that the 9 additional total beds projected for 1990 should be allocated to Subdistrict 2, the net bed need for 1990 in Subdistrict 2 would be 53 beds (100 beds less 50 licensed and approved beds). No evidence was presented, however, to support the assumption that all 9 additional total beds will be allocated to Subdistrict 2. It is more likely that only 1 or 2 additional beds will be allocated to Subdistrict 2. Based upon the foregoing, the total net bed need for District 2 projected to 1990 is 71 beds and for Subdistrict 2 it is between 44 and 53 beds. CPC. CPC attempted at the hearing to show that its proposal is consistent with the bed need for District 2 as determined under Section 10-5.11(25)(d)(3), F.A.C. In the alternative, CPC has attempted to prove that there is a sufficient need in District 2 for additional short-term psychiatric beds based upon other methodologies and the state of psychiatric care currently being provided in Subdistrict 2. Sources of referral to the proposed CPC facility, according to Mr. John Mercer, will include physicians, the judiciary and legal system, the school system, employers and law enforcement. Referrals are inspected by Mr. Mercer based upon his conversations with physicians (Mr. Mercer did not interview persons from the other referral sources) , his personal experience and the fact that there will be a community relations or marketing position at the proposed facility. Local psychiatrists did testify that they would refer patients to CPC if its facility is approved. They did not, however, testify that they would refer all of their patients to CPC. They also testified that the CPC facility is needed. The local psychiatrists did not, however, indicate that they were aware of all of the facts as established during the proceeding. CPC, in its application, projected, based upon conversations with local physicians, that the facility will serve most of the area designated by the Department as District 2. District 2 is subdivided by CPC into a primary service area, consisting of Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties, and a secondary service area, consisting of Clay, Calhoun, Gulf and Jackson Counties in Florida and several counties located in extreme southwest Georgia. In Mr. Mercer's opinion, the proposed facility will serve persons from southwest Georgia; specifically, Brook, Decatur, Grady, Seminole and Thomas Counties. Mr. Mercer's opinion was based upon the availability of services in Georgia and conversations he had with Tallahassee physicians. Mr. Mercer's opinion, however, has been given little weight in determining the need for additional short-term psychiatric beds in District 2 based upon the testimony of Jay D. Cushman, an expert in health planning and development. Mr. Mercer's opinion that southwest Georgia residents will use the proposed CPC facility implies that there may be a need for additional short-term psychiatric beds. Mr. Mercer, however, failed to consider travel time and barriers to travel, patient origins or the effect, if any, of outmigration--the number of persons in District 2 who may leave the District for treatment outside the District. Although Mr. Mercer's conversations with local physicians are relevant and of some supportive weight, the local physicians' opinions should have been supported with other evidence. They were not. CPC, in its exhibit 3, projected a bed need of 14.67 beds attributable to southwest Georgia. This figure was arrived at by first assuming a bed need in the area of .35 beds per 1,000 population (119,051). This results in a gross bed need in southwest Georgia of 41.67 beds. From the gross number of beds, 27 existing beds were subtracted to arrive at a net bed need in District 2 attributable to southwest Georgia residents of 14.67 beds. No evidence supporting a conclusion that such a bed need exists in District 2 was presented at the hearing other than Mr. Mercer's opinion that the proposed facility will serve residents from southwest Georgia. It is therefore concluded that there is not a need for 14.67 beds in District 2 attributable to southwest Georgia residents. In its application, CPC projected a need for an additional 195 short- term psychiatric inpatient beds for District 2. This figure was based upon an average of bed need projected by using three different bed need methodologies. The three different methods resulted in a projected bed need of 64 beds, 266 beds and 255 beds. Application of the method which resulted in a bed need of 266 was modified during the hearing. The modification resulted in a bed need of 75.8 beds. Therefore, the bed need based upon the average of all 3 methodologies, as amended would be 131.6 beds. The three methods used by CPC in its application are different than the method used by the Department. None of the methods, based upon Mr. Cushman's testimony, are sound; they are structurally unsound, applied in an unsound manner or both. Under Method I, CPC starts with a projected short-term psychiatric bed need of 1988 of 44 beds, the net bed need as determined in Section 10-17.003, F.A.C. This figure is then increased by 9.44 beds for in-migration and 11 beds attributable to an adjustment for "desired occupancy level." As clearly established by Mr. Cushman's testimony, neither of the adjustments are sound. The projected bed need of 64 beds for 1988 pursuant to method I is therefore not a reliable figure. Pursuant to Method II, as modified during the hearing, CPC projected a bed need of 75.8 beds. Method III resulted in a projected net bed need of 255 beds. These projections are based upon a projected average length of stay of 30 days. No evidence was presented to support this projection; in fact, it is unrealistic when compared with the average length of stay of 16 days at similar facilities in Florida. CPC's Florida facilities have also not been able to achieve an average length of stay of 30 days. These formulas are also unrealistic because population figures used were for all of District 2. But existing beds taken into account only included the beds in Subdistrict 2. Finally, occupancy was not taken into account in either of the methods. CPC's Methods II and III are not sound, based upon the foregoing. Apalachee. Apalachee's application is for only 24 inpatient psychiatric beds, which is well below the bed need projected under the Department's methodologies for the District and the Subdistrict. Apalachee has projected that its proposed facilities will serve persons in the 8 counties it currently serves. These counties are the same counties which make up Subdistrict 2. Apalachee has not assumed that any patients will come from outside of the Subdistrict. Apalachee has shown that the patients who will use its facility are clients within its own present system, based upon historical data. This historical data establishes that an average of 10 to 12 Baker Act patients have been admitted to Tallahassee Memorial's psychiatric facility during past years. These persons would be admitted to Apalachee's new facility. Additional patients would consist of Apalachee clients which Tallahassee Memorial's facility will not admit and clients currently going into other Apalachee programs. Accessibility to Underserved Groups. CPC is willing to provide care for Baker Act patients. It has been projected that 5 percent of the proposed facility's patient days will be attributable to Baker Act patients. CPC is also willing to treat Medicaid patients and has again projected that 5 percent of the facility's days will be attributable to Medicaid patients. In addition, CPC has projected that 5 percent of its gross revenue will be set aside for the care of indigent patients which consist of those persons who are unable, at the time of admission, to pay all or a part of the charges attributable to their care. Indigent care may not be provided, however, if the facility is losing money. The provision of indigent care is based upon a CPC policy which was recently agreed upon and applies to new CPC facilities. The policy does not apply at the two existing CPC Florida psychiatric hospitals since they were established before the policy was adopted. Pursuant to the Florida Mental Health Act, Chapter 394, Part II, Florida Statutes, the Department's district administrator designates a facility in the district as the public receiving facility for Baker Act patients. In Subdistrict 2 of District 2, Apalachee has been designated as the public receiving facility. Apalachee is therefore responsible for ensuring that emergency care, temporary detention for diagnosis and evaluation and community inpatient care is available to Baker Act clients. As the public receiving facility in Subdistrict 2, Apalachee will clearly serve Baker Act patients. It has projected that in the first year of operation 40 percent (39.7 percent in the second year) of its patients at the new facility will be indigent and that the indigent patients will be primarily Baker Act patients. Seventy percent of Apalachee's clients are persons who need some type of financial assistance; Medicare, Medicaid and Baker Act. Apalachee has proposed to continue to serve these persons in the new facility. Apalachee's purpose in requesting a certificate of need is to allow Apalachee to provide a continuum of care for more Apalachee clients. In the past, Apalachee has experienced difficulty in obtaining inpatient care for certain Baker Act clients. Additionally, even though those problems have been minimal in the past year, there are some Baker Act clients who need inpatient care who are not appropriate patients for Tallahassee Memorial's psychiatric hospital. These patients are sometimes violent and "acting out." Although Tallahassee Memorial is providing adequate care for most Baker Act patients, some Baker Act patients are not admitted. Additionally, removal of Baker Act patients who are admitted by Tallahassee Memorial from Tallahassee Memorial's facility, as discussed infra, will improve the quality of care at Tallahassee Memorial. The cost of providing inpatient care to Baker Act patients will be less if Apalachee is granted a certificate of need for the requested 24 beds. At present, because of limited Baker Act funds, some Baker Act clients who need inpatient care are placed in other programs. With reduced cost for inpatient care, these clients will be able to receive the inpatient care they need. Additionally, Apalachee will serve forensic clients -- those mental health clients with criminal charges. A full-time forensic psychologist has been provided by Apalachee at the Leon County jail to facilitate this type service. The psychologist also evaluates for Baker Act qualification. According to the Director of the Leon County jail, persons in the jail with psychiatric problems are placed in a single "bull pen." Apalachee's work with forensics has been helpful. Like and Existing Psychiatric Services. The only "like and existing" psychiatric health care services in Subdistrict 2 are provided by Tallahassee Memorial. Tallahassee Memorial is a not-for-profit corporation. It currently owns an