Findings Of Fact CON APPLICATIONS HCR-CON No.7530 HCR is a publicly owned, for-profit corporation which operates approximately 25 nursing homes in Florida. HCR filed an application, CON No. 7530, to construct a 98-bed freestanding nursing home. HCR proposes to locate the nursing home in the northwest part of Orange County, Florida. HCR proposes that the entire 98-bed facility will be dedicated to the care of patients with Alzheimer's Disease and related dementias. The total cost of the HCR project is $7,132,000 for 47,750 square feet, or $472,776 per bed. The HCR proposal is modeled after an HCR 120-bed nursing home facility in Boynton Beach, Florida. The Boynton Beach facility is entirely dedicated to the treatment of patients with Alzheimer's Disease or related dementias. The proposed HCR facility in Orange County would be identical to the Boynton Beach facility less one patient wing. HCR's Boynton Beach facility, as well as HCR's existing Orange County nursing home facility, have superior licensure ratings. HCR's Boynton Beach facility received accreditation with commendation from the Joint Commission on the Accreditation of Health Care Organizations (JCAHCO), a national accreditation body which has established standards to measure the quality of care in dementia care units. Dementia is a complex of symptoms that can be caused by many different underlying diseases. Alzheimer's disease is one cause of dementia. Alzheimer's disease is the most common cause of dementia. Significant research is being conducted into the cause and treatment of Alzheimer's disease. Dementia is defined as a decline in intellectual function; global cognitive impairment, that is memory impairment and at least one of the following: impairment of abstract thinking; impairment of judgment; impairment of other complex capabilities such as language use, ability to perform complex physical tasks, ability to recognize objects or people, or to construct objects; and, personality change. The Reisberg Cognitive Rating Scale (RCS) classifies the stages of Alzheimer's disease from 1 to 7, with a rating of 7 being most severe. The rating scale is based on 10 axes: concentration, recent memory, past memory, orientation, functioning and self-care, speech, motor functioning, mood and behavior, practice of an art or skill, and calculation ability. The Global Deterioration Scale (GDS) for Age-Associated Cognitive decline and Alzheimer's Disease also defines seven stages of deterioration ranging from no cognitive decline to very severe cognitive decline. Persons suffering from Alzheimer's disease generally cannot survive without assistance upon reaching early dementia or level five on both the RCS and GDS. Approximately 50-58 percent of persons currently residing in community nursing homes suffer from some form of dementia. There is a need for community nursing home beds for persons suffering from the latter stages (levels 5-7) of Alzheimer's disease in Orange County. It is particularly difficult to place in nursing homes in Orange County, persons suffering from the latter stages of Alzheimer's disease (levels 5-7) who also have displayed a history of disruptive behavior patterns. Persons suffering from the latter stages of Alzheimer's disease have specific needs for care and treatment in nursing homes. Alzheimer's victims tend to wander and should have areas set aside for secured walking. The movement of Alzheimer's victims should also be carefully monitored. HCR's Boynton Beach facility, which is the prototype for HCR's proposed Orange County facility, has specific design features to accommodate the needs of patients suffering from the latter stages (levels 5-7) of Alzheimer's disease. HCR proposes a pod design of five residential pod units each with a central living area, also called the atrium area. The resident rooms open to the central living area. Each pod has an enclosed courtyard. Access to the courtyards is controlled. The two nursing stations are centrally located in each wing of the facility. Each central living area, or atrium, is visible from one or the other of the nursing stations. HCR provides specific staff training in the care and treatment of Alzheimer's disease and related dementias. A unit or a facility dedicated to the treatment of dementia patients may reduce the need for psychotropic medication of the patients. On a long-term basis, there may be some staff burnout in a facility or unit dedicated solely to the care and treatment of victims of Alzheimer's disease or related dementias. HCR proposes that its CON be conditioned upon locating in northwest Orange County, providing at least 30 percent of its patient days to Medicaid eligible persons, providing respite care, and dedicating all 98 beds to the care and treatment of persons suffering from Alzheimer's disease and related dementias. HCR currently meets its Medicaid commitment in the Boynton Beach facility. LIFE CARE CON Nos. 7534 and 7534P LIFE CARE is a for-profit corporation which owns and operates two nursing homes in Florida. LIFE CARE also operates three other nursing homes in Florida. As of September 1993, LIFE CARE had a net worth of approximately $50 million. LIFE CARE proposes to construct a freestanding 98-bed nursing home (CON No. 7534) in southwest Orange County, at a total cost of $5,988,000. The LIFE CARE 98-bed facility proposal includes a 20-bed unit dedicated to the care and treatment of persons suffering from Alzheimer's disease, a 20-bed subacute unit, an adult day care center, mental health services, and services to persons suffering from AIDS/HIV. LIFE CARE also made a partial request (CON No. 7534P) for a 60-bed facility which would be constructed at the same site and would include the same features. For economic reasons, patients are being released from acute care hospital settings at earlier stages of recovery and there is a need for subacute nursing home services in Orange County. The incidence of AIDS/HIV is increasing and there is a need for nursing home services for persons suffering from AIDS/HIV in Orange County. The 20-bed unit proposed by LIFE CARE for the care and treatment of Alzheimer's patients will be a distinct part of the facility, separate from other residents. The Alzheimer's unit has its own dining area and activity area, a centrally located bathing facility, and a secured courtyard for wandering space. The 20-bed LIFE CARE subacute unit will also be separate. The subacute unit will have two ventilator areas and be contiguous to a therapy area. The LIFE CARE design includes outdoor courtyards, a library, gift shop, and ice cream parlor. Pursuant to Sections 408.037(2)(a) and (b), Florida Statutes, one of the required elements of a CON application is the listing of capital projects, which is presented in Schedule 2 of the CON application. The Schedule 2 filed by LIFE CARE in these proceedings is identical to the Schedule 2 filed by LIFE CARE in the December 1993 batching cycle for LIFE CARE'S proposed Clay County Project, CON No. 7501. It has been held that Schedule 2 of the LIFE CARE Clay County Project CON application No. 7501 met minimum CON application content requirements. Life Care Centers of America, Inc. v. State of Florida, Agency for Health Care Administration, 20 F.L.W. 1435 (Fla. 1st DCA June 12, 1995). During November of 1993, a LIFE CARE nursing home located in Altamonte Springs was downgraded from a superior to a conditional licensure rating due to a deficiency related to outdated medication. The conditional rating given to the facility was in effect for approximately fifty days. The facility was then given a standard rating, and upon the annual survey in the fall of 1994, the facility has been recommended for a superior rating. All other LIFE CARE facilities have superior ratings. LIFE CARE proposes to condition its CON application upon providing Medicaid participation of 65 percent in the 98-bed facility, and 43 percent in the 60-bed facility. ADVENTIST CON No. 7528 ADVENTIST is a not-for-profit corporation that owns and operates nursing homes, hospitals, and other health care related enterprises. ADVENTIST is a wholly owned subsidiary of Adventist Health System/Sunbelt Health Care Corporation, which owns and operates hospitals and health care facilities throughout the United States. ADVENTIST has operated health care facilities in Orange County since the early 1900s when Florida Hospital was founded. ADVENTIST is the largest hospital system in Orange County, with more than 1,400 beds located on five campuses. ADVENTIST proposes to add 38 beds to an existing freestanding 80-bed community nursing home, Sunbelt Living Center-East Orlando (SLC), which is directly adjacent to Florida Hospital's East Orlando campus. The ADVENTIST proposal would include a 20-bed subacute unit and also an 18-bed skilled nursing unit. This addition to SLC would be accomplished by constructing two new wings to the existing facility. The projected cost of the ADVENTIST addition is $1,386,500, or approximately $36,000 per bed. SLC is an 80-bed skilled nursing facility which opened in January of 1993. SLC has a superior licensure rating. SLC provides nursing home service to a variety of residents, including persons with AIDS/HIV, as well as persons with a primary diagnosis of Alzheimer's disease and related dementia. SLC does not have a distinct Alzheimer's unit, but is equipped with security features to accommodate Alzheimer's patients. SLC staff is trained in the care and treatment of all its residents, including those with dementia. SLC reached an occupancy rate of 96 percent-97 percent capacity in its first ten months of operation. The SLC design is based on a residential model. The intent of the design is to create a residential community, and to encourage the interaction among the residents, and also between the residents and staff. The residential wings contain twelve rooms with private and semiprivate accommodations. Each room has its own toilet facilities. The support facilities, food service, therapy areas, administrative offices, visitor and welcoming areas, are located in the center of the facility. The residential wings are clustered on each side of the facility. The facility also features outdoor courtyards and walkways adjacent to the residential wings. ADVENTIST proposes to condition its CON application on providing a Medicaid commitment of 65 percent of total patient days in the non-subacute wing of the 38-bed expansion. The ADVENTIST proposal also features an AIDS program and respite care. ADVENTIST currently meets it Medicaid commitment at SLC. As indicated above, there is a need for subacute nursing home beds in Orange County. There is a need for nursing home beds for persons suffering from AIDS/HIV in Orange County. In the 20-bed subacute unit ADVENTIST proposes that each room will include wall-mounted suction and gases to accommodate ventilator dependent patients, which will enable ADVENTIST to provide more intensive subacute care. RHA/PRINCETON CON No.7538 RHA is the owner and operator of Princeton Hospital, located on the west side of Orlando. Princeton Hospital is situated on 32 acres bordering Lake Lawne. Princeton Hospital has 150 beds, including 24 psychiatric beds, a multipurpose intensive care unit, a 13-bed progressive care unit, a nursery, pediatric services, women's services, an obstetrical unit and an inpatient cardiac catheterization lab. The psychiatric unit at Princeton Hospital treats a wide range of mental disorders, including those afflicting the elderly population. The hospital also operates a senior psychiatric partial hospitalization program which serves geriatric patients, including persons suffering from Alzheimer's disease and related dementias. Princeton Hospital currently provides care and treatment to persons suffering from AIDS/HIV. Princeton Hospital is accredited by the Joint Commission on Accreditation of Health Care Organizations. On August 1, 1994, subsequent to the filing of CON application No. 7538, Princeton Hospital entered into a wide-ranging affiliation agreement with the University of Florida, College of Medicine and Shands Hospital. The agreement provides for extensive reciprocal training and educational programs between Princeton Hospital and the College of Medicine, as well as Shands Hospital. The agreement also provides for priority transfer of patients between Princeton and Shands hospitals. RHA proposes to include its nursing home facility within the scope of the affiliation agreement. The nursing home staff would benefit from the training and educational opportunities, and the nursing home patients would have access to priority reciprocity with the College of Medicine and Shands Hospital as provided for in the agreement. During fiscal years 1993 and 1994 Princeton Hospital had a Medicaid patient ratio of approximately 40 percent. Princeton Hospital also provides indigent care. RHA proposes to construct a freestanding 60-bed Medicaid certified skilled nursing facility on the campus of Princeton Hospital at a cost of $4,991,961 for 43,741 square feet, or $83,199 per bed. The services that are proposed include subacute care, a 15-bed unit for persons suffering from Alzheimer's disease and related dementias, long term care, and two pediatric beds. Respite care will also be provided. RHA proposes that its subacute care unit would provide step-down care for patients referred from acute care hospital settings. RHA also proposes to provide rehabilitative therapies to serve patients suffering from fractured hips and joint replacements as well as other patients needing more intensive physical therapy. Cardiac and respiratory patients will also be served in the subacute unit. As indicated above, there is a need for subacute nursing home beds in Orange County. RHA's proposed 15-bed Alzheimer's unit will be a distinct and secured part of the facility. The unit will have its own enclosed courtyard and activities area. As indicated above, there is a need for nursing home beds for persons suffering from Alzheimer's disease and related dementias in Orange County. RHA also proposes a program dedicated to the care and treatment of persons suffering from AIDS/HIV. This program will provide long-term care, and will include psychiatric, as well as subacute services. As indicated above, there is a need for nursing home beds for persons suffering from AIDS/HIV in Orange County. The RHA proposal includes two pediatric nursing home beds. It is not uncommon to provide pediatric nursing home beds in a small unit within a nursing home facility. These beds will provide subacute care to pediatric patients referred from acute care hospital settings. It is anticipated that the pediatric unit will serve patients with respiratory problems and other multiple system failures. RHA has experienced difficulty in placing pediatric patients discharged from Princeton Hospital. The RHA facility is designed in a series of modules. There are four patient wings located around a single nursing station. The Alzheimer's wing is distinct and secured. The pediatric beds are located in a single semiprivate room close to the nursing station. The subacute unit includes six beds with wall-mounted medical gases and vacuums. Each residential room has approximately 272 net square feet, and features its own handicapped toilet and bathing facilities. The facility includes a chapel, convenience store, laundry, ice cream shop, and beauty shop, designed in a mall concept. The corridors are ten feet in width instead of the standard eight feet. The intent of the design concept is to encourage social interaction. As designed, the location of the soiled utility room in the facility does not comply with applicable Florida code regulations; however, a proposed minor change in the design will move the soiled utility room approximately twenty feet to bring the facility into compliance with Florida code regulations. ALLOCATION FACTORS Relationship to District and State Health Plans Section 408.035(1)(a), Florida Statutes District Health Plan Allocation Factor 1 of the District Health Plan provides a priority for an applicant proposing to locate in the northwest Orange County population center. This preference will continue to be given applicants until a total of 120 beds is obtained. HCR is the only applicant proposing to locate in the northwest Orange County population center; however, in January of 1993, Sunbelt Living Center, a 120-bed community nursing home opened in Apopka, Florida, which is located in the northwest Orange County population center. Accordingly, the total bed number for this preference has been obtained, and this district allocation factor is inapplicable to these proceedings. Allocation Factor 2 of the District Health Plan provides a preference for applicants developing specific services for newborn and/or pediatric patients. RHA is the only applicant proposing specific services which include a unit for the care and treatment of pediatric patients. Accordingly, RHA is the only applicant which meets this allocation factor. Allocation Factor 3 of the District Health Plan provides a preference for an applicant proposing to develop a specific specialty service (or services), such as a unit for medically complex patients, a unit dealing with psychiatric disorders as a primary diagnosis, or services for persons suffering from AIDS/HIV. This preference is also provided to an applicant which commits to working with, or in conjunction with, an existing provider of a specialty service, such as hospices, or mental health providers. RHA is the applicant which best meets this allocation factor. The RHA proposal provides for specialty services for medically complex patients, provides for services to persons suffering from AIDS/HIV, and RHA specifically commits to working with mental health providers, including working with the psychiatric unit at Princeton Hospital. ADVENTIST and LIFE CARE also propose to provide specialty services to medically complex patients in subacute units; however, the ADVENTIST facility is better equipped in this regard and is designed with piped in medical gases, vacuum, and expanded electrical capacity will have the capability to provide more extensive services. LIFE CARE also proposes to treat persons suffering from AIDS/HIV and persons with mental disorders. The LIFE CARE proposal, however, is not as specific in this regard as that of RHA. HCR proposes to provide specialty services to persons suffering from Alzheimer's disease and related dementias, and is in general compliance with this allocation factor. State Health Plan Allocation Factors Each applicant meets the first State Health Plan allocation factor which provides a preference for an applicant proposing to locate in areas within the subdistrict with occupancy rates exceeding 90 percent. The occupancy rate in Orange County exceeds 90 percent. RHA and LIFE CARE meet the second State Health Plan allocation factor which provides a preference for an applicant proposing to serve Medicaid patients in proportion to the average subdistrict-wide percentage of nursing homes. In Orange County the average is 65 percent for Medicaid service. ADVENTIST meets this preference with regard to its non-subacute unit. HCR which proposes a 30 percent Medicaid service does not meet this preference. The third State Health Plan allocation factor provides a preference to an applicant proposing specialized services to special care residents, including AIDS residents, Alzheimer's residents, and the mentally ill. Each applicant generally complies with this allocation factor and offers specialty services; however, RHA with its broader spectrum of specialty services, including services to AIDS/HIV residents, Alzheimer's residents, and its specific commitment to working with residents suffering from psychiatric disorders best meets this preference. The fourth State Health Plan allocation factor provides a preference to an applicant proposing to provide a continuum of services to community residents including, but not limited to, respite care and adult day care. RHA and ADVENTIST best meet this preference. RHA and ADVENTIST have a history of providing quality health care service to the community. RHA and ADVENTIST have extensive ongoing relationships with acute care hospitals. HCR and LIFE CARE have also established relationships which will address providing a continuum of care, but not to the extent proposed by RHA and ADVENTIST. The fifth State Health Plan allocation factor provides a preference to an applicant proposing to construct facilities which provide maximum resident comfort and quality of care. Each applicant proposes facilities designed to provide resident comfort and quality care. Each design has comfortable resident rooms, spacious activities areas, recreation areas, courtyards, landscaping, therapy rooms, and staff lounge areas. Each applicant meets this preference. The sixth State Health Plan allocation factor provides a preference for an applicant proposing innovative therapeutic programs which have proven effective in enhancing the residents' physical and mental functioning level and which emphasize restorative care. Each of the applicants' proposals feature specific elements of innovative therapeutic programs. HCR has received an award for its innovative design of the Boynton Beach Alzheimer's unit. RHA offers a multi-discipline approach with a psychiatric program. ADVENTIST offers an intensive subacute care unit, and LIFE CARE offer a well-balanced approach with intensive staff training. The seventh State Health Plan allocation factor provides a preference for an applicant proposing charges which do not exceed the highest Medicaid per diem rate in the subdistrict. In this respect, HCR projects Medicaid charges of $96.20 per patient day in Year 1, and $93.32 in Year 2. LIFE CARE projects Medicaid charges of $104.74 per patient day in Year 1, and $106.20 in Year 2. ADVENTIST projects Medicaid charges of $106.00 per patient day in Year 1, and $111.30 in Year 2. RHA projects Medicaid charges of $107.02 per patient day in Year 1, and $109.24 in Year 2. While HCR projects the lowest Medicaid per diem charges and appears to best meet this allocation factor, all applicants have agreed to a specified Medicaid utilization rate, and will accept the appropriate Medicaid reimbursement levels. The eighth State Health Plan allocation factor provides a preference for an applicant with a history of providing superior resident care in Florida or other states. HCR has maintained superior licensure ratings, and its prototype Boynton Beach facility currently is rated superior. LIFE CARE in 1993 experienced a conditional rating for its Altamonte Springs facility; however, the facility, upon evaluation in the fall of 1994, is now recommended for a superior licensure rating. RHA does not currently operate nursing homes; however, RHA has a history of providing quality care in its Princeton Hospital. ADVENTIST is the only applicant proposing to add nursing home beds to an existing facility that currently has a superior licensure rating, and in this respect, ADVENTIST best meets this allocation factor. The ninth State Health Plan allocation factor provides a preference to an applicant proposing staff levels which exceed minimum staffing standards contained in licensure administrative rules. Applicants proposing higher ratios of RNs- and LPNs-to-residents shall be given preference. All applicants meet this factor; however a comparison of the nursing staffing patterns of the applicants reflects that HCR (45.40 nursing FTE) and LIFE CARE (45.30 nursing FTE) have a higher than the minimum required ratio of nursing staff to residents for their proposed 98-bed facilities. RHA has proposed 35.30 nursing FTE for its 60-bed facility. ADVENTIST proposes a total 62.40 nursing FTE for its facility after the proposed 38-bed addition. The tenth State Health Plan allocation factor provides a preference for an applicant who will use professionals from a variety of disciplines to meet the residents' needs for social services, specialized therapies, nutrition, recreational activities, and spiritual guidance. These professionals shall include physical therapists, mental health nurses, and social workers. All the applicants offer a wide range of social, spiritual, nutritional, and recreational services. RHA, however, also proposes specific utilization of mental health care professionals, and a specific affiliation with the psychiatric care professionals from Princeton Hospital, and best meets this factor. The eleventh State Health Plan allocation factor provides a preference for an applicant who ensures the residents' rights and privacy, and who implements a well-designed quality assurance and discharge planning program. Each applicant has documented specific plans for quality assurance and ensuring the residents' rights and privacy are protected. Accordingly, each applicant meets this factor. The final State Health Plan allocation factor provides for a preference to an applicant proposing lower administrative costs, and higher resident care costs compared to the average nursing home in the district. HCR has the lowest projected administrative and overhead costs ($18.28 per patient day as of Year 2), and best meets this allocation factor. Statutory Review Criteria, Section 408.035(1), F.S. Section 408.035(1)(b): The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, inadequacy of like and existing health care services and hospices in the service district of the applicant. HCR, LIFE CARE, and RHA each proposes a unit dedicated to the care and treatment of persons suffering from Alzheimer's disease and related dementias (HCR 98-bed facility, LIFE CARE 20-bed unit, and RHA 15-bed unit). ADVENTIST, while currently providing care for Alzheimer's patients at SLC, does not propose a distinct Alzheimer's unit in its 38-bed addition. There are currently at least five nursing homes in the service district, and two others in close proximity, which feature dedicated Alzheimer's units, with a total of at least 345 nursing home beds serving Alzheimer's patients. There is a high utilization rate of Alzheimer's nursing home beds in the district. While there is an established need for more beds to serve Alzheimer's patients, particularly Alzheimer's patients with a history of disruptive behavior, there are additional needs in the service district to provide care and treatment for subacute patients, and for persons suffering from AIDS/HIV. It is difficult to quantify the need for subacute nursing home beds due to the differing professional definitions of what constitutes subacute care; however, acute care hospitals in Orange County are, for cost-effective reasons, now releasing patients on an earlier basis, and there is an established need for nursing home beds to accommodate persons released from acute care hospitals. There is a high utilization rate of subacute beds in the district. There has also been an increase in the incidence of AIDS/HIV patients, and in the need for nursing home beds for persons suffering from AIDS/HIV in the service district. Section 408.035(1)(c): The ability of the applicant to provide quality of care and the applicant's record of providing quality of care. Each applicant has the ability to provide quality of care, and each applicant has a history of providing quality of care. The distinguishing factors in this regard are that LIFE CARE is the only applicant that has experienced a downgrading of a nursing home facility from a superior to a conditional licensure rating, and ADVENTIST is the only applicant that proposes to add nursing home beds to a facility that currently has a superior licensure rating. In comparison, ADVENTIST best meets this factor, and LIFE CARE least meets this factor. Section 408.035(1)(e): Probable economies and improvements in service that may be derived from operation of joint, cooperative, or shared health care resources. ADVENTIST and RHA both have specific proposals to work with, and share services with acute care hospitals. Both are in close proximity to acute care hospitals which will expedite sharing of medical resources. RHA will also share dietary services with Princeton Hospital. The freestanding facilities proposed by HCR and LIFE CARE do not have this advantage. Section 408.035(1)(f): The need in the service district for special equipment and services which are not reasonably and economically accessible in adjoining areas. This factor is inapplicable to the proposals. No specific need was established as to special services and equipment not reasonably and economically accessible in adjoining areas. There are dedicated Alzheimer's units and dementia services for persons in adjoining areas. Section 408.035(1)(g): The need for research and educational facilities, including but not limited to, institutional training programs and community training programs for health care practitioners. RHA has an extensive proposal for the participation and training of health care practitioners in conjunction with Princeton Hospital and best meets this criterion. RHA's affiliation with the University of Florida College of Medicine, Shands Hospital, and the Brain Institute at the University of Florida enhances this proposal. ADVENTIST shares a similar educational and training relationship with Florida Hospital, and with Florida Hospital's registered nurse baccalaureate degree program through Southern College. LIFE CARE proposes to establish relationships with local community colleges and education centers to sponsor nursing programs. Section 408.035(1)(h): The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures for project accomplishment As stipulated, each applicant meets this criterion. Each applicant also has substantial personnel and management resources available for project accomplishment. Section 408.035(1)(i): The immediate and long- term financial feasibility of the proposal. LIFE CARE, ADVENTIST and RHA meet this criterion, and reasonably project positive cash flows by the second year of operation. RHA a not-for- profit corporation, projects a net loss of $114,000 in Year 1 of operation, and an excess of revenues over expenses of $53,000 in Year 2 of operation. LIFE CARE projects a net loss of $440,496 in Year 1 and a net gain of $145,085 in Year 2 for the 98-bed facility, and a net loss of $259,971 in Year 1 and a net gain of $54,920 in Year 2 for the 60-bed facility. HCR projects an after-tax profit of $25,000 in Year 2; however, in order to attain a level of profitability HCR must meet its projected 65 percent private pay utilization. This is a very high private payor mix, and there is a significant question as to whether this payor mix is attainable in the subdistrict; however, as proposed, HCR meets this factor. Sections 408.035(1)(k)(l) and (m): Impact of the project on cost of health services; cost effective- ness; construction costs. ADVENTIST proposes the most cost-effective project by adding beds to an existing facility (SLC). The addition of 38 beds to SLC will promote and maximize the overall efficiency of the facility which was originally designed with core support features to accommodate 120 residents. The proposed 38-bed addition to SLC will also lower the costs per patient day of the entire facility. The ADVENTIST proposal adds nursing home beds at the lowest per bed cost ($36,000 per bed) of all applicants. Similarly, RHA is located on the campus of an existing acute care hospital owned by the applicant and, unlike HCR and LIFE CARE, projects no actual cash expenditure for land acquisition. Each applicant has proposed a reasonable design of its proposed facility and reasonable construction costs, and taken into consideration applicable costs and methods of energy provision and conservation. Each applicant meets this criterion. Each applicant has also proposed a very high quality of care facility that will foster competition and promote quality assurance and cost- effectiveness. Each applicant meets this criterion. Section 408.035(1)(n): The applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent. RHA, ADVENTIST and LIFE CARE have proposed providing health care services to Medicaid patients at rates at, or in excess of, the district average. HCR proposes the lowest Medicaid service rate at 30 percent. RHA also has a strong record of providing Medicaid services and service to the medically indigent at Princeton Hospital. All applicants except HCR meet this factor. Section 408.035(1)(o): The applicant's past and proposed provision of services which promote a continuum of care in a multilevel health care system. The RHA and ADVENTIST proposals best meet this criterion. Both the RHA and the ADVENTIST proposals are closely associated with existing hospitals, and emphasize a continuum of care from the acute hospital setting to a nursing home facility. The RHA and ADVENTIST proposals promote the interaction of health care professionals in a multilevel health care system. The HCR and LIFE CARE proposals do not reflect such an extensive interconnection with other aspects of the health care system, and do not promote a continuum of care to the extent proposed by RHA and ADVENTIST. Section 408.035(2)(b): Whether existing inpatient facilities providing inpatient services similar to those being proposed are being used in an appropriate and efficient manner. The evidence reflects that the existing inpatient facilities in, or adjacent to, the district which offer subacute and AIDS services, as well as services dedicated to the care and treatment of persons suffering from Alzheimer's disease and related dementias are operating at, or near, capacity, and are being used in an appropriate and efficient manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: RHA's application for CON No. 7538 be APPROVED. ADVENTIST'S application for CON No. 7528 be APPROVED. HCR's application for CON No. 7530 be DENIED. LIFE CARE'S applications for CON Nos. 7534 and 7534P be DENIED. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of July, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1995. APPENDIX HCR's Proposed Findings 1-5. Accepted in substance. 6. Rejected, insofar as quantification of need for subacute services, while not readily ascertainable, was demonstrated by other applicants.demonstrated need existed in district 7-8. Accepted in substance. 9. See Number 6. 10-14. Accepted in substance, but disposed of by ruling in Clay County case. 15-27. Accepted in substance. 28-36. Rejected insofar as quantification of need for subacute services is not readily accessible; however, need for such services was established. Accepted, except that need for 120 beds has been met. Accepted, except that RHA proposes specific pediatric services and is entitled to preference. Accepted in substance, except last sentence is rejected. Accepted. Accepted, except that ADVENTIST meets preference as to the non- subacute unit. 42-43. Accepted in substance. 44-45. Rejected. Accepted in substance. Accepted, except that ADVENTIST and RHA also meet this factor, and ADVENTIST is adding beds to an existing superior-rated facility. 48-50. Accepted in part, other applicants meet these factors. 51-65. Accepted in substance; however other services are also needed in the district. 66-67. Rejected. 68-73. Accepted in substance. 74-76. Accepted; however other services are also needed in the district. 77. Rejected. 78-86. Accepted in substance. 87-94. Accepted only to the extent that the HCR proposal meets the minimum requirements to demonstrate financial feasibility. 95-103. Accepted in substance; however each applicant's proposal also meets this factor. 104-112. Accepted in substance. 113. Rejected. 114. Accepted; however RHA proposes a minor change to correct this design. 115-116. Accepted only as to RHA design features. 117-122. Rejected. 123-127. Accepted in substance. 128-131. Rejected. LIFE CARE's Proposed Findings 1-3. Accepted in substance. 4. Accepted, except that district plan includes consideration of pediatric population. 5-7. Accepted; however other applicants also meet these factors. See Finding No. 4. Rejected to the extent that it is not uncommon for pediatric care to be provided in a nursing home setting. 10-38. Accepted in substance. 39-40. Rejected to the extent that RHA and ADVENTIST have competitive staff salaries and have experienced no difficulty in hiring qualified staff. 41-57. Accepted in substance. 58-59. Rejected. Accepted; however RHA proposes a minor change to correct this design. Rejected. 62-65. Accepted in substance. 66-69. Disposed of by Clay County case. Accepted; however ADVENTIST meets this factor in the non-subacute unit. Accepted in substance. ADVENTIST's Proposed Findings 1-4. Accepted in substance. 5. Accepted only to the extent that HCR does not propose a specific subacute care unit. 6-13. Accepted in substance. Rejected to the extent that HCR's proposal meets minimum financial feasibility requirements. Accepted. 16-17. Rejected. Accepted. Accepted to the extent that RHA and ADVENTIST best meet this criterion. 20-21. Accepted in substance. 22-26. Disposed of by Clay County case. 27-29. Accepted in substance 30-31. Rejected. 32-35. Accepted in substance. 36. Rejected; see No. 19. 37-106. Accepted in substance. 107. Accepted; see No. 19. RHA's Proposed Findings 1-21. Accepted in substance. 22. Accepted; however other applicants also meet these factors. 23-54. Accepted in substance. 55. Accepted to the extent that there are at least seven nursing homes with dedicated Alzheimer's units in or near the service area. 56-92. Accepted in substance. 93-96. Accepted; however HCR meets minimum financial feasibility requirements. 97-102. Accepted; however LIFE CARE meets minimum financial feasibility requirements. 103. Rejected. 104-122. Accepted in substance. 123. Rejected. 124-135. Accepted in substance. 136. Rejected to the extent that all applicants have met the design criterion. 137-140. Accepted in substance. 141. Rejected. 142-145. Accepted in substance. 146. Accepted to the extent that RHA and ADVENTIST best meet this criterion. COPIES FURNISHED: Stephen K. Boone, Esquire BOONE, BOONE & BOONE, P.A. Post Office Box 1596 Venice, Florida 34284 Alfred W. Clark, Esquire 117 South Gadsden, Suite 201 Tallahassee, Florida. 32301 R. Bruce McKibben, Jr., Esquire PENNINGTON & HABEN, P.A. 215 South Monroe Street, 2nd Floor Post Office Box 10095 Tallahassee, Florida 32301 Michael J. Glazer, Esquire MACFARLANE, AUSLEY, FERGUSON & MCMULLEN, P.A. Post Office Box 391 Tallahassee, Florida 32301 Samuel Dean Bunton, Esquire Senior Attorney, AHCA Atrium Building, Suite 301 325 John Knox Road Tallahassee, Florida 32303-4131 Steven R. Bechtel, Esquire MATEER, HARBERT & BATES, P.A. Post Office Box 2854 Orlando, Florida 32802 James M. Barclay, Esquire COBB, C0LE & BELL 131 North Gadsden Street Tallahassee, Florida 32301
The Issue Whether Certificate of Need Application No. 8614, filed by Vencor Hospitals South, Inc., meets, on balance, the applicable statutory and rule criteria. Whether the Agency for Health Care Administration relied upon an unpromulgated and invalid rule in preliminarily denying CON Application No. 8614.