existing 60-bed short-term inpatient psychiatric facility located in Subdistrict 2. The facility is operated as a separate department of Tallahassee Memorial. Tallahassee Memorial's psychiatric facility has been continuously operated by or for Tallahassee Memorial since 1979. It was initially known as Goodwood Manor. In 1983, however, the management of the facility was taken over by, and its name was changed to, Behavioral Medical Care (Tallahassee Memorial's facility will be hereinafter referred to as "BMC"). From 1977 to 1979, the facility was owned and operated by Tallahassee Psychiatric Center, Inc., which failed for financial reasons. Prior to 1977 Tallahassee Memorial operated a small psychiatric unit as pert of its hospital. The occupancy rate at BMC for the 12-month period ending September, 1984, was 37 percent. The occupancy rate since 1979 has been consistently low and is low at the present time. There are a number of reasons for the low occupancy rate: a) The physical location and physical plant of BMC. BMC is located in a 2-story building near Tallahassee Memorial. BMC occupies the top floor of the building and a nursing home is located on the first floor. In order to get to BMC, it is necessary to travel through the nursing home. Also, the building is surrounded by a parking lot so there is inadequate outdoor and recreational space around the facility. The facility, which was originally designed as a nursing home, presently consists of one closed unit and one open unit. Patients of all ages and with various problems have to be housed in these 2 units together. Because of the physical plant, patients cannot be separated into adult, adolescent and geriatric units. There also is not enough space for therapy rooms and common areas. b) The reputation of the facility. The reputation in the community of Goodwood Manor has carried over to BMC. The facility is perceived by some as a "crazies place," a place "where violent people go." This reputation is partly attributable to the lack of credibility that psychiatry as a discipline enjoys. It is also partly attributable to the operation of BMC as Goodwood Manor prior to 1982 when Behavioral Medical Care took over management of BMC. c) The type of programs offered. To date, no program has been separately offered and provided or adolescents, children, substance, alcohol and drug abuse patients, or geriatrics. Basically only one structured program has been provided which has been more suited to adult psychotic patients. Closely related to this problem is the fact that BMC has had a poor patient mix. This has been caused in part by the physical plant and in part by the type of patients BMC has had to take in. Some of those patients have been suffering from problems other than psychiatric problems, i.e., persons suffering from DT's, which is a medical disorder, and persons suffering from organic problems which cause behavioral difficulties. d) Marketing. There has been a lack of an effort to market the availability of the facility. e) Training. The programs offered are not as advanced because of the lack of necessary training. f) Practice patterns. Practice patterns of psychiatrists in the community have contributed to the low occupancy. Because there are only a few psychiatrists in the area and the fact that the Tallahassee Memorial facility has primarily been involved in crisis intervention, the average length of stay (6 to 7 days) is much lower than the average length of stay in other parts of the country. This average length of stay has also, however, been caused by the shortage of Baker Act funds. Closely related to this problem is the fact that there are a large number of nonphysicians providing mental health services in Tallahassee who do not admit patients to the hospital and a large number of health maintenance organizations. g) Communication. The low occupancy rate has also been caused, at least in the minds of Drs. Speer, Sebastian and Moore, by the lack of solicitation of their input into the operation of the facility. At least partly because of the problems at BMC, a few patients have been referred to facilities outside of District 2 for care. Tallahassee Memorial has committed itself to eliminating the low occupancy rate at BMC. In 1982, the administration of Tallahassee Memorial felt it had to decide whether it was going to make a commitment to the facility or get out of psychiatric care. It opted for the former. After making the commitment, 2 primary actions were taken. One was to contract for the services of Behavioral Medical Care; the other was to apply for a certificate of need to replace its 60-bed facility with a new one. Behavioral Medical Care is a joint venture formed by 2 corporations, Comprehensive Health Corporation and Voluntary Health Enterprises. Comprehensive Health Corporation is the largest private provider of chemical dependency rehabilitation services in the country. Voluntary Health Enterprises is an affiliate of Voluntary Hospitals of America which services 70 of the nation's largest not-for-profit hospitals, including Tallahassee Memorial. Behavioral Medical Care was formed to provide the highest quality, lowest cost psychiatric and chemical dependency rehabilitation programs possible. Behavioral Medical Care provides consultation services and/or actually carries out programs and is now providing 20 different programs at 16 different facilities. Of these 20 programs, 5 to 8 are psychiatric programs. The first consultation concerning the psychiatric program at Tallahassee Memorial began in the late winter or early spring of 1983. This consultation was provided by Dr. Russell J. Ricci, now chairman of the board and medical director of Behavioral Medical Care. Dr. Ricci reviewed the status of Tallahassee Memorial's program at that time and recommended significant changes be made in 2 phases: one phase to begin immediately and the second to begin after construction of a new psychiatric hospital. Tallahassee Memorial agreed with Dr. Ricci's proposal and contracted with Behavioral Medical Care to carry out the proposal. Behavioral Medical Care began BMC with an orientation period during which time the existing staff was analyzed, new staff members were hired and the entire staff was trained to implement the new program. During this period, admitting physicians were invited to participate in the implementation program. A new inpatient psychiatric program at BMC was then begun. The program was established to achieve the following goals: to restore patients to their optimum mental health; to make patients as comfortable as possible; to maintain the patients' sense of dignity and self worth; to maintain modern and efficient treatment modalities through research and education; to provide maximum freedom of patients to interact with family and community; and to educate the community. The program was established along interdisciplinary lines and is basically an adult program. It includes individual and group therapy, lectures and seminars, social and nursing assessments, physical examination and psychological testing. The ultimate program provided for a patient, however, depends upon the treatment plan prescribed by the attending physician. The program is, however, limited because of the type of patients at BMC and especially because of the physical plant, which consists of only an open unit and a locked unit. Separation of patients for specialized treatment based upon other factors, such as age, is not achievable in the existing facility. The program at BMC is an adequate program but can be improved. The program is, however, intended only as an interim type program. Treatment of geriatrics and adolescents is available but specialized programs for these groups are not available. Dr. Sebastian agreed that since Behavioral Medical Care had begun managing BMC, the programs had improved. Dr. Moore testified that BMC had attempted to change. As part of the interim program, BMC has established more restrictive admission guidelines; not based upon ability to pay but upon clinical needs. Attempts have been made to eliminate psychotics, geriatrics and persons with significant medical problems. These restrictions on admission are designed to limit admission to persons who will benefit from the new program and are consistent with the existing physical plant. The existing staff, established by Behavioral Medical Care, is adequate. Training of the staff began during the orientation period at BMC and continues today. Educational activities have also been directed toward the medical profession in the community in order to gain more credibility for the discipline of psychiatry. Other steps to improve BMC which have been or will soon be taken include the reclassification of BMC as a department of Tallahassee Memorial and the initiation of a crisis intervention and liaison service in the emergency room of Tallahassee Memorial's main hospital. This new service in the emergency room is designed to identify persons being admitted to the hospital with a need for psychiatric services. As a department, BMC conducts formal monthly meetings of physicians at which input into the operation of BMC may be made. Input by psychiatrists is therefore possible at BMC. The second phase of the changes recommended by Dr. Ricci will begin after completion of the second action to be taken by Tallahassee Memorial as part of its commitment to a psychiatric program: the construction of a new 60- bed facility. Tallahassee Memorial filed an application to replace its present facility with a new 64-bed facility. That application was ultimately granted but for only 60 beds. An application to build another facility considered at the same time was denied. As a result of the issuance of the certificate of need to Tallahassee Memorial, construction of a new psychiatric facility has begun and should be completed in the summer of 1985. The total cost of this new facility is $7,225,000.00. This amount, plus the cost of new programs and staff, has been committed by Tallahassee Memorial to BMC. The facility, a two-level structure, is being constructed on a wooded, sloping site next to the present building BMC is located in. Each level will have 30 beds. It will be a state-of-the-art facility and was designed by architects who specialize in the design of psychiatric facilities. The building was designed with input from the medical staff and Behavioral Medical Care. It is being constructed to accommodate separate psychiatric programs and allows flexibility to accommodate changes in the type of programs offered. Once the new facility is completed, BMC will initiate the second phase of Dr. Ricci's proposal. This phase will consist of the implementation of separate specialized psychiatric programs not available at BMC today. Dr. Ricci has recommended the offering of adult, adolescent, geriatric and chemical dependency programs. Tallahassee Memorial has decided to add an adult program, an adolescent program and will probably add a geriatric program. Other programs, such as a chemical dependency program will be considered. The geriatric program will be added if there are a sufficient number of patients in need of such a program admitted to BMC. Based upon the testimony of Dr. Sebastian, there are a sufficient number of patients who need a geriatric program. Assuming that Dr. Sebastian is correct, a geriatric program should be added to BMC. Even if a separate program is not added, geriatric psychiatric services will be available at the new facility. The construction of the new facility will not eliminate all of the problems which have contributed to the low occupancy at BMC. Phase 2 of Dr. Ricci's proposal to Tallahassee Memorial and the other actions which Tallahassee Memorial has indicated they plan to take should, however, eliminate or at least reduce most of the problems. Dr. Sebastian testified that there will not be enough open space around the new facility The new facility will, however, have 2 open court yards, woods on 3 sides of the building and a greenhouse. The reputation of BMC as being a "crazies place" should be improved with the opening of the new facility and the providing of new, more advanced programs. Efforts to educate the medical community will also help. Also, if Apalachee is granted its certificate of need, the elimination of some of the Baker Act patients cared for by BMC who will be cared for by Apalachee should help improve the reputation of BMC. Finally, BMC has already taken some steps to improve its reputation by initiating an interim program, hiring new staff and limiting its admissions. Instituting specialized programs will also help alleviate the low occupancy problem at BMC. The new facility will allow BMC to establish programs which are needed by allowing the separation of patients which could not be accomplished in the existing facility. Again, eliminating some Baker Act patients will help reduce the problems created by the poor patient mix at BMC. Efforts are being made to market BMC's services. Establishing a liaison in Tallahassee Memorial's emergency room, which is planned, should contribute to increasing occupancy. Tallahassee Memorial projected that sizeable numbers of patients in the general hospital need psychiatric services. This program could reach those patients. BMC, however, needs to institute marketing efforts to reach the general public. Formal training of the staff at BMC was started with Behavioral Medical Care's orientation phase and has continued since that time. Not much can be done directly by BMC to improve the practice patterns of psychiatrists in the community. The new facility and improved programs may help. Transfering Baker Act patients to a new facility operated by Apalachee should allow for more economical treatment of those patients and thus allow for longer lengths of stay. Providing specialized programs also should promote longer lengths of stay. Converting BMC to department status and the holding of monthly meetings of admitting physicians has improved the ability of psychiatrists in the community to have a voice in the operation of BMC. Not enough of an effort is being made in this area, however. Three psychiatrists testified about the lack of solicitation of their input. They are obviously dissatisfied. Despite this fact, Dr. Brodsky, the Medical Director of BMC, testified that BMC was working cooperatively with psychiatrists in the community. In the undersigned's opinion, BMC, Tallahassee Memorial and the psychiatrists in the community need to continue to work toward resolving their differences and to work together to improve the occupancy and the psychiatric care provided at BMC. The perceived effect of CPC's proposal and Apalachee's proposal of the various witnesses was mixed. Drs. Speer, Sebastian and Moore all testified that they supported the CPC proposal. Dr. Speer indicated that she supported CPC's proposal over that of Apalachee and that she thought there was a need for CPC. Dr. Speer's opinion was based almost exclusively on a brochure provided to her by CPC. She did not have any familiarity with existing CPC hospitals. She also had only "some familiarity" with Apalachee's programs. The only reason Dr. Speer specifically gave for supporting CPC was the amount of effort CPC had exerted to solicit physician input and the need for cohesiveness among psychiatrists which she felt was promoted by support of the CPC proposal. Dr. Sebastian testified that he supported the CPC proposal because a new hospital would promote competition which would in turn improve the quality of care. Dr. Moore testified that he was familiar with CPC's and Apalachee's proposals and that he supported CPC's. He also stated that the addition of another psychiatric hospital would improve the availability of medical care because of competition. Dr. Moore also testified that a new facility was needed to provide care for the "private segment" which he described as "those people who choose not to go to the local mental health center for treatment, those people who choose to go to psychiatrists for treatment. " Dr. Brodsky testified that the addition of a new facility to the community might improve BMC because of the added competition. Mr. Honaman and Dr. Ricci both agreed that, if CPC's proposal was approved, a new facility could have an adverse impact on BMC which has been operating at a loss of $300,000.00 a year. Dr. Ricci explained that in order to have specialized programs a hospital must have a sufficient number of patients who need the specialized program. Because of the low occupancy rate at BMC, there is concern as to whether a sufficient number of patients will be available to warrant the specialized programs BMC plans to start if the CPC proposal is approved. Apalachee's proposal will not adversely effect BMC. In fact, Mr. Honaman and Ms. Pamela McDowell, both of whom testified on behalf of Tallahassee Memorial, indicated that if Apalachee's facility was approved BMC's ability to provide quality care would be enhanced. Tom Porter, testifying on behalf on the Department, indicated that CPC's and Apalachee's proposals should both be denied because of the low occupancy at BMC and the adverse effect approval of either proposal would have on BMC. Mr. Porter's opinion, however, was based only upon his review of the Petitioners' applications. Mr. Porter made no independent studies as to the impact of the proposals on BMC and was not aware of most of the evidence presented at the hearing. The Ability of the Applicant to Provide Quality of Care. CPC. The services to be available at or provided by the proposed CPC facility include psycho-physiological diagnosis and evaluation, emergency service, milieu therapy (immersion into the clinical environment for structured daily treatment), individual and group therapy, family therapy, occupational therapy, an adolescent school program, a partial hospitalization program, aftercare, community education and related medical services (which will be provided by contracting with other area health care providers). Actual programs to be provided at the facility are to be developed by the physicians who join the medical staff of the facility with the assistance of CPC which has developed model programs which may be used. The staffing projections for the facility are adequate. The manpower projected can provide quality of care and will comply with the standards of the Joint Commission on Accreditation of Hospitals. CPC's experience in operating its 24 existing psychiatric facilities and its philosophy that it will provide quality of care support a finding that CPC does have the ability to provide quality of care. 1/ CPC's proposed physical facility is designed to provide quality of care. The facility will be located in northeast Tallahassee. It will be constructed on a little less than one acre of a 10-acre parcel of land which CPC has a contract to purchase for $400,000.00. Part of the remaining 9-plus acres will be used for parking and recreational space and a substantial portion will be left in its natural state as a buffer. The hospital building itself will consist of a one-story structure with a separate section for each category of proposed beds, a lobby, business and general offices and storage rooms. One section will be used as a 20-bed open adult unit. Another section will be used as a 10-bed adult intensive care unit. This section will be locked. A nursing station will separate the adult intensive care unit and the open adult unit and is designed for visibility down the halls of both units. Two seclusion rooms will be located at the nursing station also to allow for observation from the nursing station. The location of the nursing station will reduce staff responsibility thus reducing the cost of operating the facility. The other two units will consist of a 15-bed adolescent open unit and a 15-bed geriatric unit. These units will be separated by a nursing station designed in the same manner as the nursing station separating the adult units. These units will also be separated by a locked door. There will also be a support structure built next to the hospital which will contain a kitchen, dining hall for all patients, 4 classrooms, 4 multi-purpose rooms, an occupational therapy room and a half-court gymnasium. There is no covered access from the main building to the support structure. The floor plan for the facility is similar to the floor plans used for other CPC hospitals. Therefore, the design costs of the facility will be less than for a new one-of-a-kind facility. Apalachee. In order to ensure quality of care, Apalachee has established a Quality Assurance Committee. Additionally, Apalachee is inspected by the Department and is accredited by the Joint Committee on Accreditation of Hospitals. No evidence was submitted which raises any question as to Apalachee's ability to provide quality of care. The existing building to which Apalachee's proposed facility will be added is located at Apalachee's Eastside facility. Eastside is located on 10 acres of land in northeast Tallahassee. Eastside presently consists of a building in which PATH, the detoxification program and emergency services is located. The building has 12 semi-private rooms and 24 beds. The new facility will be added to the existing building. A total of 13,000 square feet will be added. It will consist of an 18-bed open unit and a 6-bed closed unit. Also to be located at the Eastside facility is a 16-bed long-term adolescent psychiatric hospital which the Department has indicated it will approve. If this facility and the proposed 24-bed facility are built, Apalachee will have a total of 96 beds providing a variety of services. The Availability and Adequacy of Other Psychiatric Services. Apalachee currently provides a wide range of psychiatric health services in Subdistrict 2, including a crisis stabilization unit and short-term residential treatment programs. These services have been used as an alternative to inpatient care in some cases. CPC gave no consideration to these programs in its application. Apalachee did consider these programs and showed that its proposal would compliment its existing programs. As suggested by CPC in its proposed recommended order, Apalachee's existing programs are not a substitute for acute inpatient psychiatric services. Joint, Cooperative and Shared Psychiatric Services. CPC. CPC's operation of 24 psychiatric hospitals provides the potential for joint, cooperative or shared health resources in the operation of its proposed facility. Very little evidence was presented, however, that such potential would be realized if CPC's proposed facility is approved. Evidence was presented that model programs will be "available" for use in developing programs for the proposed facility. CPC also showed that standardized equipment selection and purchasing, and standardized floor plans would be used in establishing the facility. This will effect the short-term financial feasibility of the proposal. Apalachee. By placing the facility at the same location of other Apalachee programs, Apalachee will be able to share some services among programs and thereby reduce costs. For example, kitchen and dining services, staffing, security, purchasing, and maintenance and administrative services will be shared. The integration of Apalachee's existing programs with the proposed facility will promote a continuum of care and thus improve the quality of care. The Need for Research and Education Facilities. 