Findings Of Fact Vencor Hospital South, Inc. (Vencor), is the applicant for certificate of need (CON) No. 8614 to establish a 60-bed long term care hospital in Fort Myers, Lee County, Florida. The Agency for Health Care Administration (AHCA), the state agency authorized to administer the CON program in Florida, preliminarily denied Vencor's CON application. On January 10, 1997, AHCA issued its decision in the form of a State Agency Action Report (SAAR) indicating, as it also did in its Proposed Recommended Order, that the Vencor application was denied primarily due to a lack of need for a long term care hospital in District 8, which includes Lee County. Vencor is a wholly-owned subsidiary of Vencor, Inc., a publicly traded corporation, founded in 1985 by a respiratory/physical therapist to provide care to catastrophically ill, ventilator-dependent patients. Initially, the corporation served patients in acute care hospitals, but subsequently purchased and converted free-standing facilities. In 1995, Vencor merged with Hillhaven, which operated 311 nursing homes. Currently, Vencor, its parent, and related corporations operate 60 long term care hospitals, 311 nursing homes, and 40 assisted living facilities in approximately 46 states. In Florida, Vencor operates five long term care hospitals, located in Tampa, St. Petersburg, North Florida (Green Cove Springs), Coral Gables, and Fort Lauderdale. Pursuant to the Joint Prehearing Stipulation, filed on October 2, 1997, the parties agreed that: On August 26, 1996, Vencor submitted to AHCA a letter of intent to file a Certificate of Need Application seeking approval for the construction of a 60-bed long term care hospital to be located in Fort Myers, AHCA Health Planning District 8; Vencor's letter of intent and board resolution meet requirements of Sections 408.037(4) and 408.039(2)(c), Florida Statutes, and Rule 59C-1.008(1), Florida Administrative Code, and were timely filed with both AHCA and the local health council, and notice was properly published; Vencor submitted to AHCA its initial Certificate of Need Application (CON Action No. 8614) for the proposed project on September 25, 1996, and submitted its Omissions Response on November 11, 1996; Vencor's Certificate of Need Application contains all of the minimum content items required in Section 408.037, Florida Statutes; Both Vencor's initial CON Application and its Omissions Response were timely filed with AHCA and the local health council. During the hearing, the parties also stipulated that Vencor's Schedule 2 is complete and accurate. In 1994, AHCA adopted rules defining long term care and long term care hospitals. Rule 59C-1.002(29), Florida Administrative Code, provides that: "Long term care hospital" means a hospital licensed under Chapter 395, Part 1, F.S., which meets the requirements of Part 412, Subpart B, paragraph 412.23(e), [C]ode of Federal Regulations (1994), and seeks exclusion from the Medicare prospective payment system for inpatient hospital services. Other rules distinguishing long term care include those related to conversions of beds and facilities from one type of health care to another. AHCA, the parties stipulated, has no rule establishing a uniform numeric need methodology for long term care beds and, therefore, no fixed need pool applicable to the review of Vencor's CON application. Numeric Need In the absence of any AHCA methodology or need publication, Vencor is required to devise its own methodology to demonstrate need. Rule 59C-1.008(e) provides in pertinent part: If no agency policy exists, the applicant will be responsible for demonstrating need through a needs assessment methodology which must include, at a minimum, consideration of the following topics, except where they are inconsistent with the applicable statutory or rule criteria: Population demographics and dynamics; Availability, utilization and quality of like services in the district, subdistrict, or both; Medical treatment trends; and Market conditions. Vencor used a numeric need analysis which is identical to that prepared by the same health planner, in 1995, for St. Petersburg Health Care Management, Inc. (St. Petersburg). The St. Petersburg project proposed that Vencor would manage the facility. Unlike the current proposal for new construction, St. Petersburg was a conversion of an existing but closed facility. AHCA accepted that analysis and issued CON 8213 to St. Petersburg. The methodology constitutes a use rate analysis, which calculates the use rate of a health service among the general population and applies that to the projected future population of the district. The use rate analysis is the methodology adopted in most of AHCA's numeric need rules. W. Eugene Nelson, the consultant health planner for Vencor, derived a historic utilization rate from the four districts in Florida in which Vencor operates long term care hospitals. That rate, 19.7 patient days per 1000 population, when applied to the projected population of District 8 in the year 2000, yields an average daily census of 64 patients. Mr. Nelson also compared the demographics of the seven counties of District 8 to the rest of the state, noting in particular the sizable, coastal population centers and the significant concentration of elderly, the population group which is disproportionately served in long term care hospitals. The proposed service area is all of District 8. By demonstrating the numeric need for 64 beds and the absence of any existing long term care beds in District 8, Vencor established the numeric need for its proposed 60-bed long term care hospital. See Final Order in DOAH Case No. 97-4419RU. Statutory Review Criteria Additional criteria for evaluating CON applications are listed in Subsections 408.035(1) and (2), Florida Statutes, and the rules which implement that statute. (1)(a) need in relation to state and district health plans. The 1993 State Health Plan, which predates the establishment of long term care rules, contains no specific preferences for evaluating CON applications for long term care hospitals. The applicable local plan is the District 8 1996-1997 Certificate of Need Allocation Factors Report, approved on September 9, 1996. The District 8 plan, like the State Health Plan, contains no mention of long term care hospitals. In the SAAR, AHCA applied the District 8 and state health plan criteria for acute care hospital beds to the review of Vencor's application for long term care beds, although agency rules define the two as different. The acute care hospital criteria are inapplicable to the review of this application for CON 8614 and, therefore, there are no applicable state or district health plan criteria for long term care. (1)(b) availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing services in the district; and (1)(d) availability and adequacy of alternative health care facilities in the district. Currently, there are no long term care hospitals in District 8. The closest long term care hospitals are in Tampa, St. Petersburg, and Fort Lauderdale, all over 100 miles from Fort Myers. In the SAAR, approving the St. Petersburg facility, two long term care hospitals in Tampa were discussed as alternatives. By contract, the SAAR preliminarily denying Vencor's application lists as alternatives CMR facilities, nursing homes which accept Medicare patients, and hospital based skilled nursing units. AHCA examined the quantity of beds available in other health care categories in reliance on certain findings in the publication titled Subacute Care: Policy Synthesis And Market Area Analysis, a report submitted to the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, on November 1, 1995, by Levin-VHI, Inc. ("the Lewin Report"). The Lewin Report notes the similarities between the type of care provided in long term care, CMR and acute care hospitals, and in hospital-based subacute care units, and subacute care beds in community nursing homes. The Lewin Report also acknowledges that "subacute care" is not well-defined. AHCA has not adopted the Lewin Report by rule, nor has it repealed its rules defining long term care as a separate and district health care category. For the reasons set forth in the Final Order issued simultaneously with this Recommended Order, AHCA may not rely on the Lewin Report to create a presumption that other categories are "like and existing" alternatives to long term care, or to consider services outside District 8 as available alternatives. Additionally, Vencor presented substantial evidence to distinguish its patients from those served in other types of beds. The narrow range of diagnostic related groups or DRGs served at Vencor includes patients with more medically complex multiple system failures than those in CMR beds. With an average length of stay of 60 beds, Vencor's patients are typically too sick to withstand three hours of therapy a day, which AHCA acknowledged as the federal criteria for CMR admissions. Vencor also distinguished its patients, who require 7 1/2 to 8 hours of nursing care a day, as compared to 2 1/2 to 3 hours a day in nursing homes. Similarly, the average length of stay in nursing home subacute units is less than 41 days. The DRG classifications which account for 80 percent of Vencor's admissions represent only 7 percent of admissions to hospital based skilled nursing units, and 10 to 11 percent of admissions to nursing home subacute care units. Vencor also presented the uncontroverted testimony of Katherine Nixon, a clinical case manager whose duties include discharge planning for open heart surgery for patients at Columbia-Southwest Regional Medical Center (Columbia-Southwest), an acute care hospital in Fort Myers. Ms. Nixon's experience is that 80 percent of open heart surgery patients are discharged home, while 20 percent require additional inpatient care. Although Columbia-Southwest has a twenty-bed skilled nursing unit with two beds for ventilator-dependent patients, those beds are limited to patients expected to be weaned within a week. Finally, Vencor presented results which are preliminary and subject to peer review from its APACHE (Acute Physiology, Age, and Chronic Health Evaluation) Study. Ultimately, Vencor expects the study to more clearly distinguish its patient population. In summary, Vencor demonstrated that a substantial majority of patients it proposes to serve are not served in alternative facilities, including CMR hospitals, hospital-based skilled nursing units, or subacute units in community nursing homes. Expert medical testimony established the inappropriateness of keeping patients who require long term care in intensive or other acute care beds, although that occurs in District 8 when patients refuse to agree to admissions too distant from their homes. (1)(c) ability and record of providing quality of care. The parties stipulated that Vencor's application complies with the requirement of Subsection 408.035(1)(c). (1)(e) probable economics of joint or shared resources; (1)(g) need for research and educational facilities; and (1)(j) needs of health maintenance organizations. The parties stipulated that the review criteria in Subsection 408.035(1)(e), (g) and (j) are not at issue. (f) need in the district for special equipment and services not reasonably and economically accessible in adjoining areas. Based on the experiences of Katherine Nixon, it is not reasonable for long term care patients to access services outside District 8. Ms. Nixon also testified that patients are financially at a disadvantage if placed in a hospital skilled nursing unit rather than a long term care hospital. If a patient is not weaned as quickly as expected, Medicare reimbursement after twenty days decreases to 80 percent. In addition, the days in the hospital skilled nursing unit are included in the 100 day Medicare limit for post-acute hospitalization rehabilitation. By contrast, long term care hospitalization preserves the patient's ability under Medicare to have further rehabilitation services if needed after a subsequent transfer to a nursing home. (h) resources and funds, including personnel to accomplish project. Prior to the hearing, the parties stipulated that Vencor has sufficient funds to accomplish the project, and properly documented its source of funds in Schedule 3 of the CON application. Vencor has a commitment for $10 million to fund this project of approximately $8.5 million. At the hearing, AHCA also agreed with Vencor that the staffing and salary schedule, Schedule 6, is reasonable. (i) immediate and long term financial feasibility of the proposal. Vencor has the resources to establish the project and to fund short term operating losses. Vencor also reasonably projected that revenues will exceed expenses in the second year of operation. Therefore, Vencor demonstrated the short and long term financial feasibility of its proposal. needs of entities serving residents outside the district. Vencor is not proposing that any substantial portion of it services will benefit anyone outside District 8. probable impact on costs of providing health services; effects of competition. There is no evidence of an adverse impact on health care costs. There is preliminary data from the APACHE study which tends to indicate the long term care costs are lower than acute care costs. No adverse effects of competition are shown and AHCA did not dispute the fact that Vencor's proposal is supported by acute care hospitals in District 8. costs and methods of proposed construction; and (2)((a)-(c) less costly alternatives to proposed capital expenditure. The prehearing stipulation includes agreement that the design is reasonable, and that proposed construction costs are below the median in that area. past and proposed service to Medicaid patients and the medically indigent. Vencor has a history of providing Medicaid and indigent care in the absence of any legal requirements to do so. The conditions proposed of 3 percent of total patient days Medicaid and 2 percent for indigent/charity patients proposed by Vencor are identical to those AHCA accepted in issuing CON 8213 to St. Petersburg Health Care Management, Inc. Vencor's proposed commitment is reasonable and appropriate, considering AHCA's past acceptance and the fact that the vast majority of long term care patients are older and covered by Medicare. services which promote a continuum of care in a multilevel health care system. While Vencor's services are needed due to a gap in the continuum of care which exists in the district, it has not shown that it will be a part of a multilevel system in District 8. (2)(d) that patients will experience serious problems obtaining the inpatient care proposed. Patients experience and will continue to experience serious problems in obtaining long term care in District 8 in the absence of the project proposed by Vencor. Based on the overwhelming evidence of need, and the ability of the applicant to establish and operate a high quality program with no adverse impacts on other health care providers, Vencor meets the criteria for issuance of CON 8614.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue CON 8614 to Vencor Hospitals South, Inc., to construct a 60-bed long term care hospital in Fort Myers, Lee County, District 8. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Kim A. Kellum, Esquire Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 R. Terry Rigsby, Esquire Geoffrey D. Smith, Esquire Blank, Rigsby & Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be granted CON No. 6606 to convert 10 medical/surgical beds to 10 neonatal intensive care beds to create a Level II neonatal intensive care unit (NICU).
Findings Of Fact UCH is a licensed acute care hospital with 404 authorized beds. A number of these beds were transferred to the Women's Center, which was exempted from CON review by DHRS. (Exhibit 8) The Women's Center involved the expenditure by UCH of some $11,000,000 to construct and equip a separate building adjacent to the existing hospital. The Women's Center was completed and became operational in September 1991. Accordingly, at the time the Application for NICU beds was submitted through the processing of the Application by DHRS, no births were experienced at this facility. For the first two months the Women's Center was operational, the Women's Center experienced 107 births of which 1 required transfer to a hospital providing Level II neonatal intensive care services. At the time the batching cycle for the September 27, 1990 deadline and January 1993 planning horizon was published (Exhibit 18), the NICU inventory was in litigation, and DHRS did not publish a fixed bed need pool for that batching cycle. Instead, in Florida Administrative Weekly, Vol. 16, No. 34, dated August 24, 1990 (Exhibit 18), an estimated inventory of existing beds was used in the bed need formula calculation. This showed for District VI zero need for additional NICU Level II beds. Subsequent to the issuance of the State Agency Action Report (SAAR), in this case litigation was complete, and DHRS entered a Final Order on September 15, 1991 establishing the bed inventory for neonatal intensive care beds Level II and Level III in District 6. That Order increased the NICU Level II bed inventory by 15 beds by adding four beds to Lakeland Regional Medical Center (LMRC) NICU and 11 beds to Winter Haven's NICU. These additions increased the NICU Level II inventory in District VI from the 61 shown on Exhibit 18 to 76. The SAAR (Exhibit 6) used an inventory of 77 Level II NICU beds in District VI to determine no need after application of the bed need formula showed a need for 70 Level II NICU beds in District VI. Changing the inventory from 77 to 76 NICU beds does not affect this conclusion. Occupancy rates used in the bed need calculation were taken from the reports hospitals are required to submit to local health councils. In some instances in the batching cycle here involved, the hospitals had failed to report to the local health councils their occupancy rate for the period required by the bed need formula, and DHRS contacted these hospitals in District VI for the data needed. Petitioner contends that the occupancy rate data relied upon by DHRS in calculating the need for NICU beds for the 1993 planning horizon is inaccurate and that more reliable data is obtained from using different reports that the hospitals are required to submit to the Hospital Cost Containment Board (HCCB). Petitioner's expert witness opined that the information hospitals are required to submit to the HCCB provides a more accurate method of determining the occupancy rate of the Level II NICU beds at each hospital. Petitioner also contends that at the time the Level II occupancy rates were provided to DHRS there was no finite definition, by rule, of the differences between Levels I, II and III NICUs, and the hospitals did not submit accurate data. However, credible evidence was presented that a proposed definition of Levels I, II and III NICUs had been promulgated to all of the hospitals and, when enacted as a rule, this proposed definition was adopted verbatim or nearly so. Intervenors' witnesses pointed out that the hospital reports to HCCB are based on DRG's (diagnostic related groups), and the same DRG is frequently used on a Level I, II or III NICU admission. Accordingly, from those reports to the HCCB an accurate determination of the Level II occupancy rate cannot be made. Furthermore, the patient, during the hospital stay, is frequently moved from Level III to Level II to Level I care, and this data cannot be obtained from the reports submitted to the HCCB. Accordingly, it is found that the reports submitted by hospitals to the local health councils provide more accurate occupancy rates than can be gleaned from the reports submitted to the HCCB, and the occupancy rate utilized by DHRS to calculate NICU bed need is correct. The average occupancy rate for District VI hospitals providing NICU Level II beds was approximately 70 percent during the most recent 12 months prescribed for this batching cycle. Although discrepancies were noted in the patient days at Humana and Tampa General during this period, when these discrepancies were corrected, the district occupancy rate remained in the vicinity of 70 percent. Rule 10-5.042(3)(d), Florida Administrative Code, provides that regardless of bed need shown (by using the bed need formula) the establishment of new Level II NICU beds within a district shall not normally be approved, unless the average occupancy rate for Level II beds in the district equals or exceeds 80 percent for the most recent 12 month period ending 6 months prior to the beginning date of the quarter of the publication of the fixed bed need pool. Petitioner submitted no evidence to demonstrate a not normal situation existed to waive the 80 percent average District VI occupancy rate required before additional Level II NICU beds will be approved. Petitioner principally relied upon the admissions in Hillsborough County to demonstrate an 80 percent occupancy rate. However, the rule specifically refers to a district rate rather than to a subdistrict or one-county rate. In several areas, Petitioner's estimates used to determine the anticipated number of patients to be served in the proposed NICU are not realistic. To determine the ratio of Level II patients to the number of births, Petitioner relied on data from Lakeland Regional Medical Center (LMRC) as a comparable hospital. However, LMRC is not comparable to UCH in patient payor mix. In excess of 40 percent of LMRC obstetrical cases are Medicaid patients, while UCH projects only 6 percent Medicaid births. A lower income payor such as Medicaid patients have a much higher ratio of ill babies at birth than do more affluent mothers who generally receive better prenatal care. Consequently, the percentage of births needing Level II care in the payor mix expected at UCH is more comparable to the percentage experienced by Humana Women's Hospital, an Intervenor herein. At Humana the percentage of births requiring Level II care is on the order of 6 percent as compared to 15.6 percent at LMRC. This lower ratio is more consistent with UCH experience in its first two months of operations where out of 107 births only 1 required transfer to a Level II NICU. Some question was raised regarding the accuracy of Petitioner's estimate of 1500-1700 births during the first full year of operation. While it would be expected that admissions to a new facility would be lower the start-up year than in subsequent years, hard evidence to support the proposed number of births or a lessor number was not presented. In either case, Petitioner has failed to meet the birth requirement of a minimum of 1000 live births for the most recent 12 month period ending 6 months prior to the beginning date of the quarter of the publication of the fixed need pool needed to qualify for this CON. Petitioner presented no evidence to support the not normal conditions that would provide an exemption to this requirement in Rule 10-5.042(6), Florida Administrative Code, other than the fact that it is patently obvious that a hospital that commenced operations 6 months after submitting its CON application could not demonstrate 1000 live births in the 12 months preceding its application. The protesting providers of Level II neonatal care are both located within one hour driving time of the site of UCH as is All Children's Hospital in St. Petersburg. The other hospitals in District VI providing Level II neonatal care, to wit Manatee Memorial Hospital, Winter Haven Hospital and LMRC, are also within two hours driving time of UCH which is the geographical access guideline established by rules for NICUs. Although UCH contends that its application meets all eight preference items prescribed by the state health plan, the evidence presented established its application conclusively meets only one of these preferences, number 6. Absent a showing of need for the proposed facility as found in finding 6 above, granting this CON will increase the excess NICU beds in District VI and adversely impact existing providers. This includes Tampa General which is a disproportionate share provider (of Medicaid and indigent care). It appears from the evidence presented, that in constructing the Women's Hospital, space for an NICU was provided in the plans and, while awaiting a CON to provide a 10 bed Level II ICU, the space is used for storage. No structural changes will be required to operate a NICU at this location, and costs are related primarily to the equipment that will be needed. Whether the installation of a NICU in this space will improve the physical plant of the Women's Center depends on from which advantage point one looks. From Petitioner's point of view, the NICU would improve the physical plant and comply with Preference 3 of the state health plan. Based upon the premise that the proposed NICU beds will be used at an occupancy rate of 70 percent or greater, the conversion of 10 acute care beds currently operating at less than 50 percent occupancy to NICU beds, the overall occupancy rate will increase and Preference 4 would be met. However, no credible evidence was presented that the proposed 10 bed Level II NICU will operate at 70 percent capacity. If initial utilization of Level II care continues and less than 1 percent of UCH live births require Level II care, this Preference will not be met. Although Petitioner did not address Preference 5 in its application, the SAAR notes that HCB reports show of the three hospitals with a grouping of "05" UCH has lower gross revenues per adjusted admission. Petitioner meets Preference 6. Preference 7 of the State Health Plan pertains to applicants who propose to provide neonatal intensive care services to Children's Medical Services (CMS) and non-CMS patients who are defined as charity care patients. Although UCH proposes to provide 6 percent Medicaid and 5 percent indigent care, past history does not support this level of indigence or low pay care. Under Preference 8 of the State Health Plan, preference is given to applicants who propose to serve substance abuse, pregnant and postpartum women, and coordinate their services with other appropriate social agencies. Although UCH stated in its application that it has developed a referral relationship with the Teen Mom's Program, it did not specifically address coordination of its services with substance abuse, pregnant and postpartum women. The local health plan for District VI provides preference shall be given to an applicant who provides the department with documentation that they provide, or propose to provide, a disproportionate share of Medicaid and charity care patient days in relation to other hospitals in the subdistrict. UCH is not a disproportionate share provider and does not propose to become one. Accordingly, it does not comply with this preference item in the district health plan.