106. Apalachee currently provides training to practitioners pursuant to an agreement with the School of Social Welfare at Florida State University. It also provides internship programs for psychology majors at Florida State University and nursing students at Florida State University and Florida A&M University. It is probable, therefore, that the new facility will be available for training purposes. No proof was offered, however, that indicates there is a need for training programs not being currently met which will be met if either of the proposed facilities is approved. Availability of Resources. 107. Health manpower and management personnel are available to staff the CPC or the Apalachee proposal. CPC and Apalachee also have adequate funds to build the proposed facilities. The adequacy of funds to build and operate the facilities is discussed further, infra. The Immediate and Long-Term Financial Feasibility of the Proposal. CPC. The projected cost of CPC's facility was $5,086,000.00. This amount will be increased for inflation if the facility is delayed another year. CPC will contribute 20 percent of the projected cost of the facility in the form of cash and liquid assets CPC has on hand. Eighty percent of the projected cost will constitute debt of the facility to CPC payable at a 12 percent interest rate over a 20-year period. The immediate financial feasibility of CPC's proposal has clearly been shown. In its application, CPC projected that its facility would generate a net income after taxes in each of the first 2 years of its operation. In its proforma, patient revenues were based upon the following charges per patient day: Adolescent $225.00 Adult, I.C.U. 215.00 Adult Open Unit 210.00 Geriatric 200.00 These projected rates were based upon a 1985 opening date. The rates will therefore be higher if the facility opens in 1987, but, according to Mr. Mercer, the bottom line profitability of the facility will not change. The projected rates, according to Mr. Mercer, are based upon rates charged at other CPC hospitals in Atlanta, New Orleans, Jacksonville and Ft. Lauderdale and interviews with Tallahassee physicians. According to Alton Scott, an expert in health care finance and financial feasibility, the proposed rates are considerably lower than the average rate at CPC's Jacksonville and Ft. Lauderdale hospitals, which was $240.00 for their fiscal year ending in 1984. Mr. Scott did not indicate that he considered the rate at CPC's Atlanta or New Orleans facility, however, which Mr. Mercer also considered in projecting rates for the proposed facility. Mr. Scott's testimony, however, raises a question as to the reasonableness of the proposed facility's rates. CPC's projected gross patient revenue is based upon an occupancy rate of 53 percent in the first year of operation and 75 percent in the second year. CPC projects $2,476,160.00 of gross patient revenue in the first year (an average $212.00 per day rate x 11,680 patient days) and $3,597,075.00 of gross patient revenue in the second year (an average $219.00 per day rate x 16,425 patient days). CPC's average occupancy rates are directly related to the number of admissions and the average length of stay of a patient. In support of the number of admissions projected by CPC, CPC offered the 3 need methodologies discussed, supra. Those methodologies have, however, been rejected as unsound. CPC's admission rates are based only on an assumed census. The assumed census is based upon conversations with physicians and the corporate experience of CPC. Although conversations with physicians and the corporate experience of CPC should be considered, these factors should be considered as support for other evidence as to possible admissions which has not been presented by CPC. What physicians have told Mr. Mercer is not alone sufficient to support assumed admissions. There is no guarantee that local physicians will refer clients only to CPC's facility or that their case load will remain the same. CPC's corporate experience as to length of stay does not add much support since the overall corporate experience of CPC's facilities for the year ending November 20, 1983, shows that the overall occupancy (excluding its Valley Vista facility) was 56.3 percent. This rate of occupancy is well below CPC's projected second year occupancy rate for the Tallahassee facility. The occupancy rate of CPC's Ft. Lauderdale and Jacksonville hospitals was 50.6 percent and 60 percent respectively, which is low for the State. Of all of CPC's psychiatric hospitals only 1 has an occupancy rate over 80 percent. Another problem with CPC's projected occupancy rate is that CPC has projected that 5 percent of its patient days will be attributable to Baker Act patients and 5 percent will be attributable to Medicaid Patients. In order for the proposed facility to receive Baker Act patients it will be necessary that it enter into a contract with Apalachee. No evidence was presented that such a contract could be obtained from Apalachee. As to the percentage of Medicaid patients, it is clear that CPC would not be entitled to receive reimbursement from Medicaid for these patients since its facility will be a free-standing facility and Medicaid does not reimburse for inpatient psychiatric services at free-standing hospitals. Based upon these facts, it appears that the assumption of CPC that a total of 10 percent of its patient days will be attributable to Baker Act and Medicaid patients is of questionable validity. Mr. Mercer's testimony that, even without the Baker Act and Medicaid patients, the projected occupancy could be met is illogical. If the projected revenue attributable to Baker Act and Medicaid patients is eliminated along with the projected expenses attributable thereto, CPC still projected a net after tax profit for its first two years of operation. CPC offered no evidence, however, sufficient to conclude that its projections as to occupancy of other types of patients can be achieved. CPC's projected average length of stay of 30 days is also suspect. It is not consistent with the average length of stay locally, in Florida, nationwide or in CPC's experience. Based upon the foregoing, CPC's projected occupancy levels are not realistic. This directly effects the projected revenues for the proposed facility. Salary and other expenses projected for the facility are also questionable. Nonsalary expenses are significantly lower than CPC's existing Florida facilities which are the lowest in Florida. Salary expenses, projected 2 years in the future, are also lower than present salary levels at CPC's Florida facilities. Again, the salary levels at CPC's 2 Florida hospitals are among the lowest for the 10 Florida facilities providing similar services. These low salaries are also based upon projections for a project which will not open for 2 more years. Despite this fact, they are lower than current salaries at CPC's existing Florida facilities and salaries being paid locally. Apalachee. The projected cost of the addition of the 24-bed facility to Apalachee's existing PATH and detoxification facility is $1,114,339.00. Apalachee will provide $114,339.00 of the necessary funds from its operating fund and the remaining $1,000,000.00 will be obtained from the sale of industrial revenue bonds. The bonds will be 15-year bonds, with a 7 year balloon and were projected at a 10.75 percent annual interest rate (75 percent of the Chase Manhattan Bank prime interest rate). First National Bank has committed to purchase $3,000,000.00 of industrial revenue bonds, which includes the $1,000,000.00 for this project. The immediate financial feasibility of Apalachee's proposal has clearly been shown. In projecting its gross charges for the first 2 years of operation, Apalachee has predicted an occupancy rate of 62.5 percent in the first month of operation increasing to 87.4 percent in the last month of operation of the second year. Gross charges are projected at $1,557,940.00 the first year (6,385 patient days x $244.00 per day rate) and $1,883,648.00 the second year (7,358 patient days x $256.00 per day rate). Apalachee' s projections are reasonable. Although it will be a free-standing psychiatric facility, Apalachee will be able to receive some Medicaid funding under the Department's "centers and clinics" option. Apalachee's projections as to gross charges, deductions from gross charges, and operating expenses are reasonable. Based upon its projections, Apalachee will realize a profit from the new facility in each of its first 2 years of operation. Competition. CPC. The addition of CPC's facility will promote competition in Subdistrict 2, as testified to by Dr. Brodsky, the Medical Director of BMC, among others. Because of the low occupancy at BMC, however, such competition at this time would be harmful. Apalachee. Apalachee's proposed facility will not compete with BMC. Although Apalachee's facility will initially reduce BMC's occupancy, removing the patients Apalachee will serve from BMC will improve the quality of care provided at BMC. Construction. CPC Construction and related costs of the CPC facility will consist of the following: Parking $27,500.00 Project development costs 22,000.00 Architectural/engineering fees 135,000.00 Site survey and soil investigation report 25,000.00 Construction supervision 10,000.00 Construction manager 4,000.00 Site preparation 100,000.00 Construction 3,000,000.00 Contingency 100,000.00 Inflation 270,000.00 These costs are all adequate to cover the cost of these items. These amounts will also be adequate even if construction does not begin until the end of 1985. The projected cost of equipment and furnishings was $500,000.00. This amount is adequate to equip the facility properly. In fact, the projected cost is probably substantially overstated. 