Recommendation It is, therefore, recommended that a Final Order be entered denying the application of University Community Hospital for Certificate of Need No. 6606 to establish and operate a 10 bed Level II neonatal intensive care unit. RECOMMENDED this 16th day of January, 1992, in Tallahassee, Florida. K. N. AYERS 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 16th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5720 Proposed findings submitted by Petitioner are accepted, except as noted below. Those not noted below and not contained in Hearing Officer findings were deemed not necessary to the conclusions reached. 22. Accepted as the testimony of Hopes, but not as a fact. Accepted only insofar as not in conflict with HO #5. Rejected. 32. Rejected. 34-35. Accepted insofar as not inconsistent with HO #7. 36. Same as 34. Accepted as testimony of witnesses. However, ultimate finding in HO #7 is that when these numbers were corrected, no change in bed need resulted. Rejected. 42. Rejected that Hopes utilization statistic more accurately reflects true utilization of NICU beds. 53-55. Rejected. 56. Rejected as outside the time period here involved. 58-59. Rejected. 62. Rejected insofar as inconsistent with HO #10. Rejected. Second sentence rejected as in conflict with HO #9. 75. Ultimate sentence rejected. 85. Rejected. 92. Accepted, except for the connotation that these patients have geographical access problems to existing facilities. 95. Accepted merely as the testimony of this witness who is currently an employee of UCH. 97-118. Although these preference items were discussed in HO findings #12-19, absent a comparative review these preferences were not considered in determining that a need for 10 more Level II NICU beds did not exist in District VI. Proposed findings submitted by Respondent and the Intervenors are accepted. Those not included in HO findings were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire W. Douglas Hall, Esquire Post Office Drawer 190 Tallahassee, FL 32302 Richard Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, FL 32308 James C. Hauser, Esquire Post Office Box 508 Tallahassee, FL 32302 John Radey, Esquire Post Office Drawer 11307 Tallahassee, FL 32302 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact General Discussion Petitioner is a licensed physician who practices pediatric medicine in Florida. Her practice has been located in St. Augustine, Florida, for 23 years. She has been board-certified in pediatrics since 1972. On November 2, 1982, Petitioner executed a Medicaid Provider Agreement with the State of Florida, Department of Health and Rehabilitative Services, Respondent's predecessor agency. At all times relevant to the inquiry the state agency conducting the Medicaid function in Florida was referred to as the Florida Medicaid Program. The executed Provider Agreement was accepted by the Florida Medicaid Program on December 10, 1982, enrolling Petitioner in the program. In pertinent part, the Provider Agreement states: * * * The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State Agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request. The provider agrees that claims submitted must be for services rendered to eligible recipients of the Florida Medicaid Program and that payment by the program for services rendered will be based on the payment methodo- logy in the applicable Administrative Rule. The Provider also agrees to submit requests for payment in accordance with program policies. * * * 7. The provider and the Department agree to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. * * * After being accepted as a Medicaid provider, Petitioner was assigned provider number 052775100. As successor agency to the Department of Health and Rehabilitative Services, Respondent is responsible for the administration of the Florida Medicaid Program. Among Respondent's responsibilities is the operation of a program to oversee the activities of Medicaid providers, to include recovery of overpayments for services given by Medicaid providers to Medicaid recipients. In accordance with its authority, Respondent reviewed information concerning Petitioner's service activities as a Medicaid provider for the period of January 1, 1990 through December 31, 1991. To arrive at the amount claimed as overpayment, Respondent used a representative sampling of randomly-selected recipients for whom Petitioner had requested reimbursement for services provided during the relevant period. The number of recipients utilized in the sample was From its review, and by imposition of a formula and methodology which inferred the overall experience for all recipients who received Medicaid services during the relevant period, Respondent calculated the alleged overpayment. By extending the information found in the audit concerning the 30 recipients for the period of January 1, 1990 through December 31, 1991, Respondent determined that $27,384.82 was owed for overpayment. The results of this preliminary determination (provisional audit report) were made known to the Petitioner through correspondence dated November 4, 1994. Further review of the sample medical records was conducted between persons representing Respondent, counsel for Petitioner, and Petitioner. This meeting took place on February 9, 1995. As a consequence, the overall amount of claimed overpayment was reduced from $27,384.82 to $19,404.89 for the subject time period. From that experience, a final agency audit report was completed. On March 24, 1995, this report was sent to Petitioner. Petitioner contested the proposed final disposition, leading to the hearing conducted to resolve the dispute between the parties over the amount claimed as overpayment. At issue in the present proceeding is the question of whether the records maintained by Respondent are adequate to justify the reimbursement claims made in the instances where the sample group was provided medical services by Respondent. A related question is also raised concerning Petitioner's records, as they pertain to the level of service for which Petitioner claims reimbursement. There is no contention by Respondent that Petitioner has committed fraud or acted dishonestly in submitting the requests for reimbursement for services rendered to Medicaid recipients. In all instances under discussion, where Petitioner sought reimbursement for services rendered, recipients were seen in an office visit. To assist Petitioner in maintaining necessary records to identify the nature of services provided to Medicaid recipients, to identify levels of services provided, and to invoice Respondent for those services, Petitioner had been made aware of the pertinent Florida Statutes and rules, together with Medicaid Provider Handbooks and claims forms. That information was available to Petitioner when submitting claims for reimbursement for services provided for the 30 recipients in the sample for the period of January 1, 1990 through December 31, 1991. Two categories of services by Petitioner are at issue. The first category concerns recipients who present with complaints which are addressed by the provider. The second category concerns EPSDT recipients. This category is a preventive health screening examination for Medicaid-eligible children and young people under the age of 21. Examples of both categories were found within the recipient sample audited by Respondent for the questioned period. The Medicaid Physician Provider Handbook describes Petitioner's record-keeping responsibilities and the opportunity to review the records, wherein it states: Record Keeping You must retain physician records on services provided to each Medicaid recipient. . . . Examples of the type of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and * * * Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. * * * Authorized state and federal staff or their authorized representatives may audit your Medicaid records. . . . The Medicaid EPSDT Provider Handbook describes the components for the health screening examination. Those components are health and developmental history, unclothed physical assessment or examination, nutritional assessment, updating of routine immunizations, laboratory tests, developmental assessment, vision screening, and hearing screening. EPSDT services also include possible referrals for medical treatment, visual, dental and hearing services. As to immunizations, there is a requirement for accountability for each vaccine administered. This means that the provider must maintain a record when vaccines are administered. In this case Petitioner met this requirement. When a child appears for EPSDT screening the provider must always perform a health and developmental history, physical examination, vision screening, including a check of the eyes, hearing screening, including a check of the ears, developmental assessment and nutritional assessment. This process contemplates the necessity for noting the results obtained in the screenings, normal or abnormal, as a means to track the child's health and development. According to the Medicaid EPSDT Provider Handbook, the record keeping associated with the EPSDT screening process includes the need to be mindful of: The purpose of a health and developmental history is to gather information about those diseases and health problems for which no standard screening test has been developed and to compile historical information about the child and the child's family. The health and developmental history should also provide information on the child's brothers and sisters; growth history; conditions suffered by blood relatives; previous medications; immunizations or allergies; and developmental history of the child and other family members. Unclothed physical examination The physical examination includes specific screening elements as appropriate for the child's age and health history, including: General appearance. Body measurements. Skin examination. Blood pressure. Heart sounds. Ausculation of lungs. Pulse. Palpation of abdomen of musculature, organs, masses. Inspection of genitalia. Vocalization and speech appropriate for age. Facial features. Chest configurations and respiratory movements. Muscle tone. Gross/fine motor coordination. Inspection for scoliosis. Ears, nose, and throat inspection. The Department of Health and Human Services, Health Care Financing Administration, defines a developmental assessment as the range of activities surrounding the exami- nation of the child, adolescent, and young adult in order to determine whether they fall within the normal range of achievement for the child's age group and cultural background. The developmental assessment is performed at the time of screening for all ages. Infor- mation from the parent or other person who has knowledge of the individual, observation, and talking with the individual are utilized in assessing the individual's behavior. The following elements are recommended to be included in the developmental assessment of children of all ages: Gross motor development, focusing on strength, balance, locomotion. Fine motor development, focusing on eye-hand coordination. Communication skills or language development, focusing on expression, comprehension, and speech articulation. Self-help and self-care skills. Social-emotional development, focusing on the ability to engage in social inter- action with other children/adolescents, parents, and other adults. Cognitive skills, focusing on problem solving or reasoning. The assessment of the child's nutritional status, eating habits, including the use of alcohol and tobacco, is taken at the time of the physical examination. The guidelines for visual screening are listed below: Birth through one year. General external examination and evaluation of ocular motility. Gross visual acuity examination with fixation test. Testing light sense with pupillary light reflex test. Intraocular examinations with ophthalmo- scope. Two to five years. Visual acuity for distance should be tested separately for each eye. The illiterate E test, the STYCAR (Screening Test for Young Children and Retardates) or the Lippman Matching Symbol Chart - HOTV may be utilized. Children from two to five years of age should be tested at 10 to 15 feet. To determine muscle balance, a cover test and the Hirschberg test (corneal light reflex) should be given. Parents should be asked whether they notice the child's eyes ever turning in or out. All individuals ages 5 through 20 years should be evaluated for distance visual acuity utilizing the illiterate E or the Snellen letters for a linear fashion. The testing should be at 20 feet. Individuals who wear glasses should be tested while wearing their glasses. Children should be tested using an appropri- ate test such as the Hear Kit, Weber, Rinne, or puretone along with history from the parent or guardian. Beyond the instructions set forth in the Medicaid EPSDT Provider Handbook, which have been referenced, Petitioner has not received additional instructions from Respondent concerning the manner in which records should be maintained related to EPSDT screens performed. In this case, Respondent does not question Petitioner's EPSDT screenings performed, as to the frequency and interval between screening examinations. Respondent has challenged the request for reimbursement for the EPSDT screens in the sample based upon the assertion that inadequate documentation exists to justify reimbursement for the screenings. Having in mind the need to maintain adequate records to justify the treatment and claim for reimbursement for services, the Medicaid Physician Provider Handbook describes the basis for reimbursement for services provided to recipients. That reimbursement scheme is associated with six levels of service. Those levels of service are identified by procedure codes established in the underlying Physician's Current Procedural Terminology, Fourth Edition. The levels of service in contest are limited, intermediate, extended, and comprehensive. The levels of service are defined as follows: Limited is a level of service used to evaluate a circumscribed acute illness or to periodically reevaluate a problem in- cluding a history and examination, review of effectiveness of past medical management, the ordering and evaluation of appropriate diagnostic tests, the adjustments of therapeutic management as indicated and discussion of findings. Intermediate level of service pertains to the evaluation of a new or existing cond- ition complicated with a new diagnostic or management problem, not necessarily related to the primary diagnosis, that necessitates the obtaining of pertinent history and physical or mental status findings, diagnostic tests and procedures, and ordering appropriate therapeutic management; or a formal patient, family or a hospital staff conference regarding the patient's medical management and progress. Extended level of service requires an unusual amount of effort or judgement including a detailed history, review of medical records, examination, and a formal conference with the patient, family, or staff; or a compar- able medical diagnostic and/or therapeutic service. Comprehensive level of service provides for an in-depth evaluation of a patient with a new or existing problem requiring the development or complete reevaluation of medical data. This service includes the recording of a chief complaint, present illness, family history, past medical history, personal history, system review, complete physical examination, and ordering appropriate tests and procedures. The billing number codes set out in the Physician's Current Procedural Terminology, Fourth Edition, are related to new patients and established patients and the coding for the level of service is equated as: New patient: 90010 limited service 90015 intermediate service 90017 extended service 90020 comprehensive service Established patient: 90050 limited service 90060 intermediate service 90070 extended service 90080 comprehensive service To be reimbursed for services provided, consistent with the Medicaid Physician Provider Handbook, Petitioner utilized the Illustration 4-1.VHCFA-1500 Claim Form. To be reimbursed for Medicaid EPSDT screening performed, Petitioner utilized the Illustration 4-1.EPSDT Claim Form. Respondent has not challenged the manner in which Petitioner prepared and submitted the claim forms in its sample audit. For the period of January 1, 1990 through December 31, 1991, in the sample group for 30 recipients, Respondent did not disallow claims for reimbursement for services performed for recipients 6, 8, 20, 22, 23, 24, 27 and 28. In addition, at hearing, Respondent agreed that the payment for services performed for Recipient No. 3, on August 17, 1991, should remain as claimed. Similarly, the payment for services performed for Recipient No. 15, on December 14, 1990, should remain as claimed. The payment for services performed for Recipient No. 21, on December 12, 1990, should remain as claimed. Finally, the payment for services performed for Recipient No. 19, on May 25, 1990, should remain as claimed. At hearing, Petitioner agreed with Respondent that the services provided to Recipient No. 2, on August 17, 1991, should have been billed as a limited level of service. Petitioner conceded that the claim for reimbursement for services to Recipient No. 21 rendered on February 10, 1990 should be as a limited level of service as Respondent contended. Other contested payments must be resolved. In the instance where Respondent has agreed to allow the claims for reimbursement to be honored, this would cause the ultimate claim for overpayment pursuant to the formula and methodology to be adjusted. That adjustment is not made on this occasion based upon the agreement by the parties to bifurcate consideration of the propriety of using the formula and methodology and the need to recalculate the overpayment claim by employing the formula and methodology. Dr. John Sullenberger testified concerning the medical services provided to recipients. He identified the nature of the services. He is an expert in medicine. His practice had been as a board-certified thoracic- cardiovascular surgeon. He has not practiced as a general practitioner or pediatrician. Dr. Sullenberger had reviewed the records in the sample group and assisted Respondent in its determination concerning the appropriate level of service for payment and the adequacy of Petitioner's records. Dr. Sullenberger offered his opinion concerning the care rendered and the records kept, as that would influence assigning the proper level of care for reimbursement purposes and payment for EPSDT screening. Petitioner testified concerning her records and the care provided to the recipients, as a means to address record keeping, assignment of levels of care and payment. She placed emphasis on the fact that in some instances a greater effort was made to attend the recipients due to their age and inability to cooperate in their care. As described in the Medicaid Physicians' Provider Handbook, the levels of care ". . . require varying skills, effort, responsibility and medical knowledge to complete the examination, evaluation, diagnosis, treatment, and conference with the recipient about his illness or promotion of optimal health". In deciding the facts, the physician's insights have been relied upon in determining the extent to which Petitioner exercised these criteria. However, the ultimate determination concerning the proper assignment of level of care has been made by the fact finder, as a means to resolve the factual dispute between the parties and offer recommendations concerning the appropriate legal outcome in this case. Contested Claims Recipient No. 1 (K.H.): K.H. was born August 1, 1981. Petitioner provided services to K.H. on August 28, 1990. The services were billed at an extended level. Respondent asserts that the services should be compensated at an intermediate level. Petitioner's medical records reflect that recipient's height, weight, and temperature, together with blood pressure were observed. The presenting complaint was a stomachache and fever. The temperature was 103 degrees Fahrenheit. According to the medical records, the recipient's ears, throat, neck glands, chest, and cardiovascular system were examined, and a complete blood count was done, with a SMA6 test to check kidney function. A mono spot was done. The recipient was checked for strep. The throat was inflamed. The strep culture revealed a positive result. Consequently, Petitioner prescribed an antibiotic to treat the condition. The child was observed to be somewhat obese. As would be expected, Petitioner explained the child's condition to the parent and the procedures to be followed in dealing with the problems. A urine culture was conducted to rule out possible urinary tract infection, which might be responsible for abdominal pain. The proper billing for this visit was an intermediate level of service. Petitioner rendered services to Recipient No. 1 on October 23, 1991. Her height and weight were recorded. Her blood pressure was taken. The visit was for a checkup based upon trouble which the child was having in school related to her behavior. The clinical examination results in the medical records reflect negative results. However, the records reflect that the child was obese and difficult to evaluate in her abdomen. The medical note refers to difficulty in feeling the liver and spleen and identifying any possible masses. A SMA24 was ordered as a means to address the behavioral problem. A thyroid profile was ordered to exclude the possibility of hyperthyroid condition, which can make the child hyper. The child's urine was checked to see if a urinary tract infection had cleared up from a prior occasion. The SMA24 was a complete examination of the liver function to check lipids and cholesterol, among other things. This test was principally designed to check the child's liver. The clinical examination and tests that were ordered were designed to address possible physical causes for the child's behavior. The medical record reflects that dietary instructions were also given. This was a counseling session with the parent to explain what would be advantageous in the diet and what would not be. At the same time, discussion was given concerning the advantage of exercise in dealing with the obesity. As was customary, the parent or guardian was made aware of the purposes of the tests that were ordered. For these services, the visit was billed as a comprehensive level. Respondent asserts that the level should have been a limited visit. The proper billing for this visit is a limited level of service. Recipient No. 2 (T.S.): This recipient was born on July 7, 1977. On January 17, 1990, Petitioner rendered services to the recipient. Petitioner mistakenly filed a claim for reimbursement for venipuncture, based upon confusion concerning the appropriate code number to be assigned. In fact, a throat culture had been performed, not a blood test. Eventually, this problem was rectified. On January 17, 1990, Petitioner billed under a code related to venipuncture, which was a $2.00 charge. In fact, venipuncture was not performed on the recipient. In addition, the charge for a quick strep test performed on the recipient was miscoded. Instead of a quick strep test, it was coded for a bacterial culture. The bacterial culture code only paid $8.00. The quick strep test code, had it been utilized in requesting reimbursement, paid $11.00. Having used the wrong codes, Petitioner was paid $2.00, to which she was not entitled, for venipuncture. Petitioner was paid $8.00 for the quick strep test, less than the normal $11.00. On the same date, the child was seen by Petitioner complaining of right neck pain, spreading to his right ear. His blood pressure was taken. The reading was 140/85. By history, the recipient was known to have high blood pressure. The child's ears, nose, throat, glands, chest, and heart were checked. A throat culture was performed based upon inflammation which was observed in his throat. He had enlarged lymph nodes in his neck on one side. A strep culture was performed. Antibiotics were prescribed pending the results of the strep test. The blood pressure was considered elevated. Petitioner billed this visit as an intermediate level. Respondent asserts that the level of service is a limited visit. The proper billing for this visit is a limited level of service. Recipient No. 3 (P.J.): The recipient was born on March 15, 1981. Petitioner rendered services to P.J. on April 13, 1991. When the child was seen, she presented a complaint that bumps were on her tongue for a week. This was the first time that the recipient had been seen by Petitioner. Her weight, height, and blood pressure were taken and recorded. The recipient was given a thorough clinical examination. The clinical examination had no findings other than a small one-eighth-inch lesion on