2/ Although CPC failed to list in its application all of the equipment and furnishings (only major movable equipment was listed) necessary to equip the facility, adequate equipment and furnishings will be provided. Apalachee. The projected cost of constructing Apalachee's facility consists of the following: Architectural/engineering fees Site survey and soil investigation $75,740.00 report 2,000.00 Construction 876,620.00 Contingency 43,831.00 Inflation 26,298.00 These amounts are sufficient to construct the facility. The cost per square foot of the construction will be $60.00. The cost of equipment needed to equip the new facility is projected at $53,850.00. This amount is adequate for the purchase of the equipment listed in Apalachee's application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the certificate of need application filed by CPC, case number 84-1614, be denied. It is further RECOMMENDED: That the certificate of need application, as amended, filed by Apalachee, case number 84-1820, be approved. DONE and ENTERED this 10th day of April, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1985.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, the following facts are found. Admitted facts The Charter facility will have a total of 60 beds and was preliminarily approved by DHRS for the following units: (a) 16 short-term adolescent psychiatric beds; (b) 16 long-term adolescent psychiatric beds; (c) 12 long-term child psychiatric beds; and (d) 16 long-term adolescent substance abuse beds. DHRS preliminarily approved a total project cost of $7,376,843 on December 2, 1983. As part of its decision, DHRS imposed as a condition and Charter agrees to dedicate 5 percent of its patient days and revenue to Baker Act patients. The Bureau of Economic and Business Research ("BEBR") population projections for Broward County for 1988 is 1,252,660. Management personnel and funds for capital and operating expenditures are reasonably available to Charter for its proposed facility. The Charter facility will be geographically accessible to all residents of Broward County. Findings related to the application process Charter filed its application on August 15, 1983, and it was assigned to Mr. Straughn for review. On August 29, 1983, Mr. Straughn sent an "omissions" letter to Charter requesting additional information. On October 13, 1983, Charter sent a response to the "omissions" letter providing Mr. Straughn with additional information about the application. Charter's application was deemed complete on October 15, 1983. Based on information available to DHRS at that time it was impossible for DHRS to review the project because DHRS did not know what kind of beds Charter was asking for. Prior to the public hearing on November 8, 1983, Mr. Straughn was totally confused as to whether Charter wanted short-term or long-term beds. He called Mr. Holbrook at Charter and asked for clarification. By letter dated November 8, 1983, which was undoubtedly first presented to the DHRS at the public hearing held on that date, Charter explained exactly what kinds of beds it was seeking. Prior to November 8, 1983, it was not clear what kinds of beds Charter was seeking. And although the matter is still somewhat ambiguous and not completely free from doubt, careful review of the original application tends to indicate that the original application was for all short-term beds. Findings regarding the general nature of Charter's proposed facility and programs Charter is mostly interested in providing treatment to "salvageable adolescents and children." Charter is not interested in treating chronic patients. Chronically ill patients require a longer period of treatment than other patients. If Charter is not treating chronically ill patients, its treatment periods will be on the short end of the treatment spectrum. The proposed Charter programs do not contain any program which would be appropriate for the treatment of severe sociopathic patients. Although Charter contends that its 12-bed child psychiatric unit will be a long-term unit, the program it describes for the child psychiatric unit is clearly a short-term program. Charter contends that one of its proposed 16-bed adolescent units would have an average length of stay of 25 days and that the other 16-bed adolescent unit would have an average length of stay of more than 90 days. Other evidence discussed below indicates that Charter's expectations of average lengths of stay in excess of 90 days are unwarranted given the nature of the programs proposed by Charter and the experience of existing providers in Broward County and Charter's facility in Ft. Myers, Florida. The programs described in the Charter application are identical to the programs described in the earlier North Beach application. The North Beach application was for a short-term facility. There is nothing in the treatment programs described in the Charter proposal that makes them long-term programs. The proposed Charter treatment programs are identical to existing programs at Florida Medical Center and Fort Lauderdale Hospital. The diagnostic and evaluation portion of the Charter programs is no different from what is currently being done at Florida Medical Center and Fort Lauderdale Hospital. In reality, diagnosis and treatment occur simultaneously. From the day a patient is admitted he is being treated as well as diagnosed. There is no advantage in segregating patients who are being evaluated and patients who are being treated. The programs proposed by Charter are very typical of the programs used by most child and adolescent psychiatric hospitals in the United States. A condition placed on the certificate of need that Charter is seeking is that at least 5 percent of the projected patient days and projected revenues will be comprised of Baker Act patients. Long-term child and adolescent psychiatric patients are generally chronic patients. It is a contradiction in terms for Charter to say on one hand that it is a long-term facility and to then say it will not treat chronic patients. The step system is a treatment program typically used in short-term psychiatric facilities. It does not work with chronic child and adolescent patients that require long-term treatment. The Charter proposal envisions extensive cooperation and coordination with other forms of existing health care resources, particularly in discharge planning and follow-up. Given the nature of the types of patients Charter proposes to treat (acute patients) and the experience of existing providers in Broward County and in Charter's Ft. Myers facility in treating similar patients, the most reasonable expectation is that the average length of stay of patients at Charter's facility would be substantially less than the 90 days or more it projects. The most reasonable expectation is that the average length of stay of child and adolescent patients at Charter's proposed facility would be 60 days, or less. Findings regarding Charter's ability to provide quality of care Charter Medical is committed to providing a high quality of care at its facilities. It operates other psychiatric hospitals in Florida and does not appear to have experienced any quality of care problems in those facilities. Nevertheless, Charter only proposes to use 29 FTE's for its 60-bed facility in Broward County, which is a lower ratio of staff to patients than the current practice at some existing facilities. Also, Charter proposes to use some LPN's on its staff, while current practice at some existing facilities is to use only registered nurses. Findings regarding Charter's occupancy experience with other new psychiatric hospitals It has been Charter's past experience with opening new psychiatric hospitals, that the reasonable expectation for average occupancy during the first year of operation is in the neighborhood of 30 percent to 45 percent. This is true even when the facility has strong community and physician support. Of ten psychiatric hospitals opened by Charter during the past three years, most had occupancy rates during their first year of operation in the range of 30 percent to 45 percent. One was less, around 20 percent. Its best was around 60 percent, which was in Charter's home city. Charter's experience with bad debt during the first year of operation is in the range of 6 percent to 8 percent. Findings regarding one of Charter's other Florida psychiatric hospitals Charter Glade Hospital in Ft. Myers, Florida, is a psychiatric hospital with 104 beds. It offers the following programs: --adolescent programs --adolescent addictive disease program --adult addictive disease/chemical dependency program --general adult psychiatric program The average occupancy rate at Charter Glades Hospital during its first year of operation was 49 percent. A consideration which contributed to this occupancy rate is the fact that Charter Glades has no nearby competition offering psychiatric services. The average length of stay for adolescent patients at Charter Glades Hospital is between 45 and 55 days. Charter Oakdale uses the step or level system in its treatment programs for adolescents. It is a very typical form of adolescent psychiatric treatment and is essentially the same form of treatment presently used in the existing adolescent psychiatric programs in Broward County. It is also essentially the same form of treatment that is proposed for Charter's Broward County facility. Findings regarding the District and State Plans and DHRS information The applicable District Plan does not address the need for long-term psychiatric or substance abuse beds in District X. The District Plan recommends, in essence, that with regard to short-term psychiatric and substance abuse services, any new facilities should not exceed the bed need methodology set forth in Rule 10-5.11(25), Florida Administrative Code. The District Plan recommends that both psychiatric and substance abuse facilities should provide specialty services by population, age, and socioeconomic characterization. The District Plan also recommends that all psychiatric facilities should provide for a continuum of care. The District Plan recommends that inpatient psychiatric facilities have a minimum of 20 beds. The District Plan recommends a smooth transition between inpatient and outpatient services. The State Health Plan is too old and out of date to be a useful tool in the evaluation of applications for certificates of need. The District Plan does not indicate how many of the existing beds are dedicated to child or adolescent patients. Therefore, it is difficult for the DHRS to apply the separate 75 percent occupancy standard for adults and the 70 percent occupancy standard for children and adolescents. According to the best information available to the DHRS, during 1983 the combined (child, adolescent, and adult) occupancy rate in Broward County was approximately 68 percent, which is below both rule standards. (The evidence in this case indicates that the occupancy rates are somewhat lower, as noted hereinafter). The basis for the DHRS proposal to approve the short- term beds notwithstanding the fact that the occupancy standards were below those provided in the applicable rules was described as follows by Mr. Porter: However, in view of the proposal in its entirety, to include the long-term child and adolescent beds which are being proposed in this facility, and the absence of any such beds, a demonstration of need for those beds in this district, that is an overriding factor to specifically that criteria where occupancy of existing short-term beds does not exceed the standard quoted in the rule. There is no specific rule formula or methodology for determining need for long-term psychiatric or substance abuse services. The reasoning behind the DHRS proposal to approve the long-term beds included in this proposal was explained as follows by Mr. Porter: I think in combination of the fact that there were no similar and like services in this particular district, certainly through supporting documentation in the application as well as some statements which were made in the District X mental health plan, and an indication of the number of patients who were also seeking care at Grant Center Hospital. A combination of all those factors led the Department to conclude that there was, in fact, a need for long-term psychiatric and substance abuse services for children and adolescents in District X. The Bureau of Economic and Business Research ("BEBR") population projections for Broward County for 1989 is 1,264,869. Findings regarding the same or similar services in Broward County There are seven existing facilities in District X which provide inpatient psychiatric services, The DHRS regards all seven of these facilities as "short-term" psychiatric facilities, but the evidence indicates otherwise. The seven existing facilities are: Broward General Medical Center Florida Medical Center Imperial Point Memorial Hospital Coral Ridge Fort Lauderdale Mental Health Institute Broward Pavilion The DHRS Certificate of Need Review Section does not have a reliable inventory of psychiatric beds in Broward County or South Florida in general. The DHRS does not have any clear information on the number of existing psychiatric beds that are adult beds and the number that are child or adolescent beds. General hospitals do not report occupancy by service. Accordingly, the DHRS does not have available any occupancy rates for the most recent 12-month period for psychiatric beds in general hospitals in Broward County. Pursuant to the best information available to the DHRS, the occupancy of the freestanding specialty psychiatric facilities in Broward County was as follows for the most recently documented 12-month period: Coral Ridge Psychiatric 74 beds 60.0 percent Ft. Lauderdale Hospital 58 beds 40.4 percent Hollywood Pavilion 46 beds 58.1 percent TOTALS 178 beds 51.1 percent The following hospitals in Broward County offer specialized inpatient units for adolescents: Fort Lauderdale Hospital, South Florida State Hospital, Community Hospital of South Broward and Coral Ridge Hospital. South Florida State Hospital also has a specialty inpatient unit for children. Fort Lauderdale Hospital and Community Hospital of South Broward offer specialized inpatient substance abuse programs for adolescents. The following hospitals all treat adolescents, but do not have specialized units for adolescents: Broward General Hollywood Pavilion Hollywood Memorial Imperial Point Florida Medical Center has 74 approved psychiatric beds and has 54 or 59 presently in operation. There are plans to construct more physical space to move up to full authorization. They will use existing beds to increase their psychiatric beds to the full authorized number of psychiatric beds. Florida Medical Center has a closed adolescent unit of 20 beds and a closed adult unit of approximately 25 beds. It also has a small geriatric unit. Florida Medical Center does not have beds specifically designated for patients under age 11, although, on rare occasions, it treats patients under age 11. Florida Medical Center has very high quality programs for adolescent psychiatric patients. These programs are in substance no different from the programs described in Charter's application. All psychiatric hospitals treating acute patients have behavior modification programs based on rewards and punishments. Florida Medical Center offers all of the proposed Charter programs in a short-term psychiatric program. The diagnostic and evaluation program described in the Charter application is not considered a separate program at Florida Medical Center. It is a standard process of every psychiatric admission to pursue diagnosis and evaluation. One can often reach a diagnosis in 30 days, but not always. All psychiatric hospitals use a diagnostic and evaluation system, but they do not designate diagnosis and evaluation as a separate program. The average length of stay at Florida Medical Center's adolescent psychiatric unit is 64 days. The average length of stay at that unit if one takes out all patients who stay less than 30 days is 78.3 days. Nine of Florida Medical Center's 36 adolescent psychiatric patients have stayed longer than 90 days. Florida Medical Center has provided treatment of six months duration to a few of its adolescent psychiatric patients. As of the date of the hearing the total census of the Florida Medical Center psychiatric beds (adult and adolescent) was slightly less than 30 patients. As of the date of the hearing, Florida Medical Center had 8 adolescent psychiatric patients out of a capacity for 20. There has never been a waiting list for the adolescent psychiatric beds at Florida Medical Center. With regard to staffing, Florida Medical Center has 21 FTE's for its 20-bed adolescent psychiatric unit. It uses all registered nurses in its adolescent unit and has no LPN's. In the 12 month period preceding the hearing, the number of total patient days for all types of patients at Florida Medical Center has dropped 20 percent. The DRG system of reimbursement is causing a drop in patient days, which can be expected to result in excess bed capacity. The DRG system of reimbursement is not applicable to child and adolescent psychiatric services. The anticipated impact of DRG's on the delivery of psychiatric services is that DRG's will result in an excess of med/surg beds which will cause hospitals with those excess beds to try to convert them to something else, including psychiatric beds. Fort Lauderdale Hospital is a specialty psychiatric hospital and is licensed for 100 beds. It has the following programs: 18 beds -- intensive adult care (very short-term) 23 beds -- adolescent psychiatry 20 beds -- adolescent substance abuse 18 beds -- adult psychiatry (open) 16 beds -- adult substance abuse Presently Fort Lauderdale Hospital has only 95 beds set up. It could set up the other five within less than half a day if it had patients for them. For the period December 1, 1982, through November 30, 1983, the average length of stay in the Fort Lauderdale Hospital adolescent psychiatric unit was 54 days. For the period December 1, 1983, through July 30, 1984, the average length of stay in the Fort Lauderdale Hospital adolescent psychiatric unit was 48.6 days. For the period December 1, 1982, through November 30, 1983, the average length of stay in the Fort Lauderdale Hospital adolescent substance abuse unit was 44.7 days. For the period December 1, 1983, through July 30, 1984, the average length of stay in the Fort Lauderdale Hospital adolescent substance abuse unit was 45.1 days. For the 12 months ending November 30, 1983, the average length of stay for adolescent psychiatric patients who stayed 30 days or less was 13.28 days. For the 12 months ending November 30, 1983, the average length of stay for adolescent patients who stayed 31 days or longer was 74.17 days. Fort Lauderdale Hospital has some patients who stay longer than 90 days. The average daily census for the Fort Lauderdale Hospital adolescent psychiatric unit is 12.5 patients (out of 23 available beds). The average daily census for the Fort Lauderdale Hospital adolescent substance abuse unit is 10.8 patients (out of 20 available beds). Fort Lauderdale Hospital offers all of the programs described in the Charter proposal. There is nothing unusual about those programs. Fort Lauderdale Hospital is very concerned about quality of care and provides high quality of care. Fort Lauderdale Hospital is involved in numerous community activities. It has community outreach programs and community educational programs. Fort Lauderdale Hospital has been trying continuously to have the public school system provide additional hours of school at the hospital, but the school system has failed to do so. Fort Lauderdale Hospital has an open medical staff. It has about 18 psychiatrists on the staff. If it had a closed medical staff limited to 4 or 5 psychiatrists it is reasonable to expect that psychiatric admissions would be reduced by 50 percent or more. Coral Ridge Hospital is licensed for 86 psychiatric beds. It is a long-term psychiatric treatment facility. Ninety- nine percent of the patients at Coral Ridge Hospital are chronic patients. At one time Coral Ridge Hospital was a short-term facility treating primarily acute patients, but it began turning into a long-term facility in 1977-78, and is now exclusively long-term. Coral Ridge Hospital has a 12-bed unit for children and adolescents. It also has a 24-bed substance abuse unit in which it can also place adolescents. The average length of stay of patients at Coral Ridge Hospital is well in excess of six months, perhaps as much as a year. Some patients at Coral Ridge Hospital stay as long as 18 months. As of the time of the hearing, there were three patients in the 12-bed child and adolescent unit at Coral Ridge Hospital. During the previous year Coral Ridge Hospital had had as many as 8 or 10 child and adolescent patients. As of the time of the hearing Coral Ridge Hospital had 44 beds filled out of a total of 86. Its average census during the previous 12 months was around 55 patients, or about 64 percent occupancy. Charges for room and board at Coral Ridge Hospital are about $195 per day. Total charges, which includes room and board, physician and therapy fees, tests, etc., range from about $6,000 to about $10,000 per month. Coral Ridge Hospital provides between 15 percent and 20 percent free services. Broward General Medical Center is a 744-bed acute care short-term hospital located in Ft. Lauderdale, Florida. It has a psychiatric unit in which it treats patients 14 years of age and older. South Florida State Hospital in Broward County has a 50-bed children's unit and a 50-bed adolescent's unit. All of the services proposed by Charter are presently available in Broward County. There are an adequate number of existing beds available in the private sector for long-term psychiatric treatment in Broward County or close to Broward County. There is an existing good distribution of long-term inpatient psychiatric services along the southeast coast of Florida. Findings regarding the same or similar services in adjacent districts