the tip of the recipient's tongue. At that time, it was assumed that the child may have bitten her tongue. The child was not believed to have infection, but her gums, tongue, and throat were examined. As part of the physical examination, the chest, heart, and cardiovascular system were also examined. The child's abdomen and genitalia were examined. Petitioner billed the visit as a comprehensive visit based upon the fact that this was the initial visit for the recipient, not based upon the observations concerning the lesion on the tongue, which were not found to be a significant medical problem. Patient history to include a list of illnesses, immunizations, and allergies for the recipient is set forth in a history and immunization record kept by Petitioner. Respondent asserts that the level of service performed on April 13, 1991 was a limited level. The proper billing for this visit was a limited level. Recipient No. 4 (V.K.): V.K. was born on September 25, 1983. Petitioner rendered services to V.K. on March 8, 1990. The child's weight and height were taken. She presented with a low-grade fever and a headache. Her bodily systems were examined. In the examination, Petitioner noted that her tonsils were covered with exudate. Otherwise, her condition was normal based upon a physical examination. A strep screen was performed, which revealed negative results. Petitioner prescribed an antibiotic based upon the appearance of the recipient's tonsils. Petitioner considered recipient's presenting complaints to be vague. The problem with fever could have been based upon problems anywhere in the system. The child did not have a cold and the headache necessitated a good examination. The only findings by Petitioner related to the inflamed tonsils. As was customary, the recipient's condition was discussed with the parent. The services were billed as a comprehensive visit. Respondent asserts that the services should have been billed as a limited visit. The proper billing for this visit was a limited level of service. V.K. was seen on February 6, 1991. Her height and weight were taken. It was noted in the patient records that the presenting complaint was a cold with a lot of coughing. The recipient was also due to have surgery on February 20, 1991. Upon examination, the recipient had inflamed tonsils and nasal congestion. No other significant physical findings were observed. Petitioner prescribed medication for the congestion and an antibiotic for the child's throat condition. The February 6, 1991 visit was billed as an extended service. Respondent asserts that the visit should be billed as a limited service. The proper billing for this visit is a limited level of service. V.K. was seen again on April 13, 1991. As noted in the medical records, the child presented with a cold, low-grade fever, and severe coughing all of the time. A physical examination was made of all systems, and the recipient was found to have an inflamed throat. Otherwise, the physical examination revealed no significant findings. Petitioner prescribed an antibiotic for six days and a cough decongestant to attend the symptoms. Petitioner billed this service as an intermediate visit. Respondent asserts that the proper billing is a limited service. The proper billing for this service is a limited level of service. Recipient No. 5 (L.D.): L.D. was born on May 25, 1983. Petitioner saw the recipient for the first time on September 8, 1990. The recipient's height, weight, and blood pressure were recorded. The child had been sent home from school with inflammation in his eyes. The child's mother also reported that the child was hyperactive. A clinical examination was performed. No significant findings were made concerning the child's eyes. They were not observed to be inflamed. While attending the child, Petitioner did not observe any signs of hyperactivity. Nonetheless, an appointment was made for the child to be seen at the behavior clinic at Nemour's Hospital in Jacksonville, Florida. To perform the examination and observe the child's activities would take approximately 30 minutes. Petitioner billed the visit as a comprehensive service. Respondent asserts that the visit should be billed as an intermediate service. The proper billing for the visit is an intermediate level of service. Recipient No. 7 (T.R.): T.R. was born on September 9, 1984. On March 24, 1990, petitioner rendered services to T.R. The services were billed as an EPSDT screen. In particular, the child was brought to Petitioner to perform a school physical. The child's weight and height and blood pressure were taken and recorded. The child was examined physically and found to be normal. It was also noted that the child was a "healthy boy". On this visit a student health examination form was filled out but not maintained. A copy of that form was retrieved noting the date of examination and information about the physical examination, to include the results of an eye examination. The results of that eye examination are also shown in the Petitioner's medical records for T.R. No information is recorded in the health history portion to the student health examination form. The form notes that T.R. was a "healthy boy". Petitioner contends that the student health examination form, which was executed for T.R., sufficiently responds to the need to address all mandatory screens. The student health examination form is insufficient to meet the requirements for mandatory screens. Information was found in the records maintained by Petitioner related to circumstances at birth, family history, birth and development, feeding history, immunization and skin testing. Growth charts were also in evidence. Rather than completely deny Petitioner reimbursement, Respondent converted the visit to a limited service visit. Sufficient services were provided to justify payment as a limited service visit. On October 18, 1990, Petitioner provided medical services to T.R. At that time, the child's weight and height were taken. As reflected in the records, the child presented with an earache for the past two nights and a fever. A physical examination was performed on the child on this date. The ears were not found to be inflamed. The ears did have wax in them. The throat was inflamed. The child had a postnasal drip causing pressure in the ears, leading to an earache. The child was treated with antibiotics. Petitioner billed for the visit as an extended service. Respondent asserts that the billing should be as a limited level of service. The proper billing for this visit is a limited service. Petitioner saw T.R. on October 22, 1991. At that time, the child's weight and height were taken. He was being seen for a checkup. He was also having a problem holding his urine and had wet his bed the night before. A physical examination was made, with normal findings. The child was subject to a routine urinalysis to rule out bladder or kidney infection. There might be other explanations for the bed-wetting, to include nervousness. Upon examination, there were no obvious explanations for the problem. Petitioner billed for this visit as an extended level of service. Respondent asserts that the level of service was a limited visit. The proper billing for this visit was a limited level of service. Recipient No. 9 (A.N.): A.N. was born on April 27, 1987. Petitioner saw the recipient on February 23, 1990. A.N. was measured and weighed. The presenting complaint was congestion and a cough for a week. A physical examination was performed. His throat showed a little irritation but no inflammation. The nostrils appeared congested. No other significant findings were made concerning the child's condition. Petitioner prescribed medications for the cough and congestion. The child was also given vitamins. As in all cases discussed, the parent was informed of the findings and future treatment. Petitioner billed the visit as a comprehensive service. Respondent asserts that the service was a limited service. The proper billing for this visit was a limited level of service. On November 12, 1990, the child was provided medical services by Petitioner. The child was weighed and his height recorded. The presenting complaint was vomiting and diarrhea for six to seven days. A physical examination was performed. Some tinea infection was found on the skin. Medications were prescribed and the parent instructed concerning those medications as a means to address the vomiting and diarrhea. In addition, a prescription was given for a fungus infection on the face. The parent was instructed concerning the contagious nature of the fungus and its consequences. Petitioner billed this visit as an extended level. Respondent asserts that the service is an intermediate level. The proper billing for this visit is an intermediate level of service. On May 24, 1991, the child was seen by Petitioner for a school physical. The child was also seen for complaints that he had problems with bed- wetting and that his legs hurt. A school physical examination was performed. The child appeared to be healthy. Because the child complained of his legs hurting, Petitioner sent the child for laboratory work to rule out problems with anemia and to also examine his kidney function. A urine culture was also ordered for the child to rule out urinary tract infection. Petitioner filled out the student health examination form but did not maintain it for her records and has not retrieved it for hearing purposes. No other notations were made concerning the examinations for the school physical. Growth charts were maintained. Petitioner billed for an EPSDT screening. Petitioner did not bill for treatments associated with the physical complaints by the child. Respondent asserts that the billing should be for a limited service. For reasons described in discussing the screening for Recipient Number 7, as well as the unavailability of the student health examination form for audit purposes, the billing for an EPSDT screening should not be allowed. In this connection results from vision screening were not available. For reasons that Respondent had allowed a claim for a limited service in substitution for the EPSDT screening reimbursement; and based upon the services provided in addressing the physical complaints, the proper billing is for a limited service. Recipient No. 10 (K.L.): K.L. was born on November 13, 1986. Petitioner provided medical services to K.L. on March 18, 1991. The child was weighed and the height was recorded. In the visit it was indicated the child had been sent home last week from school with a fever. A physical examination was performed. The child was not especially cooperative and was difficult to examine. Significant findings in the examination were inflammation in the ears and throat. Petitioner prescribed antibiotics for the throat condition. Petitioner billed the visit as a comprehensive service. Respondents asserts that the service is an intermediate level. The proper billing is an intermediate level of service. Recipient No. 11 (R.H.): R.H. was born September 21, 1989. Petitioner saw R.H. on January 19, 1990. At that time, the child was weighed, her height and head circumference were also noted. The checkup that was being performed on R.H. was in the series envisioned by the EPSDT screening program. The physical examination conducted on the child indicated that this was a "healthy baby". The information that was recorded concerning the child's height and weight and head circumference was for purpose of charting her growth compared to the expected growth. A document was found with the child's records which related to information concerning her birth date, family history, early birth and development, and feeding history. Growth charts were maintained. The child was seen again on March 19, 1990 for a checkup and shots associated with the EPSDT program. The weight, height and head circumference were recorded. It was noted that the child was not sitting up yet. The physical examination was normal, notwithstanding the observation that the child was not yet sitting. Petitioner billed the January 19, 1990 and March 13, 1990 visits through the EPSDT screening program. Respondent asserts that the billings should not be allowed. The billings were deficient in that necessary information was not provided for the health and developmental history, vision screening, hearing screening, developmental assessments and nutritional assessment. For the January 19, 1990 and March 13, 1990 Respondent asserts that the proper reimbursement is as a limited level of service visit. That position is accepted. Petitioner provided medical services to R. H. on June 6, 1990. At that time there was a complaint concerning the child having diarrhea lasting a week. The diarrhea cleared up and then reoccurred on the date the visit was made. The child was also congested. The physical examination revealed an offensive odor and loose stool in the child's diaper. The chest revealed bilateral rales, meaning there was mucus present. The child had thoracobronchi. Her throat was inflamed. The mother was instructed to take a stool specimen to the laboratory. Medication was prescribed for diarrhea and instructions given concerning its use. The child was provided a bronchodialator. The child was given a cough congestion medication. There was a suspicion the child had bowel infection as well as upper respiratory infection. The visit was billed as an extended service. Respondent asserts that the proper classification is an intermediate service. The proper classification is an intermediate level of service. Recipient No. 12 (F.W.): F.W. was born on February 26, 1990. She was seen by Petitioner on April 17, 1990. At that time the child's weight, height and head circumference were noted. It was noted that the child was receiving a soy formula. The child seemed to have elephant ears. A mild diaper rash was observed, otherwise, the child's physical examination revealed normal results. It was noted that the child was born at University Hospital in Jacksonville and was overdue at birth; however, the child was "ok" at birth. The elephant ears would need treatment at a later date. Medication was prescribed for the diaper rash. The parent was told about the problems with the child's ears and the treatment for diaper rash. Petitioner billed this visit as a comprehensive service. Respondent asserts that the appropriate level of service was limited. The proper billing for the visit was a limited level of service. On May 11, 1990 the child was seen for an EPSDT checkup. The child's weight, height and head circumference were recorded. At that time the child was two months old. A physical examination was performed. It only revealed two lesions on the lower left abdomen which looked like infected bumps or possible scabies. An antibiotic cream was prescribed for this condition and its use was explained to the parent. A document in the records maintained by the Petitioner entitled, Patient History Chart, contains information about the child's date of birth, birth history, family history, nutritional history and illness history. The document describes developmental history at age 16 weeks. A growth chart was also maintained. On June 29, 1990, Petitioner saw the child again and weight, height and head circumference were noted. This was a routine check under the EPSDT program. It was noted that the child was doing well and that there was "no more spitting up". The physical examination revealed "an alert happy baby". There was some reference to the need to repeat a CBC study for blood count. The reason for repeating laboratory tests was based upon laboratory results received by Petitioner for laboratory work done on June 19, 1990. The parent was instructed to bring the child back for follow-up on July 30, 1990. That appointment was not kept. On August 20, 1990, the child was seen for a checkup and to fill out information for referral to the WIC program to qualify for participation in that program. There is a form which is utilized to apply for participation in the WIC program. It concerns an assessment of nutritional risk factors as a means to gain participation in the WIC program. Petitioner indicates that the form was filled out, but it was not maintained by Petitioner in her records. Thus it was not available for examination as part of the audit process involved in this case. On this date the physical examination revealed raised lateral lesions on the upper arm, abdomen and chest. These were reported to be mosquito bites. As noted the parent was advised to keep "an eye" on the condition for a week. It was noted that the physical examination did not reveal any other findings. Petitioner submitted bills under the EPSDT program for the visits on May 11, 1990, June 29, 1990 and August 20, 1990. Inadequate documentation was maintained to qualify for reimbursement for those charges for screens other than the physical examination. It is appropriate for Respondent to have paid for those visits as a limited level of service. On November 21, 1990, Petitioner provided medical services to F.W. The weight of the child was noted. The child presented as having a cold for 2 days. A physical examination was conducted. The throat was found to be inflamed, the nostrils evidence nasal congestion. A yeast diaper rash was found. Antibiotics were prescribed for her throat together with decongestion drops. This visit was billed as an intermediate level visit. Respondent asserted that the proper billing is as a limited level of service. The proper billing is as a limited service. The child was seen again on February 16, 1991. She came for the visit because she had a cold for 2 - 3 days. She was throwing up the formula which she was receiving. Upon physical examination the child was found to have "pus" on her throat surface. A strep screen was conducted and the results were positive. Antibiotics were prescribed together with a decongestant for cough and congestion. Petitioner billed this as an intermediate level service. Respondent asserts that the level of service is a limited level of service. The proper billing is as a limited level of service. On July 24, 1991, a further EPSDT visit was made, together with an examination for WIC qualification. The WIC referral form was not maintained for review. Upon the physical examination, the weight and height were recorded. The physical examination performed showed a mild diaper rash. Otherwise the child was found to be in acceptable health. The child was sent for a hemoglobin hematocrit for the purposes of the WIC qualification. The Petitioner billed this as a EPSDT screening. Petitioner is not entitled to reimbursement for that screening in that the records maintained were insufficient to document the assessment process other than the physical examination. It was appropriate for Respondent to reimburse this visit as a limited level of service. Recipient No. 13 (S.S.): S.S. was born on July 2, 1991. On July 5, 1991 Petitioner provided medical services to the child. The child's weight, length and head circumference were taken. The visit was the first checkup performed by Petitioner. The baby had been delivered at term through a normal delivery. The infant was found to have mild to moderate jaundice. Otherwise the physical examination did not reveal any significant findings. The cord clamp was removed. A test was ordered to determine the level of jaundice in the blood. The results of that test were recorded and discussed with the mother. It was noted that the mother was breast feeding the infant and using formula as well. This visit was billed as a comprehensive service. Respondent asserts that the service was an extended service. The proper billing for the visit was an extended level of service. On July 16, 1991 the baby was brought in for a checkup. The checkup was in accordance with the EPSDT screening program. The child's weight, length and head circumference were taken. A physical examination was made. At that time the child was on formula. It was noted that the weight gain for the child was good. Medication was prescribed for thrush. Thrush is a fungus growth inside the mouth of babies. Within the records maintained by Petitioner is a history and immunization document which reflects the date of birth and limited family history. Information related to the child's condition at birth is noted. In addition, there are growth charts. Given the child's age relating to birth, information contained in the records satisfies the requirement to document information gained in the screens that were conducted on July 16, 1991. Therefore, the EPSDT reimbursement claim should be allowed. Respondent has authorized payment for this visit as a limited service. That is an inappropriate payment for the visit. On August 2, 1991, a further visit was made. This visit was billed as an EPSDT screen. Petitioner believes that the visit was related to problems with the infant not tolerating her formula. This is born out by an office note which describes a change in the formula. That note also reflects the child's weight. The physical examination revealed normal circumstances with good weight gain. Petitioner conceded that the process engaged in addressing the child's needs on this visit might not have been done in the manner in which the July 16, 1991 examination was performed as to comprehensiveness. The August 2, 1991 visit which was billed as an EPSDT screen should not be paid for under that billing code. The emphasis placed in the care rendered by Petitioner does not correspond to the EPSDT screening process. The decision by Respondent to pay for this visit as a limited service is acceptable. On September 3, 1991 the child was brought in for a checkup and shots. The weight, height and head circumference were recorded. The physical examination was noted as normal and the child was described as "a healthy baby". This visit was billed under the EPSDT screening program. There is insufficient documentation to justify reimbursement as an EPSDT screening concerning all screens other than the physical examination. The decision by the Respondent to pay for this visit as a limited service visit is acceptable. On November 4, 1991, the child was seen for a checkup and shots. This visit was billed as an EPSDT screen. At the visit, the weight, height and head circumference were noted. The physical examination was noted as normal. As noted the child was cutting her lower incisors. It was noted that the baby was big for her age. There is insufficient documentation to justify reimbursing Petitioner under the EPSDT program for the visit on November 4, 1991. The decision by Respondent to pay for the visit as a limited service is acceptable. On December 11, 1991 the infant was seen again because she was experiencing a cough and runny nose. She was weighed and a physical exam was performed. It was noted that nostrils were irritated and the throat was irritated. It was noted that the child was drooling and teething. A decongestant was prescribed, together with nose drops and ear drops. This visit was billed as an intermediate service. Respondents asserts that the visit should be billed as a limited service. The proper billing for this visit is as a limited level of service. Recipient No. 14 (B.L.): B.L. was born on August 25, 1987. Petitioner provided medical services to the child on June 18, 1990. At the visit, the child's weight and height were taken. The presenting complaint was fever for 3 or 4 days and sand sores. The physical examination revealed that the child's tonsils were inflamed. Impetigo lesions were also found on the child's legs which corresponded to the description "sand sores". The child was provided an antibiotic by mouth and an antibiotic for the skin lesions. She was also provided vitamin drops. The oral antibiotic was given for inflamed tonsils. The infection on the skin and in the throat was possibly caused by the same process of infection. Explanation was provided to the parent concerning treatment of the impetigo. This visit was billed as an extended service. Respondent asserts that these visits should be reimbursed as an intermediate service. The proper billing for this service is as an intermediate level of service. The child was seen again on August 13, 1990. Her weight and height were recorded. On this visit the mother was worried about the child possibly being deaf. In addition, there was concern about the child being hyperactive based upon the child's discharge from day care for reason that the daycare staff could not control her. The physical examination revealed normal results. However the child was observed to be very hyperactive. The child was referred for a hearing examination and a short course of Ritalin was prescribed to address the hyperactivity. This visit was billed as an extended service. Respondent asserts that the visit should be billed as an intermediate service. The proper billing is as an intermediate level of service. On December 6, 1991, the child was seen again. Her weight and height were recorded. The presenting complaint was a fever since yesterday and a bad cough. Upon physical examination the throat and tonsils were found to be inflamed. A strep screen was performed and the results were negative. Antibiotics were prescribed for the inflammation of the throat and tonsils. A decongestant cough medicine was prescribed. Medication was prescribed for the fever. Petitioner billed this visit as an intermediate service. Respondent asserts that it should be reimbursed as a limited service. The proper billing is as a limited level of service. Recipient No. 15 (D.T.): D.T. was born on November 27, 1990. On December 1, 1990, Petitioner provided services to D.T. This was the first visit for the infant. The weight, height and head circumference were taken. As reported, things went well at birth. The mother was breast feeding the child. Upon physical examination the child was found to be mildly jaundiced Inquiry was made concerning the blood group for the mother and infant. The results did not to prove to be significant. The clamp was removed from the cord. Information was maintained concerning the family history, birth and development and feeding history. This information was recorded on a sheet which related the date of birth that had been mentioned and had space provided for information concerning immunizations. This visit was billed as a comprehensive service. Respondent asserts that it should have been billed as an intermediate service. The proper billing is as an intermediate level of service. On December 11, 1990, the infant was seen again for a checkup. This visit was billed through the EPSDT screening program. The weight, height and head circumference were recorded. It was noted that the mother was still breast feeding the child. It was noted that the child had good weight gain. It was noted that the infant was a "healthy baby". Vitamins were given to the mother in view of her breast feeding. Given the child's age in proximity to birth the documentation provided justifies reimbursement as an EPSDT screening. The decision by the Respondent to reimburse as a limited service was unacceptable. On February 11, 1991, the infant was seen again for a checkup. The basis for the checkup was related to the EPSDT screening program. The weight, height and head circumference were recorded. The mother was still breast feeding the infant. The physical examination revealed that the eyes were matting. Otherwise, the examination revealed no significant findings. Eye drops were prescribed for the problem with the eyes. A growth chart was maintained. The visit was billed as a EPSDT service. That billing is not justified in the documentation was not maintained related to developmental assessment, vision screening, and hearing screening. The decision by Respondent to pay for the services as a limited service is acceptable. Recipient No. 16 (J.M.): J.M. was born on February 13, 1990. On May 26, 1990, Petitioner provided medical services to J.M. At that time the weight, height and head circumference were recorded. The child was experiencing bleeding from his circumcision. The child also had a cold. The circumcision was checked by Petitioner. It appeared well healed with no bleeding. Petitioner prescribed antibiotic cream for the condition. The left eye was found to be crusty upon physical examination. Neosporin was administered for the eye. Nasal congestion drops were provided. This visit was billed as a comprehensive service. Respondent asserts that the service was an intermediate service. The proper billing for this for the visit is an intermediate level of service. Recipient No. 17 (T.V.): T.V. was born on June 23, 1979. Petitioner provided medical services to T.V. on December 18, 1990. This was a visit following hospitalization for acute asthma. It was reported that the child was still having an occasional cough. A physical examination was performed. The mother was instructed concerning the need to continue Ventalin tablets as a bronchial dilator for asthma. Medication was prescribed for the cough. This visit was billed as an extended service. Respondent asserts that the visit was a limited service. The proper billing is as a limited level of service. On October 14, 1991 the child was seen for a school physical. This was billed as an EPSDT screening. At the time the child was seen the blood pressure was recorded. A student health form was filled out, but not maintained in Petitioner's records. At this visit it was reported that the child was having an acute asthma attack for the last 2 or 3 days with symptoms being worse at night. Following the physical examination, Petitioner determined to prescribe Ventalin and cough medicine to address the asthma. Petitioner billed this service as an EPSDT screen. Inadequate documentation was maintained to justify reimbursement as an EPSDT screen other than the physical examination. Respondent's decision to reimburse the visit as a limited level of service is acceptable. Recipient No. 18 (B.K.): B.K. was born on March 23, 1989. On November 22, 1991, Petitioner provided medical services to B.K. The presenting complaints were a cold and ear ache, off and on for a period of 2 months. The child was weighed and measured. The physical examination revealed that the throat was inflamed and the nasal mucus membrane was inflamed. A prescription was given to addresses the child's condition. The visit was billed as a comprehensive service. Respondent asserts that the visit was an intermediate service. The proper billing is as an intermediate level of service. Recipient No. 19 (T.S.): T.S. was born on July 16, 1989. On January 19, 1990, the child was seen for a checkup. This visit was treated as an EPSDT screening. The infant was still on formula. The physical examination revealed no significant findings. The child was described as "healthy baby". It was noted that the child was not sitting up yet. The records contain a document with information related to the date of birth, family history, birth and development information when the child was born and feeding history. Petitioner's records also contain growth charts. The bill for EPSDT screening should not be paid based upon the failure to maintain the records justifying the request, other than the physical examination. The Respondent's choice to reimburse the visit as a limited service is acceptable. On April 23, 1990 the child was seen for a further checkup. This visit was billed under the EPSDT screening. The growth charts that have been described revealed that the child was "under the curve". The chart had been plotted more frequently because the baby had been born premature. On this visit the child was weighed, his height and head circumference were noted. The formula he was receiving was noted. The physical examination was normal. It was noted that the child was a "healthy baby". It was noted that the child would take weight on his feet and was playful. The request to reimburse for this visit as an EPSDT screening is not appropriate in that inadequate records were maintained to justify that billing for the mandated screens, other than the physical examination. The decision by Respondent to pay for this visit as a limited service is acceptable. On May 7, 1990 the child was seen. The presenting complaint was a cold, and his nose would bleed when wiped. During the physical examination the nostrils were checked and found to be irritated but no bleeding was noted. The child's throat was inflamed. Antibiotics was prescribed for the inflamed throat and a decongestant was prescribed for cough. This visit was billed as an intermediate service. Respondent asserts that it was a limited service. The proper billing is a limited level of service. On June 25, 1990, the child was seen for a checkup. The visit was billed as an EPSDT screen. When the child was seen the height, weight and head circumference were recorded. The physical examination revealed normal findings with the exception that it was noted that the child had "not gained adequate weight". A blood test was made. A TB test was administered. These tests were noted in the office notes. The TB test was also noted in the immunization record. The billing as an EPSDT screen is unacceptable based upon inadequate documentation maintained to justify the billing, other than the physical examination. Respondent's decision to reimburse Petitioner for a limited service is acceptable. On October 15, 1990, the child was seen for a checkup. The weight, height and head circumference were recorded. The physical examination showed that the left ear was inflamed. Otherwise no findings were made. The child was described as a "healthy baby". An antibiotic was prescribed for the ear infection as noted. The visit was billed as a EPSDT screen. Inadequate documentation was maintained to justify the billing as an EPSDT screens, other than the physical examination. Respondent's decision to reimburse the visit as a limited service is acceptable. On January 15, 1991, the child was seen for a checkup and shots. The weight, height and head circumference were recorded. Upon physical examination, the left ear was noted to be inflamed, "mild to moderate". Otherwise the examination was normal. This visit was billed as an EPSDT screen. Inadequate records were maintained to justify reimbursement for the mandated EPSDT screens, other than the physical examination. Respondent's decision to reimburse the visit as a limited service is acceptable. Recipient No. 21 (M.C.): M.C. was born on January 17, 1985. On February 2, 1990, Petitioner provided medical services to M.C. The child was weighed and measured. The child was seen because she had been coughing a lot off and on. When the physical examination was made her ears were found inflamed. She had rales in her right chest with poor air expansion of the lung. The left chest showed bronchial breathing which indicated that there was not full expansion when breathing. The child was sent for an x-ray to rule out the presence of pneumonia. The child was prescribed an antibiotic and cough medication and a ventalin elixir to assist in breathing and to open the airways. The antibiotic was for the problem with the ear. Petitioner explained the child's condition to the mother. This visit was billed as a comprehensive service. Respondent asserts that the service was an intermediate service. The proper billing is as an intermediate level of service. On February 6, 1990, the child was seen again as a follow-up. The ears were improved. The throat had improved. The chest still showed bronchial breathing and bilateral wheezing. Therefore, the condition had not completely cleared up. Consequently, the antibiotic was changed. This visit was billed as an extended service. Respondent asserts that it was an intermediate service. The proper billing was as an intermediate level of service. The child had been seen in the emergency room on March 11, 1990 for problems with strep throat. On March 16, 1990 Petitioner provided medical services to the child as a follow-up to the condition observed in the emergency room. At the office visit the mother reported that she had difficulty giving the antibiotic to the child orally. Petitioner observed that the throat appeared improved, but some blisters still were present. Because the child would not take the oral medication Petitioner gave the child an inter-muscular injection of penicillin. This visit was billed as an intermediate level service. Respondent asserts that the service is a limited service. That proper billing for the service is as a limited level of service. The child was seen on July 13, 1990. At that time her height and weight were taken. Her presenting complaint was a cough. The child's throat appeared inflamed. Otherwise the physical findings were unremarkable. The child was given an antibiotic to treat the throat condition as well as a decongestant for the cough. This visit was billed as an intermediate service. Respondent asserts that the service was a limited service. The proper billing was as a limited level of service. The child was seen on November 12, 1990. Her height and weight were recorded. The basis for the visit was a reported cough. The physical examination revealed mild inflammation in her throat. Otherwise the findings were unremarkable. The child was given a decongestant and cough medicine. Petitioner billed this visit as an intermediate service. Respondent asserts that it was a limited service. The proper billing is as a limited level of service. Recipient No. 25 (L.N.): L.N. was born on November 19, 1985. On October 15, 1991, Petitioner provided medical services to the child. The weight, height and blood pressure were recorded. The child presented with a complaint of a sore throat for 2 - 3 days with a fever. When the physical examination was made the throat was found to be inflamed, the tonsils were inflamed and enlarged. The nostrils were congested. A strep screen was performed and found to be negative. Because the throat was quite inflamed and lymph nodes were swollen, indicating severe infection unrelated to strep, a prescription for penicillin was prescribed. This visit was billed as an extended service. Respondent asserts that the service was a limited service. The proper billing was as a limited level of service. The child was seen on December 9, 1991, the presenting complaint was a fever the day before. There was no report of sore throat or cough. Upon the physical examination the tonsils were found to be inflamed, the lymph nodes were markedly enlarged. A strep screen was performed. On this occasion it proved positive. The patient was prescribed an antibiotic. Petitioner billed this visit as an extended service. Respondent asserts that the visit was a limited service. The proper billing was as a limited level service. On December 23, 1991, the child was seen by Petitioner. At this time a complaint was a fever of 24 hours duration with a cough. The tonsils were inflamed. Petitioner prescribed an antibiotic and cough medicine. Petitioner billed for the visit as an intermediate service. Respondent asserts that it was a limited service. The proper billing was as a limited level of service. Recipient No. 26 (Baby Boy T): Baby Boy T was born July 31, 1991. On December 23, 1991 the child was seen for a check up and shots. This visit was an EPSDT screen. The weight, height and head circumference were recorded. A physical examination was conducted. This child had been born premature, at thirty-five weeks gestation. A document concerning the birth, family history and feeding history was maintained. It spoke of the child's condition within the first week. The child had weighed 5 pounds 11 ounces when born. Separate from the document recording birth information, family history, early birth and development, and early feeding history, Petitioner recorded that on December 23, 1991 that the examination was normal with the exception that the child had gained weight, but still not sufficient weight since birth. Another abnormality was a hernia. The child was referred for surgery to address the hernia. A growth chart was maintained in the Petitioner's records. Petitioner billed this visit as an EPSDT screen. Petitioner did not maintain sufficient records to justify payment for the mandated screens, other than the physical examination. Respondent's decision to pay for this visit as a limited service is acceptable. Recipient No. 29 (M.M.): M.M. was born on September 17, 1986. On December 2, 1991, Petitioner provided medical services to M.M. On that date the child's temperature, weight and height were recorded. The presenting complaint was a fever, an earache. A physical examination revealed wax in the ears. The throat and tonsils were inflamed. A strep screen was performed and found to be negative. The child was prescribed an antibiotic for the inflammation and a medication for possible fever. Petitioner billed for this visit as a comprehensive service. Respondent asserts that it is an intermediate service. The proper billing as an intermediate level of service. Recipient No. 30 (R.C.): R.C. was born on March 26, 1970. On August 8, 1990, Petitioner provided medical services to R.C. The reason for seeing R.C. was to perform a college physical. The recipient was blind. She was weighed, her height recorded and blood pressure taken. The physical examination was normal, except for her blindness. During the visit R.C. reported that she had been having headaches behind her eyes. MMR immunization was given to assist in meeting college entry requirements. R.C. was sent to a laboratory for CBC and Differential SMA-25. Petitioner billed this visit as a comprehensive service. Respondent asserts that it was an intermediate service. The proper billing was as an intermediate level of service.
Recommendation Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered confirming the alleged overpayments described, subject to the adjustments. DONE and ENTERED this 26th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1996.
The Issue Whether Winter Haven Hospital should be authorized for a Level II, neonatal intensive care service with 11 beds via the final inventory of NICU beds for District VI, to be published by the Department of Health and Rehabilitative Services. Whether Lakeland Regional Medical Center should be authorized for more than 14 Level II beds in the same final inventory. Whether University Community Hospital established its right to challenge the number of Level II NICU beds to be authorized for either hospital.
Findings Of Fact Description of the Parties Winter Haven is a 579-bed general hospital in Winter Haven, Florida. Since 1987, it has been authorized to operate 475 acute care, 80 short term psychiatric and 24 comprehensive medical rehabilitation beds. Lakeland is an 897-bed general hospital in Lakeland, Florida. Its licensed bed complement includes the following: 805 acute care, 54 psychiatric short term and 38 substance abuse short term beds. University is a 404-bed acute care hospital in Tampa, Florida. University is seeking a certificate of need for a 10-bed Level II NICU at its facility. In order to obtain the license, University proposes to convert 10 of its existing medical-surgical beds to a 10-bed NICU. HRS is the state agency charged with the duty of regulating tertiary services, including neonatal intensive care. The provision of Level II NICU services in HRS District VI is the subject of this proceeding. All three hospitals are located in the district. University's Standing to Intervene University does not have a program to provide neonatal intensive care services at the present time. However, as part of the hospital's long-range planning goals, it intends to develop a Women's Center, which will include a 10- bed Level II NICU. University applied for the Level II NICU service in the batching cycle of 1990, prior to the effective date of the NICU rule. At the close of evidence on April 15, 1991, the outcome of the application was still pending. Additionally, University filed a Letter of Intent and an application for a 10- bed Level II NICU in the first batching cycle of 1991. That application was also still pending during the evidentiary portion of these proceedings. University's attempt to secure a certificate of need for NICU beds are directly impacted by the number of NICU beds reacknowledged and validated in the District VI inventory of "grandfathered" NICU beds. The number of beds ultimately established by the inventory will directly affect the fixed need pool to be applied to all subsequent certificate of need batching cycles. The NICU Rule The NICU Rule promulgated by HRS went into effect on August 6, 1990. The preliminary inventory of authorized Level II and Level III providers in District VI was published August 24, 1990. According to this inventory, Lakeland was authorized to have 11 Level II NICU beds and Winter Haven was not allocated any Level II beds on the initial preliminary inventory. Winter Haven's Inclusion in a Revised Preliminary Inventory Published September 12, 1990 When the preliminary inventory of Level II NICU beds was published, Winter Haven advised HRS that it had been excluded. Documentation was transmitted to the agency to support Winter Haven's contention that it has continuously developed and now has a operating Level II neonatal intensive care unit based upon past authorization from the agency. The documentation supplied by Winter Haven included past authorizations from the agency, which were relied upon by the hospital before expenditures were made on construction of the NICU and the unit created, and before a personal service contract was entered into for a hospital-based neonatologist in April 1988. Reliance on the agency's approval of the expansion project began on July 9, 1985, and was continuously relied upon throughout the development and establishment of these services at Winter Haven. When the documentation was reviewed by HRS, the decision was made to amend the preliminary inventory to include 11 NICU beds at this hospital. The revised preliminary inventory that included these beds was published on September 12, 1990. HRS decided 11 was the appropriate number of Level II beds to place on the inventory for Winter Haven as the approved construction plans show an isolation room of four beds and a continuing care room with seven beds. The beds in these rooms were described on the plan as "neonatal intensive care centers" and "intensive care bassinets." During the approval period, the square footage for each bed satisfied the draft rules that proposed fifty square feet per each Level II NICU bed. The decision to include Winter Haven on the revised preliminary inventory does not comport with the grandfathering provisions of the NICU Rule. Winter Haven does not meet the threshold requirements specified in sub- subparagraphs 14.a, 14.b or 14.f of the rule deems necessary for grandfathering to occur. During the years in which the NICU Rule was created, HRS did not consider the possibility that some hospitals might have progressed in the development stage of Level II NICU beds to such a level that the promulgated rule would contradict prior agency approvals reasonably relied upon by these hospitals. Before Winter Haven's beds were placed on the revised preliminary inventory, HRS permitted Alachua General Hospital's Level II NICU beds to be placed on the inventory based upon a CON exemption letter and construction plans approved prior to October 1, 1987. There have been no challenges to this decision, therefore, Alachua General can continue these services without a certificate of need as a grandfathered facility. Like Winter Haven, Alachua General did not comport with the grandfathering provisions of the NICU Rule. The decision to place Level II beds on the inventory was based on the approval of construction plans obtained through the licensure process at HRS in effect prior to October 1, 1987. HRS created the construction plans exception to the rule to acknowledge pre-existing bed authorizations not covered by the NICU Rule. Lakeland's Increase to 16 Level II Beds in the Revised Preliminary Inventory Published October 12, 1990 Lakeland was issued a CON exemption by HRS for 16 "Level II neonatal intensive care beds" in a letter dated March 12, 1985. This letter allowed Lakeland to re-designate 16 medical/surgical beds as Level II neonatal intensive care beds. On May 20, 1986, HRS approved Lakeland's construction plans for a 14- bed, Level II NICU. Lakeland did not rely on its opportunity to re-designate all 16 beds as Level II NICU beds when it established its NICU pursuant to the CON exemption. Lakeland was providing Level II NICU services prior to October 1, 1987, and continuously since then under the direction of a neonatologist or group of neonatologists, who were providing 24-hour coverage and who were either board-certified or board-eligible in neonatal-perinatal medicine as the various terms are defined in the NICU Rule. In its 1989 Neonatal Intensive Care Survey response to HRS, Lakeland erroneously underreported its Level II patient days from October 1, 1987 through September 20, 1988. The number reported was different than the 4,412 Level II neonatal intensive care services patient days reported separately to the Hospital Cost Containment Board for the same period, based upon audited data. A third review of the data revealed Lakeland provided, 4,414 Level II patient days in 1987-1988 reporting period for the 1989 survey. Pursuant to the formula set forth in sub-subparagraph 14.c of the NICU Rule, Lakeland should be authorized for 15 Level II beds on the final inventory which lists the established NICU beds that meet the grandfathering provisions of the rule. The inclusion of 16 Level II NICU beds on the revised preliminary inventory published October 12, 1990, went beyond the bed numbers allowed by rule.