Grant Center Hospital is a 100-bed child and adolescent inpatient psychiatric hospital in Dade County which specializes in providing long-term care. Grant Center is within a two hour travel time from Broward County. A true long-term adolescent psychiatric program such as they have at Grant Center -- envisions stays of a minimum of six months, often closer to a year, and sometimes lasting as long as two years. The average length of stay at Grant Center is 290 days. The ages of patients at Grant Center range from 5 years old to 19 years old. Children up to 6 years of age make up a insignificant portion of Grant Center's patient population. Dade County is the primary service area for Grant Center. However, 12 percent of Grant Center patients come from Broward County and 6 percent of its patients come from Palm Beach County. During 1984 the occupancy level at Grant Center averaged 98 percent. The usual waiting list at Grant Center has been 5 to 12 patients. Grant Center has been granted a certificate of need to add 60 beds for long-term child and adolescent psychiatric services. Those 60 beds are under construction and will be on line by the end of 1985. The approved cost of those 60 beds was $1.7 million. The 60 new beds at Grant Center will occupy about 28,000 square feet. Every patient that comes to Grant Center receives intensive diagnosis and evaluation such as is proposed by Charter, but Grant Center does not call that a separate program. During 1984, 18 percent of Grant Center revenues were written off as either bad debt, free care, or charity cases. Highland Park is a 72-bed facility located in the center of Miami, Florida. Highland Park is owned by the same group that owns Grant Center. Highland Park has a 16-bed child and adolescent unit. It is common for children and adolescents to stay at Highland Park for over 90 days. Highland Park is within two hours travel time from Broward County. In 1983 there were 20 psychiatric beds at Biscayne Hospital with an occupancy rate of 63.9 percent. Biscayne Hospital is in north Dade County, within two hours travel time from Broward County. In 1983 there were 56 psychiatric beds at North Miami Hospital with an occupancy rate of 60.9 percent. North Miami Hospital is in north Dade County, within two hours travel time from Broward County. On February 28, 1984, a certificate of need was granted for 60 long- term adolescent psychiatric beds in Boca Raton. Boca Raton is within a two hour drive of Broward County. Psychiatric Institute of Delray was granted a certificate of need to add 15 long-term child and adolescent psychiatric beds. This is within a two hour drive of Broward County. National Medical Enterprises was granted a certificate of need to add 25 child and adolescent psychiatric beds. These beds are within a two hour drive from Broward County. Findings regarding other health care facilities and services In North Dade, South Palm Beach, and Broward County there are about 500 beds offering residential psychotherapeutic services for adolescents. Findings regarding manpower and accessibility Charter can reasonably expect to be able to secure the necessary health manpower to staff its facility at the proposed FTE level. With regard to geographic accessibility, the proposed Charter facility will be accessible to more than 90 percent of the residents of Broward County. With regard to financial accessibility, the $64,000 that Charter projects for charity care equates to three indigent patients for 60 days each per year. Findings regarding financial feasibility of the proposal Although Charter does not yet have a commitment for its proposed revenue bonds, given the financial assets of the parent company and its history of obtaining financing for other similar projects it would appear that the project is immediately financially feasible in the sense that Charter has or can obtain the financial wherewithal to pay for the cost of building the facility. The long-term financial feasibility of the project is quite another matter. For many of the reasons set forth below the long-term financial feasibility of the proposed facility looks rather bleak. Charter's pro formas and other projections for the future were prepared in large part by Mr. Follmer, but Mr. Follmer appears to have made a lot of unwarranted assumptions and guesses in the formulation of his estimates and projections. Mr. Follmer expressed confidence in the availability of private insurance to pay for a substantial amount of the services provided by the proposed facility, but Mr. Follmer has never seen a composite report showing the average psychiatric insurance coverage for adolescent patients in Broward County. In fact no more than 10 percent of the adolescent patients seen at Fort Lauderdale Hospital have private insurance coverage in excess of 90 days. Mr. Follmer projects that Charter will have occupancy at a rate of 55 percent during its first year of operation, 65 percent during its second year of operation, and 80 percent during its third year of operation. For reasons which are set forth at the end of these findings of fact, it must be concluded that these projections are totally unrealistic and without reliable factual foundation. Based on a number of factors, including specifically Charter's first year experiences with its other psychiatric hospitals, the recent experience of existing psychiatric hospitals in and near Broward County the fact that Charter will have closed medical staff, the fact that its medical staff is not presently operating in Broward County and has no established following of patients, and the fact that Charter has no agreements for the referral of psychiatric patients from general hospitals, an optimistic projection for its occupancy rate during the first year of operation would be in the range of 35 percent to 40 percent, and there is no reason to expect it would achieve better than 50 percent to 55 percent occupancy during its second year of operation. The estimate of 80 percent occupancy during the third year of operation is sheer speculation for which there is no competent substantial evidence and which is totally contraindicated by the experience of existing providers of the same or similar services. The foregoing regarding the occupancy that can realistically be expected by Charter takes into consideration only the adolescent aspect of Charter's proposed facility. When the 12-bed children's unit is taken into consideration, the reasonable occupancy expectations become bleaker yet. It is very uncommon to admit a child under 12 years of age for inpatient psychiatric hospital treatment. Families tend to resist recommendations that children under 12 be hospitalized in a psychiatric hospital. There is no measurable demand or need for long-term child psychiatric beds in Broward County. On the rare occasions when a child under 12 is hospitalized in a psychiatric hospital, most such hospitalizations are for very short periods, often only for a few days. Further, if a child under 12 must be hospitalized for psychiatric reasons it is usually better to hospitalize them in a psychiatric wing of a general hospital, due in large part to parental resistance to hospitalizing children under 12 in a psychiatric specialty hospital. Finally, South Florida State Hospital, which is an excellent facility, already has beds for children under 12. Another indicator that Charter's occupancy levels will be much lower than originally projected is that Charter's projected patient charges of $355 per day are substantially higher than the patient charges at some existing facilities providing similar services. These higher charges will have a negative impact on Charter's ability to compete effectively with existing providers of the same of similar services. Mr. Follmer's pro forma assumptions for the first year include the following: --6 percent for bad debt. --1.5 percent for indigent care. --2.5 percent contract adjustment for Baker Act. For the second year pro forma, Mr. Follmer assumes 5 percent for bad debt. These assumptions are totally unrealistic when compared to the experiences of existing providers in and near Broward County. The bad debt experience for the psychiatric unit at Florida Medical Center during the 18 months immediately preceding the hearing was approximately 16 percent of gross revenues. Coral Ridge Hospital provides between 15 percent and 20 percent free services. During 1984, 18 percent of Grant Center revenues were written off as either bed debt, free care, or charity cases. In light of these experiences, it is unrealistic for Charter to project 7.5 percent as its expected loss of revenue due to bad debts and indigent care. A much more reasonable (and still conservative) estimate would be in the range of 10 percent to 12 percent for bad debt and indigent care during its first few years of operation. Another negative impact on the revenue projections has to do with Baker Act patients. The proforma assumes that 5 percent of patient days will be made up of Baker Act patients and that the hospital will get paid approximately 50 percent of its usual charges -- thus the 2.5 percent "contract adjustment" for Baker Act patients in the pro forma. For the reasons which follow, the 2.5 percent "contract adjustment" should be a 5 percent "contract adjustment." Charter does not have any contracts for receiving any Baker Act funds ford its proposed Broward County facility. Baker Act funds are presently not available in Broward County for private psychiatric hospitals, and Mr. Follmer has no idea what the availability of Baker Act funds for Broward County will be in the future. Without any Baker Act funds there would be a loss in both of the first two years of operation per the pro forma. The Charter Glade facility had an agreement to take Baker Act patients, but never got any because the funding ran out. Findings regarding impact on existing providers If Charter's proposed facility is built, it will most likely reduce the patient census at Fort Lauderdale Hospital. A reduced census at Fort Lauderdale Hospital could require reductions in staff and programs, which would impair quality of care and could also threaten accreditation of the hospital. Florida Medical Center's existing facility is less than three miles from Charter's proposed location. It is reasonable to expect that Charter's facility would divert adolescent patients from Florida Medical Center's psychiatric unit with results similar to those described in the preceding paragraph. If Charter's proposed facility is built it is reasonable to expect that it would have a similar negative impact on other existing Broward County hospitals offering adolescent psychiatric services. Findings regarding costs and methods of construction All of Charter's proposed construction costs are reasonable estimates of the actual cost of construction. The costs proposed in this case are substantially the same as the costs which were incurred to construct Charter's Ft. Myers facility. The proposed cost of construction and site preparation of Charter's Broward County facility comes to $97 