Recommendation Based upon the foregoing, it is recommended: A Final Order be entered which excludes Winter Haven from the inventory which lists authorized neonatal intensive care services based on the provisions of sub-subparagraphs 14.a. through 14.g. of the NICU Rule. A Final Order be entered reducing Lakeland's inventory to 15 Level II NICU beds. RECOMMENDED this 6th day of August, 1991, in Tallahassee, Florida. VERONICA E. DONNELLY 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 August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-7682 and 90-7683 Lakeland Regional Medical Center's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See HO #8, #11, #17 and #22. Accepted. Accepted. Accepted. First two sentences accepted. The rest of the paragraph is rejected. Argumentative. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #13. Rejected. Contrary to law. See Conclusions of Law. Accept the first two sentences. Reject the next sentence. Speculative. The next two sentences accepted. The last sentence is rejected. Contrary to fact. See HO #12. Rejected. Irrelevant. Accept first three sentences. See HO #10. Reject fourth sentence. Incompetent legal conclusion. 21. Rejected. Irrelevant. 22. Rejected. Speculative. 23. Accepted. 24. Accepted. 25. Accepted. 26. Accepted. 27. Accepted. 28. Rejected. Cumulative. 29. Rejected. Irrelevant. 30. Rejected. Irrelevant. 31. Rejected. Irrelevant. 32. Accepted. 33. Rejected. Cumulative. 34. Accepted. See HO #11 and #12. 35. Accepted. See HO #12. 36. Rejected. Contrary to fact. 37. Rejected. Irrelevant. 38. Rejected. Improper summary of testimony. Irrelevant. 39. Accepted. 40. Rejected. Contrary to fact. 41. Rejected. Irrelevant. 42. Accept all but last sentence which is a distinction without substance. See HO #12, #15 and #16. 43. Accepted. See Conclusions of Law. 44. Accepted. 45A. Accepted. 45B. Accepted. 45C. Accepted. 45D. Accepted. 45E. Accepted. 45F. Rejected. Irrelevant. 46A. Accepted. 46B. Rejected. Irrelevant. 47. Rejected. Not evidence. Rejected. Irrelevant to resolution of material fact dispute. Accepted. See HO #17 and #19. Accepted. See HO #22. Accepted. See HO #21. Department of Health and Rehabilitative Services' proposed findings of fact are addressed as follows: Accepted. See HO #12 and Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See HO #8. Accepted. See HO #12 and #22. Accepted. See HO #17. Accepted. See HO #10. Accepted. Accept all but last sentence. See HO #16. The last sentence is improper Conclusion of Law. Winter Haven Hospital's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #10. Accepted. See HO #8. Accepted. Accepted. See Preliminary Statement. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See Preliminary Statement. Accepted. Accepted. Accepted. See HO #14. Accepted. Accepted. Accepted. See HO #15. Rejected. Improper Conclusion of Law. Accepted. Accepted. Accepted. Accepted. Rejected under current definition. Accepted to the extent the room provided many aspects of Level II care. Accepted. Accepted. Rejected. Contrary to fact. Accepted. Accepted. See HO #10. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #10. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #12. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Improper Conclusion of Law. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #10. Accepted. Accepted. See HO #15 and #16. Accepted. Accepted. Accepted. Accepted. See HO #11 and #12. Rejected. Improper Conclusion of Law. Rejected. Improper Conclusion of Law. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #18. Accepted. See HO #21. Rejected. Improper Conclusion of Law. Rejected. Improper Conclusion of Law. See HO #23 - #26. Accepted. Rejected. Contrary to fact. See HO #7. Accepted. Rejected. Incorrect legal conclusion. Accepted. Rejected. Insufficient foundation provided for the opinion to assist Hearing Officer as to weight and sufficiency. Accepted. Accepted. University Community Hospital's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. Accepted. Accepted. See HO #8. Accepted. See HO #12 and #22. Accepted. See Preliminary Statement. Accepted. See HO #4. Accepted. Accepted. Accepted. Accepted. See HO #5. Accepted. See HO #6 and #7. Accepted. Accepted. See HO #7. Accepted. See HO #7. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. This opinion was rejected by the Hearing Officer as an improper legal conclusion. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11 and #12. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Rejected. Contrary to fact. See HO #12. Rejected. See HO #12. Rejected. Contrary to fact. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #22. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #21. Accepted. COPIES FURNISHED: John H. Parker, Jr., Esquire PARKER HUDSON RAINES & DOBBS 1200 Carnegie Building 133 Carnegie Way Atlanta, Georgia 30303 John M. Knight, Esquire PARKER HUDSON RAINES & DOBBS 118 North Gadsden Street Tallahassee, Florida 32301 Richard A. Patterson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive - Suite 103 Tallahassee, Florida 32308 Patricia A. Renovitch, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Cynthia S. Tunnicliff, Esquire CARLTON FIELDS WARD EMMANUEL SMITH & CUTLER, P.A. 215 South Monroe Street - Suite 410 Tallahassee, Florida 32301 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this case is whether Respondent should be issued a standard or a conditional license for the period beginning August 5, 1998.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the oversight, licensing, and regulation of skilled nursing facilities (SNF) in this state. Emerald Oaks, is a SNF located at 1507 South Tuttle Avenue in Sarasota, Florida. As a result of matters discovered during a survey of the facility on August 5, 1998, the Agency changed the Emerald Oaks' license rating from standard to conditional. The conditional license was to expire on October 31, 1998. James Marrione was one of the surveyors who conducted the survey which resulted in the change in rating. The survey began on August 1, 1998. His examination of the records of various residents of the facility resulted in the discovery of several Class II deficiencies. One of the requirements placed upon a SNF is to develop policies to prevent the mistreatment of residents. Federal law mandates the establishment of a minimum data set of records (MDS) for each resident of an SNF. The MDS is to contain at least an assessment of the resident and a plan of care. When Mr. Marrione checked the MDS for Resident 4 on August 1, he found a current assessment had not been done. Resident Four: In addition to checking the MDS, Mr. Marrione also visited this resident and found the resident suffered bi-lateral contractions of the hands. This condition is usually caused by a neglectful failure to attend to the paralysis caused by a misuse or non-use of the hands. This is not a routine condition. On the day of Mr. Marrione's visit, he found the resident lying flat in bed in the same position from 2:00 to 4:00 p.m. Marrione checked on the resident every half hour during that period to see if the resident had been moved every two hours as the care plan called for, and to see if any of the resident's personal needs had been met. The resident was incapable of holding a cup from which to drink, and needed help. At first, Mr. Marrione did not check on the pad under the resident, but the resident said she was incontinent. As a result, at 4:15 p.m. on that day, Mr. Marrione asked for assistance and looked at the resident's buttocks. He found the resident's skin to be excoriated and the pad soaked with urine. Mr. Marrione also noted that the care plan called for the resident to be wearing booties to prevent damage to the skin of the heels, but none were present. Ms. Mitchell headed the unit where Resident 4 was housed, and she is sure that the resident regularly wore booties in bed and never developed pressure sores on her heels. She was evaluated at bath time and regularly in between, and if any skin deterioration was noted, the physician would be called. In addition, the resident was discussed regularly at team meetings. Notwithstanding these procedures in place, no evidence was presented to contradict Mr. Marrione's eye-witness recollection that when he saw the resident she did not have booties on, and that the resident developed a pressure sore after admission because of a lack of proper care. Resident Six: Mr. Marrione also visited with Resident 6 on August 4, 1998. When he entered the resident's room he smelled a strong odor of feces. He came back to this room every half hour, and each time, smelled the same odor. He determined that the resident had not been moved periodically as required. When he looked at the resident's bottom, he found it red and excoriated as well. Mr. Marrione again visited Resident 6 at 7:45 p.m. On this occasion he again noticed the odor of feces and when he checked the resident's buttocks, he found them still to be red and excoriated. He also noticed a stage 2 pressure sore on the buttocks right below the cheek, which had not been there on the previous visit. Mr. Marrione's review of the MDS relating to this resident dated April 29, 1998, showed that at that time the resident had no pressure sores. However, it was mentioned that the resident was incontinent of bowel and bladder. This is important because moisture from urine and feces contributes to skin breakdown, and the orders in the resident's file called for the resident to be kept dry and taken to the toilet frequently. A significant change to the resident's MDS on June 29, 1998 showed a stage 2 pressure sore had been identified, and on July 1, 1998, a physician ordered an antibiotic for the resident and that a cream be applied to the area to keep out moisture. Marrione's review of the records for this resident showed no skin assessments having been done thereafter except for one on July 27, 1998. In the interim, however, the care plan for Resident 6 dated July 7, 1998 revealed the existence of a condition leading to a pressure sore and directed action to prevent it. However, the resident's record shows that on July 27, 1998, stage 1 and stage 2 pressure sores were found. The records also contained doctor's orders to keep the resident's heels elevated, but when Mr. Marrione checked, he found the resident's heels were on the bed surface. Observations made on each of the survey days showed the resident had a stage 2 pressure sore on the buttocks, but there was no indication that this incontinent resident had been taken to the toilet frequently as the doctor had ordered. A pressure sore is a break in the skin and is classified as to severity from stages 1 through 4. The higher the number, the more severe the condition. A stage 2 pressure sore is only a break in the skin, However, it can lead to infection, can cause loss of protein, and is uncomfortable to the patient. If untreated, and if it progresses to stage 4, it can be very serious. To prevent pressure sores, it is necessary to keep the patient clean and dry and to turn the resident every two hours. Not all pressure sores are avoidable, however. Regardless of how good the care given is, some pressure sores will develop on some patients. In that regard, Resident 6 was an extremely sick resident with physical conditions which contributed to the development of pressure sores. Mr. Marrione admits this resident was very difficult to manage. He was quarrelsome, non-compliant, uncooperative, and argumentative, and these factors contributed to the development of his pressure sores. The resident's physician, Dr. Harris, indicated in a handwritten note dated August 12, 1998, that the staff's attention to the resident's hygiene had been "quite adequate" in maintaining the resident's quality of life and health. Ms. Mitchell, the facility's former unit manager, knew Resident 6 from another nursing home. She recalls that he had numerous health problems and his general skin integrity was very fragile. She remembers him as being very uncooperative. He would refuse meals and refuse to take nutritional supplements. He was offered any food he wanted, but he still resisted eating, even though a nutritional assessment indicated dietary problems. The resident also had numerous circulatory problems and was incontinent of bowel and bladder. Nonetheless, he refused urinals and resisted going to the bathroom, voiding in his bed instead. As a result, he was identified as a risk for pressure sores, and was referred for evaluation to the trans-disciplinary team (TDT) which recommended repositioning, creaming of the skin, hydration, washing and cleaning the body, and, because he could turn himself in bed to some degree, the use of bed-side rails to allow him to turn himself more easily. All of the recommendations of the TDT were regularly offered to Resident 6, but due to his lack of compliance, often they could not be implemented. The resident refused to use the call button available to him, and when a pillow was placed under his feet to keep them off the bed, he would pull it out. Notwithstanding the resident's total lack of cooperation, staff remained available to help in any way possible and no service was denied him. He was placed on regular incontinent care status which called for him to be taken to void himself no less than every two hours, and if he was seen to be soiled before then, he was cleaned. He did not have to wait until the next toilet run. In addition, the staff got the resident's son involved in an effort to encourage him to cooperate, but nothing they did worked. Ms. Mitchell is confident that the care given Resident 6 in general was excellent, not only at the time of the survey, but at all times. In her considered opinion, given his medical condition, his pressure sores were unavoidable. In light of the evidence presented regarding Resident 6, it cannot be found that the facility's staff acted in an inappropriate manner, and the resident's condition is deemed to be the result of his physical condition and lack of cooperation, and not as a result of any failure on the part of the facility or its staff. Resident Fifteen: Marrione's review of the records relating to Resident 15 revealed physician orders dated October 23, 1997, which called for the resident to wear booties. When Marrione looked at this resident on August 5, 1998, he discovered that the resident was not wearing booties as ordered. He does not know if the resident was provided with booties on other days of the survey. The booties referenced are padded and are worn by the resident to prevent skin breakdown. Ms. Weyant recalls, as to Resident 15, that she regularly and routinely had and wore in bed the booties called for by the physician's orders in the file, with some exceptions. In Weyant's opinion, the occasional failure to ensure booties were worn by the resident had no adverse effect of the resident's skin condition. This resident was regularly observed and her skin evaluated on a daily basis. Ms. Weyant cannot recall seeing any pressure sores on the resident's heels at any time. Resident Sixteen: Review of the records of Resident 16 showed that on July 6, 1998, when admitted to the facility, the resident showed no indication of pressure sores. The resident was identified as incontinent of bladder and at risk for skin breakdown. The care plan called for action to assist the resident and included mobility and toileting. Nurses' notes for July 28, 1998 showed two pressure sores had developed. Pressure sores are a constant threat to bedridden patients. However, there are preventive measures which can be taken to reduce the risk that a patient will develop them. These include following prescribed protocols set out in the MDS and assessments; turning and repositioning the patient on a frequent and regular basis; keeping the patient clean and dry; ensuring the patient gets proper nutrition; and cushioning the likely areas of abrasion. As to the turning and repositioning, as a general rule, two hours between turnings is appropriate. Resident Two: Ms. O'Connell, the Agency's other nurse surveyor on this survey, reviewed Resident 2, a patient initially admitted to the facility with a fracture of the femur and lung disease. These conditions resulted in restricted movement. Her review of the MDS disclosed that the resident had a stage 1 (healed) pressure sore and a stage 2 (pink) pressure sore upon admission which had developed into a stage 3 pressure sore on May 28, 1998, fifteen days later. This resident wore a brace on her leg which restricted her mobility and increased the need of the staff to help her with her mobility. When the pressure sores were discovered, an interdisciplinary care plan was formulated to deal with them. This plan included repositioning the resident every two hours. The resident was observed by the surveyors at least once each shift on each of the three days of the survey. The surveyors reported that each time she was looked at, at least nine times, the resident was seen to be lying on her back. This indicated to Ms. O'Connell that the resident was not being turned properly. Ms. O'Connell cannot be sure if she, or any of the other surveyors, actually saw the pressure sores on this resident. According to Ms. Weyant, the registered nurse unit supervisor of the unit in issue here, Resident 2, whose primary diagnoses on admission were a fractured femur and lung disease, also suffered from congestive heart failure and other complications. When, several weeks after her admission, staff noticed the stage 2 and stage 3 pressure sores which had not been there upon admission, they continued to monitor the condition. In June, the resident's physician said the leg brace could come off while the resident was in bed, and in July 1998 she was allowed to have it off even when out of bed. By that time, the pressure sores had improved to stage 2 and by the end of July they were at stage 1 and were considered healed soon thereafter. However, Ms. O'Connell also noted that when she saw the resident on August 5, 1998, the resident was sitting, exposed, on the bed pan, with no covers concealing her except on her feet. The resident subsequently left the facility to return to the adult living facility where she had lived before coming to Emerald Oaks. In the opinion of Ms. Weyant, a unit manager at the facility, Resident 2 had poor circulation which is a contributing factor to the formation of pressure sores. So was the pain she experienced from her fracture which reduced her mobility. The resident also was not a co-operative patient, Ms. Weyant recalls. She would refuse to change position or to get out of bed even though the staff explained to her that it would be in her best interests to do so. The resident was competent and, therefore, could refuse treatment. Though Ms. Weyant claims a notation to this effect is in the resident's records, no direct evidence of this was presented by either side. Regardless, even when a resident is uncooperative, according to Ms. Weyant, the staff continues to try interventions such as repositioning. Though she is sure this was done in this case, she cannot be sure it was documented. Nonetheless, as the resident's leg healed, she became more mobile and her pressure sore healed more rapidly. As her leg healed, she was in less pain and became more cooperative. This resulted in faster healing. Ms. Weyant cannot conceive of what more could have been done to prevent pressure sores from developing on this resident than was done. Under the circumstances of that case, she considers it to have been almost unavoidable. However, without adequate documentation in the medical records, in light of the survey observations, it cannot be found that the resident was properly moved or repositioned as required. As a result of this survey, the deficiencies identified were classified as Class II deficiencies which, under Florida law, automatically results in the issuance of a conditional certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health care Administration enter a final order confirming the issuance of a conditional license to Emerald Oaks, effective August 5, 1998. DONE AND ENTERED this 23rd day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1999. COPIES FURNISHED: Jay Adams, Esquire Broad and Cassel 215 South Monroe Street Suite 400 Post office Drawer 11300 Tallahassee, Florida 32302 Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3 Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the application of Wuesthoff Memorial Hospital, Inc. d/b/a Wuesthoff Memorial Hospital ("Wuesthoff"), for the conversion of ten acute care beds to ten Level II neonatal intensive care beds meets, on balance, the applicable statutory and rule criteria for approval.