per square foot. The proposed construction cost of just the building comes to $81 per square foot. The equipment list in the Charter proposal and the amounts listed for the various items of equipment are reasonable for the type of facility Charter proposes for Broward County. Charter uses a prototype design for its psychiatric hospitals. About 8 or 9 of the prototype hospitals have been built. The Charter prototype design is the same design that is used by Charter for short-term hospitals. Charter's proposed floor plan looks like a plan for an acute care (short-term) facility. Findings regarding DHRS policies The geographic access standard for long-term psychiatric beds is that at least 90 percent of the population in the service district should be within a two hour one-way drive of existing services. In applying that travel standard the DHRS looks at services available in other districts within the two hour travel radius. The travel time standard for long-term psychiatric beds would be meaningless if applied literally because, given the size of the DHRS Districts, it would virtually always be met and would become, in essence, a nonstandard. The DHRS construction of the travel standard for long-term psychiatric beds is to consider the availability of services within a two-hour travel radius of the proposed facility. In other words, need for long-term psychiatric services in the district in which a new facility is proposed is determined in part by the availability of the same or similar services within a two-hour travel radius, regardless of whether that radius extends into other districts. A certificate of need for long-term psychiatric beds will not normally be granted if there are available underutilized beds within the two-hour travel radius, even if the available beds are in the next district. The DHRS has applied this interpretation of the travel time standard in other cases involving applications for long-term psychiatric beds. The reason DHRS crosses district boundaries in looking at need for long-term psychiatric beds is that long-term psychiatric care is a "regional" type of service. The DHRS also crosses district boundaries when looking at need for other "regional" types of services such as cardiac catherization and open heart surgery. In reviewing applications for certificates of need, the DHRS does not base its determination on a single statute or rule criterion. It uses a balancing process and considers all of the criteria in an effort to arrive at a reasonable judgment. The DHRS considers other evidence of need in addition to any indications of need found by strict application of the formulas. It is the policy at the DHRS not to do health planning on the basis of national statistics. This is because Florida's population differs in composition from the average of the national population. Florida has a large elderly population. It also has large population growth. The Florida population is less stable and more dynamic than the national population. DHRS tries to use local measures or statewide measures. Strong community support is not one of the statutory criteria for determining need for a health care facility. In determining bed need for psychiatric hospitals it is the policy of the DHRS not to consider the differences in medical opinion with regard to which of several approaches to the treatment of psychiatric patients may be the best form of medical treatment for psychiatric patients who require hospitalization. Findings required by subparagraph 1 of Sec. 381.494(6)(d), Fla. Stat. A less costly, more efficient, and more appropriate alternative would be to postpone the construction of any facilities such as those proposed by this applicant until such time as existing facilities offering the same or similar services have much higher occupancy rates. Findings required by subparagraph 2 of Sec. 381.494(6)(d), Fla. Stat. Existing inpatient facilities providing similar services are not being used in an efficient manner because they all are experiencing low utilization rates. Approval of Charter's proposed facility would cause use of existing facilities to become more inefficient. Findings required by subparagraph 3 of Sec. 381.494(6)(d), Fla. Stat. The best alternative to new construction at this time is no construction at this time, due to the underutilization of existing same or similar facilities. The best alternative in the future would appear to be to prefer conversion of underutilized med/surg beds if DRG-generated occupancy trends for those beds continue to cause those beds to be underutilized. Findings required by subparagraph 4 of Sec. 381.494(6)(d), Fla. Stat. Patients will not experience serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service. Existing facilities providing the sane or similar inpatient care are underutilized and have more than adequate unused capacity. Rejected proposed findings of fact I have rejected substantially all of Charter's proposed findings based on the testimony of the "community support" witnesses. This rejection is based largely on the fact that those findings are irrelevant to any determination of a need for the facilities proposed by Charter. Further, with but few exceptions, the "community support" witnesses appeared to be distinctly uninformed about either the details of the Charter proposal or details regarding the current availability of inpatient psychiatric services for children and adolescents in Broward County. Finally, most of the testimony of these witnesses relating to need for the proposed facility was contrary to the greater weight of the evidence. Included within the appellation "community support" witnesses are: Marie Reynolds, Toni Siskin, Barbara Myrick, James Deleo, Sally Cresswell, Marjorie Miller, Susan Buza, Barbara Mitchell, Anne McKenzie, and Sharon Solomon. I have rejected substantially all of Charter's proposed findings based on the opinion testimony of Mr. Fred Follmer. Mr. Folmer's estimates and projections are totally lacking in credibility. As became most evident during the devastating cross-examination, Mr. Follmer did not have information he needed to make his projections, he ignored or overlooked information he did have, he relied on information about matters which are not analogous to the subject proposal, and some of his explanations of the basis for his projections are simply illogical. With regard to the issue of whether existing inpatient psychiatric programs for children and adolescents are similar to or different from the programs proposed by Charter, I have for the most part discounted the testimony of the Charter witnesses about the "uniqueness" of the Charter programs and have tended to credit the testimony of witnesses who are personally involved in the delivery of inpatient psychiatric services to children and adolescents in Broward County. This is due in large part to the fact that Charter's witnesses did not do a very extensive job of describing the nature of the programs it proposes to offer through Dr. Schwartz' group, and particularly did not come forward with any convincing evidence of the "uniqueness" of the proposed programs. I am persuaded by the testimony on behalf of the Petitioners and Intervenor that the proposed programs are not unique. I have not made any findings based on the testimony about Charter Barclay Hospital in Chicago because that testimony is lacking in relevancy in view of the testimony in the record about Charter Glade Hospital in Ft. Myers, Florida. To the extent of any differences in Charter's experiences operating a Chicago hospital and a Ft. Myers hospital, the latter is much more relevant to any expectations or projections regarding a Broward County hospital. For the following reasons, I have not made any findings regarding the need for Charter's proposed services based on the testimony of Dr. Luke. First, Dr. Luke's conclusions are irrelevant because they purport to measure need for services having an average length of stay of 120 days based on statistics regarding numbers of admissions lasting 91 days or more. The persuasive evidence is to the effect that the most likely average length of stay at Charter's proposed facility would be similar to the average length of stay of existing facilities treating acute adolescent patients -- a length of stay substantially less than 91 or 120 days. Second, Dr. Luke's conclusions were based on a number of assumptions which were either not shown to be valid or which were shown to be contrary to the persuasive evidence. Dr. Luke assumed an unrealistic average length of stay. Dr. Luke disregarded the manner in which the DHRS interprets and applies the travel-time standard in the applicable rule. Dr. Luke assumed the OGME admission rates are valid predictors for Broward County, but I am not convinced that they are, particularly in light of the DHRS policy of attempting to use local or statewide indicators rather than national indicators Dr. Luke assumed incorrectly that there are no long-term psychiatric beds in Broward County. Finally, Dr. Luke assumed incorrectly that the Charter proposal would provide a treatment program which is not presently available in Broward County. A major portion of the need analysis expert testimony in opposition to Dr. Luke was that of Mr. Konrad. While there are some areas of Mr. Konrad's testimony that are a bit problematic, I am persuaded on the whole that Mr. Konrad's opinions are better founded than those of Dr. Luke and have resolved most differences in their opinions in favor of the testimony of Mr. Konrad. As a final matter in this regard, it should be noted that there was an enormous amount of testimony which was the foundation for an enormous number of proposed findings that are "subordinate, cumulative, immaterial or unnecessary." I have rejected all of those proposed findings because they are Immaterial and irrelevant to the disposition of the issues in this case.
Recommendation For all of the foregoing reasons it is recommended that the Department of Health and Rehabilitative Services enter a final order denying in its entirety Charter's application for a certificate of need for a 60-bed psychiatric hospital. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee Florida. MICHAEL M. PARRISH, 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 16th day of August, 1985. COPIES FURNISHED: Mr. David Pingree Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 John Gilroy, Esquire Department of HRS 1321 Winewood Blvd. Building 1, Room 407 Tallahassee, Florida 32301 Kenneth G. Oertel, Esquire Oertel and Hoffman Suite C 2700 Blair Stone Road Tallahassee, Florida 32301 Eric B. Tilton, Esquire Post Office Box 5286 Tallahassee, Florida 32314 Morgan L. Staines 2204 East Fourth Street Santa Ana, California 92705 Cynthia S. Tunnicliff, Esquire CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. O. Drawer 190 Tallahassee, Florida 32302 Glen A. Reed, Esquire Richard L. Shackelford, Esquire BONDURANT, MILLER, HISHON & STEPHENSON 2200 First Atlanta Tower Atlanta, Georgia 30383 =================================================================