Findings Of Fact Wuesthoff Memorial Hospital, Inc., d/b/a Wuesthoff Memorial Hospital ("Wuesthoff") is a 303 bed acute care hospital in Rockledge, Florida, in Brevard County, District 7. The Agency For Health Care Administration ("AHCA") is the state agency designated by statute to issue, revoke, or deny Certificates of Need ("CON") for health care beds and services. Wuesthoff is the applicant for a CON to convert ten acute care beds to a ten bed Level II neonatal intensive care unit ("NICU"), for total project costs of $1,239,330. By prehearing stipulation, the parties agreed to the following facts: the fixed need pool for Level II NICU beds for District 7 shows zero net numeric bed need; there are 41 licensed and 18 approved Level II NICU beds in District 7, 10 in Brevard County, 49 in Orange County, none in Osceola and Seminole Counties; the letter of intent and CON application were filed timely and properly deemed complete; Wuesthoff does not have any approved Level II NICU beds; the District 7 Health Plan, including the 1991 CON Allocation Factors, are applicable to the review of this application; and the 1989 State Health Plan is also applicable to the review of this application. With regard to the statutory criteria, the parties also agreed that: Wuesthoff's historic record of providing high quality care is not in dispute; Wuesthoff does not maintain that its NICU service will be intended as a research and education facility; the availability of resources, including management personnel and funds for capital and operating expenditures, for project accomplishment and operation, is not in dispute; the immediate and long term financial feasibility of the proposal as demonstrated in Wuesthoff's application are not in dispute, assuming Wuesthoff proves the accuracy of utilization assumptions; Wuesthoff does not provide a substantial portion of services or resources to individuals not residing within the district or in adjacent districts; Wuesthoff's past levels of service to Medicaid and medically indigent patients are not in dispute; the special needs and circumstances of health maintenance organizations are not applicable to this application; and the costs and methods of proposed construction are not in dispute. At issue in this case are the statutory review criteria in Subsections 408.035(1)(a), (b), (d), (e), (f), portions of (h) and (i), (j) and (l), Florida Statutes (1992 supp.). Subsections 408.035(2)(a), (b), (c) and (d) are also in dispute. NEED Subsection 408.035(1)(a) requires consideration of need in relation to state and local health plans. The 1989 State Health Plan and CON allocation factors in the 1991 District 7 Health Plan are applicable to the review of Wuesthoff's CON application. Wuesthoff is not located in Orange County and, therefore, does not meet the District 7 factor favoring Orange County providers who will serve Medicaid newborns. The second factor favors applicants proposing to provide at least 45 percent of all patient days to Medicaid patients and 6 percent to indigent patients. Wuesthoff projected that it would achieve 50.5 percent Medicaid patient days and 4.5 percent to uninsured patients. Despite these projections, Wuesthoff failed to make a commitment to have its CON conditioned on the provision of specified percentages Medicaid and indigent patient days. On this basis, AHCA concluded that Wuesthoff fails to meet the factor. Wuesthoff's position is accepted. Its projections justify favorable consideration under this factor, its historic Medicaid service supports its projections, and AHCA can condition the CON if appropriate. The third factor requires applicants to identify specific services, educational programs, and/or interventions which will provide for an unmet need. This factor is also related to Subsection 408.035(1)(b) - the availability and accessibility of existing and approved Level II NICU beds in the district; (2)(a) - the availability of less costly more efficient facilities; and (2)(c) and (d) - availability and efficiency of existing inpatients facilities, and problems in obtaining existing inpatient care in the absence of the proposed services. There is no dispute that there is zero numeric need for additional Level II NICU beds in District 7. Level II beds exist at Holmes Regional Medical Center ("Holmes") in Melbourne Brevard County, and in Orange County at Winter Park Memorial Hospital ("Winter Park"), Orlando Regional Medical Center ("ORMC") and Florida Hospital. Holmes, the only Level II NICU in Brevard County, is, however, not available because its 10 Level II NICU beds have had occupancy levels not less than 122 percent and up to 147 percent during the past three years. Holmes provided 36.8 percent of the NICU services in District 7, with ten of the 59 licensed or approved beds, or 17 percent of the District beds. There was also evidence that Holmes' physicians do not accept transfers of indigent or Medicaid obstetrics patients from the service area of Wuesthoff and from northern Brevard County. In 1992, district wide occupancy in Level II NICU beds was over 95 percent. All of the other providers, except Holmes, are located in Orange County. Winter Park's 1992 occupancy rate was only 34 percent in its 5 bed unit. Florida Hospital, with a 1992 rate of 87.8 percent in 14 beds, has been approved for 8 additional beds. ORMC, with a 1992 occupancy rate averaging 90.2 percent, has approval for an additional 10 beds. Available beds at Winter Park or Florida Hospital have not historically alleviated overcrowding at Holmes. At hearing, AHCA's expert health planner testified that Holmes reached 122 percent occupancy when Winter Park was at 30 percent and Florida Hospital was 58.2 percent. Wuesthoff has demonstrated that Winter Park, Florida Hospital, and ORMC are geographically and economically inaccessible to Medicaid and indigent patients in Wuesthoff's service area. Expert testimony linked indigency to a greater need for NICU care. Wuesthoff demonstrated that Medicaid and indigent obstetrics patients in its service area cannot and do not use the facilities in Orange County adequately and appropriately for prenatal care or delivery due to transportation and economic difficulties. Indigent patients with high risk pregnancies served by the Brevard County Public Health Unit are referred to ORMC. Experts estimated that fewer than 50 percent of those end up delivering at ORMC. For Medicaid patients who comply with referrals for prenatal care, Medicaid is charged $119 per patient per non-emergency, pre-scheduled trip to ORMC. For infants born in Brevard County in need of Level II care, emergency transportation to ORMC costs $700 by ambulance or over $2000 by helicopter. The number of Public Health medicaid or indigent obstetrics patients referred to ORMC from the Wuesthoff area was reasonably estimated to be 250 patients a year. With 50 percent of the babies needing Level II care, the estimate of 125 neonatal referrals is reasonable. The statutory criterion of need in relation to the State Health Plan also requires consideration of preferences for applicants (1) converting from acute care to NICU beds; (2) proposing to serve Children's Medical Services ("CMS"), Medicaid and charity patients; and (3) proposing to serve substance abusing pregnant and postpartum women. AHCA agreed that the Wuesthoff CON application meets all of the applicable State Health Plan preferences. Wuesthoff is proposing, as also required by AHCA rule, to convert acute care beds, currently utilized at 56.33 percent occupancy. In 1992, Medicaid obstetric patients days accounted for 50.5 percent of the total. A CMS clinic is located on the Wuesthoff campus and receives services from its staff pediatricians. See also, 59C-1.042(3)(j) and (k), F.A.C. Wuesthoff demonstrated the absence of any outpatient alternatives for Level II NICU beds, as required in Subsection 408.035(1)(d), Florida Statutes, (1992 supp.). Wuesthoff fails to comply with the criteria in Subsections 408.035(1)(e), (f), (g), (j) and (k), Florida Statutes, (1992 supp.). It does not plan to jointly operate a NICU with other providers, although it is under consideration as a satellite regional perinatal intensive care center ("RPICC"). The proposed services are available in adjoining areas, including Volusia County to the north, where Level II NICU occupancy was 85 percent in 1992. Wuesthoff does not intend to be a research or educational facility, nor will it serve substantial numbers of individuals residing outside its service district. Wuesthoff is not a health maintenance organization hospital. UTILIZATION AND OPERATIONS Pursuant to Subsections 408.035(1)(h), (i) and (l), and (2)(a), Wuesthoff must be able to staff and fund a Level II NICU that is financially feasible and does not impact negatively health services quality or costs. AHCA presented no evidence at hearing to contradict that presented by Wuesthoff to show that it has the staff and funds for its proposed project. Wuesthoff also has shown that it will profit from the conversion of underutilized acute care beds to Level II NICU beds. Rule 59C-1.042, Florida Administrative Code, includes the methodology for calculating numeric need, among other requirements for approval of Level II NICU programs. Numeric need, under the rule, is zero. In fact, the calculations show that 15 more Level II beds than needed have been approved in District 7. As required by the rule, average occupancy rates in District 7 exceeded 80 percent in the 12 months ending 6 months prior to the quarter in which numeric need was calculated. The rule also favors RPICC's. Wuesthoff is not a RPICC, although it is under consideration as a satellite of the ORMC RPICC. Wuesthoff is not an existing provider of Level II NICU services, and therefore, does not qualify for additional beds under the rule. As required by the NICU rule, Wuesthoff's application seeks the establishment of the minimum size Level II unit of ten beds. The applicant also has on staff a neonatologist, a head nurse with experience and training in neonatal intensive care, registered nurses, respiratory therapists, and social services personnel with the required training. Wuesthoff is capable of performing the blood gas analyses, clinical laboratory support services, and intervention screening. If approved, Wuesthoff would also be eligible to participate in a county grant-funded neonatal developmental disabilities program. Wuesthoff either has installed or has made appropriate plans to obtain the equipment and to make the renovations required by Subsections (9)(b) and (c) of the Rule. Wuesthoff is capable of meeting the data reporting requirements of Subsection 13 of the Rule. The two hour travel time for geographic access to Level II NICU services is met by the existing District 7 providers, and Wuesthoff's proposal is not needed to meet that standard. MINIMUM BIRTH VOLUME Rule 59C-1.042(6), provides in relevant part, as follows: Hospitals applying for Level II NICU services shall not normally be approved unless the hospital had a minimum service volume of 1,000 live births for the most recent 12- month period ending 6 months prior to the beginning date of the quarter of the publication of the fixed need pool. Wuesthoff does not meet the 1000 minimum number of births. In 1991, there were 963 live births at Wuesthoff. From 1988-1990, live birth at Wuesthoff exceeded 1000. In 1992, Wuesthoff had 998 live births. AHCA asserts that the quality of care that volume requirements assure will be adversely affected by the approval of Wuesthoff's application. Wuesthoff has presented competent, substantial evidence that this concern is not well founded, for the following reasons: A privately-owned Birthing Center located on Merritt Island in Brevard County, is staffed by a doctor who owns the facility and has hospital privileges only at Wuesthoff. At the Birthing Center, there were 124 deliveries in 1990, 156 in 1991, and 178 in 1992. The Birthing Center, Jess Parrish Memorial Hospital in Titusville, and Cape Canaveral Hospital, all are Brevard County obstetrics facilities without Level II NICU services. In fact, births at Cape Canaveral exceeded 1000 in 1992. The live births in these three Brevard County facilities, at Wuesthoff, and the overcrowding at the Level II NICU at Holmes, provide a reasonable basis to conclude that Wuesthoff can exceed the minimum birth volume necessary to meet the quality of care objectives of the rule. As required by Subsections (11) and (12) of the NICU rule, Wuesthoff has 24 hour emergency transportation in cooperation with Jess Parrish Memorial Hospital and Cape Canaveral Hospital. Wuesthoff has a transfer agreement with ORMC, which has all levels of NICU care. AHCA also questioned Wuesthoff's utilization assumption and projections. With combined live births at Brevard facilities without Level II NICUs exceeding 3,000 a year, with two of the facilities jointly operating an emergency transportation service with Wuesthoff, and the third staffed by a obstetrician with privileges only at Wuesthoff, Wuesthoff's assumptions that the majority of neonates born at these facilities needing Level II NICU care will be transferred to Wuesthoff are reasonable. As agreed in the prehearing stipulation, because utilization projections are found reasonable, Wuesthoff's proposal is financially feasible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued approving Certificate of Need 7081 to Wuesthoff Memorial Hospital to convert ten acute care beds to a ten bed Level II neonatal intensive care unit condi tioned upon Wuesthoff's providing not less than a combined total of 51 percent Medicaid and indigent patient days in the unit. DONE AND ENTERED this 10th day of November, 1993, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0963 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in Finding of Fact 1. Subordinate to Finding of Fact 33. Accepted in Finding of Fact 4. Accepted in Finding of Fact 4. Accepted in Findings of Fact 11, 12, and 13. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 15 and 17. Subordinate to Findings of Fact 12 and 13. Accepted in Finding of Facts 15 and 18. Accepted in Finding of Fact 15. Accepted in Finding of Fact 16. Subordinate to Finding of Fact 17. Accepted in Finding of Fact 17. Subordinate to Finding of Fact 16. Accepted in Finding of Fact 17. Accepted in Finding of Fact 15. Accepted in Finding of Fact 17. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Accepted in Finding of Fact 16. Accepted in Finding of Fact 12. Subordinate to Finding of Fact 16. Accepted in Finding of Fact 16. Accepted in Finding of Fact 15. Accepted in Finding of Fact 15. Accepted in Conclusions of Law 40. Accepted in Finding of Fact 15. Subordinate to Finding of Fact 16. Accepted in Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 15. Subordinate to Finding of Fact 16. Accepted in Finding of Fact 12. Subordinate to Finding of Fact 16. Accepted in Finding of Fact 21. Accepted in Finding of Fact 16 and 17. Accepted in Finding of Fact 16. Subordinate to Finding of Fact 12. Accepted in Finding of Fact 28. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 16 and 17. Subordinate to Findings of Fact 16 and 17. Accepted in Findings of Fact 21 and 26. Accepted in Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Subordinate to Findings of Fact 21 and 26. Accepted in Finding of Fact 17. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 17. Subordinate to Finding of Fact 18. Accepted in Finding of Fact 35. Subordinate to Findings of Fact 35. Subordinate to Finding of Fact 12 and 35. Accepted in Finding of Fact 19. Accepted in Finding of Fact 19. Accepted in Finding of Fact 9. Accepted in Finding of Fact 9. Accepted in Finding of Fact 78. Accepted in Conclusions of Law 39. Accepted in Finding of Fact 12-15. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12-13. Accepted in Finding of Fact 12. Accepted in relevant part in Finding of Fact 32. Accepted in relevant part in Finding of Fact 32. Accepted in relevant part in Finding of Fact 32. Accepted in relevant part in Finding of Fact 32. Accepted in relevant part in Finding of Fact 32. Accepted in Finding of Fact 20. Rejected Conclusion in Findings of Fact 21. Rejected Conclusion in Findings of Fact 21. Rejected Conclusion in Findings of Fact 21. Accepted in Finding of Fact 23. Accepted in Finding of Fact 23. Accepted in Finding of Fact 17. Accepted in Finding of Fact 33. Accepted in Finding of Fact 21. Accepted in Finding of Fact 21. Accepted in Finding of Fact 23. Accepted in Finding of Fact 5. Accepted in Finding of Fact 9. Accepted in Finding of Fact 9. Accepted in Finding of Fact 9. 105. Accepted in Findings of Fact 10-17. 106. Accepted in Finding of Fact 12. 107. Accepted in Finding of Fact 15. 108. Accepted in Finding of Fact 14. 109. Accepted in Finding of Fact 12. 110. Accepted in Finding of Fact 15. 111. Accepted in Findings of Fact 10-17. 112. Accepted in Findings of Fact 10-17. 113. Accepted in Finding of Fact 24. 114. Accepted in Finding of Fact 24. 115. Accepted in Finding of Fact 25. 116. Accepted in Conclusions of Law 42. 117. Accepted in Finding of Fact 19. 118. Accepted in Finding of Fact 19. 119. Accepted in Finding of Fact 28. 120. Accepted in Finding of Fact 28. 121. Accepted in Finding of Fact 33. 122. Accepted in Finding of Fact 31. 123. Accepted in Finding of Fact 28. 124. Accepted in Finding of Fact 29. 125. Accepted in Finding of Fact 34. 126. Accepted in Finding of Fact 34. 127. Accepted in Finding of Fact 30. 128. Accepted in general in Conclusions of Law 42. 129. Accepted in Finding of Fact 11. 130. Accepted in Findings of Fact 13 and 24. 131. Accepted in Finding of Fact 14. Respondent's Proposed Findings of Fact. Accepted in Findings of Fact 1 and 4. Accepted in Finding of Fact 3. Accepted in Finding of Fact 4. Accepted in Finding of Fact 4. Accepted in Finding of Fact 8. Rejected in Findings of Fact 9. Rejected in Findings of Fact 10. Accepted in Finding of Fact 19. Accepted in Finding of Fact 19. Accepted in Conclusions of Law 40. Rejected in Conclusions of Law 41. Accepted in Finding of Fact 4. Accepted in Finding of Fact 4. Accepted in Finding of Fact 24. Accepted in Finding of Fact 13. Accepted in Finding of Fact 25. Accepted in Finding of Fact 13. Accepted in Finding of Fact 4. Accepted in Findings of Fact 21 and 26. Subordinate to Finding of Fact 21. Subordinate to Finding of Fact 21. Subordinate to Finding of Fact 21. Subordinate to Finding of Fact 21. Subordinate to Finding of Fact 21. Subordinate to Finding of Fact 21. Accepted in Finding of Fact 31. Accepted in Findings of Fact 16 and 17. Subordinate to Finding of Fact 16. Accepted in Findings of Fact 15-17. Accepted in Finding of Fact 17. Accepted in Finding of Fact 17. Accepted in Finding of Fact 16. Subordinate to Finding of Fact 16. Subordinate to Finding of Fact 16. Rejected in Findings of Fact 12. Accepted in Finding of Fact 35. Accepted in Finding of Fact 12. Rejected first sentence in Finding of Fact 35. Accepted in Finding of Fact 35. Accepted in Finding of Fact 5. Accepted in Finding of Fact 28. Accepted in Finding of Fact 33. Accepted in Finding of Fact 33. Accepted in Finding of Fact 28. Accepted in Finding of Fact 34. Accepted in Finding of Fact 34. Accepted in Finding of Fact 35. Accepted in Finding of Fact 5. Accepted in Finding of Fact 20. Accepted in Finding of Fact 21. Accepted in Finding of Fact 21. Accepted in Finding of Fact 21. Accepted in Findings of Fact 5 and 22. Accepted in Findings of Fact 5 and 22. Accepted in Finding of Fact 21. Accepted in Finding of Fact 23. Accepted in Findings of Fact 5 and 36. Accepted in Finding of Fact 35. Subordinate to Finding of Fact 35. Accepted in Conclusions of Law 40. Subordinate to Finding of Fact 35. Rejected in Findings of Fact 35. Rejected in Findings of Fact 36. Accepted in Finding of Fact 21. Accepted in Finding of Fact 21. Rejected in Findings of Fact 35. Accepted in Finding of Fact 5. Accepted in Finding of Fact 5. Accepted in Finding of Fact 9. Rejected in Findings of Fact 10-17. Rejected first sentence in Findings of Fact 10-17. Rejected in Findings of Fact 10-17. COPIES FURNISHED: Kenneth F. Hoffman, Attorney Patricia A. Renovitch, Attorney OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, Florida 32302 Lesley Mendelson, Senior Attorney Agency For Health Care Administration The Atrium Building, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency For Health Care Administration The Atrium Building, Suite 301 325 John Knox Road Tallahassee, Florida 32303
